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Sunnyside Manor, Inc. v. Township of Wall

December 23, 2005


The opinion of the court was delivered by: Hughes, U.S.M.J.


This matter comes before the Court upon Application by Plaintiff, Sunnyside Manor, Inc. ("Plaintiff"), to compel Daniel Swayze, an expert retained by Defendant Township of Wall ("Defendant"), to testify at deposition regarding the conversations he had or overheard between Defendant Board (the "Board"), Defendant Board attorneys and other professionals regarding the scope of Plaintiff's application to the Board for use variances in an attempted settlement of ongoing litigation. Defendant submitted opposition to the Application, contending that Mr. Swayze was an agent of Defendant during the closed-session meetings in which the above proposals were discussed and therefore, his presence does not breach the attorney/client privilege. The Court considered the submissions of the parties and conducted oral argument via telephone on November 30, 2005. For the reasons stated below, Plaintiff's Motion to Compel Discovery is denied.


Since 1991, plaintiff Sunnyside Manor ("Plaintiff"), has operated a long term care program on less than one half acre (approximately seven percent) of a 6.37 acre land parcel (the "Site") it owns in the Township of Wall ("Defendant"). The Site is located in an area zoned for single-family dwellings. The Site is not zoned for a nursing home. However, located on the Site, is a manor style building, which houses and services approximately seventy elderly individuals with disabilities. Residential homes surround the Site.

In 1997, Plaintiff applied to Defendant Board of Adjustment (the "Board") for use variances so it could adjoin an assisted living home to its existing long term care program. On November 11, 2001, the Board rejected Plaintiff's requests, following twenty-four public hearings over a four-year period. In June 2002, Plaintiff filed a Complaint against Defendant and the Board alleging violations of the Fourteenth Amendment and several federal statutes. On October 16, 2003, the Court issued a Consent Order and subsequently closed the case. Pursuant to this Consent Order, Plaintiff applied for use variances with an amended plan. Daniel Swayze was retained by Defendant as an expert to review Plaintiff's various site plan proposals, to perform engineering reviews on the various site plan proposals, and to attend Board meetings and provide expert testimony at the Board hearings where Plaintiff's site plan proposals were considered.

On October 20, 2004, after fifteen additional public zoning hearings, some of which included Mr. Swayze testifying, the Board rejected these new variance requests. In response, and upon Plaintiff's request, the Court re-opened the case on November 15, 2004 . Subsequently, on May 9, 2005, Plaintiff filed an Amended Complaint seeking declaratory and injunctive relief and monetary damages. In the Amended Complaint Plaintiff alleges violations of the Fair Housing Act, the American Disability Act of 1990, and Substantive Due Process and Equal Protection under the Fourteenth Amendment.

Mr. Swayze was deposed and answered all question about his public testimony at various hearings but when asked about conversations with his client, the Board, at executive, non-public sessions, the attorney-client privilege was asserted. Plaintiff now seeks an order compelling Mr. Swayze to answer all questions.


The present dispute arises from the parties' conflicting views on whether Daniel Swayze's conversations with Defendant attorneys, the Board, and other professionals working for Defendant, concerning Plaintiff's use variance proposals are protected by attorney/client privilege, or if such privilege was waived. Plaintiff contends that Mr. Swayze was a third-party expert retained by Defendant, thus any privilege which existed between Defendant and its attorneys was waived by his presence at the meetings. Therefore, Plaintiff claims that it may question Mr. Swayze about the substance of such conversations. Defendant, however, claims that Mr. Swayze, while an expert, functioned as an agent of Defendant during the preliminary closed-door meetings between the Board, Defendant and Defendant's attorneys during which Plaintiff's proposals were discussed. This, claims Defendant, prevents Plaintiff from questioning Mr. Swayze about such conversations at deposition or during trial.

A. Attorney/Client Privilege

Communications between an attorney and client are protected by the attorney/client privilege. The purpose of this privilege is to promote frank discussions between a client and his/her attorney to allow the attorney to best represent the client. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed. 2d 39 (1976). The privilege is not unconditional. It can be waived if the privileged information is communicated to outside parties. U.S. v. Rockwell International, 897 F.2d 1255, 1265 (3d Cir. 1990). However, the presence of any third party does not automatically constitute a waiver of the privilege. For example, "[c]ommunciations between corporate counsel and company personnel are privileged so long as the information is relayed for the purpose of obtaining legal counsel." Andritz Sprout-Bauer, Inc., v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997)(citing Upjohn Co. v. United States, 449 U.S. 383, 394-95, 101 S.Ct. 677, 685, 66 L.Ed.2d 584 (1981)). Similarly, "[d]isclosure to agents retained by counsel to assist him or her in advising the client and handling legal matters does not operate as a waiver. The privilege attaches to agents and representatives of counsel whose services are necessary for effective representation of the client's interests." Id. at 632 (quoting X Corp. v. Doe, 805 F. Supp. 1298 (E.D. Va. 1992)).

The instant case presents two issues: 1) Whether Mr. Swayze's presence at the closed-door executive meetings with the Board, Defendant and Defendant's attorneys constitutes a waiver of the attorney/client privilege; and 2) Whether Mr. Swayze's designation as an expert for trial waives any prior privilege which protected his conversations at the above-mentioned closed-door sessions.

B. Mr. Swayze's Designation as an Agent/Interpreter

As noted, the presence of an agent of the attorney or client does not constitute a waiver of the attorney/client privilege. The party claiming a third party as an agent, bears the burden of showing that the person in question worked at the direction of the lawyer, and performed tasks relevant to the client's obtaining legal advice, while responsibility remained with the lawyer. Morever, when the third party is a professional, such as an accountant, capable of rendering advice independent of the lawyer's advice to the client, the claimant must show that the ...

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