Facts
- Wendell C. Harp, an African-American real estate developer and architect, owned and managed seven low- and moderate-income housing developments financed by the Connecticut Housing Finance Authority (CHFA).
- From 1980 to 1991, CHFA loaned Harp approximately $10 million to construct the developments, which were managed by Harp’s wholly owned company.
- In the early 1990s, CHFA employees conducted audits and internal reviews concerning Harp’s developments; internal documents reflected varying degrees of concern.
- In 1995, Harp submitted a FOIA request to CHFA seeking documents relating to him and his developments; CHFA made multiple boxes of documents available for inspection.
- Harp found two internal memoranda involving CHFA personnel and CHFA’s attorneys marked “privileged and confidential,” took handwritten notes, and requested copies.
- CHFA personnel then recognized the memoranda as privileged and refused to copy them or permit further inspection of those documents.
- Harp sued four CHFA employees, alleging they agreed during their employment to defame him, place him in a false light, tortiously interfere with his business expectancies, and intentionally inflict emotional distress.
Issues
- Whether CHFA’s inadvertent disclosure of attorney–client communications in response to a FOIA request waived the attorney–client privilege, permitting compelled production in subsequent civil litigation.
- Whether tort claims premised on CHFA employees’ coordinated conduct within the scope of their employment were barred by the intracorporate conspiracy doctrine, including as applied to tortious interference with business expectancies.
- Whether, absent the privileged memoranda, Harp produced admissible evidence sufficient to create a genuine issue of material fact on his tort claims.
Decision
- The Connecticut Supreme Court affirmed summary judgment for the defendants.
- The court held that CHFA did not waive attorney–client privilege by inadvertently disclosing the memoranda during the FOIA response.
- The court upheld denial of Harp’s motion to compel production of the memoranda because they remained privileged.
- The court concluded that, without the privileged documents, Harp lacked admissible evidence creating a triable issue on his tort claims.
- To the extent Harp’s claims depended on an alleged agreement among CHFA employees acting within their employment, the intracorporate conspiracy doctrine barred the claims, including the tortious interference claim as pleaded and supported.
Legal Principles
- Attorney–client privilege protects confidential communications between attorney and client to facilitate candid legal consultation.
- Inadvertent disclosure of privileged communications does not automatically waive the privilege; waiver turns on circumstances indicating intent to relinquish the protection, including reasonable precautions and prompt steps to prevent further disclosure.
- A court may evaluate the substance of allegations rather than their labels; claims framed as individual torts may be treated as conspiracy-based when they rely on a “joint agreement” and coordinated action.
- Under the intracorporate conspiracy doctrine, employees acting within the scope of their employment for a single entity are generally treated as a single actor, precluding claims that depend on a conspiracy among those internal agents.
- Summary judgment is proper when the nonmoving party cannot present admissible evidence establishing a genuine dispute of material fact on essential elements of the claims.
Conclusion
The court held that CHFA’s mistaken FOIA disclosure did not waive attorney–client privilege and that, without access to the privileged memoranda, Harp lacked admissible evidence to support his tort theories; claims premised on an internal “agreement” among CHFA employees acting within their roles were additionally barred by the intracorporate conspiracy doctrine, warranting summary judgment for the defendants.