von Bulow ex rel. Auersperg v. von Bulow

114 F.R.D. 71, 7 Fed. R. Serv. 3d 698, 1987 U.S. Dist. LEXIS 2746
CourtDistrict Court, S.D. New York
DecidedFebruary 12, 1987
DocketNo. 85 Civ. 5553 (JMW)
StatusPublished
Cited by12 cases

This text of 114 F.R.D. 71 (von Bulow ex rel. Auersperg v. von Bulow) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
von Bulow ex rel. Auersperg v. von Bulow, 114 F.R.D. 71, 7 Fed. R. Serv. 3d 698, 1987 U.S. Dist. LEXIS 2746 (S.D.N.Y. 1987).

Opinion

MEMORANDUM AND ORDER

WALKER, District Judge:

INTRODUCTION

Plaintiff Martha von Bulow by her next friends, Alexander Auersperg and Annie Laurie Auersperg Kneissl, have moved to compel discovery of certain discussions between Defendant Claus von Bulow (“von Bulow”) and his attorneys, including Alan Dershowitz (“Dershowitz*’). ' Plaintiff claims that the attorney-client privilege has been waived with respect to these communications.

The communications sought by plaintiff relate to a highly-publicized criminal proceeding wherein defendant, accused in Rhode Island state court of twice attempting to murder his wife, was convicted, obtained a reversal on appeal, and was acquitted after a retrial. Plaintiff claims that a waiver of the attorney-client privilege oc[73]*73curred when Dershowitz subsequently published, with defendant’s encouragement and approval, a book that argued defendant’s innocence and disclosed numerous confidential communications between von Bulow and Dershowitz. For the reasons set forth below, the Court finds a waiver of the attorney-client privilege. The Court accordingly orders defendant and his attorneys to comply with discovery .as specified below.

STATEMENT OF FACTS

In 1982, following a highly publicized jury trial in a Rhode Island state court, defendant was convicted on two counts of attempted murder of his wife Martha von Bulow, now in a permanent coma, by surreptitiously injecting her with various drugs. Yon Bulow was sentenced to ten and twenty years imprisonment, respectively. Shortly after the trial and before sentencing, von Bulow retained Dershowitz to represent him on the appeal from his conviction. In 1984, the Rhode Island Supreme Court reversed the conviction and, following a retrial in 1985, von Bulow was acquitted. These criminal proceedings received continuous coverage in the nation’s print, radio, and television media.

Shortly after von Bulow’s acquittal in 1985, the next friends, who are the children of Martha von Bulow from a prior marriage, commenced this federal civil action on their mother’s behalf, seeking monetary damages and equitable relief from von Bu-low. Their suit alleges common law assault, negligence, fraud, and RICO violations, arising out of the same facts and circumstances that were the subject of the Rhode Island criminal litigation.

In May 1986, Random House published a book entitled Reversal of Fortune — Inside the von Bulow Case (“Reversal of Fortune”), authored by Dershowitz. The book, which the Court has read, is in no way confined to publicly-filed briefs, transcripts, exhibits, and other documents. As the title represents, the book takes the reader “inside the von Bulow case.” Dershowitz presents Reversal of Fortune as a credible account of the information he obtained, as von Bulow’s lawyer through his own careful investigation in preparation for von Bulow’s criminal appeal, new trial motion, and retrial, as a result of which he “became nearly certain” of von Bulow’s innocence (pp. xxiii, 65). Reversal of Fortune contains extensive accounts, not contained in any public transcript, brief, or court record, of Dershowitz’s private discussions with his client von Bulow; with fellow counsel; and with potential witnesses. These discussions relate to such matters as the circumstances surrounding Dershowitz’s retention as counsel, the planning and strategy of von Bulow’s application for bail pending appeal; and the strategy, planning and implementation of the appeal brought before the Rhode Island Supreme Court. Reversal of Fortune also describes in great detail the assembling of newly-discovered evidence and a motion for a new trial, and contains a lengthy and detailed account of the strategic planning and conduct of the successful defense at von Bu-low’s second trial, including the. troublesome and intensely debated issue of whether defendant should testify in his own defense. Reversal of Fortune contains a detailed account of the obtaining and use of affidavits from two witnesses, David Mar-' riott (“Marriott”) and Father Philip Magaldi (“Magaldi”). These affidavits were used to cast doubts on the prosecution’s case as part of the new trial motion and Marriott’s subsequent recantation.

The thrust of the book is that von Bu-low’s innocence was established in Dershowitz’s mind as a result of the author’s extensive efforts as defendant’s counsel— efforts that are painstakingly recounted from Dershowitz’s first conference with von Bulow to defendant’s acquittal following his second trial.

On November 14, 1985, approximately six months prior to publication of Reversal of Fortune, Dershowitz wrote von Bulow as follows:

Dear Claus:
I really appreciate your confidence in me, in encouraging me to write an honest [74]*74book about the case without showing it to you before publication. I think this will enhance the credibility of my strong case for your total innocence. Especially in light of our attack on (William) Wright (whose book, The von Bulow Affair, put forth a case for defendant’s guilt), it is especially important for this to be my book. As you will see when my book comes out, it whets the reader’s appetite to read your book.
I look forward to joining you at the opera in the near future.
With every good wish,
Cordially,
Alan Dershowitz (emphasis in original; parenthesis added.)

The following day, von Bulow replied by letter: “I certainly agree that neither I nor any representative of mine should see a manuscript of your book prior to publication” and that “I am confident it will be an honest book.” Von Bulow requested “a hundred copies of your book for friends in Europe.”

In March 1986, plaintiff’s counsel obtained a copy of a draft of the Dershowitz manuscript that was being circulated to publishers. Plaintiff’s counsel notified defendant’s attorney by telephone, followed closely by a letter dated March 13, 1986, that the manuscript was being circulated in the publishing industry; that publication by Random House was expected shortly; and that the proposed book contained numerous disclosures of otherwise privileged communications between defendant and his counsel that “under the canons of ethics ... could not be made without defendant’s consent.” Plaintiff’s attorney further represented that his client would view a failure by defendant to object to the disclosures as a waiver of “any privilege with respect to the subject matter of such disclosures and any other related communications with any of his counsel.” At the same time, plaintiff's counsel furnished defendant’s counsel with a copy of the manuscript. Defendant’s counsel replied by letter that in his opinion no waiver had occurred since only the client, not the attorney, could waive the attorney-client privilege and that therefore he would not advise his client to take any action. Counsel replied further that he had read the manuscript and found nothing which could reasonably be construed as waiving von Bu-low’s attorney-client privilege.

In a subsequent letter to defendant’s counsel, dated April 23, 1986, plaintiff’s counsel set forth, in substance, plaintiff’s position that by not taking action to prevent the publication of privileged material, defendant would be waiving the privilege. The letter concluded:

There is no doubt that Mr.

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114 F.R.D. 71, 7 Fed. R. Serv. 3d 698, 1987 U.S. Dist. LEXIS 2746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/von-bulow-ex-rel-auersperg-v-von-bulow-nysd-1987.