WENDELL C. HARP v. GARY E. KING ET AL.

The plaintiff, Wendell C. Harp, an African-
American real estate developer and architect who
owns and manages seven low and moderate income
housing developments1 financed by the Connecticut
Housing Finance Authority (CHFA),2 appeals3 from the
judgment of the trial court rendered in favor of the
defendants, Gary E. King, Vincent J. Flynn, Lawrence
C. Pilcher and Regina Rentz, who are all employees
of CHFA. The plaintiff initiated this action against the
defendants alleging, inter alia, that, during the course
of the defendants' employment with CHFA, they jointly
agreed: (1) to defame him; (2) to place him in a false
light in violation of his right to privacy; (3) to interfere
tortiously with his business expectancies; and (4) intentionally
to cause him emotional distress.4 The trial court,
Devlin, J., granted the defendants' motions for summary
judgment, concluding, inter alia, that the plaintiff
was barred, under the intracorporate conspiracy doctrine,
5 from maintaining his claims against the
defendants.6

On appeal, the plaintiff maintains that the trial court
improperly granted the defendants' motions for summary
judgment. In support of his claim, the plaintiff
contends that: (1) the trial court improperly concluded
that two internal CHFA memoranda are protected by
the attorney-client privilege even though those documents
inadvertently were disclosed to the plaintiff; (2)
the trial court improperly determined that the plaintiff's
claims were barred by the intracorporate conspiracy
doctrine even though the plaintiff has not alleged a
conspiracy; and (3) even if the intracorporate conspiracy
doctrine prohibits him from maintaining his other
claims, it does not apply to his claim of tortious interference
with business expectancies. We conclude that the
trial court properly granted the defendants' motions for
summary judgment and, accordingly, affirm the judgment
of the trial court.

The record reveals the following pertinent facts. The
plaintiff owns seven low and moderate income housing
developments (developments), six of which are located
in New Haven and one of which is located in Ansonia.
The developments are managed by Renaissance Management
Company (Renaissance), an entity wholly
owned by the plaintiff.7 From 1980 to 1991, CHFAloaned
the plaintiff a total of approximately ten million dollars
for the construction of those developments. At all times
relevant to this appeal, King was the president and
executive director of CHFA. Flynn and Pilcher each
served as assistant counsel to CHFA and Regina Rentz
was an internal auditor for CHFA.

Beginning in or around 1991, the developments began
to encounter some financial instability. By 1994, several
of the developments did not generate enough income
to meet expenses. The plaintiff addressed the shortfall
by loaning the developments in excess of one million
dollars. Nonetheless, all mortgage payments were made
to CHFA in a timely manner.

Although it is not disputed that the developments
were in financial distress, the parties disagree as to
the cause of the problem. The plaintiff claims that the
financial difficulties stemmed from circumstances
beyond his control. The primary reasons that the plaintiff
offered for those problems include the following:
(1) the developments are not located in one discrete
area but, rather, comprise thirty-two buildings scattered
throughout New Haven and Ansonia,8 thereby making
them particularly expensive to operate and maintain;
(2) the operating budgets of the developments were
inadequate because of a high fixed debt-to-income ratio;
and (3) the interest rates on the loans on the plaintiff's
developments were appreciably higher than the rates
paid by other developers of similar housing financed
by CHFA.9 By contrast, CHFA and the defendants contended
that the relatively poor financial condition of
the developments was due in large part to mismanagement
by the plaintiff and Renaissance.

In January, 1995, the plaintiff requested that CHFA
agree to restructure the financing of four of the seven
developments. Specifically, he asked CHFA for a reduction
in the interest rate on the loans on those developments
or, alternatively, for an extended term within
which to satisfy the loans, thereby reducing his monthly
debt service obligation. Although CHFA had the discretion
to restructure loans, CHFA also maintained a policy
against any such restructuring if, in its opinion, the
need for restructuring was due to mismanagement of
the development.

CHFA performed financial audits and management
reviews of all seven developments in connection with
the plaintiff's request to restructure the loans. In particular,
Rentz performed a detailed audit and review of
the developments for fiscal year 1994 and for the first
six months of 1995.10 Upon conclusion of her evaluation
of the developments, Rentz submitted two reports to
King, dated June 5, 1995, and August 4, 1995, in which
she expressed concern about the accounting methods
used to document certain expenses. Rentz also questioned
whether the plaintiff was overcharging the developments
for goods and services.

Joseph L. Marsan, CHFA's asset manager, also
expressed concerns regarding the management of the
developments in a July 6, 1995 memorandum to Bruce
H. Perry, CHFA's vice president of asset management
and loan servicing.11 In that memorandum, Marsan characterized
the management of the developments as ‘‘ineffective,''
and described Renaissance as ‘‘financially
unstable . . . .'' Marsan also observed that the developments
were being subject to ‘‘systematic and deliberate
overcharging'' for services rendered by other entities
controlled by the plaintiff. In addition, Marsan con-
cluded that the physical condition of the developments
was ‘‘deteriorating at an alarming rate . . . .'' Finally,
Marsan recommended that Renaissance be terminated
immediately as the managing agent for two of the developments.
Neither Rentz' audit reports nor Marsan's memorandum
was disclosed to the plaintiff. In fact, in her August
4, 1995 report to King, Rentz wrote that ‘‘none of the
findings noted in this or the previous report ha[s] been
discussed with [the plaintiff]. This was done so that
[the plaintiff] would not have the opportunity to take
actions harmful to CHFA's interests prior to a . . .
decision on a plan of action [by the board of directors].''
The report goes on to state, however, that the plaintiff
should be afforded an opportunity to respond to the
findings, but ‘‘only after [CHFA] consult[s] with
counsel.''

The plaintiff disputes the fairness and accuracy of
Rentz' audit reports and Marsan's memorandum. He
notes, for example, that: (1) a memorandum written by
Rentz to King indicates that her audit of the developments
uncovered no financial improprieties, and only
one invoice of $58 could not be verified; (2) in February,
1995, King approved the plaintiff's request for a loan
from certain escrow funds after concluding that ‘‘[t]he
annual budget and operating expenses of the [plaintiff's]
development[s] [were] adequately accounted for,'' and,
further, that ‘‘[t]he physical condition of the [developments]
[was] satisfactory''; (3) an accounting firm conducted
an independent audit of the developments and
concluded that the ‘‘amounts charged to [each of the
developments from 1995 through 1998] were reasonable'';
12 (4) the accounting firm also reported no ‘‘material
findings'' as to either the internal controls utilized
by the plaintiff or his compliance with the programs
and guidelines of the federal Department of Housing
and Urban Development (HUD); (5) two former CHFA
employees, including King's predecessor, Orest T.
Dubno, stated that the developments were in ‘‘good''
or ‘‘relatively good'' condition during their tenure at
CHFA; (6) the developments had received no citations
or notices of building code violations; and (7) previous
inspections by CHFA personnel working under the
supervision of independent property evaluators hired
by CHFA contradict Marsan's opinion that the developments
were in poor physical condition.

In response to the plaintiff's refinancing request,
CHFA contracted with an independent property management
consultant, Rockwell Management Group, Inc.
(Rockwell), to assist in reviewing the management procedures
and systems employed by Renaissance. On
August 16, 1995, Rockwell submitted a preliminary
report to CHFA in which it highlighted certain deficiencies
in those areas.

On August 29, 1995, the board of directors of CHFA
passed a resolution, in response to the plaintiff's request
for loan restructuring, directing CHFA personnel to
draft and implement a ‘‘supplemental management
agreement'' concerning the plaintiff's developments
within thirty days. The resolution also directed CHFA's
asset management staff to set performance standards
for the developments. Finally, the resolution further
required that Renaissance correct the maintenance deficiencies
in the developments within seven months.

On September 30, 1995, Rockwell submitted its final
report regarding the management of the developments.
The report recommended certain changes to enable
Renaissance to function more efficiently. Although
some of the conclusions in the report were positive,13
the overall conclusion was that, ‘‘if present management
practices are continued, further financial/cash flow and
maintenance difficulties will be created, existing problems
will be obscured and exacerbated, and the properties
will continue to deteriorate physically.''

In December, 1995, a dispute arose between CHFA
and the plaintiff regarding the plaintiff's failure to file
timely operating budgets and monthly cash flow reports
for fiscal year 1996. On December 5, 1995, Marsan notified
the plaintiff that those operating budgets were overdue
as of December 1, 1995, and that, if they were not
submitted within thirty days, CHFA could declare the
developments in default. On January 19, 1996, John W.
White, Jr., the senior asset manager of CHFA, informed
the plaintiff by letter that, although CHFA had received
the development budgets on January 16, 1996, certain
required supporting documentation was missing and,
therefore, the plaintiff's budget submission was incomplete.
The letter warned the plaintiff that the developments
were in default and that Renaissance was in
jeopardy of being terminated as the managing agent of
the developments. The letter also urged the plaintiff
to provide the necessary documentation. The plaintiff,
however, did not do so, and, on February 9, 1996, CHFA
advised the plaintiff that HUD had been notified of his
failure to provide the required documentation. CHFA
further notified the plaintiff that this violation, along
with his failure to resolve certain outstanding maintenance
problems, placed the plaintiff in technical default
of his agreements with CHFA.

On February 20, 1996, CHFA formally responded to
the plaintiff's request for debt restructuring by providing
him with a draft supplemental management
agreement. The terms of the proposed agreement were
based, in part, on Rockwell's evaluation of the management
of the developments. The plaintiff declined to sign
the agreement because, in his view, CHFA unfairly had
concluded that management deficiencies, rather than
the high fixed debt-to-income ratios of the developments,
were the cause of the developments' financial
and physical problems. The plaintiff further indicated
that he was opposed to relinquishing management over
the developments.

On May 10, 1996, the plaintiff met with CHFA personnel
to discuss the financial relief he had requested and
CHFA's concerns about the financial and physical condition
of the developments. In a follow-up letter from
Perry dated May 13, 1996, CHFA advised the plaintiff
that, unless he signed the proposed supplemental management
agreement, CHFA would recommend to the
board of directors that Renaissance's management contracts
not be renewed.14 Perry's letter also outlined the
steps that the plaintiff needed to take before his debt
restructuring request would be presented to the board.
Those steps included: (1) the temporary renewal of
Renaissance's management contracts followed by a six
month period during which CHFA would monitor and
evaluate Renaissance's performance; (2) lockbox
agreements pursuant to which the deeds to the plaintiff's
developments would be held in escrow in the event
that the developments were unable to meet their financial
obligations; and (3) the suspension of management
fees during the six month period.

In a letter to King dated May 15, 1996, the plaintiff
protested the terms set forth in Perry's letter and
CHFA's treatment of his request for debt restructuring.
The plaintiff also stated that, if necessary, he would
seek relief in federal court. Thereafter, on May 29, 1996,
the plaintiff formally advised CHFA that he was reappointing
Renaissance as the managing agent for all
seven developments. On June 5, 1996, the plaintiff
informed King that he was withdrawing his request for
refinancing. King, however, did not accept the reappointment
of Renaissance as the managing agent for
the developments.15

In June, 1996, the plaintiff sent a letter to the secretary
of HUD requesting assistance in redressing what he
characterized as CHFA's ‘‘extraordinary racially biased
actions'' against him. Following the letter and in
response to a HUD request, CHFA provided HUD with
a list detailing more than 300 instances, over a twelve
month period, of other developers' noncompliance with
various rules and regulations governing the management
and maintenance of CHFA-financed properties.
Although CHFA indicated that many of these violations
had been or were being addressed, the plaintiff maintains
that, despite the violations, CHFA never had
declared those other developers to be in ‘‘technical
default'' of their financial obligations or threatened to
terminate their management contracts.16

In response to concerns about the treatment he was
receiving from CHFA, the plaintiff filed a request, in
August, 1996, under the state Freedom of Information
Act,17 to review all documents in the possession of
CHFA that related to him or his developments. Those
documents were made available for review by the plain-
tiff at CHFA's offices.18 During the course of his review
of those documents with Renaissance's controller, Milton
L. Jackson, the plaintiff came across two internal
memoranda. One was labeled ‘‘litigation strategy'' and
the other was labeled ‘‘strategy.'' Both were stamped
‘‘privileged and confidential.'' The memoranda,19 which
were written by Flynn in June, 1996, at the direction
of William A. Dickerson, CHFA's general counsel, were
addressed to King, Pilcher and Rentz, among others,
and discussed the written agreements between CHFA
and the plaintiff concerning the plaintiff's CHFAfinanced
developments. According to the plaintiff, the
legal strategies memoranda outline a scheme to remove
Renaissance as the managing agent for the plaintiff's
developments and, ultimately, to take those developments
away from him, by falsely accusing him of financial
improprieties and discrediting him publicly. Upon
reading the legal strategies memoranda, the plaintiff
summarized their contents in handwritten notes and,
before leaving the CHFA office, requested a photocopy
of each. His request was denied, however, when a CHFA
staff member and Pilcher observed that the memoranda
were marked privileged and confidential.

On September 12, 1996, an article entitled ‘‘Racial
Harping'' was published in the New Haven Advocate.
The article, which was authored by Paul Bass, reviewed
the history of the dispute between CHFA and the plaintiff
and indicated that the plaintiff had been the subject
of unfair and unprecedented treatment by CHFA. The
article also noted, however, that, in CHFA's view, the
plaintiff was cheating taxpayers and mismanaging his
developments.20 Additional facts will be set forth as necessary.
In September, 1996, the plaintiff brought this action
alleging, inter alia, defamation, invasion of privacy, tortious
interference with business expectancies and
intentional infliction of emotional distress. The plaintiff's
claims are predicated on his contention that the
defendants engaged in a plan to discredit him so that
CHFA could declare his developments in default and
ultimately force him to relinquish both his ownership
and management of the developments. The plaintiff also
alleged that the defendants had caused him to be subjected
to reviews and audits that were ‘‘malicious and
[racially] discriminatory . . . .'' In addition, the plaintiff
maintained that, as part of their plan, the defendants
had caused Bass to submit a freedom of information
request to CHFA for documentation concerning the
plaintiff and that CHFAmade false and misleading statements
to Bass about the plaintiff, which Bass included
in his newspaper article.

During the course of discovery, the plaintiff sought
copies of the legal strategies memoranda. The plaintiff
asserted that the disclosure of the legal strategies memoranda
to him in connection with his freedom of infor-
mation request constituted a waiver of the attorneyclient
privilege with respect to those memoranda. The
defendants refused to produce the legal strategies memoranda,
claiming that the inadvertent disclosure of the
memoranda did not constitute a waiver of the attorneyclient
privilege. The plaintiff then moved to compel
disclosure of the memoranda. The trial court, Moran,
J., denied the plaintiff's motion, concluding that, under
the circumstances, there had been no waiver of the
attorney-client privilege.21

The defendants thereafter moved for summary judgment,
claiming that, in the absence of the legal strategies
memoranda, none of the plaintiff's claims was supported
by admissible evidence. The defendants also
maintained, alternatively, that the plaintiff's claims
were barred by the intracorporate conspiracy doctrine.
The plaintiff reasserted his claim that the disclosure of
the legal strategies memoranda in connection with the
plaintiff's freedom of information request constituted
a waiver of the attorney-client privilege with respect to
those memoranda. The plaintiff also maintained that
the evidence he had adduced in opposition of the defendants'
motions for summary judgment was sufficient
to defeat those motions. The plaintiff further asserted
that the intracorporate conspiracy doctrine is not applicable
because the plaintiff never had alleged that the
defendants engaged in a conspiracy and, in any event,
the doctrine does not apply because the defendants
were not acting within the scope of their employment
with CHFA when they engaged in their allegedly tortious
conduct. The trial court, Devlin, J., rejected the
plaintiff's claims, granted the defendants' motions for
summary judgment and rendered judgment thereon in
favor of the defendants. This appeal followed.

I

The plaintiff first claims that the trial court, Moran,
J., improperly denied his motion to compel production
of the legal strategies memoranda. In particular, the
plaintiff contends that the attorney-client privilege was
waived when those documents were made available for
his review in connection with his freedom of information
request.22 The plaintiff further claims that, because
the legal strategies memoranda contain information sufficient
to defeat the defendants' motions for summary
judgment, the alleged impropriety in precluding his use
of those memoranda was harmful. We conclude that
the trial court properly determined, under the facts
of this case, that the disclosure of the legal strategies
memoranda did not constitute a waiver of the attorneyclient
privilege. We therefore reject the plaintiff's claim.
As we previously have explained, the plaintiff alleges
that the legal strategies memoranda, which Flynn had
drafted and addressed to King, Pilcher and Rentz,
among others, proposed a plan whereby CHFA would
terminate Renaissance's management contracts and
foreclose on the plaintiff's CHFA-financed developments.
According to the plaintiff, Flynn indicated in
the legal strategies memoranda that, to accomplish the
plan, it would be necessary: (1) to ‘‘create . . . a false
image of financial improprieties'' by the plaintiff and
Renaissance; (2) to ‘‘ ‘create' documentation'' of their
purported improprieties; and (3) to disseminate publicly
the adverse information for the purpose of discrediting
the plaintiff.23

After the plaintiff unsuccessfully sought production
of the legal strategies memoranda during discovery, he
filed a motion to compel their production. The parties
submitted briefs on the motion and, thereafter, the trial
court, Moran, J., heard argument on the plaintiff's claim
that the memoranda were subject to production. The
plaintiff argued, inter alia, that CHFA's failure to assert
the attorney-client privilege until after the disclosure
of the memoranda to the plaintiff constituted a waiver
of the privilege, even if that disclosure had been inadvertent.
The defendants maintained that, under the circumstances,
CHFA's inadvertent disclosure of the memoranda
did not constitute a waiver of the privilege. In
support of their contention, the defendants urged the
court to consider that: (1) the legal strategies memoranda
were disclosed only because they had been misfiled
due to a clerical error; (2) the memoranda were
clearly marked ‘‘privileged and confidential''; (3) the
disclosure of the memoranda must be viewed in the
context of the voluminous number of documents that
were the subject of the plaintiff's freedom of information
request; and (4) CHFA took immediate steps to
prevent any further disclosure, dissemination or use
of the memoranda upon learning that the memoranda
mistakenly had been included among the documents
provided to the plaintiff.24

On February 11, 1999, the trial court, Moran, J., relying
on Barnes/Science Associates Ltd. Partnership v.
Barnes Engineering Co., Superior Court, judicial district
of Ansonia-Milford, Docket No. CV89 02 77 64S
(June 7, 1990) (1 Conn. L. Rptr. 724) (Barnes), denied
the plaintiff's motion to compel. In so ruling, the court
characterized the release of the legal strategies memoranda
to the plaintiff as ‘‘a classic case of accidental,
unintentional and inadvertent disclosure.'' Thereafter,
on February 16, 2000, the trial court, Devlin, J., granted
Flynn's motion for a protective order and precluded
the plaintiff from asking questions relating to the legal
strategies memoranda at Flynn's deposition. The trial
court, Devlin, J., relying on the reasoning of the trial
court, Moran, J., in denying the plaintiff's motion to
compel, concluded that the inadvertent disclosure of
the memoranda by CHFA did not constitute a waiver
of the attorney-client privilege. In light of those two
rulings, the trial court, Devlin, J., also declined to consider
that portion of the plaintiff's affidavit, which was
submitted in opposition to the defendants' motions for
summary judgment, that purported to summarize the
statements that Flynn had made in the memoranda.25
Our determination of the propriety of the ruling denying
the plaintiff's motion to compel production of the
legal strategies memoranda26 requires us to address a
question of first impression for appellate review in this
state, namely, what is the appropriate standard for
determining whether the inadvertent disclosure of
material that otherwise is protected by the attorneyclient
privilege constitutes a waiver of that privilege?
‘‘Generally [the voluntary] disclosure of confidential
communications or attorney work product to a third
party, such as an adversary in litigation, constitutes a
waiver of [the] privilege as to those items. . . . Some
courts, however, find an exception to the waiver of
privilege when the disclosure is inadvertent.'' (Citations
omitted; emphasis added; internal quotation
marks omitted.) Genentech, Inc. v. International Trade
Commission, 122 F.3d 1409, 1415 (Fed. Cir. 1997). We
note that courts generally have followed one of three
approaches in determining whether the attorney-client
privilege has been waived as a result of the inadvertent
disclosure of otherwise privileged material: (1) the
lenient approach; (2) the strict approach; or (3) the
‘‘middle of the road'' or moderate approach. E.g., Gray
v. Bicknell, 86 F.3d 1472, 1483 (8th Cir. 1996).
‘‘Under the lenient approach, [the] attorney-client
privilege must be knowingly waived. [Under this
approach], the determination of inadvertence is the end
of the analysis. The attorney-client privilege exists for
the benefit of the client and cannot be waived except
by an intentional and knowing relinquishment. . . .
The lenient test creates little incentive for lawyers to
maintain tight control over privileged material. While
the lenient test remains true to the core principle of
[the] attorney-client privilege, which is that it exists to
protect the client and must be waived by the client, it
ignores the importance of confidentiality. To be privileged,
attorney-client communications must remain
confidential . . . and yet, under this test, the lack of
confidentiality becomes meaningless so long as it
occurred inadvertently.

‘‘The second approach is known as the strict test.
. . . Under the strict test, any document produced,
either intentionally or otherwise, loses its privileged
status with the possible exception of situations [in
which] all precautions were taken. Once waiver has
occurred, it extends to all other communications relating
to the same subject matter. . . .

‘‘While the strict test has some appeal in that it makes
attorneys and clients accountable for their carelessness
in handling privileged matters . . . [it] sacrifices the
value of protecting client confidences for the sake of
certainty of results. . . . There is an important societal
need for people to be able to employ and fully consult
with those trained in the law for advice and guidance.
. . . The strict test would likely impede the ability of
attorneys to fill this need by chilling communications
between attorneys and clients. If, when a document
stamped attorney-client privileged is inadvertently
released, it and all related documents lose their privileged
status, then clients will have much greater hesitancy
to fully inform their attorney.

‘‘Finally, there is the middle test . . . . Under [this]
. . . test, the court undertakes a five-step analysis of
the unintentionally disclosed document to determine
the proper range of privilege to extend. These considerations
are (1) the reasonableness of the precautions
taken to prevent inadvertent disclosure in view of the
extent of document production, (2) the number of inadvertent
disclosures, (3) the extent of the disclosures,
(4) the promptness of measures taken to rectify the
disclosure, and (5) whether the overriding interest of
justice would be served by relieving the party of its
error. . . . If, after completing this analysis, the court
determines that waiver occurred, then those documents
are no longer privileged.'' (Citations omitted; internal
quotation marks omitted.) Id., 1483–84.

We conclude that the ‘‘middle of the road'' or moderate
approach strikes the fairest balance between the
competing policy interests of preserving confidential
attorney-client communications27 and encouraging the
party seeking the benefit of the attorney-client privilege
to take care in the handling of otherwise privileged
material.28 This approach properly places a burden on
that party to demonstrate that reasonable measures
were taken to preserve the confidentiality of the material
that inadvertently was disclosed notwithstanding
those measures. Conversely, the approach allows for
the recognition of waiver of the privilege when, in view
of the totality of the circumstances, the party claiming
the privilege has failed to take proper precautions to
safeguard the confidentiality of the inadvertently disclosed
material. Furthermore, this approach recognizes
that the occasional inadvertent disclosure of privileged
material is inevitable in the modern era of complex,
document-intensive litigation. The moderate approach
also recognizes that parties who seek legal advice reasonably
may expect that the confidence of their communications
with counsel will not be breached to their
detriment by virtue of an excusable mistake or oversight
in the handling of those communications.

Under the moderate approach, the trial court has
discretion to determine if a waiver of the attorney-client
privilege has occurred and the scope of that waiver. E.g.,
id., 1484. The determination of whether the privilege has
been waived generally will require ‘‘a detailed court
inquiry into the document practices of the party who
inadvertently released the document.'' Id. Furthermore,
‘‘as with all privileges, the [party] claiming the attorney-
client privilege has the burden of establishing all essential
elements.'' In re Horowitz, 482 F.2d 72, 82 (2d Cir.),
cert. denied, 414 U.S. 867, 94 S. Ct. 64, 38 L. Ed. 2d 86
(1973); cf. State v. Egan, 37 Conn. App. 213, 217, 655
A.2d 802, cert. denied, 234 Conn. 905, 659 A.2d 1206
(1995). Because the party seeking to invoke the attorney-
client privilege is responsible for maintaining the
continued confidentiality of protected communications;
see, e.g., In re Von Bulow, 828 F.2d 94, 101 (2d
Cir. 1987); that party also has the burden of showing
that the inadvertent disclosure of those communications
occurred even though reasonable precautions
were taken to preserve the privilege.

Having identified the proper standard for determining
whether a party's inadvertent disclosure of otherwise
privileged material constitutes a waiver of the attorneyclient
privilege, we next must determine whether the
trial court, Moran, J., applied that test. Despite the
brevity of its ruling,29 we conclude that the trial court's
express reliance on Barnes indicates that it used the
correct test in determining that the disclosure of the
legal strategies memoranda did not constitute a waiver
of the attorney-client privilege in the present case.
In Barnes, the court rejected the strict approach to
determining waiver in the context of inadvertent disclosure
and adopted an approach that requires consideration
of all relevant factors, including ‘‘the amount of
documents involved and the degree of care taken to
prevent inadvertent disclosure of privileged information.''
Barnes/Science Associates Ltd. Partnership v.
Barnes Engineering Co., supra, 1 Conn. L. Rptr. 725.
Upon application of that test, the court in Barnes concluded
that the accidental release of certain documents
otherwise protected by the attorney-client privilege did
not constitute a waiver of that privilege because: (1)
the disclosure was not ‘‘knowing or intentional''; (2)
the number of privileged documents disclosed as compared
to the voluminous number of documents involved
in the discovery request was extremely small; and (3)
the production of the documents was not handled in a
‘‘careless'' manner. Id. Thus, the court in Barnes properly
considered the totality of the circumstances in
determining whether, under the facts of that case, the
accidental disclosure of the privileged material constituted
a waiver of the attorney-client privilege. The citation
to Barnes by the trial court, Moran, J., indicates
that it, too, employed that test in ruling on the plaintiff's
motion to compel, and, therefore, we are satisfied that
it applied the correct standard in evaluating the issue
of waiver.

We now must determine whether the trial court,
Moran, J., properly applied the moderate approach to
the facts of the present case. ‘‘At the outset, we recite
the standard governing the review of a trial court's
decision on a discovery motion. We have long recog-
nized that the granting or denial of a discovery request
rests in the sound discretion of the [trial] court, and is
subject to reversal only if such an order constitutes an
abuse of that discretion. . . . [I]t is only in rare
instances that the trial court's decision will be disturbed.
. . . Therefore, we must discern whether the
court could [have] reasonably conclude[d] as it did.

. . .

‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. To the extent that the trial court has made
findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. When,
however, the trial court draws conclusions of law, our
review is plenary and we must decide whether its conclusions
are legally and logically correct and find support
in the facts that appear in the record.'' (Citations
omitted; internal quotation marks omitted.) Olson v.
Accessory Controls & Equipment Corp., 254 Conn. 145,
155–56, 757 A.2d 14 (2000). Inasmuch as the facts relevant
to this issue are not in dispute,30 our task is limited
to a determination of whether, on the basis of those
facts, the trial court's conclusions of law are legally and
logically correct. With these principles in mind, we turn
to the issue before us.

The first factor, the reasonableness of the precautions
taken by the holder of the privilege, weighs in the
defendants' favor. The legal strategies memoranda were
discovered by the plaintiff among the other documents
that were maintained by Rentz in CHFA's general business
files and made available to the plaintiff in connection
with his freedom of information request. The
memoranda were prominently stamped ‘‘privileged and
confidential,'' and were included among the other documents
requested by the plaintiff as a result of a clerk's
filing error. Thus, the trial court reasonably could have
inferred that the memoranda were made available to the
plaintiff notwithstanding CHFA's policy and practice of
maintaining the confidentiality of such documents by
denoting them as privileged and confidential and segregating
them from other, nonprivileged documents.

Under the approach that we have adopted today,
‘‘[t]he mere fact of disclosure does not establish that a
party's precautions undertaken to protect the privilege[
d] [material] were unreasonable''; In re Copper
Market Antitrust Litigation, 200 F.R.D. 213, 222
(S.D.N.Y. 2001); because ‘‘ ‘reasonable precautions' are
not necessarily foolproof.'' Bank Brussels Lambert v.
Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 443
(S.D.N.Y. 1995). Thus, despite the inadvertent disclosure
of the legal strategies memoranda, the record supports
the conclusion that CHFA made reasonable
efforts to preserve the confidentiality of privileged
material.

The second factor to be considered is the ratio of
the number of privileged documents inadvertently disclosed
to the total number of documents disclosed in
accordance with the request for production. Although
the record is devoid of any precise indication as to
the magnitude of the plaintiff's freedom of information
request, the defendants have characterized the number
of documents produced as ‘‘voluminous,'' and explained
that these documents were contained in ‘‘quite a few''
boxes that occupied about one half of a conference
room. Moreover, even though the plaintiff now claims
that ‘‘[t]he total volume of documents disclosed . . . .
was not unusually large,'' Jacquelyn Hanhurst, the bookkeeper
for Renaissance, stated in an affidavit filed with
the trial court that, ‘‘[w]e were provided with a great
number of files for review, so we proceeded to review
the records in two teams . . . over a number of days.''
Thus, the magnitude of the document production in
relation to the two privileged documents that inadvertently
were disclosed is a factor that militates strongly
against a finding of waiver.

The third and fourth factors, namely, the extent of
the inadvertent disclosures and the time taken to rectify
the error, provide further support for the defendants'
position. Only two privileged documents inadvertently
were disclosed. Moreover, CHFA did not delay upon
learning that the legal strategies memoranda inadvertently
had been made available to the plaintiff. As soon
as CHFA personnel learned that the memoranda had
been made available to the plaintiff, they explained to
him that the memoranda were privileged and confidential
and, consequently, not subject to disclosure. The
employees therefore declined to fulfill the plaintiff's
request for photocopies of the memoranda and would
not permit the plaintiff to review the memoranda further.
In addition, there is nothing in the record to suggest
that the memoranda ever were made available to
anyone else outside CHFA. Thus, once CHFA personnel
learned of the unintended disclosure of the memoranda,
they promptly took all steps necessary to minimize
that disclosure.

Finally, we conclude that the fifth factor, namely,
whether the overriding interest of fairness would be
best served by relieving the party of its error, also favors
the defendants. It is axiomatic that ‘‘[d]epriving a party
of information in an otherwise privileged document is
not prejudicial.'' In re Copper Market Antitrust Litigation,
supra, 200 F.R.D. 223. Thus, ‘‘[t]he prejudice factor
focuses only on whether the act of restoring immunity
to an inadvertently disclosed document would be
unfair, not whether the privilege itself deprives parties
of pertinent information.'' Bank Brussels Lambert v.
Credit Lyonnais (Suisse) S.A., supra, 160 F.R.D. 446.
In the present case, the legal strategies memoranda
fall squarely within the attorney-client privilege. The
disclosure of the memoranda clearly was inadvertent
and was limited both in time and scope. Furthermore,
CHFA rectified the error immediately upon learning of
it. Although the plaintiff relied on the memoranda in
deciding whether to bring this action against the defendants;
31 see, e.g., Hydraflow, Inc. v. Enidine, Inc., 145
F.R.D. 626, 638 (W.D.N.Y. 1993) (suggesting that reliance
on inadvertently disclosed but otherwise privileged
material by party claiming waiver may be
considered in determination of whether fairness dictates
finding of waiver); he did so with full knowledge
that, at the very least, the defendants had a strong claim
that the inadvertent disclosure of the memoranda did
not constitute a waiver of the attorney-client privilege.32
Thus, the trial court's determination that, all relevant
circumstances considered, the inadvertent disclosure
of the legal strategies memoranda did not constitute a
waiver of the attorney-client privilege is fully supported
by the record.33 We therefore reject the plaintiff's claim
that the memoranda are not protected by the attorneyclient
privilege.34

II

The plaintiff next claims that the trial court, Devlin,
J., improperly granted the defendants' motions for summary
judgment on the ground that the plaintiff's claims
are barred by the intracorporate conspiracy doctrine.
We agree with the trial court that, although the plaintiff's
complaint does not expressly allege a conspiracy
between and among the defendants, the allegations of
the complaint nevertheless set out a claim of intracorporate
conspiracy. We also agree with the trial court that
the plaintiff's claims therefore are barred. Consequently,
we conclude that the court properly granted
the defendants' motions for summary judgment.
We first set forth the contours of the intracorporate
conspiracy doctrine. ‘‘Courts in other jurisdictions -
both federal and state - that have addressed issues
involving civil intracorporate conspiracy allegations
have adopted the intracorporate conspiracy immunity
doctrine to hold that wholly intracorporate conduct
does not satisfy the plurality requirement necessary to
establish an actionable conspiracy claim. This single
entity view of intracorporate conduct derives from traditional
principles of agency law. A basic principle of
agency is that a corporation can act only through the
authorized acts of its corporate directors, officers, and
other employees and agents. Thus, the acts of the corporation's
agents are attributed to the corporation itself.''35
(Internal quotation marks omitted.) Trau-Med of
America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 703
(Tenn. 2002); see also Day v. General Electric Credit
Corp., 15 Conn. App. 677, 684, 546 A.2d 315, cert. denied,
209 Conn. 819, 551 A.2d 755 (1988) (applying intracorporate
conspiracy doctrine).

Nonetheless, ‘‘[t]he intracorporate conspiracy doctrine,
if applied too broadly, could immunize all private
conspiracies from redress where the actors coincident[
ly] were employees of the same company. Aware
of this possibility, courts have created a ‘scope of
employment' exception that recognizes a distinction
between collaborative acts done in pursuit of an
employer's business and private acts done by persons
who happen to work at the same place.'' Johnson v.
Hills & Dales General Hospital, 40 F.3d 837, 840 (6th
Cir. 1994), cert. denied, 514 U.S. 1066, 115 S. Ct. 1698,
131 L. Ed. 2d 560 (1995).

The Connecticut Appellate Court has applied the
intracorporate conspiracy doctrine in concluding that
employees acting within the scope of their employment
cannot conspire with each other or with the corporation
that employs them. Day v. General Electric Credit
Corp., supra, 15 Conn. App. 684. Because, as the trial
court noted, the doctrine is founded on the ‘‘common
sense proposition that one cannot conspire with himself,''
we agree with the Appellate Court that the doctrine,
when applicable, bars a complainant from
proceeding on a conspiracy theory against corporate
employees acting within the scope of their employment.
The plaintiff claims, however, that the intracorporate
conspiracy doctrine is inapplicable to the present case
because: (1) he has not alleged a conspiracy; (2) CHFA
is not a party to this action; and (3) even if the doctrine
is applicable, the defendants have failed to establish a
necessary component of the doctrine, namely, that they
were acting within the scope of their employment when
they engaged in their allegedly tortious conduct. We
reject each of these claims, which we address in turn.36

A

The plaintiff first contends that the trial court improperly
concluded that the plaintiff's claims sound in conspiracy
and, therefore, are barred by the intracorporate
conspiracy doctrine. In particular, the plaintiff maintains
that he has alleged only that the defendants acted
jointly, or in concert, and not that they had conspired
together. We disagree.

Although the complaint does not contain the term
‘‘conspiracy,'' we conclude nevertheless that the plaintiff
has alleged a civil conspiracy.37 ‘‘The [elements] of
a civil action for conspiracy are: (1) a combination
between two or more persons, (2) to do a criminal or
an unlawful act or a lawful act by criminal or unlawful
means, (3) an act done by one or more of the conspirators
pursuant to the scheme and in furtherance of the
object, (4) which act results in damage to the plaintiff.''
(Internal quotation marks omitted.) Marshak v. Marshak,
226 Conn. 652, 665, 628 A.2d 964 (1993).

In the present case, the plaintiff alleged in his complaint,
inter alia, that the defendants' ‘‘joint action''
defamed him, invaded his privacy, tortiously interfered
with his business expectancies and caused him emo-
tional distress. The plaintiff further alleged in the complaint
that ‘‘the defendants agreed to deprive the
plaintiff of his property and his profession,'' thereby
causing him emotional distress and economic loss.
(Emphasis added.) These allegations comprise the
essence of a civil conspiracy, namely, two or more
persons acting together to achieve a shared goal that
results in injury to another.

Indeed, in his deposition, the plaintiff characterizes
the defendants' joint conduct as a conspiracy. For
example, the plaintiff stated that the legal strategies
memoranda ‘‘made . . . the leap from . . . a legal
assessment to a conspiratorial assessment . . . .''
(Emphasis added.) Later in his deposition, in regard to
the fact that CHFA had apprised him that he was in
default, the plaintiff stated, ‘‘I'm denying the fairness
of that action. I'm not denying the fact that CHFA did
it. Obviously, that's a purpose of this lawsuit, to contest
the fact it was discriminatory, unfair, capricious, conspiratorial
and shameful.'' (Emphasis added.) Thus,
even though the complaint does not contain an express
allegation that the defendants engaged in a conspiracy
to harm the plaintiff professionally, the plaintiff's claims
all are founded on a conspiracy theory.

The plaintiff contends that the defendants are jointly
liable because they acted in concert, not because they
were part of a conspiracy. In essence, the plaintiff
attempts to draw a distinction between parties ‘‘acting
in concert'' and parties acting pursuant to a ‘‘common
design.'' In support of this contention, the plaintiff relies
on the comments to § 876 (a) of the Restatement (Second)
of Torts, which define ‘‘acting in concert'' as acts
done ‘‘in accordance with an agreement to cooperate in
a particular line of conduct or to accomplish a particular
result,'' and equate ‘‘acts done pursuant to a common
design or plan'' with the term ‘‘conspiracy.'' 4
Restatement (Second), Torts § 876 (a), comments (a)
and (b), p. 316 (1979).38 For present purposes, however,
we find no meaningful distinction between ‘‘concerted
action'' and acts done pursuant to a ‘‘common design.''
In each case, one or more persons, by express or tacit
agreement, act in combination with another for a particular
purpose or to attain a particular end. Because such
conduct forms the crux of the plaintiff's claims, we
agree with the trial court that the plaintiff has alleged
a civil conspiracy.

B

We next address the plaintiff's claim that the intracorporate
conspiracy doctrine is inapplicable because
he does not seek to hold CHFA liable. In particular, he
contends that the doctrine applies only to conspiracies
between an employee and the corporation itself. We
are not persuaded.

Although CHFA is not a party to this action, the act
of ‘‘[s]imply joining corporate officers as defendants in
their individual capacities is not enough to make them
persons separate from the corporation in legal contemplation.''
Cole v. University of Hartford, 391 F. Sup.
888, 893 (D. Conn. 1975); accord Buschi v. Kirven, 775
F.2d 1240, 1252 (4th Cir. 1985). Thus, ‘‘[e]mployees of
a corporation acting in the scope of their employment
cannot conspire with one another or with the corporation
that employs them; each acts for the corporation
and the corporation cannot conspire with itself.''
(Emphasis added.) Day v. General Electric Credit
Corp., supra, 15 Conn. App. 684; see also Jackson v.
Columbus, 194 F.3d 737, 753 (6th Cir. 1999) (members
of same legal entity cannot conspire with one another
as long as their alleged acts are within scope of employment),
overruled in part on other grounds by Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152
L. Ed. 2d 1 (2002); Benningfield v. Houston, 157 F.3d
369, 378 (5th Cir. 1998) (‘‘a corporate entity and its
employees constitute a single legal entity [that] is incapable
of conspiring with itself'' [internal quotation
marks omitted]), cert. denied sub nom. Benningfield
v. Nuchia, 526 U.S. 1065, 119 S. Ct. 1457, 143 L. Ed. 2d
543 (1999). But see Novotny v. Great American Federal
Savings & Loan Assn., 584 F.2d 1235, 1259 (3d Cir.
1978) (intracorporate conspiracy doctrine inapplicable
to allegations of conspiracy among individual defendants
only), vacated on other grounds, 442 U.S. 366, 99
S. Ct. 2345, 60 L. Ed. 2d 957 (1979). The same principles
that preclude a conspiracy claim between principal and
agent apply to a claim of conspiracy among employees
acting on behalf of the same corporate entity. We therefore
reject the plaintiff's claim that the intracorporate
conspiracy doctrine bars only those actions in which
the corporation is alleged to have conspired with one
or more of its employees.

C

Finally, the plaintiff contends that his claims are not
barred by the intracorporate conspiracy doctrine
because the defendants were not acting within the
scope of their employment when they engaged in their
allegedly tortious conduct. We also reject this claim.
‘‘[F]or a claim of intracorporate conspiracy to be
actionable, the complaint must allege that corporate
officials, employees, or other agents acted outside the
scope of their employment and engaged in conspiratorial
conduct to further their own personal purposes and
not those of the corporation.'' Trau-Med of America,
Inc. v. Allstate Ins. Co., supra, 71 S.W.3d 704. In other
words, the employee's allegedly wrongful conduct must
be in furtherance of personal considerations unrelated
or extraneous to the corporation's interest. In determining
whether an employee has acted within the scope
of employment, courts look to whether the employee's
conduct: (1) occurs primarily within the employer's
authorized time and space limits; (2) is of the type
that the employee is employed to perform; and (3) is
motivated, at least in part, by a purpose to serve the
employer. See 1 Restatement (Second), Agency § 228,
p. 504 (1958).

‘‘Ordinarily, it is a question of fact as to whether a
wilful tort of the servant has occurred within the scope
of the servant's employment . . . [b]ut there are occasional
cases [in which] a servant's digression from [or
adherence to] duty is so clear-cut that the disposition
of the case becomes a matter of law.'' (Citation omitted;
internal quotation marks omitted.) A-G Foods, Inc. v.
Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d
69 (1990). We agree with the trial court that this is such
a case because, in the absence of the legal strategies
memoranda; see part I of this opinion; there is nothing
in the record from which a fact finder could conclude
that the defendants' allegedly tortious conduct had
occurred outside the scope of their employment.39
The plaintiff offers the following evidence in support
of his claim of disparate, unfair and discriminatory
treatment by the defendants: (1) the allegedly unprecedented
nature of Rentz' ‘‘forensic audits''; (2) the declaration
that the plaintiff was in ‘‘technical default'' owing
to his failure to submit to CHFA timely financial reports
on the developments; (3) the imposition of harsh and
unduly restrictive conditions on Renaissance in its continued
management of the developments; and (4) the
charging of higher interest rates on the loans on the
plaintiff's CHFA-financed properties than the interest
rates on loans assumed by other similarly situated, nonminority
developers. Although this evidence, if credited,
tends to support the plaintiff's claim of disparate and
unfair treatment, the defendants' allegedly improper
conduct occurred during working hours and in the discharge
of official CHFA business.40 Moreover, even if
we were to assume that the defendants may have been
motivated, in part, to engage in the allegedly tortious
conduct because they did not like the plaintiff and were
seeking to harm him, that conduct nevertheless
involved activities that fell within the purview of the
defendants' core duties.

The plaintiff also claims that his allegedly disparate
treatment was due, in some measure, to his race. This
claim is predicated largely on the deposition testimony
of Lenward Gatison, a former vice president of CHFA,
who stated that King, in particular, had made the plaintiff
‘‘jump through hoops,'' in part because of his race
and in part because the plaintiff had taken CHFA personnel
‘‘to task'' when he believed that they were doing
something improper. King, however, is the only defendant
that Gatison identifies as being motivated by racial
considerations, and the plaintiff has provided no support
for his assertion that King's alleged racial animus
is attributable to the other defendants. Moreover, the
plaintiff has not sought to differentiate between King
and the other defendants insofar as his challenge to the
trial court's decision on the defendants' motions for
summary judgment is concerned. Finally, even if we
assume, arguendo, that King's actions were motivated,
in part, by the plaintiff's race, the plaintiff has failed to
explain why such actions and the actions of the other
defendants fell outside the scope of the defendants'
employment even though all of those actions were
undertaken in the discharge of the defendants' official
duties and in the furtherance of CHFA business.41 Thus,
even if the conduct of King or the other defendants
was motivated, in part, by improper considerations, the
plaintiff nevertheless has failed to establish that the
defendants were acting outside the scope of their
employment when they engaged in the allegedly tortious
conduct that forms the basis of the plaintiff's
claims.

We conclude that, although the plaintiff produced
admissible evidence which, if credited, might be sufficient
to establish that the defendants had treated him
unfairly or inequitably, the defendants' conduct
occurred within the scope of their official duties and,
consequently, that conduct also fell within the purview
of the intracorporate conspiracy doctrine. ‘‘If the measure
of the applicability of [that] . . . doctrine was
keyed to the alleged wrongdoing of corporate officers, it
would quickly become a meaningless concept. In every
case of conspiracy. . . there are necessarily accusations
of wrongful conduct. The test [therefore] is not
the wrongful nature of the conspirators' actions but
whether the wrongful conduct was performed within
the scope of the conspirators' official duties.'' Doe v.
Board of Education, 833 F. Sup. 1366, 1382 (N.D. Ill.
1993). An employee acts within the scope of his employment
as long as he is discharging his duties or endeavoring
to do his job, ‘‘no matter how irregularly, or with
what disregard of instructions.''42 (Internal quotation
marks omitted.) Ierardi v. Sisco, 119 F.3d 183, 187 (2d
Cir. 1997). Consequently, the plaintiff's contention that
the defendants were not acting within the scope of
their employment when they engaged in the allegedly
tortious conduct that forms the basis of his claims is
without merit.43

III

The plaintiff's final contention is that, even if the trial
court properly had ruled on the applicability of the
intracorporate conspiracy doctrine, summary judgment
was not warranted in regard to his claim that the defendants
had tortiously interfered with his business expectancies,
namely Renaissance's management contracts
with CHFA.44 We disagree.

Although we construe pleadings ‘‘broadly and realistically,
rather than narrowly and technically''; (internal
quotation marks omitted) Doe v. Yale University, 252
Conn. 641, 667, 748 A.2d 834 (2000); the plaintiff's claim
of tortious interference with business expectancies, like
his other claims, is wholly predicated upon his claim
that the defendants implemented a scheme to deprive
him of his ownership and management interests in the
developments. See part II of this opinion. Indeed, the
plaintiff never has alleged that each defendant is liable
irrespective of the conduct of any other defendant; in
fact, the plaintiff's complaint repeatedly refers to the
defendants' ‘‘joint action.'' Moreover, the plaintiff seeks
to hold the defendants jointly and severally liable for
their joint conduct. We conclude, therefore, that the
plaintiff's claim for tortious interference with business
expectancies is barred by the intracorporate conspiracy
doctrine.