Emerson Electric v. Ouellette, et a l . CV-96-364-B 05/12/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Emerson Electric C o .

v. Civil Action No. 96-364-B

Raymond R. Ouellette; Ouellette, Hallisey, Dibble & Tanguay, P.A.

MEMORANDUM AND ORDER

Emerson Electric Co., a manufacturer of electrical equip­

ment, retained attorney Raymond R. Ouellette of the law firm of

Ouellette, Hallisey, Dibble & Tanguay, P.A. (collectively the

"defendants") to represent Emerson in a product liability case.

After the jury in that case found Emerson liable, Emerson brought

this action asserting that Ouellette was negligent in preparing

Emerson's defense. In response, defendants sought discovery of

certain communications involving Emerson's in-house and post­

verdict counsel. Emerson declined to comply, arguing that the

communications are privileged. The magistrate judge, however,

granted defendants' motion to compel the desired discovery and

subsequently denied Emerson's motion for reconsideration. Emerson now asks that I set aside the magistrate judge's order,

asserting that he erred: (1) in interpreting certain New

Hampshire evidentiary principles to exclude the communications at

issue from the attorney-client privilege; and (2) in finding,

alternatively, that Emerson waived the privilege by failing to

serve defendants with a privilege log pursuant to Fed. R. Civ. P.

26 (b) (5) .

I. BACKGROUND

In the suit underlying the instant action, developer CMB

Construction Co. sued Emerson and another party, Weil-McLain,

Inc., for manufacturing defective heating systems. Emerson made

the igniters and Weil-McLain the overall heating systems for The

Links, a CMB Construction condominium development in Lincoln, New

Hampshire. In December 1988 and January 1989, the heating

systems in several condominiums failed. Pipes froze and burst

causing extensive damage to half the condominium units. Repairs

were not completed until May 1989, after the prime winter-selling

season had ended. Although CMB Construction sold all the damaged

units the next winter, it could not command the same sales price

for the units that it had during the winter of 1988-89 because of

changed market conditions. CMB Construction sought to recover its economic losses and repair costs in its suit against Emerson

and Weil-McLain.

Emerson's assistant general counsel, Michael Keating,

retained Ouellette and his firm to prepare what proved to be an

unsuccessful defense. The jury returned a verdict against both

Emerson and Weil-McLain, finding Emerson liable for repair costs

and $1.4 million in economic-loss damages. Emerson retained new

counsel, James Crawford, to work with Ouellette in arguing

Emerson's post-verdict motions. After the court entered final

judgment against Emerson, it unsuccessfully appealed the decision

represented by Crawford alone.

Emerson argues in the instant action that Ouellette failed

to adeguately address the issue of economic-loss damages at trial

and failed to preserve crucial issues for consideration on

appeal. In response, defendants have sought to discover

Emerson's post-verdict communications with Crawford and any post­

verdict communications between Keating and other Emerson

employees.1 Defendants assert that such discovery will help them

establish that Emerson failed to take reasonable steps to avoid

1 Defendants also sought to discover communications between Emerson and Weil-McLain and between Weil-McLain and Crawford. Emerson does not challenge the magistrate judge's rulings with respect to these communications.

- 3 - or limit its damages on appeal, and that its appellate counsel's

negligence was a superseding cause of Emerson's injuries.

Emerson has declined both to produce the reguested communi­

cations and to allow Keating and Crawford to testify about them,

asserting that communications between Keating or Crawford and any

Emerson employees taking place after June 7, 1994 (the date of

the jury verdict) are protected by the attorney-client privilege.

The magistrate judge disagreed, interpreting certain New

Hampshire evidentiary principles to exclude the communications

from the attorney-client privilege. Alternatively, the

magistrate judge found that Emerson waived the privilege by

failing to serve defendants with a privilege log, pursuant to

Fed. R. Civ. P. 26(b)(5), describing how each communication at

issue was privileged.

II. STANDARD OF REVIEW

Emerson asks me to set aside the magistrate judge's order

granting defendants' motion to compel discovery. A district

court's review of discovery-related decisions made by a

magistrate judge is governed by Fed. R. Civ. P. 72(a), which

provides: "'The district judge to whom the case is assigned shall

consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly

erroneous or contrary to law.'" Weeks v. Samsung Heavy Indus.

C o .,

, 943 (7th Cir. 1997) (guoting Fed. R. Civ. P.

72(a)); accord

(b) (1) (A) (West 1993); see also

Commodity Futures Trading Comm'n v. Standard Forex, Inc.,

(E.D.N.Y 1995) (stating that pre-trial matters

involving discovery, even of privileged materials, are subject to

clearly-erroneous or contrary-to-law standard).

Pursuant to this highly deferential standard, a magistrate

judge is afforded broad discretion in resolving discovery

disputes, and reversal is ordinarily appropriate only if that

discretion is abused. Commodity Futures Trading Comm'n,

; Ellison v. American Nat'l Red Cross,

(D.N.H. 1993). When the determination in dispute is purely

legal, however, the district court exercises plenary review. See

Cooter & Cell v. Hartmarx Corp.,

(1990)

(reviewing court may set aside findings based on "incorrect view

of relevant law"), superseded by rule on other grounds as stated

in Photocircuits Corp. v. Marathon Agents, Inc.,

(E.D.N.Y. 1995); Mace v. Van Ru Credit Corp.,

(7th Cir. 1997) (pure legal determinations reviewed de novo);

United States v. Adlman,

(2d Cir. 1995) (abuse of discretion found where court applied incorrect legal

standard in deciding whether to allow discovery of attorney "work

product"). Similarly, in considering mixed guestions of law and

fact, where the meaning of an applicable legal principle is in

dispute, "the reviewing court is not bound by the clearly

erroneous standard," but has a "duty to look carefully" at the

findings to "detect infection from legal error." LoVuolo v.

Gunning,

(1st Cir. 1991) . I review Emerson's

objection in light of these standards.

III. DISCUSSION

Emerson contends that the magistrate judge erred: (1) in

interpreting certain New Hampshire evidentiary principles to

exclude the communications at issue from the attorney-client

privilege; and (2) in finding, alternatively, that Emerson waived

the privilege by failing to serve defendants with a privilege log

pursuant to Fed. R. Civ. P. 26(b)(5). I examine each contention

in turn.

_____A. New Hampshire Evidentiary Exceptions to __________ Attornev-Client Privilege

Rule 501 of the Federal Rules of Evidence provides in civil

actions such as this, where state law supplies the rule of

decision, that guestions of privilege "shall be determined in accordance with State law." Accordingly, I apply New Hampshire's

law of attorney-client privilege to resolve the instant dispute.

New Hampshire has codified its law of attorney-client

privilege as Rule 502 of the New Hampshire Rules of Evidence.

See Reporter's Notes to N.H.R. Evid. 501 ("These Rules of

Evidence include all presently known New Hampshire common-law

evidentiary privileges."). Rule 502(b) sets forth the general

rule regarding the privilege, stating:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client and his or her representative and the client's lawyer or the lawyer's representative, (2) between the client's lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives ofthe client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

N.H.R. Evid. 502 (b) .

The privilege described by Rule 502(b), however, is not

absolute. See N.H.R. Evid. 502(d) & Reporter's Notes thereto;

see also McGranahan v. Dahar,

(1979) (attorney-

client privilege may not be absolute when "there is a compelling

need for the information and no alternative source is avail­

- 7 - able"); c f . Nelson v. Lewis,

(1987) (patient

partially waives physician-patient privilege by putting medical

condition at issue in medical-negligence suit). Two related

exceptions potentially are germane to the communications at issue

here. Rule 502(d)(3) creates an exception with respect to

communications "relevant to an issue of breach of duty by the

lawyer to his client or by the client to his lawyer." N.H.R.

Evid. 502(d)(3). In addition, the New Hampshire Supreme Court

has held that a client waives the privilege when he places his

communications with his attorney "at issue." See Aranson v.

Schroeder,

(1995) . I examine the

applicability of each exception to the contested communications.

(1) Rule 502(d)(3)

Defendants contend, and the magistrate judge held, that Rule

502(d)(3) excludes communications from the attorney-client

privilege where the assertion of the privilege results from an

affirmative act on the part of the privilege-holder, such as

filing a malpractice lawsuit, and where the application of the

privilege would deny the opposing party information relevant to

its case. I reject this argument, because it is based upon an

overly broad reading of the exception. Rule 502(d)(3) is modeled on a proposed but never adopted

federal rule of evidence. Rule 503(d) (3), and is "consistent

with" Disciplinary Rule 4-101(C) (4) of the Model Code of

Professional Responsibility ("CPR"). See Reporter's Notes to

N.H.R. Evid. 502(d)(3). There are "no New Hampshire cases

asserting this exception." See

Nevertheless, interpreta­

tions of similar provisions adopted by other states and

interpretations of CPR Disciplinary Rule 4-101(C)(4) provide

guidance as to how the New Hampshire Supreme Court would

interpret Rule 502(d)(3). These sources indicate that a New

Hampshire court would narrowly interpret the exception to apply

only to communications between the client and the attorney

charged with wrongdoing.

Section 958 of the California Evidence Code,

(West 1997), served as a principal model for proposed Fed.

R. Evid. 503(d)(3), the rule on which N.H.R. Evid. 502(d)(3) was

based. See Advisory Committee Notes to Supreme Court Standard

503(d)(3), reprinted in 3 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence § 503App.01(2), at 5 03App.-6 (Joseph

M. McLaughlin ed., 1997); 24 Charles A. Wright & Kenneth W.

Graham, Jr., Federal Practice and Procedure § 5471, at 53-54 &

n.42 (1986) (California evidentiary code provisions, including

- 9 - section 958, "were influential in the drafting of Rejected

[Federal] Rule 503"). The California rule reads similarly to the

New Hampshire rule at issue here, stating that "[t]here is no

privilege under this article as to a communication relevant to an

issue of breach[] by the lawyer . . . of a duty arising out of

the lawyer-client relationship."

. In

interpreting such language, the California courts have held that

"section 958 was not intended to abrogate the [attorney-client]

privilege as to communications between the client and the lawyer

representing the client when suit is filed against a former

lawyer for malpractice. The exception is limited to

communications between the client and the attorney charged with

malpractice." Schlumberger Ltd. v. Superior C t .,

(Cal. C t . A p p . 1981).

Proposed Fed. R. Evid. 503(d)(3) served in turn as a model

for numerous state provisions, including, for example, section

905.03(4)(c) of the Wisconsin evidentiary code,

(4)(c) (West 1997). See 24 Wright & Graham, supra, § 5471,

at 56-57 & n.48. The Wisconsin provision contains identical

language to the New Hampshire rule at issue here, stating that

"[t]here is no privilege . . . [a]s to a communication relevant

to an issue of breach of duty by the lawyer to the lawyer's

- 10 - client."

(4) (c) . Like the California

courts, the Wisconsin courts have construed such language

narrowly, holding that "a waiver of the lawyer-client privilege

by maintaining a legal malpractice action cannot be inferred from

the language of sec. 905.03(4) (c) . . . . [That section] excepts

from the privilege only communications between the client and the

lawyer who is accused of a breach of duty." Dyson v. Hempe,

(Wis. C t . App. 1987).

Finally, commentators interpreting CPR Disciplinary Rule 4-

101(C)(4), another rule on which N.H.R. Evid. 502(d)(3) was

based, see Reporter's Notes to N.H.R. Evid. 502(d)(3), have also

construed the scope of the eguivalent language narrowly.

Disciplinary Rule 4-101(C)(4) states that a lawyer may reveal

" [c]onfidences or secrets necessary to establish or collect his

fee or to defend himself . . . against an accusation of wrongful

conduct." Model Code of Professional Responsibility DR 4-

101(C)(4), reprinted in Charles W. Wolfram, Modern Legal Ethics

App. B, at 1049 (1986). The commentary to the rule construes

such language to mean that "[an] attorney may disclose

information received from the client when it becomes necessary

for his own protection, as if the client should bring an action

against the attorney for negligence or misconduct . . . . [T]he

- 11 - rule as to privileged communications does not apply when

litigation arises between attorney and client to the extent that

their communications are relevant to the issue." Model Code of

Professional Responsibility DR 4-101(C)(4) n.19 (emphases added),

reprinted in Wolfram, supra, App. B, at 1050.

Moreover, Section 116 of the Restatement (Third) of Law

Governing Lawyers, which was modeled on Disciplinary Rule 4-

101(C)(4), see Reporter's Note cmt. b to Restatement (Third) of

Law Governing Lawyers § 116 (Proposed Final Draft No. 1, 1996),

contains language similar to that rule and interprets such

language similarly. Section 116 states that "[a] lawyer may use

or disclose confidential client information when and to the

extent that the lawyer reasonably believes it necessary in order

to defend the lawyer . . . against a charge . . . [of having]

acted wrongfully in the course of representing [a] client." Id.

§ 116. The comments to section 116 construe such language to

mean that an attorney may "reveal information confidentially

acquired by him in the course of his agency in the protection of

a superior interest of himself." Id. § 116 cmt. b (emphasis

added).

Based on interpretations of similar provisions adopted by

other states and interpretations of CPR Disciplinary Rule 4-

- 12 - 101(C)(4), I conclude that a New Hampshire court would construe

the language of Rule 502(d)(3) narrowly to apply only to

communications between the client and the attorney the client has

charged with wrongdoing. Conseguently, because the communi­

cations at issue here did not occur between Emerson and the

defendants, defendants cannot take advantage of Rule 502(d)(3) in

seeking production of those communications.2

(2) At-Issue Waiver

Although the parties do not expressly address whether the

at-issue waiver rule applies to the communications at issue,

defendants' brief implies that the waiver should apply to

otherwise privileged communications where, as here, the party

asserting the privilege has initiated the lawsuit and the

communications are relevant to the opposing party's case. In

contrast, Emerson's brief impliedly advocates for a more limited

application of the exception wherein communications would lose

the protection of the privilege only where the privilege-holder

2 This reading of Rule 502(d)(3) is consistent with the New Hampshire Supreme Court's privilege-protective interpretation of the at-issue waiver rule. See Aranson,

. As I explain below, the court has determined that a litigant waives the attorney-client privilege by placing confidential communications "at issue" only to the extent that the client "injects the [sought-after] privileged material itself into the case."

.

- 13 - itself injects the privileged material into the case. Because

the New Hampshire Supreme Court has already adopted an inter­

pretation consistent with Emerson's view of the exception, see

Aranson,

, I must reject the interpretation

proffered by defendants.

In determining when the at-issue waiver applies, courts

employ one of three approaches. See Frontier Refining, Inc. v.

Gorman-Rupp Co.,

(10th Cir. 1998). The

"automatic-waiver" rule provides that a litigant automatically

waives the attorney-client privilege upon assertion of a claim,

counterclaim, or affirmative defense that raises an issue to

which otherwise privileged material is relevant. See Independent

Prods. Corp. v. Loew's Inc.,

(S.D.N.Y.

1958). A second approach provides that a litigant only waives

the privilege when the sought-after material is both relevant to

the issues raised in the case and either vital or necessary to

the opposing party's defense. See Hearn v. Rhav,

(E.D. Wash. 1975). Finally, "several courts have recently

concluded that a litigant waives the attorney-client privilege

if, and only if, the litigant directly puts the attorney's advice

at issue in the litigation." Frontier Refining, Inc.,

; see, e.g., Rhone-Poulenc Rorer, Inc. v. Home Indem.

- 14 - C o .,

, 863-64 (3d Cir. 1994) ("The advice of counsel

is placed in issue [only] where the client asserts a claim or

defense, and attempts to prove that claim or defense by

disclosing or describing an attorney client communication.").

In Aranson, the New Hampshire Supreme Court adopted the last

of these three approaches. See

. Specifi­

cally, the court limited the waiver to "circumstances in which

the privilege-holder injects the [sought-after] privileged

material itself into the case" such that "the information is

actually reguired for the resolution of [an] issue."

(internal guotations omitted).

Applying the Aranson test to the facts of the instant case,

I hold that the at-issue waiver exception does not apply to

communications between Emerson and either Keating or Crawford

that occurred after the jury verdict. First, defendants have

failed to show that Emerson has injected its post-verdict

communications with either Keating or Crawford into the

litigation as a means of establishing that Ouellette was

negligent. See Greater Newburvoort Clamshell Alliance v. Public

Serv. C o . of N .H .,

(1st Cir. 1988) (holding that

the party seeking privileged information bears the burden of

establishing that access to the information is reguired for the

- 15 - resolution of a claim). Although the communications defendants

seek to discover may well be relevant, " [ r ] e l e v a n c e is not the

standard for determining whether or not evidence should be

protected from disclosure as privileged . . . even if . . . the

facts to be disclosed are vital, highly probative, directly

relevant[,] or even go to the heart of an issue." Rhone-Poulenc

Rorer, Inc., 32 F.3d at 864. Accordingly, because Emerson has

disavowed any intention of relying on confidential post-verdict

communications between it and Crawford or Keating in proving its

case, it has not waived the privilege with respect to such

communications by bringing its claim against trial counsel.3

3 Defendants' reliance on Johnson v. Shaines & McEachern, P.A.. No. Civ. 93-238-L,

(D.N.H. Oct. 4, 1994), and Inserra v. Hamblett & Kerrigan, P.A., No. Civ. 94- 454-M,

(D.N.H. Jan. 31, 1995), as precedent for ordering Emerson to turn over its post-verdict communications is misplaced. Both cases were decided before Aranson and, conseguently, articulated the at-issue waiver rule differently from Aranson. Nevertheless, both courts reached results consistent with Aranson, allowing discovery only because the sought-after communications had been placed directly at issue by the plaintiffs. See Johnson,

, at *2 (where plaintiff placed at issue reasonableness of his reliance on defendant attorney's advice, plaintiff waived attorney-client privilege as to communications with another attorney who had previously represented plaintiff in a number of similar matters); Inserra,

, at * 1-2 (where plaintiff placed at issue reasonableness of his reliance on defendant attorney's advice, plaintiff waived attorney-client privilege as to communications with another attorney who simultaneously represented plaintiff in same transaction). Defendants also rely on a number of decisions from other

- 16 - Defendants also have failed to satisfy the Aranson test

because they cannot establish that the information they seek is

"actually required for the resolution of [an] issue." Aranson,

. Defendants have raised two related defenses in

response to Emerson's negligence charge, namely that Emerson

failed to take reasonable steps to amend or limit its damages on

appeal and that its appellate counsel's negligence was a super­

seding cause of Emerson's injuries. Such defenses ordinarily are

evaluated using an objective test. See Flanagan v. Prudhomme,

jurisdictions. I choose not to follow the cases, however, because they either are inapposite, in that the sought-after communications had been placed directly at issue by the plaintiffs, or they employ an at-issue waiver test that the New Hampshire Supreme Court has expressly rejected. See, e.g., Kavlawongsa v. Moffett,

(6th Cir. 1997) (where plaintiff contested reasonableness of defendant attorney's fees, plaintiff waived attorney-client privilege as to communications with another attorney who simultaneously represented plaintiff in same transaction); Bieter Co. v. Blomguist,

(D. Minn. 1994) (where plaintiff placed at issue reasonableness of his reliance on defendant attorney's advice, plaintiff waived attorney-client privilege as to communications with another attorney who simultaneously represented plaintiff in same transaction); National Excess Ins. Co. v. Civerolo, Hansen & Wolf, P.A., 13

(D.N.M. 1991) (where plaintiff brought malpractice suit against attorney for, inter alia, negligent appeal of unfavorable jury verdict, plaintiff waived attorney- client privilege as to communications with another attorney who simultaneously offered advice to plaintiff regarding the appeal); Byers v. Burleson,

(D.D.C. 1983), criticized in Rhone-Poulenc Rorer, Inc., 32 F.3d at 864, as applying the Hearn relevancy test.

- 17 -

(1994) ("As a general rule, plaintiffs may not

recover damages for harm that could have been avoided through

reasonable efforts or expenditures." (emphasis added));

Restatement (Second) of Torts § 918 (1977) (same); Burns v.

Bradley,

(1980) ("The test for negligence is

whether [a] reasonably prudent person under the circumstances

should recognize and foresee an unreasonable risk or likelihood

of harm to others." (emphasis added)); Restatement (Second) of

Torts § 283 cmt. c (1964) (Negligence is measured by "an

objective and external [standard], rather than that of the

individual judgment, good or bad, of the particular

individual.") .

Defendants can prove both defenses solely by reference to

the appropriate standard of care and to Crawford's and Keating's

actions, the outcomes of which are matters of public record.

Conseguently, although the communications at issue may be

relevant to defendants' mitigation and superseding-cause-of-

injury defenses, because the privileged information is not

reguired for the resolution of either defense, defendants cannot

take advantage of the at-issue waiver exception. See Aranson,

; see also Rhone-Poulenc Rorer, Inc., 32 F.3d at

864 .

- 18 - B. Failure to Serve Privilege Log as _____ Waiver of Privilege

Emerson also contends the magistrate judge erred in finding

that Emerson waived the attorney-client privilege as to the

communications at issue by failing to serve defendants with a

privilege log, pursuant to Fed. R. Civ. P. 26(b)(5).

Rule 26(b)(5) provides that when a party claims materials

are exempt from disclosure because of a privilege, the party must

describe the nature of the withheld materials in a manner that

will enable other parties and the court to assess the applica­

bility of the privilege. Fed. R. Civ. P. 26(b)(5). The scope of

the description necessary to satisfy Rule 26(b)(5) need only be

so broad as to permit this assessment. 8 Charles A. Wright et

al.. Federal Practice and Procedure § 2016.1, at 234-35 (2d ed.

1994) (warning that rigid insistence on certain logging

procedures "may go well beyond" what Rule 26(b)(5) reguires);

accord Advisory Committee Notes to Fed. R. Civ. P. 26(b)(5) ("The

rule does not attempt to define for each case what information

must be provided when a party asserts a claim or privilege

. . . ."). Nevertheless, a blanket claim of privilege is

generally an inadeguate response to a discovery reguest. See

- 19 - Obiaiulu v. City of Rochester,

(W.D.N.Y.

1996).

A different principle applies, however, where, for the

purposes of its motion to compel discovery, the party seeking

discovery concedes that the materials at issue are privileged and

asks the court only to determine whether the privilege-holder has

waived the privilege as to a whole category of materials. See

Jackson v. County of Sacramento,

(E.D. Cal.

1997) ("[T]he duty to provide the description reguired by Rule

26(b) (5) is flexible and does not arise until there is a good

faith challenge to the privilege claim."); First Fidelity

Bancorp, v. National Union Fire Ins. Co., No. Civ.A.90-1866,

, at *2 (E.D. Pa. Mar. 13, 1992). Under such circum­

stances, a statement asserting that the privilege protects

various categories of documents will satisfy Rule 26(b) (5) until

such time as the court decides the waiver issue. See Jackson,

; see also Durkin v. Shields (In re Imperial

Corp. of Am.),

(S.D. Cal. 1997) (holding that

"nowhere in Fed. R. Civ. P. 26(b)(5) is it mandated that a

document-by-document privilege log is reguired"); SEC v .

Thrasher. No. 92 Civ. 6987 (JFK),

, at *1 (S.D.N.Y.

Mar. 20, 1996) ("[I]n appropriate circumstances, the court may

- 20 - permit the holder of withheld documents to provide summaries of

the documents by category . . . .

Here, defendants have never contested Emerson's claim that

the communications at issue are privileged. Rather, they have

asserted that by filing the instant suit, Emerson waived its

attorney-client privilege as to the broad categories of

communications defendants seek. Under such circumstances, until

such time as he decided the waiver issue, the magistrate judge

should have allowed Emerson to satisfy its Rule 26(b)(5) burden

through an assertion of privilege as to each category of

documents sought. See Jackson,

; Durkin,

. Because the magistrate judge failed to do so, I

must set his decision aside. See LoVuolo,

.

Instead, because Emerson timely provided both the reguired

statement of privilege by category (in response to defendants'

discovery reguest) and a more detailed privilege log (immediately

following the magistrate judge's ruling on the waiver issue), I

hold that Emerson satisfied its Rule 26(b)(5) burden and has not

waived its privilege as to the communications at issue with

respect to that rule.

- 21 - IV. CONCLUSION

For the foregoing reasons, I conclude that the otherwise

privileged communications defendants seek to discover are not

exempt from the attorney-client privilege either pursuant to

N.H.R. Evid. 502(d)(3) or based on a common law at-issue waiver.

Further, I conclude that Emerson did not lose the right to claim

that the sought-after communications are privileged by failing to

produce a privilege log. To the extent that the magistrate

judge's order is inconsistent with these conclusions, the order

is reversed.4

SO ORDERED.

Paul Barbadoro Chief Judge

May 12, 1998

cc: Russell F. Hilliard, Esg. Michael B. Powers, Esg. Henry A. Pierce, Esg.

4 I reach no conclusion with respect to any particular privilege claim. The only issue I decide in this order is that Emerson did not waive its claim of privilege as to the contested categories of communications either by placing those communications at issue or by failing to provide a privilege log.

- 22 -