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Hicks & Warren LLC v. Liberty Mut. Ins. Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Dec 14, 2011
10 Civ. 9457 (SAS) (S.D.N.Y. Dec. 14, 2011)

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


Summaries of

Hicks & Warren LLC v. Liberty Mut. Ins. Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Dec 14, 2011
10 Civ. 9457 (SAS) (S.D.N.Y. Dec. 14, 2011)
Case details for

Hicks & Warren LLC v. Liberty Mut. Ins. Co.

Case Details

Full title:HICKS & WARREN LLC, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY…

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Dec 14, 2011

Citations

10 Civ. 9457 (SAS) (S.D.N.Y. Dec. 14, 2011)