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Bissonnette v. Podlaski

United States District Court, N.D. Indiana, Fort Wayne Division

June 5, 2018

KEVIN PODLASKI, et al., Defendants.


          Susan Collins United States Magistrate Judge.

         Before the Court is a motion for summary judgment or, in the alternative, for partial summary judgment and a supporting memorandum, together with several exhibits, filed by Defendants Kevin Podlaski (“Podlaski”), an attorney, and Carson Boxberger, LLP (“Carson Boxberger”), a law firm (together “Defendants”), seeking judgment as a matter of law on Plaintiff Matthew Bissonnette's (“Bissonnette”) claims for legal malpractice and breach of fiduciary duty under Indiana law.[1] (DE 137-DE 139). Bissonnette timely filed a response brief, also submitting several exhibits (DE 140; DE 141; DE 150), and Defendants filed a reply (DE 142). On February 8, 2018, the Court heard oral argument on the motion. (DE 147).

         Also before the Court is Defendants' motion seeking to preclude Bissonnette's expert, Mark Zaid, Esq. (“Zaid”), pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), filed together with a supporting brief and exhibits. (DE 76-DE 78). Bissonnette timely filed a response, also submitting several exhibits (DE 104; DE 105; DE 109), and Defendants filed a reply (DE 121). The motion is now fully briefed, including the filing of sur-responses and sur-replies. (DE 124; DE 126; DE 128; DE 129; DE 131; DE 132).

         Defendants' motion for summary judgment and motion to preclude are ripe for ruling. For the reasons set forth below, Defendants' motion for summary judgment will be GRANTED in part and DENIED in part, and their motion to preclude expert Zaid will be DENIED.


         Bissonnette is a former Navy SEAL who authored the book, “No Easy Day” (the “Book”), under the pseudonym Mark Owen. (DE 14 ¶ 5; DE 140 at 31). The Book gives Bissonnette's first-hand account of Operation Neptune Spear, the raid that resulted in the death of Osama Bin Laden. (DE 14 ¶ 11; DE 140 at 31).

         In late 2011, Bissonnette connected with Elyse Cheney (“Cheney”), who was affiliated with Dutton, a division of Penguin Group (USA), Inc., a publishing corporation. (DE 138-1 at 27-29; DE 138-2 at 22; DE 138-3 at 26-27). Bissonnette, Cheney, and Benjamin Sevier (“Sevier”), the editor in chief of Dutton, agreed to produce a book that would detail Bissonnette's account of Operation Neptune Spear. (DE 138-2 at 23; DE 138-3 at 26-27). The three enlisted the help of a ghost writer, Kevin Maurer (“Maurer”). (DE 138-2 at 27-28).

         Cheney began “looking for a lawyer . . . to help [Bissonnette] follow whatever his legal obligations were in regards to the publication [of the Book], ” and she was put in touch with Podlaski as somebody who could do so. (DE 138-3 at 33; see also DE 138-2 at 21; DE 138-13 at 6; DE 138-14 at 6). Podlaski was a partner at Carson Boxberger at the time. (See, e.g., DE 14 ¶¶ 6-7; DE 150 at 4-8; DE 138-4 at 8). Podlaski demonstrated a familiarity with the government's non-disclosure agreements (“NDA”) regarding confidential material, and represented that he had previously assisted a former Special Forces member in publishing a book. (DE 138-1 at 40, 85; DE 138-3 at 7, 33; DE 138-3 at 54). Bissonnette believed that Podlaski possessed familiarity with issues he would encounter in writing the Book, and the two began talking on the phone in November or December 2011.[3] (DE 138-4 at 9; DE 138-13 at 8; DE 138-14 at 8).

         By January 11, 2012, Bissonnette agreed to hire Podlaski. (DE 138-1 at 42). On January 17, 2012, Defendants and Bissonnette executed an Engagement/Representation Letter (“Engagement Letter”). (See DE 150 at 4-8). In the Engagement Letter, Podlaski agreed to provide the following services:

Reviewing the publishable manuscript of [Bissonnette's] career to ensure [his] compliance with [his] obligations under any agreements [he] may have signed with the U.S. Government not to release classified or classifiable information or otherwise compromise the national security interests of the United States, as those terms are used, intended or understood in Standard Form 312, Confidential Information Non-Disclosure Agreement ([“]CINA”), or any other such agreements.

         (DE 150 at 4). On February 10, 2012, Bissonnette signed an agreement with Dutton to draft the Book. (DE 138-6).

         Bissonnette submitted a manuscript of the Book to Podlaski on or around June 21, 2012, so that Podlaski could screen it for classified information. (DE 138-14 at 27). Podlaski and Bissonnette had other communications in June 2012, but Podlaski did not bill Bissonnette for these communications, as it is was not his practice to bill or memorialize every interaction with Bissonnette. (DE 138-4 at 11, 19). According to Bissonnette, Podlaski advised him not to submit a manuscript of the Book for prepublication review. (See, e.g., DE 138-1 at 44, 48; DE 138-14 at 9; DE 150 at 32). The Book was due to be released for sale on September 11, 2012. (DE 138-1 at 55).

         It is not clear how, but at some point in mid or early August 2012, United States Special Operations Command or SOCOM, and United States Joint Special Operations Command, and perhaps other entities within the military or intelligence community obtained advance copies of the Book. (DE 138-1 at 14; DE 138-2 at 43). Beginning in late August, certain media outlets and investigative journalists purported that the government had taken the position that Bissonnette had violated NDAs in publishing the Book and that the Book contained classified information. (DE 138-1 at 55-56; DE 138-2 at 45; DE 138-3 at 45; DE 150 at 30-31). At some point, United States Joint Special Operations Command and Maurer discussed the government's concerns. (DE 138-2 at 43). On August 29, 2012, a source reported to Sevier that the Department of Defense (the “DoD”) would not seek an injunction against releasing the Book. (DE 138-2 at 46). Nevertheless, Podlaski insisted that Bissonnette was not required to submit a manuscript of the Book for prepublication review and that the Book did not contain classified material. (DE 150 at 26-28, 29). Around that time, Dutton decided to release the Book for sale a week early, on September 4, 2012. (DE 138-2 at 48).

         The rumors and reports of the government's concerns were realized on August 30, 2012, when Jeh Johnson, General Counsel of the DoD, faxed Dutton a letter to the attention of “Mr. Mark Owen” (the “Johnson Letter”). (DE 150 at 17-25; DE 138-9). The Johnson Letter explained that Bissonnette had signed two NDAs on January 24, 2007, that remained in force after Bissonnette had left active duty because Bissonnette signed a Sensitive Compartmented Information Debriefing Memorandum on April 20, 2012 (the day Bissonnette left active duty), acknowledging the NDAs. (DE 150 at 18). In these NDAs, Bissonnette had, among other things:

(i) acknowledged [his] awareness that disclosure of classified information constitutes a violation of federal criminal law; (ii) agreed to submit [his] manuscript for pre-publication security review, and to obtain permission from the agency before publishing it, and (iii) assigned to the U.S. Government “all royalties, remuneration, and emoluments that have resulted, will result or may result from a disclosure, publication or revelation of classified information not consistent with the terms of [that agreement].”

(DE 150 at 18). The DoD claimed that Bissonnette was in “material breach and violation” of the NDAs by publishing and releasing the Book for sale. (DE 150 at 18). The letter warned that “[f]urther public dissemination” of the Book would aggravate Bissonnette's breach. (DE 150 at 18). The DoD was considering “all remedies legally available” in light of Bissonnette's alleged breach of the NDAs. (DE 150 at 18).

         Attached to the Johnson Letter were several documents including: a personal attestation of Bissonnette's loyalty and duty to maintain the secrecy of classified information; a standard Classified Information Non-Disclosure Agreement (“CINA”), signed by Bissonnette on January 24, 2007; and DD Form 1847-1, signed by Bissonnette on January 24, 2007, and acknowledged again on April 20, 2012. (DE 150 at 17-25; DE 151). Under DD Form 1847-1, Bissonnette agreed that he would not publish or disclose in any form, a work containing Special Compartment Information (“SCI”) “or description of activities that produce or relate[] to SCI or that [Bissonnette] ha[d] reason to believe [were] derived from SCI . . . .”[4] (DE 150 at 22; DE 151 at 5). SCI is defined in DD Form 1847-1 as “information or material protected within Special Access Programs . . . .” (DE 150 at 22; DE 151 at 5).

         The next day, Bissonnette hired attorney Bob Luskin (“Luskin”) to handle “the new issue that seemed to have materialized” from the Johnson Letter. (DE 138-1 at 12). Luskin took the lead in writing a response to the Johnson Letter (DE 138-1 at 13; DE 138-11) with Podlaski's input (DE 150 at 41-44). Luskin sent the response to the DoD on August 31, 2012. (DE 138-11). In the response, Luskin claimed that Bissonnette “sought legal advice about his responsibilities before agreeing to publish his book and scrupulously reviewed the work to ensure that it did not disclose any material that would breach his agreements or put his former comrades at risk.” (DE 138-11).

         Podlaski testified at his deposition that on or around August 30, 2012, Luskin instructed him not to speak to Bissonnette unless Luskin was present; giving Podlaski the sense that he was fired. (DE 138-4 at 16). Luskin testified that he instructed Podlaski early on not to speak to Bissonnette about facts involving the events precipitating the Johnson Letter in Luskin's absence, because Podlaski would likely be a witness in any legal proceeding related to issues identified in the Johnson Letter and Luskin did not want Podlaski's or Bissonnette's testimony to be tainted. (DE 138-12 at 37). Luskin testified that he had no issue with Bissonnette and Podlaski discussing subjects other than historical facts of the case in Luskin's absence. (DE 138-12 at 37-38). In any event, Podlaski communicated with Bissonnette no less than eight times between August 31, 2012, and May 9, 2013, without including Luskin. (See DE 138-4 at 55, 56, 59, 62, 63, 64-65). Podlaski billed Bissonnette for some, but not all, of these interactions. (DE 138-23 at 24-31).

         On September 4, 2012, the Book was released for sale. (DE 138-2 at 39). Around that time, Luskin had a couple of meetings with Johnson and the DoD. (DE 138-12 at 30). Bissonnette also participated in some of these meetings with the DoD and other government agencies. (DE 138-1 at 18-19, 61-63). By Luskin's second meeting, on or around September 20, 2012, he did not think that Bissonnette had a good argument that he complied with his obligations under the NDAs. (DE 138-12 at 30-33). As such, Luskin thought that Bissonnette would likely lose if the DoD sued him for breach of contract.[5] (DE 138-12 at 29-30).

         Although Luskin, Bissonnette, and the government discussed what material in the Book the government considered classified or sensitive to national security, the government has prohibited them from identifying with specificity any offending material in the Book. (DE 138-1 at 18-19, 61-63; DE 138-12 at 47-48, 57). However, Luskin testified that the DoD was concerned that the Book improperly disclosed specific matters (e.g., tactics and procedures), but that the DoD did not have a problem with “generally talking about the mission.” (DE 138-12 at 57). Bissonnette also testified that he heard from all the agencies present at the interviews that had a stake in the information revealed in the Book, and “there wasn't anything that [he] couldn't have written around very easily or simply deleted . . . out of the book.” (DE 138-1 at 72).

         Podlaski believed that Bissonnette was being unfairly targeted by the government. (DE 138-6). He knew that other people in the military and intelligence communities had published books without being subjected to the same sort of treatment as Bissonnette. (DE 138-1 at 66; DE 138-4 at 17, 61-62; DE 138-12 at 38). Thus, around September 18, 2012, Podlaski sent requests to the government pursuant to the Freedom of Information Act, 5 U.S.C. § 552, et seq. (“FOIA”), for information on whether other books written on topics that were sensitive to national security similar to the Book had been subjected to similar scrutiny or treatment.[6] (DE 150 at 97-99; see also DE 138-4 at 61). On November 13, 2012, Podlaski submitted a similar request to the Federal Bureau of Investigation regarding 16 books. (DE 150 at 97-99; see also DE 138-4 at 61). These requests were Podlaski's idea. (DE 138-4 at 61-63).

         Towards the end of 2012, Podlaski had little to no communication with Bissonnette, Luskin, or anyone at Dutton. (DE 138-3 at 44-45; DE 138-4 at 17, 64). On May 8, 2013, an associate of Cheney's reached out to Podlaski regarding the status of the FOIA request. (DE 150 at 100). Podlaski responded by emailing Bissonnette directly with an update on the FOIA request and asking that Bissonnette “[c]ontact [Podlaski] at [his] convenience to discuss the status of [his] situation.” (DE 150 at 101).

         In September 2013, Cheney put Bissonnette in touch with attorney Alan Enslen (“Enslen”) to advise Bissonnette in drafting and publishing his second book, “No Hero.” (DE 138-17 at 9). Enslen has a background in Special Forces and advised Bissonnette to submit a manuscript of “No Hero” to the Defense Office of Prepublication and Security Review (“DOPSR”).[7] (DE 138-17 at 9, 15-17). Bissonnette testified that Enslen was the first person who advised him that Podlaski had given him bad advice.[8] (DE 138-1 at 65).

         On August 26, 2014, Bissonnette and Defendants entered into the Tolling Agreement. (DE 138-18; DE 150 at 105-10). Under the Tolling Agreement, the parties agreed that the statute of limitations for any claim Bissonnette could bring against Defendants was tolled from August 26, 2014, until November 30, 2014, or 30 days after any party to the agreement provided written notice of an intention to terminate the agreement. (DE 150 at 105). The Tolling Agreement provided that:

Bissonnette shall make no effort to publicize [any claim he may have against Defendants] or otherwise make or cause to be made any disparaging remarks about [Defendants]. . . . Any violation of this provision will void this agreement as if it had not existed and the statute of limitations had not been tolled on the date of such violation.

         (DE 150 at 106).

         On November 2, 2014, the television program 60 Minutes aired a segment featuring interviews with Bissonnette and Luskin. (See DE 138-19). During this segment, Bissonnette and Luskin stated that Bissonnette did not submit a manuscript of the Book to the government for prepublication review because Bissonnette received bad legal advice from his former attorney. (E.g., DE 138-19 at 5).

         On November 5, 2014, Bissonnette filed a complaint in the United States District Court for the Southern District of New York against Defendants, alleging that Defendants committed legal malpractice in advising Bissonnette that he was not obligated to submit a manuscript of the Book for prepublication review. (DE 138-25). The complaint alleged that the court had personal jurisdiction over Defendants pursuant to New York's long arm statute because Defendants “transacted business within the state, contracted to provide legal services, and did provide legal services within the state . . . .” (DE 138-25 at 4). Around this time, Bissonnette's second book, “No Hero, ” was released. (DE 138-19 at 7-8; DE 138-27 at 4).

         On October 7, 2015, District Judge Jesse Furman dismissed Bissonnette's complaint for lack of personal jurisdiction over Defendants. (DE 138-24). Judge Furman observed that “aspects of the underlying transaction in this case took place in New York or involved New York law.” (DE 138-24 at 14). For example, Bissonnette's contract with Dutton, which Podlaski helped negotiate, was governed by New York law, and Defendants were hired to provide legal advice for Bissonnette's team, which was located in New York. (DE 138-24 at 14-15). Nevertheless, Judge Furman found that Defendants had not engaged in meaningful activity in New York as to avail themselves to the court's jurisdiction. (DE 138-24 at 15).

         On August 19, 2016, the United States filed a civil complaint against Bissonnette in the United States District Court for the Eastern District of Virginia (DE 138-15) and entered into a Consent Decree with Bissonnette.[9] (DE 138-16). The complaint alleged that Bissonnette violated a fiduciary duty he owed to the United States and breached the NDAs by failing to submit the Book for prepublication review. (DE 138-15). The complaint does not allege with any specificity that the Book contained classified information or SCI, much less identify what information in the Book references SCI or classified information. (DE 138-15).

         Similarly, the Consent Decree is unclear as to the nature or presence of SCI or classified material in the Book. (See DE 138-16). Under the Consent Decree, Bissonnette agreed to forfeit “any and all revenues, gains, profits, royalties, and other financial advantages derived by [Bissonnette], or derived by [him] in the future, from the sale, serialization, republication rights in any form, television or movie rights, and other redistribution for profit of the work entitled No Easy Day.” (DE 138-16 at 3 (emphasis in original)). At the time of the Consent Decree, proceeds from the Book totaled $6, 664, 882.21. (DE 138-16 at 4). The government released Bissonnette from civil liability in connection with publishing the Book, apart from any liability for future breaches or liability arising under the Internal Revenue Code. (DE 138-16 at 5).

         On November 9, 2015, Bissonnette filed his complaint in this case alleging that Podlaski committed legal malpractice in advising him not to submit a manuscript of the Book for prepublication review, and that Defendants breached a fiduciary duty to Bissonnette by not producing certain documents in Bissonnette's dealings with the government. (DE 1; DE 14). Bissonnette alleges that Carson Boxberger is liable for Podlaski's negligence because Podlaski was a partner at Carson Boxberger during the relevant time period. (DE 14 ¶ 8).

         In the instant motion for summary judgment, Defendants argue that they are entitled to judgment as a matter of law on all of Bissonnette's claims because he filed his complaint in this action after the statute of limitations had expired. In the alternative, Defendants argue that they are entitled to judgment as a matter of law on Bissonnette's claim that they proximately caused $6, 664, 882.21 (the royalties Bissonnette forfeited to the government) in damages. Defendants also seek summary judgment as to Bissonnette's claim for breach of fiduciary duty.

         Bissonnette has not responded to Defendants' motion for summary judgment on his breach of fiduciary duty claim. The law is clear that failure to respond to issues raised in a summary judgment motion constitutes waiver. See Fed. R. Civ. P. 56(e); Gaerte v. Great Lakes Terminal & Transp. Corp., No. 3:05 CV 1141, 2007 WL 2461650, at *2 (N.D. Ind. Aug. 27, 2007) (“[I]ssues raised in [a] summary judgment motion that non-moving party does not properly respond to are deemed waived[.]” (citing E.E.O.C. v. U.S. Bell, No. 2:03 CV 237, 2005 WL 1683979, at *15 (N.D. Ind. July 19, 2005))); see also Palmer v. Marion Cty., 327 F.3d 588, 597-98 (7th Cir. 2003) (deeming a claim abandoned when a party “failed to delineate his . . . claim in his district court brief in opposition to summary judgment ” (citations omitted)). Therefore, the Court will grant Defendants' motion for summary judgment as to Bissonnette's claim for breach of fiduciary duty. The Court will address Defendants' statute of limitations and proximate cause arguments in turn.


         A. Standard

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 627 (7th Cir. 2016). Courts “view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citing Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 20008)). The Court is tasked only with deciding whether “there is any material dispute of fact that requires a trial” within the “evidence of record[.]” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). “[I]f the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party[, ]” then summary judgment may not be granted. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). However, “ a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. at 771 (citation omitted).

         B. Analysis

         1. Statute of Limitations

         Under Indiana law, an action for legal malpractice “must be commenced within two (2) years after the cause of action accrues.” Ind. Code. § 34-11-2-4(a). “[T]he cause . . . accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained . . . .” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (citation and internal quotation marks omitted). The parties do not dispute that Bissonnette's claims against Defendants accrued on August 30, 2012; the day that he received the Johnson Letter.[10] (DE 138-8). The parties also do not dispute that Bissonnette filed the complaint in this action on November 9, 2015. (DE 1; DE 14).

         The parties dispute whether the statute of limitations on Bissonnette's claims was tolled, and if so for how long. Bissonnette asserts that the statute of limitations was tolled on three grounds: (1) Indiana's continuous representation doctrine; (2) the parties' agreement tolling the statute of limitations; and (3) Indiana's Journey Account Statute.

         a. The Continuous Representation Doctrine

         “Under the continuous representation doctrine, the statute of limitations does not commence until the end of an attorney's representation of a client in the same matter in which the alleged malpractice occurred.” Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765 (Ind.Ct.App. 2003); see Atl. Credit & Fin., Inc. v. Robertson, No. 115-CV-00044-MJD-SEB, 2016 WL 81809, at *2 (S.D. Ind. Jan. 7, 2016) (citation omitted); Bambi's Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 357 (Ind.Ct.App. 2006) (citation omitted). “To determine whether the doctrine applies, Indiana courts focus on ‘the matter which formed the basis of the alleged professional malpractice.'” Morgan v. Fennimore, 429 Fed.Appx. 606, 609 (7th Cir. 2011) (quoting Bambi's Roofing, Inc., 859 N.E.2d at 356). The continuous representation doctrine does not toll the statute of limitations if the professional and the client have only “some general, ongoing professional relationship”; their relationship must be related to the “precise matter” that gave rise to the client's claims against the professional. Id. (citation omitted).

         First, Defendants argue that after September 4, 2012 (the day the Book was released for sale), Podlaski fulfilled his obligations to Bissonnette under the Engagement Letter. However, according to Podlaski, neither he nor Bissonnette communicated to the other that their relationship in connection with the Engagement Letter was over. (DE 138-4 at 17). In fact, Podlaski submitted the FOIA requests on November 13, 2012, and May 9, 2013, to show that “there were authors who had not submitted their books for review and . . . there was precedence for not submitting [Bissonnette's] book for review . . . .” (DE 138-4 at 17). Moreover, on October 3, 2012, while discussing negotiations with the DoD, Podlaski advised Bissonnette to “do nothing except apologize and maybe donate money to charity of DoD's choice!” (DE 138-4 at 62-63). And prior to that conversation, Podlaski had apparently sent Bissonnette his thoughts on terms of a proposed settlement with the DoD. (DE 138-4 at 63). Defendants' argument that these actions were merely part of an ongoing professional relationship between Podlaski and Bissonnette is not supported by evidence in the record. The fact that Podlaski did not bill or record any interaction with Bissonnette after September 27, 2012, does not necessarily establish that Podlaski ceased representing Bissonnette in the precise matter giving rise to the alleged malpractice, because Podlaski testified that it was not his practice to bill Bissonnette for every interaction they had. Podlaski advised Bissonnette and submitted the FOIA requests “in connection with, ” Bambi's Roofing, Inc., 859 N.E.2d at 357 (citation omitted), his obligation to limit Bissonnette's liability as described in the Engagement Letter through November 13, 2012.[11]

         Next, Defendants argue that Bissonnette hiring Luskin was analogous to hiring an attorney on appeal, “which ends any continuous representation tolling.” (DE139 at 16 (citing Biomet, Inc., 791 N.E.2d at 766 n.2)). However, the parties do not dispute that Podlaski assisted Luskin in dealing with the government and that Podlaski continued to bill Bissonnette for work performed under the Engagement Letter, using the same client-matter number, through September 27, 2012. (DE 138-23 at 2-28). And, again, from September 28, 2012, through November 13, 2012, Podlaski reviewed and advised Bissonnette on potential settlement terms with the DoD (DE 138-4 at 62-63), and submitted a FOIA request on November 13, 2012, in an attempt to establish that Bissonnette had not violated any NDA with the government (DE 138-4 at 63-64). Even Podlaski testified that through May 8, 2013, he was “work[ing] for Mr. Owen and then was working with Luskin.” (DE 138-4 at 64). Thus, a reasonable jury could only conclude that Bissonnette's hiring of Luskin did not cut off Podlaski's representing Bissonnette[12] “in the same matter in which the alleged malpractice occurred” through November 13, 2012. See Biomet, Inc, 791 N.E.2d at 765.

         Finally, Defendants argue that policy concerns weigh against applying the continuous representation doctrine. In that regard, the court in Biomet stated:

[T]he continuous representation rule avoids disruption of the attorney-client relationship and gives attorneys the chance to remedy mistakes before being sued. At the same time, a client is not required to constantly second-guess the attorney, and in some cases, be forced to obtain other legal opinions regarding the attorney's handling of the case. Furthermore, a client may fully be aware that his attorney has erred to his detriment and still be willing to place his confidence in the attorney's ability to correct the error.

791 N.E.2d at 766 (citations omitted); see Bambi's Roofing, Inc., 859 N.E.2d at 357-58 (citations omitted). Regarding the first policy consideration, as discussed supra, a reasonable jury could only conclude that Podlaski continued to represent Bissonnette in connection with the Engagement Letter after Bissonnette hired Luskin.

         Turning to the second policy consideration, Defendants correctly argue that once the Book was published Podlaski could not vet it for classified or sensitive information. Unfortunately for Defendants, that does not mean there was “nothing [Podlaski] could have done in an ongoing professional capacity” to mitigate or reduce the damage resulting from Podlaski's alleged negligent advice to Bissonnette. Bambi's Roofing, Inc., 859 N.E.2d at 359. To the contrary, Podlaski appears to have advised Bissonnette on how to manage the fallout from the Johnson Letter by counseling ...

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