In re Application of Sampedro

          RULING ON PETITIONER'S EMERGENCY MOTION TO COMPEL WITHHELD DOCUMENTS (DOC. NO. 99)

          Robert M. Spector United States Magistrate Judge.

         I. BACKGROUND

         Familiarity with the Court's prior rulings is presumed. Pursuant to the Ruling on Petitioner's Renewed Motion to Compel that the Court issued on November 30, 2018 (Doc. No. 78), Respondents were to complete document production and provide Petitioner with a privilege log by December 10, 2018. See In re Sampedro, No. 3:18-MC-47 (JBA), 2018 WL 6264834, at *3 (D. Conn. Nov. 30, 2018). On December 28, 2018, Petitioner filed this pending Emergency Motion to Compel Improperly Withheld Documents (Doc. No. 99), alleging that Respondents^[1] had improperly withheld documents on the basis of a claim of attorney-client privilege, and that Respondents' privilege logs were both untimely and deficient. On that same date, Petitioner filed an Emergency Motion to Expedite his Emergency Motion to Compel (Doc. No. 101), which the Court granted. (Doc. No. 104). On January 2, 2019, Respondents submitted their memorandum in opposition to the Emergency Motion to Compel (Doc. No. 109), and on January 3, 2019, Petitioner filed his reply memorandum (Doc. No. 113). The motion has been referred to this Magistrate Judge for a ruling (Doc. No. 107).

         The Court held an on-the-record telephonic status conference on January 4, 2019. (See Doc. No. 120). During the conference, the Court directed the parties to meet and confer to narrow down the number of documents at issue and to submit for the Court's in camera review any documents that remained in dispute.^[2] (See Doc. Nos. 122 & 123). On Monday, January 7, 2019, Respondents submitted documents for the Court's in camera review and indicated that approximately 1, 350 out of 2, 600 documents remained in dispute. (See Doc. No. 123 at 1 n.1). The Court held an additional telephonic status conference on January 7, 2019, during which Respondents indicated that they had submitted for the Court's in camera review only the communications involving G3M, a third-party consulting firm, that were generated prior to January 12, 2018. Respondents indicated that two other categories of documents were not submitted for in camera review because, in their view, the Court could resolve the legal issue of whether the documents were privileged without reviewing their contents. These two categories of documents related to communications with Linklaters, LLP, a law firm hired by the directors of Codere (except the Sampedro brothers) and communications with G3M after January 12, 2018. (See Doc. No. 123 at 1). Petitioner maintained that the Court should not review any of the withheld documents in camera, as Respondents' claim of privilege was untimely and defective.

         Accordingly, this ruling will address the following: (1) whether Respondents must produce documents between Linklaters, LLP and the other Codere directors; (2) whether Respondents must produce documents involving G3M pre-dating January 12, 2018;^[3] and (3) whether Respondents must produce documents involving G3M post-dating January 12, 2018. For the reasons detailed below, Petitioner's Emergency Motion to Compel Improperly Withheld Documents (Doc. No. 99) is GRANTED in part and DENIED in part.

         II. DISCUSSION

         Following the parties' most recent meet and confer efforts, Petitioner's argument is that the Court should compel Respondents to produce the withheld documents still in dispute, as the documents are not privileged for two primary reasons: first, the attorney-client privilege cannot properly be asserted against Petitioner because he is a director of Codere and, therefore, had a reasonable expectation that he was a client of the board's counsel, Linklaters; and second, third parties such as G3M were copied on the communications between the board and Linklaters and, therefore, Respondents waived the attorney-client privilege with respect to those communications.

         A. WHETHER ATTORNEY-CLIENT PRIVILEGE CAN BE ASSERTED AGAINST PETITIONER DESPITE HIS ROLE AS A DIRECTOR OF CODERE

         Petitioner argues that, because he is a director of Codere, Respondents cannot properly withhold communications between the other directors and Linklaters on the basis of attorney-client privilege. (Doc. No. 99 at 5-12; Doc. No. 122 at 2). Respondents maintain that Petitioner's role as a director does not entitle him to access the privileged communications between the other directors and Linklaters, as Linklaters was retained for the sole purpose of providing the other directors with legal advice regarding the removal of Petitioner and his brother. (Doc. Nos. 8-11; Doc. No. 123 at 2).

         “The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance.” Newmarkets Partners, LLC v. Sal. Oppenheim Jr. & Cie. S.C.A, 258 F.R.D. 95, 99 (S.D.N.Y. 2009) (quoting In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007)). “Attorney-client privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Id. at 99-100 (quoting Upjohn v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). “[A]s a general matter, a corporation cannot assert the [attorney-client] privilege to deny a director access to legal advice furnished to the board during the director's tenure.” Id. at 104. This general rule “follows from a doctrine that treats a director and a corporation as ‘joint clients' of the company's attorneys for purposes of privilege claims.” Id.

         Although Petitioner's role as a director of Codere made him a “joint client” of Codere's attorneys, the undersigned concludes that Petitioner's role as a director does not prevent Respondents from asserting the attorney-client privilege over certain communications with Linklaters. A subset of Codere's directors, apart from Petitioner and his brother, retained Linklaters only for the purpose of obtaining legal advice about how to remove Petitioner and his brother from their roles in the company. This is distinguishable from an attorney rendering general legal advice to a Board of Directors and is likewise different from rendering advice about the best ways in which a company's director can fulfill his or her fiduciary duties. See Fitzpatrick v. Am. Int'l Group, Inc., 272 F.R.D. 100, 106 (S.D.N.Y. 2010) (explaining that cases that have expanded the access of a company's directors to attorney-client communications are “fundamentally at odds with basic principles of attorney-client privilege in the corporate context . . . .”). Under these facts, the communications between Linklaters and the directors fall within the attorney-client privilege, and Respondents have carried their burden in showing that they have properly asserted the privilege against Petitioner as to this category of documents.

         B. WHETHER INCLUSION OF G3M WAIVED THE ATTORNEY-CLIENT PRIVILEGE

         Petitioner next argues that, even if Respondents can assert the attorney-client privilege against Petitioner, the inclusion of G3M on communications between the Linklaters attorneys and the other directors waived the attorney-client privilege. Respondent's arguments as to this category of documents can be broken down into two arguments. For communications that occurred prior to January 12, 2018, Respondents maintain that G3M's inclusion on the communications did not waive the attorney-client privilege because G3M's expertise as to Codere was necessary for Linklaters to provide effective legal advice. (See Doc. No. 109 at 11-12; see also Doc. No. 123 at 2). For communications that occurred after January 12, 2018, Respondents argue that, by this time, “G3M became fully integrated into [Codere's] executive office . . . . This gave G3M functional equivalent status sufficient to prevent any waiver of privilege.” (Doc. No. 109 at 13).

         1. G3M DOCUMENTS FROM ON OR ...