Comtide Holdings LLC v. Booth Creek Mgmt. Corp.
| Decision Date | 03 December 2010 |
| Docket Number | Case No. 2:07-cv-1190 |
| Parties | Comtide Holdings, LLC, Plaintiff, v. Booth Creek Management Corp., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This Opinion and Order issues as a sequel to the Opinion and Order filed on October 19, 2010 (Doc. #71). In that ruling, the Court held in abeyance the question of whether Comtide had to return two documents which had been produced by Booth Creek during discovery because Booth Creek had offered to produce some additional (but privileged) evidence that the documents in question are also privileged. That evidence has now been submitted and the Court has reviewed it. For the following reasons, the Court now grants Comtide's Motion for In Camera Review of a Discovery Document to the extent that it will permit Comtide to retain the documents which are the subject of the motion (Doc. #59).
This Opinion and Order must be read in pari materia with the prior Opinion and Order, which sets forth the background of this dispute. It suffices to say here that the controversy surrounds a copy of an email from a Booth Creek employee, Jeff Joyce, to another Booth Creek employee asking that a document entitled "Berlin City Brokerage Commission Calculation" be printed for the benefit of Booth Creek's president, George Gillett. Booth Creek (according to it, inadvertently) produced this document to Comtide on November 25, 2009. Later, it asked for the email and the attachment back on grounds that they were both protected by the attorney-client privilege. However, because none of the senders or recipients of this email or the attachment are attorneys, Comtide questioned that claim and filed a motion seeking a determination of the issue.
In response to Comtide's motion, Booth Creek argued that the documents were prepared in anticipation of a conversation with its attorneys, Winston & Strawn, about the issue involved in this lawsuit. It then asserted that because the documents were an integral part of a communication with counsel and were prepared precisely in order to allow it to communicate effectively with counsel, the documents fall within the scope of the attorney-client privilege. See, e.g., United States v. ChevronTexaco Corp., 241 F.Supp. 2d 1065, 1077 (N.D. Cal. 2002).
The Court found that Booth Creek had not provided much, if any, support for the factual underpinnings of its argument. It also rejected an attempt by Booth Creek to supplement the record with an affidavit from Mr. Joyce (the author of the email), ruling that Booth Creek knew that when it filed its initial responsive memorandum, the sufficiency of its proof as to the required elements of attorney-client privilege had been placed at issue, and that under the Court's Local Civil Rule 7.2(d), the time to submit such proof was with Booth Creek's opposing memorandum and not weeks after Comtide filed its reply. The Court therefore disallowed the filing of a sur-reply.
However, that ruling did not completely close the factual record. The Court noted that in its opposing memorandum, Booth Creek asserted that other privileged documents would show that the two documents in question were prepared in the course of seeking legal advice, and it offered to submit those other documents to the Court for an in camera review. Because that offer (unlike the information submitted with the sur-reply) was timely made, the Court agreed to accept an in camera submission of those documents which Booth Creek believed to be relevant to its claim of privilege. Booth Creek made that submission, and the Court is now in a position to make its ruling on the question of whether the email in question and the attachment to that email must be returned to Booth Creek.
Because the additional evidence submitted by Booth Creek consists of privileged documents which were submitted ex parte and under seal, the Court will reveal only as much about those documents here as is necessary to explain the basis for its decision. Nothing in this order shall be deemed to waive Booth Creek's claim that these documents are privileged.
Booth Creek submitted two documents, both of which are dated the same day as Mr. Joyce's email. Both are listed on Booth Creek's privilege log (as entries 82 and 397). From the privilege log, it is apparent that they are both communications between Comtide and Winston & Strawn, and that Mr. Joyce sent his email to Winston & Strawn several hours after he sent the email that is the subject of this motion.
In the Court's view, these two documents add nothing of significance to the record. Without revealing what they do contain, the Court can safely say what they do not contain, which is any reference to the email in question or the attachment to it, or any information about who may have prepared the attachment or why. As the Court noted in its prior order, Mr. Joyce's affidavit (which, because it was attached to the proposed sur-reply, was not considered as evidence on the issue of privilege) asserts that the attachment was a modification of a pre-existing document. These two new documents do not help the Court determine either whether, or how, this pre-existing document might have been modified on August 13, 2007 to create the attachment which Mr. Joyce sent to Ms. Rogus.
To summarize all of the pertinent information that can be gleaned from the current record, all the Court knows is:
1. Mr. Joyce sent the attachment in question to Ms. Rogus, for Mr. Gillett's benefit, on the morning of August 13, 2007. The attachment relates to Comtide's claim for a brokerage commission.
2. By that afternoon, he was in communication with Booth Creek's attorneys.
3. He did not send the attachment to the attorneys that afternoon or make any reference to it in his written communications.
4. There is no evidence that Mr. Gillett had any communications with Winston & Strawn that day.
Booth Creek's privilege claim hinges on this legal proposition:
Materials, transmitted between nonlawyers, that reflect matters about which the client intends to seek legal advice are comparable to notes a client would make to prepare for a meeting with her lawyer-notes which could serve as an agenda or set of reminders about things to ask or tell counsel. It would undermine the purpose of the attorney-client privilege not to...
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