United States District Court, D. Connecticut
In re Application of LUIS JAVIER MARTINEZ SAMPEDRO for an Pursuant to 28 U.S.C. § 1782 to Compel Discovery for Use in a Foreign Proceeding
RULING ON PETITIONER'S EMERGENCY MOTION TO COMPEL
WITHHELD DOCUMENTS (DOC. NO. 99)
M. Spector United States Magistrate Judge.
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 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).
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. (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.
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; 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.
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.
WHETHER ATTORNEY-CLIENT PRIVILEGE CAN BE ASSERTED AGAINST
PETITIONER DESPITE HIS ROLE AS A DIRECTOR OF CODERE
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
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.”
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.
WHETHER INCLUSION OF G3M WAIVED THE ATTORNEY-CLIENT
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).
G3M DOCUMENTS FROM ON OR ...