Opinion
10 Civ. 9457 (SAS)
12-14-2011
HICKS & WARREN LLC, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
For Plaintiff: Edward Juel Henderson, Esq. Ian Michael Goldrich, Esq. Kilpatrick Stockton LLP For Defendant: Michael F. Kuzow, Esq. Westermann, Hamilton, Sheehy, Aydelott & Keenan, LLP
MEMORANDUM OPINION
AND ORDER
SHIRA A. SCHEINDLIN. U.S.D.J.:
The parties in this matter have submitted letters regarding the applicability of the attorney-client privilege to a document - Bates Stamp HICKS-000550, referred to by the parties as "Exhibit F" produced by Hicks & Warren LLC ("H&W") to Liberty Mutual Insurance Company ("Liberty Mutual"). According to Edward Henderson, attorney for H&W, Exhibit F is a draft e-mail sent to him by Lester Petracca, a principal of H&W, for confidential review and legal advice. The draft e-mail was a proposed communication from Petracca to Stanley Listokin, another principal of H&W. Legal advice was necessary due to a dispute that was then brewing between Petracca and Listokin. That dispute eventually resulted in an arbitration by Listokin against H&W.
During a telephone conference on December 9, 2011, I indicated that the precautions taken to protect any privilege that might be applicable to Exhibit F were sufficient to preclude a finding that H&W waived the privilege by inadvertent production. However, I also noted that it was unclear if Exhibit F was privileged, as it did not, on its face, appear to seek legal advice. Accordingly, I directed Henderson to submit a declaration in support of the claim that he regularly reviewed drafts of e-mails that Petracca was planning to send to Listokin with regards to their then-brewing dispute. H&W has now submitted two affidavits detailing this consultation process, one from Henderson, and another from Petracca.
I have now reviewed those affidavits and the exhibits attached to them. Taken together, they show that Petracca sent an e-mail to Listokin that was substantially similar to Exhibit F approximately four hours after he sent Exhibit F to Henderson for review and legal advice. Accordingly, I am now convinced that Petracca did indeed have a practice of sending potential communications with Listokin to Henderson for legal review, and that Exhibit F is one such e-mail. Furthermore, the evidence shows that Exhibit F was sent from Listokin's personal account to Henderson's business account. As there is no evidence that either of these accounts was accessible by anyone other than the account holder, I am confident that Exhibit F was kept confidential prior to its inadvertent production earlier this year.
Based on the forgoing, I find that Exhibit F is covered by the attorney-client privilege. Liberty Mutual is therefore directed to return or destroy all copies of Exhibit F, and is prohibited from making any further use of Exhibit F in this litigation.
SO ORDERED:
_______________
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
-Appearances-
For Plaintiff:
Edward Juel Henderson, Esq.
Ian Michael Goldrich, Esq.
Kilpatrick Stockton LLP
For Defendant:
Michael F. Kuzow, Esq.
Westermann, Hamilton, Sheehy, Aydelott & Keenan, LLP