New Orleans Saints v. Griesedieck, Civ. A. No. 82-2950.

• Decision Date: 17 May 1985
• Docket Number: Civ. A. No. 82-2950.
• Citation: 612 F. Supp. 59
• Parties: NEW ORLEANS SAINTS and John W. Mecom, Jr. v. Alvin GRIESEDIECK, Jr. and Falstaff Brewing Corporation.
• Court: U.S. District Court — Eastern District of Louisiana

612 F. Supp. 59

NEW ORLEANS SAINTS and John W. Mecom, Jr. v. Alvin GRIESEDIECK, Jr. and Falstaff Brewing Corporation.

Civ. A. No. 82-2950.

United States District Court, E.D. Louisiana.

May 17, 1985.

COPYRIGHT MATERIAL OMITTED

Russell J. Schonekas, Tucker & Schonekas, and Catherine Maureen Blackburn, New Orleans, La., for New Orleans Saints.

Rutledge C. Clement, Jr., Fred D. Bentley, Jr., Phelps, Dunbar, Marks, Claverie & Sims, C. Scott Jackson, Harry S. Redmon, Jr., New Orleans, La., for defendants.

OPINION

ARCENEAUX, District Judge.

On February 25, 1982, Alvin ("Buddy") Griesedieck (Griesedieck), a 2% record partner in the New Orleans Saints professional football team (Saints or partnership) executed an instrument purporting to transfer his interest to Paul Kalmanovitz (Kalmanovitz) as Trustee for Falstaff Brewing Corporation (Falstaff). (P-16). Griesedieck declared in the transfer document that he held the interest as Trustee for Falstaff. Plaintiffs filed this suit alleging that the transfer violated the partnership agreement because Griesedieck did not first offer to sell his interest to the partner owning a 50% interest, John W. Mecom, Jr. (Mecom). Plaintiffs' claim the violation of the "right of first refusal clause" breached an implied resolutory condition which dissolves the sale of the 2% interest to Griesedieck.

Defendants' claim Griesedieck at all times held the interest as nominee for Falstaff, which plaintiffs knew, that the "transfer" to Kalmanovitz did not work any change in ownership and therefore did not violate the partnership agreement.

The essential disputes in this case are factual. The critical issue is: did Alvin Griesedieck originally purchase the 2% interest in the Saints for himself or for Falstaff Brewing Corporation with the interest simply placed in his name. If Griesedieck purchased the interest for himself, then his subsequent transfer to Kalmanovitz as "trustee" for Falstaff without first offering the interest to the 50% partner violated the partnership agreement. Of course, if Falstaff in fact owned the interest, there was no subsequent transfer. In order to resolve this issue, the Court determines whether or not the partnership and Mecom knew, as Griesedieck claims, that Griesedieck was only a nominee, and that Falstaff owned the interest at all times.

I — Evidentiary Issues

In formulating its decision on this matter, it is necessary that the Court initially dispose of certain evidentiary objections interposed by the parties.

Plaintiffs sought to introduce portions of the deposition of Walter S. McIlhenny, (P-18) who did not testify at trial, on the ground that Mr. McIlhenny was either over 100 miles from the place of the trial, or he was unable to attend because of age, illness or infirmity. Fed.R.Civ.P. 32 (a)(3)(B) and (C). Plaintiffs aver Mr. McIlhenny lives 150 miles by road, and 102 miles by air from this Court. Whether the 100 miles distance is measured by road or air, as in SCM Corp. v. Xerox Corporation, 76 F.R.D. 214 (D.Conn.1977), Mr. McIlhenny lives more than 100 miles from the place of trial, and his deposition is admissible in lieu of his testimony. Further, the record reveals both parties have both sought and opposed the perpetuation of his testimony due to illness.

The affidavit of Mr. McIlhenny, (D104) which contradicts his deposition, is inadmissible hearsay for which there is no exception to the extent it is used to prove the truth of the matters asserted in the affidavit. The affidavit is admissible to show deponent's prior inconsistent statement—not as substantive evidence, but to impeach the deponent. Fed.R.Evid. 801. The Court has limited its consideration of this exhibit to that purpose.

Plaintiffs contest the authenticity of exhibit D-96 which is an inter-office memorandum on Falstaff letterhead from Falstaff's president Ferd Gutting to its operations manager. (Griesedieck Tr. 301-304). Although Griesedieck could not identify the handwritten note at the bottom of the memorandum, the Court believes the memorandum is what defendants claim it to be; that is, a memorandum kept in the course of a regularly conducted business activity, and it is admissible. Fed.R.Evid. 803, 901.

Counsel for defendants proffered numerous exhibits subject to plaintiffs' objections of relevancy and parol evidence. (Tr. 305-307). The Court finds the exhibits are relevant and not barred by the parol evidence rule for the reasons stated below, and therefore admissible.

Plaintiffs object to any testimony indicating Griesedieck held the partnership interest as Falstaff's nominee as contrary to the Act of Sale and the Articles of Partnership and thus violative of the parol evidence rule. At the time of trial LSA-C.C. art. 2276 provided:

Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.

There are numerous exceptions to the parol evidence rule, one of which is "to show that the writing is only a part of an entire oral contract between the parties". Gulf States Finance Corporation v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965); Ferace v. Fullerton, 425 So.2d 393 (La.App. 3rd Cir.1982). Plaintiffs and Falstaff orally agreed Falstaff would become a partner in the Saints, with Griesedieck as its representative and evidence directed to this issue is admissible.

Plaintiffs assert the attorney-client privilege with respect to three documents: 1) the minutes of a meeting of the Saints minority partners held on June 21, 1972 (D-2-C); 2) a letter from Kelleher to Mecom dated July 24, 1975 (D-29); and 3) a letter from Kelleher to Mecom dated July 16, 1975 (D-28).

In civil actions where state law supplies the rule of decision, privileges are to be determined in accordance with state law. Fed.R.Evid. 501. Louisiana's attorney-client privilege in civil matters is expressed in LSA-C.C. art. 2283 (repealed in 1984):

No attorney or counsellor at law shall give evidence of anything that has been confided to him by his client, without the consent of such client....

It has been said that this privilege is similar to that in most states. Pugh and McClelland, Evidence, The Work of the Louisiana Appellate Courts, 1975-1976 Term, 37 La.L.Rev. 575 (1977). Louisiana courts routinely cite common law authorities in discussing the privilege, Succession of Norton, 351 So.2d 107 (La.1977); Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir.1973). Accordingly, decisions resting on common law principles are appropriate.

The relevant elements necessary to establish an attorney-client privilege are: 1) the asserted holder of the privilege is or sought to become a client; 2) the communication is made to an attorney or his subordinate, in his professional capacity; 3) the communication is made outside the presence of strangers; 4) for the purpose of obtaining an opinion on the law or legal services and 5) the privilege is not waived. In Re Grand Jury Proceedings, 517 F.2d 666 (5th Cir.1975) (citations omitted). What is "vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer." United States v. El Paso Company, 682 F.2d 530, 538 (5th Cir.1982), cert. denied, ___ U.S. ___, 104 S.Ct. 1927, 80 L.Ed. 2d 473 (1984) (emphasis in original); Tubesales, 281 So.2d 459. The privilege may be waived by the failure to assert it at trial, State v. Schmitt, 354 So.2d 1339 (La.1978), or by the failure to claim it during discovery, Perrignon v. Bergen Brunswig Corporation, 77 F.R.D. 455 (N.D.Calif.1978).

The minority partners met on June 21, 1972, to discuss an offer to purchase their interests. All of the minority partners attended, as well as representatives for the prospective purchaser. (Griesedieck Tr. 231-233). The minutes reflect the presence of the purchaser representatives, George Gillette and Norman Waite. (D-2-6). Also at the meeting were counsel for the Saints partnership, Harry Kelleher (Kelleher) and Dando Cellini (Cellini). Cellini recorded the events of the meeting. (Cellini Tr. 194-195).

Assuming Kelleher and Cellini attended the partnership meeting for the purpose of rendering legal services, the presence of Gillette and Waite, who were neither partners nor clients, negate the confidential element of the meeting and its minutes. United States v. Gordon Nikkar, 518 F.2d 972 (5th Cir.1975).

Further, as defendants suggest, even if the minutes of the June 21, 1972 meeting were privileged, plaintiff waived the privilege by producing the minutes pursuant to a request for production of documents. Perrignon, 77 F.R.D. 455.

The letter from Kelleher to Mecom dated July 24, 1975 (D-29) reports to Mecom discussions Kelleher had with the minority partners, and a discussion with Griesedieck in which Griesedieck allegedly stated Falstaff had decided not to transfer its interest to another nominee holder. The letter summarizes statements made by third persons to the partnership's attorney, and neither reveals any confidences of the client (the partnership) nor suggests a legal opinion. In Re Sealed Case, 737 F.2d 94 (D.C.Cir.1984).

The Court has closely examined the letter from Kelleher to Mecom dated July 16, 1975 (D-28) and finds it does not reveal any confidences of the partnership nor any legal opinions which have not already been aired at trial, and is admissible. The portion most damaging to plaintiffs is found in the first paragraph of page two of the letter, in which Kelleher states it is his best recollection the Executive Committee of the partnership knew for some time that Falstaff in fact owned the Griesedieck interest. This is his recollection not a confidential communication of the partnership. The fact that Kelleher may have acquired this information as counsel for the partnership does not make it confidential. Moreover, Falstaff's ownership was generally known to...