Court Orders Firefighters Union To Divulge Message To Attorney From Union President

When Andrew Davison was terminated from his position as a Sandwich, Massachusetts firefighter, he sued several individuals and entities. One of the defendants was Jason Viveiros, who was then a fellow firefighter and president of the Sandwich Professional Fire Fighters Association, IAFF Local 2196. Davison did not sue Local 2196 itself.

Davison’s termination stemmed in part from a prior reprimand he had received. Davison was part owner of a company called Cape Cod BioFuels, Inc. When Davison sustained an injury while working as a firefighter, he took a medical leave of absence from the firefighter position but continued to work at Cape Cod BioFuels, performing light tasks. Around the same time, the Town was considering a proposal to build a public safety complex which would house police, fire, and other town operations. The proposal enjoyed the support of some within the Fire Department but Davison opposed it, and he showed it by among other things erecting a large sign in his yard condemning it.

Supervisors within the Fire Department took issue with his conduct and pressured him to remove the sign, telling him that he was violating state law by working at Cape Cod BioFuels while out on medical leave. When Davison refused, his superiors ordered him in writing to stop working. Shortly thereafter, however, Davison’s medical leave ended and he returned to work as a firefighter. Upon his return, and when there was no longer a basis to order him to stop working at Cape Cod BioFuels, Davison was issued a written reprimand.

During the litigation over his later termination, Davison alleged that Viveiros advised him that he could not appeal or grieve such reprimand because there was no adverse action being taken against him. Davison also alleged that although Viveiros told Davison that he had checked with Local 2196’s lawyer on the point, Viveiros had not in fact done so.

To rebut this allegation, Viveiros sought to obtain documents from Local 2196 which would show that he in fact did consult with Local 2196’s lawyer. Local 2196 objected to Viveiros’ request, citing attorney-client privilege. Notably, no one disputed that there were indeed documents bearing on the purported consultation, or that Viveiros simultaneously shared his email to the Local’s attorney with Davison. In fact, Viveiros was already in possession of the documents he sought to obtain from Local 2196, but nonetheless sought Local 2196’s permission to formally use the documents in the litigation over Davison’s termination because he was acting in his capacity as president of Local 2196 when he consulted counsel.

A federal court magistrate ordered Local 2196 to produce the documents. The Court ruled that “with respect to the email, there are no markings or notations on it to evince that it was being sent in confidence. On the contrary, there is no dispute that Viveiros blind copied Davison when he emailed the communication to Local 2196’s counsel, and there is no evidence that Viveiros ever instructed Davison that the e-mail must be kept confidential as a privileged communication.

“Consequently, Viveiros, as president of Local 2196, knew when he communicated with counsel, and shared the same communications with Davison, that Davison could have, had he so wished, shared the communication with anyone else, without restriction. As such, there is no basis to conclude that Viveiros communicated with counsel with an expectation that the communication would remain confidential. Accordingly, Local 2196 has not met its burden of demonstrating that Viveiros sent this e-mail with the expectation that it not be divulged. It follows that the email is not a privileged communication and therefore is not protected from disclosure by the attorney-client privilege.”

Viveiros also sought the bills sent by the attorney to Local 2196, apparently because the bills would show Viveiros’ inquiries about Davison’s reprimand. The Court ordered Local 2196 to produce the records, reasoning “counsel’s bill is not protected from disclosure by the attorney-client privilege. As a general proposition, billing records are just records of amounts being billed to a particular client for services rendered and, presumably, a description of those services, the identity of those who rendered them and the time they each spent in doing so, and the actual costs incurred. To the extent a particular description of services might contain substantive references to privileged attorney-client communications these entries may be redacted as privileged. However, where a description of services merely notes the general nature of the services performed this type of information is not privileged.”

Davison v. Town of Sandwich, 2016 WL 1411341 (D. Mass. 2016).