Opinion
Case No. 3: 06-bk-30009 (JKF), Adv. Proc. No. 10-03001.
May 20, 2010
ORDER REQUIRING NORMAN A. ABOOD TO DISCLOSE CERTAIN DOCUMENTS CLAIMED AS PRIVILEGED
AND NOW, this 20th day of May, 2010, WHEREAS Vinson Elkins LLP and James J. Lee (hereinafter, the "V E Respondents") have filed a "Motion for In Camera Inspection of Prosser's Allegedly Privileged Material" Adv. Doc. No. 165; and
WHEREAS the V E Respondents have asked the court to perform an in camera inspection of: (1) the pages of documents identified on the privilege logs submitted individually by Robert F. Craig and Norman A. Abood; and to the extent not included in those documents, (2) invoices from James Muller and James LaRiviere about which they have testified during depositions taken in this proceeding and an e-mail dated August 10, 2008, that Mr. Jeffrey J. Prosser claims is subject to protection from disclosure; and
The court has performed the requested in camera review of the documents listed on Robert F. Craig and/or Norman Abood's privilege logs. To the extent invoices were included, either formally or through e-mail communication, the court has reviewed them and will rule accordingly. The court is not reviewing deposition transcripts and is therefore unaware of what has been testified to by any party. The court's in camera inspection is limited only to review of the documents listed on submitted privilege logs.
WHEREAS neither Robert F. Craig nor Norman A. Abood contested the Motion and submitted the documents for in camera review; and
WHEREAS this Order addresses only whether those documents identified on Norman A. Abood's privilege log are entitled to protection from disclosure; and
WHEREAS the court has reviewed the documents, which include strings of e-mails and attachments thereto, and has carefully considered the content of each document; and
WHEREAS the court has relied on the case law previously cited in its earlier Memorandum Opinion issued in this case at Adv. Doc. No. 161 and in its Order Requiring Robert F. Craig to Disclose Certain Documents Claimed as Privileged at Adv. Doc. No. 188; and
WHEREAS to the extent additional case law was necessary for the consideration of whether billing invoices and/or communications regarding billing are entitled to protection under either the attorney-client privilege or the work product doctrine, and whether the investigative reports of private investigators are entitled to protection under either doctrine: Vanguard Sav. Loan Ass'n v. Banks, 1994 U.S. Dist. LEXIS 13712 (E.D. Pa. 1995); and State of Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617 (N.D. Okla. 2009); and
WHEREAS the court has carefully reviewed the communications and the attachments thereto submitted to the court by Norman A. Abood in the context of whether these communications are privileged but has not determined whether the facts contained therein are discoverable through other discovery methods; and
WHEREAS Mr. Abood has asserted that privilege attaches to all portions of each document submitted for in camera review. The court disagrees and notes that it was his burden to identify the privileged portions and why protection should apply. In many instances, that burden was not met; and
WHEREAS within the documents submitted by Mr. Abood, the court has found multiple e-mails sent by Lawrence Schoenbach. The court notes that this appears to be inconsistent with the affidavit filed by Mr. Schoenbach (Adv. Doc. No. 189) asserting that "[he] has made a diligent search of the records maintained in [his] office and [is] in possession of no documents or records responsive to the Respondent's Discovery request and/or this Court's Order [of May 11, 2010 ordering Mr. Schoenbach to submit a privilege log]" and that "[a]s such, [he has] no privilege log to create or to file with the Court;" and
WHEREAS when an entire document is either entitled to protection or subject to disclosure, we will identify the document by the Bates Number on which it appears; and
WHEREAS in those instances where only specific portions of a document are entitled to protection from disclosure, we will identify the portion not only by the Bates Number on which it appears but also by its date and time stamp; and
WHEREAS the following documents are entitled to protection under the attorney-client privilege: 000001-002, 000011-012, and 000037-038; and
WHEREAS the following documents are entitled to protection under the work product doctrine: 000005, 000027-028, 000031-032, 000033, 000039, 000040 000041, 000042-1, 000042-2, 0000042-3, 000043-044, 000045, 000046-047, 000051-052, 000082, 000085, 000086, 000087-089, 000090-091, 000098-100, 000127-129, 000132-134, 000137, 000138-139, 00140-141, and 000142; and
While the court has determined that the e-mail string located at 000031-032 is protected from disclosure by the work product doctrine, the information identifying the person interviewed, the time, date and place at which the interview occurred, and the phone number of the person interviewed, as well as the subject line of each e-mail, must be disclosed. See State of Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 612 (N.D. Okla. 2009) (explaining that the work product doctrine "does not protect the underlying facts contained in the documents from discovery," such as the names and addresses of witnesses interviewed by counsel).
Documents 000040 and 000041 are duplicates. While we have determined that both are entitled to protection under the work product doctrine, we find that the portion beginning with "I've had" and continuing through "yesterday afternoon" must be disclosed as it is not entitled to protection.
While the court has determined that this document is protected from disclosure by the work product doctrine, the information identifying the person interviewed, the time, date and place at which the interview occurred, and the phone number of the person interviewed, as well as the subject line of each e-mail, must be disclosed. See State of Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 612 (N.D. Okla. 2009) (explaining that the work product doctrine "does not protect the underlying facts contained in the documents from discovery," such as the names and addresses of witnesses interviewed by counsel).
See supra note 4.
See supra note 4.
The e-mail located on 000085 and sent on Wednesday, August 20, 2008, at 10:51 am, is identical to the e-mail located on both 000040 and 000041. See supra note 3 (regarding the portions of this e-mail that must be disclosed).
The e-mail located on 000137 and sent on Wednesday, August 20, 2008, at 10:51 am, is identical to the e-mail located on both 000040, 000041 and 000085. See supra note 3 (regarding the portions of this e-mail that must be disclosed).
WHEREAS the following documents are not entitled, in their entirety, to protection under either the attorney-client privilege or the work product doctrine: 000013-014, 000018, , 000029-030, 000048, 000049-052, 000067-073, 000083-084, 000092-093, 000094, 000101, 000102, 000103, 000104, 000105, 000106, 000107-108, 000109, 000110, 000111-112, 000113, 000114, 000115, 000116, 000117-118, 000119-120, 000121, 000122, 000123, 000130-131, 000135-136, and 000143-144; and
While this e-mail string is not entitled to protection from disclosure under either the attorney-client privilege or the work product doctrine, the court finds it necessary to redact two specific portions of the e-mail sent on Saturday, September 6, 2008, at 10:53 am, and located on 000013-014. First, the word between "Projected" and "Investigation" must be redacted prior to disclosure. Second, the word between "current including" and "and after payment" must be redacted. Both are located on 000014.
The court has determined that the e-mail string located on 000018 is not entitled to protection from disclosure. However, the court finds it necessary to redact the subject line of each of the e-mails located on 000018.
The court notes that the subject line of each of the e-mails located on 000018 suggests that an attachment had been included in the original communication. However, no attachment was submitted to the court for in camera review. If any attached document does in fact exist, this document must be produced to the court forthwith via e-mail (jkf@pawb.uscourts.gov). If no document was attached, counsel is ordered to immediately file a certificate verifying this fact.
The court notes that the body of the e-mail sent on Monday, February 2, 2009, at 2:51 pm, suggests that at least one attachment had been included in the original communication. Further, the header of the e-mail sent on Sunday, March 20, 2010, at 12:54 pm, specifically lists three attachments. We note that 000051-052 were included, without identification, in Mr. Abood's privilege log as part of this e-mail string. Counsel must certify what 000051-052 represent. Counsel must produce any attachments as ordered by this court, infra. Furthermore, it is counsel's burden to substantiate why 000051-052 and any attachments should be privileged. We emphasize that 000049-050 are not protected by either the attorney-client privilege or the work product doctrine.
WHEREAS with regard to the e-mail string located on 000003-004, all e-mails are entitled to protection from disclosure by the attorney-client privilege, with the exception of the following portions of the e-mail sent on Friday, September 5, 2008, at 23:59:58, and located on 000003-004: (1) the portion beginning with "Bon jour" continuing through "Let's chat;" (2) the portion beginning with "Projected costs" and continuing through "control the expenditures;" (3) the portion beginning with "ESTIMATE" and continuing through "$750;" and (4) the portion beginning with "But, I prefer" and continuing through "for the costs incurred." These four portions must be disclosed for failure to meet the necessary elements to afford protection under the attorney-client privilege; and
WHEREAS with regard to the e-mail string located on 000006-007, certain e-mails are entitled to protection from disclosure by the attorney-client privilege while others are not protected. The e-mail located on 000006 and sent on Sunday, October 5, 2008, at 9:05 pm, is not protected and must be disclosed. The e-mail sent on Sunday, October 5, 2008, at 6:00 pm, and located on 000006-007 is protected by the attorney-client privilege except for the following portions that must be disclosed: (1) the portion beginning with "Well, after taking" and ending with "a visual you would choose to avoid;" and (2) the portion beginning with "Most interested" and continuing through "then I can be the AG." The two e-mails located on 000007 and sent on Sunday, October 5, 2008, at 11:45 am, and Saturday, October 4, 2008, at 4:35 pm, respectively, are protected by the attorney-client privilege; and
WHEREAS with regard to the e-mail string located on 000008-010, certain e-mails are entitled to protection from disclosure by the attorney-client privilege while others are not protected. The e-mail sent on Sunday, October 5, 2008, at 9:48 pm, and located on 000008 is protected by the attorney-client privilege. The e-mail sent on Sunday, October 5, 2008, at 9:21 pm, and located on 000008, is entitled to protection by the attorney-client privilege except for the portion beginning with "I can't help it" and continuing through "people." The e-mail sent on Sunday, October 5, 2008, at 9:05 pm, and located on 000008-009 is not protected. The e-mail sent on Sunday, October 5, 2008, at 6:00 pm, and located on 000009 is protected by the attorney-client privilege except for the following portions that must be disclosed: (1) the portion beginning with "Well, after taking" and ending with "a visual you would choose to avoid;" and (2) the portion beginning with "Most interested" and continuing through "then I can be the AG." The portions must be disclosed for failure to meet the necessary elements to afford protection under the attorney-client privilege; and
WHEREAS with regard to the e-mail string located on 000015-017, certain e-mails are entitled to protection under the work product doctrine while others are not. The following three e-mails are entitled to protection under the work product doctrine: (1) the e-mail sent on Wednesday, September 10, 2008, at 1:42 pm, and located on 000015; (2) the e-mail sent on Wednesday, September 10, 2008, at 1:43 pm, and located on 000015; and (3) the e-mail sent on Tuesday, September 9, 2008, at 3:12 pm, and located on 000015-016. The following three e-mails are not entitled to protection under either the attorney-client privilege or the work product doctrine: (1) the e-mail sent on Monday, September 8, 2008, at 9:58 pm, and located on 000016; (2) the e-mail sent on Monday, September 8, 2008, at 10:48 am, and located on 000016; and (3) the e-mail sent on Monday, September 8, 2008, at 10:32 am, and located on 000016-017; and
WHEREAS with regard to the e-mail string located on 000019-020, certain e-mails are entitled to protection under the work product doctrine while others are not. The following three e-mails are entitled to protection by the work product doctrine: (1) the e-mail sent on Saturday, September 13, 2008, at 3:49 pm, and located on 000019; (2) the e-mail sent on Saturday, September 13, 2008, at 3:51 pm, and located on 000019; and (3) the e-mail sent on Saturday, September 13, 2008, at 3:22 pm, and located on 000019-020. The following two e-mails are not protected from disclosure: (1) the e-mail sent on Friday, September 12, 2008, at 10:49 am, and located on 000020; and (2) the e-mail sent on Thursday, September 11, 2008, at 2:56 pm, and located on 000020-021; and
The court notes that the subject line of each of the e-mails located in this string suggests that an attachment had been included in the original communication. However, no attachment was submitted to the court for in camera review. If any attached document does in fact exist, this document must be produced to the court forthwith via e-mail (jkf@pawb.uscourts.gov). If no document was attached, counsel is ordered to immediately file a certificate verifying this fact.
This e-mail is duplicative of an e-mail located on 000018 and the subject line of each e-mail in this string must be redacted. See supra note 10 (regarding redaction of subject line).
WHEREAS with regard to the e-mail string located on 000022-026, certain e-mails are entitled to protection under either the attorney-client privilege or the work product doctrine while others are not. The first two e-mails located on 000022 and sent on Saturday, September 13, 2008, at 4:41 pm, and Saturday September 13, 2008, at 4:23 pm, respectively, are entitled to protection under the attorney-client privilege. The e-mail located on 000022-023 and sent on Saturday, September 13, 2008, at 4:03 pm, is also protected by the attorney-client privilege. The e-mail sent on Saturday, September 13, 2008, at 4:03 pm, and located on 000023 is also entitled to protection under the attorney-client privilege. The e-mail dated 9/13/2008 and sent at 3:49:34 pm, and located on 000023 is entitled to protection under the work product doctrine. The e-mail located on 000024 and sent on Saturday, September 13, 2008, at 3:51 pm, is entitled to protection under the work product doctrine. The e-mail sent on Saturday, September 13, 2008, at 3:22 pm, and located on 000024-025, is also protected by the work product doctrine. The final two e-mails of this string, located on 000025-026 and sent on Friday, September 12, 2008, at 10:49 am, and Thursday, September 11, 2008, at 2:56 pm, respectively, are not protected from disclosure; and
The court notes that the subject line of each of the e-mails located in this string suggests that an attachment had been included in the original communication. However, no attachment was submitted to the court for in camera review. If any attached document does in fact exist, this document must be produced to the court forthwith via e-mail (jkf@pawb.uscourts.gov). If no document was attached, counsel is ordered to immediately file a certificate verifying this fact.
This e-mail is duplicative of an e-mail located on 000018 and the subject line of each e-mail in this string must be redacted. See supra note 10 (regarding redaction of subject line).
WHEREAS with regard to the e-mail string located on 000034-000036, certain e-mails are entitled to protection under the attorney-client privilege while others are not. The e-mail located on 000034 and sent on Thursday, August 21, 2008, at 5:17 pm, is protected by the attorney-client privilege except for the portion of the e-mail beginning with "Amex" and ending with "fees," which must be disclosed. The following two e-mails are not entitled to protection: (1) the e-mail sent on Thursday, August 21, 2008, at 12:35 pm, and located on 000034-035; and (2) the e-mail sent on Thursday, August 21, 2008, at 12:32 pm, and located on 000035-036; and
WHEREAS with regard to the e-mail string located on 000053-055, certain e-mails are entitled to protection from disclosure by the attorney-client privilege while others are not protected. The e-mail sent on Sunday, October 5, 2008, at 9:21 pm, and located on 000053 is entitled to protection by the attorney-client privilege except for the portion beginning with "I can't help it" and continuing through "people." The e-mail sent on Sunday, October 5, 2008, at 9:05 pm, and located on 000053, is not protected and must be disclosed. The e-mail sent on Sunday, October 5, 2008, at 6:00 pm, and located on 000053-054 is protected by the attorney-client privilege except for the following portions that must be disclosed: (1) the portion beginning with "Well, after taking" and ending with "a visual you would choose to avoid;" and (2) the portion beginning with "Most interested" and continuing through "then I can be the AG." The two e-mails located on 000054-055 and sent on Sunday, October 5, 2008, at 11:45 am, and Saturday, October 4, 2008, at 4:35 pm, respectively, are protected by the attorney-client privilege; and
WHEREAS with regard to the e-mail string located on 000056-057, certain e-mails are entitled to protection from disclosure by either the attorney-client privilege or the work product doctrine while others are not protected. The e-mail located on 000056 and sent on Tuesday, September 30, 2008, at 11:35 am, is entitled to protection under the attorney-client privilege. All other e-mails in the e-mail string are entitled to protection under the work product doctrine; and
WHEREAS with regard to the e-mail string located on 000058-060, certain e-mails are entitled to protection from disclosure by the attorney-client privilege while others are not protected. The e-mail located on 000058 and sent on Thursday, August 21, 2008, at 5:55 pm, is not protected. The e-mail located on 000058 and sent on Thursday, August 21, 2008, at 5:17 pm, is protected by the attorney-client privilege except for the portion of the e-mail beginning with "Amex" and ending with "fees," which must be disclosed. The following two e-mails are not entitled to protection: (1) the e-mail sent on Thursday, August 21, 2008, at 12:35 pm, and located on 000059; and (2) the e-mail sent on Thursday, August 21, 2008, at 12:32 pm, and located on 000059-060; and
WHEREAS with regard to the e-mail string located on 000061-062, certain e-mails are entitled to protection under the work product doctrine while others are not. The following two e-mails are entitled to protection under the work product doctrine: (1) the e-mail sent on Wednesday, September 10, 2008, at 1:43 pm, and located on 000061; and (2) the e-mail sent on Tuesday, September 9, 2008, at 3:12 pm, and located on 000061. The following three e-mails are not entitled to protection under either the attorney-client privilege or the work product doctrine: (1) the e-mail sent on Monday, September 8, 2008, at 9:58 pm, and located on 000061-062; (2) the e-mail sent on Monday, September 8, 2008, at 10:48 am, and located on 000062; and (3) the e-mail sent on Monday, September 8, 2008, at 10:32 am, and located on 000062; and
WHEREAS with regard to the e-mail string located on 000063-066, certain e-mails are entitled to protection under either the attorney-client privilege or the work product doctrine while others are not. The e-mail located on 000063 and sent on Saturday, September 6, 2008, at 9:26 pm, is entitled to protection under the work product doctrine. The next two e-mails, located on 000063-64 and sent on Saturday, September 6, 2008, at 9:11 pm, and Saturday, September 6, 2008, at 12:44 pm, respectively, are entitled to protection under the attorney-client privilege. The e-mail located on 000064 and sent on Saturday, September 6, 2008, at 12:26 pm, is entitled to protection under the attorney-client privilege; however, the portion of the e-mail beginning with "ok" and continuing through "Muller" must be disclosed as it is not entitled to protection. The following e-mails are not entitled to any protection: (1) the e-mail located on 000064 and sent on 9/6/2008 at 12:22:26 pm; (2) the e-mail located on 000064-065 and sent on Saturday, September 6, 2008, at 12:21 pm; and (3) the e-mail located on 000065-066 and sent on Saturday, September 6, 2008, at 10:53 am; and WHEREAS with regard to the e-mail string located on 000074-081, certain e-mails are entitled to protection under the work product doctrine while others are not. The following two e-mails, located on 000074, are entitled to protection under the work product doctrine: (1) the e-mail sent on Tuesday, August 5, 2008, at 10:03 am; and (2) the e-mail sent on Tuesday, August 5, 2008, at 10:00 am. All other e-mails in this string are not entitled to protection; and
While this e-mail is not entitled to protection from disclosure under either the attorney-client privilege or the work product doctrine, the court finds it necessary to redact two specific portions of this e-mail. First, the word between "Projected" and "Investigation" must be redacted prior to disclosure. Second, the word between "current including" and "and after payment" must be redacted. Both are located on 000065.
WHEREAS with regard to the e-mail string located on 000095-097, all e-mails are entitled to protection under the work product doctrine except the following segment of the e-mail sent on Tuesday, September 16, 2008 at 4:13 pm, and located on 000095. The portion beginning with "As for payment" and continuing through "office on Friday" must be disclosed.
WHEREAS with regard to the e-mail string located on 000124-126, all e-mails are entitled to protection under the work product doctrine except the following segment of the e-mail sent on Tuesday, September 16, 2008 at 4:13 pm, and located on 000124. The portion beginning with "As for payment" and continuing through "office on Friday" must be disclosed.
WHEREAS with regard to the e-mail string located on 000145-146, certain e-mails are entitled to protection under either the attorney-client privilege or the work product doctrine. The e-mail sent on Wednesday, September 17, 2008, at 2:07 pm, and located on 000145 is protected by the attorney-client privilege. The following two e-mails are protected by the work product doctrine: (1) the e-mail located on 000145 and sent on Wednesday, September 17, 2008, at 1:23 pm; and (2) the e-mail located on 000145-146 and sent on Wednesday, September, 17, 2008 at 16:06:54.
It is hereby ORDERED, ADJUDGED and DECREED that the protected documents, as determined by the court in this Order, supra, are privileged and immune from discovery.
It is FURTHER ORDERED that, to the extent the court has found that documents are not entitled to protection, Norman A. Abood shall produce these documents forthwith.
It is FURTHER ORDERED that, with regard to the e-mail string located on 000049-052, counsel must certify what 000051-052 represent and must produce to the court any attachments by Friday, May 21, at 12:00 pm prevailing Eastern Time, via e-mail (jkf@pawb.uscourts.gov). Further, counsel must substantiate why documents 000051-052 and any attachments should be privileged.
It is FURTHER ORDERED that, with respect to the attachments that apparently should have been submitted relating to 000018, 000019-020, and 000022-026, the attachments shall be produced to the court by Friday, May 21, 2010, at 12:00 pm prevailing Eastern Time, via e-mail (jkf@pawb.uscourts.gov) for in camera review and, if no such attachments exist, then counsel shall immediately file a certificate verifying that fact.
It is FURTHER ORDERED that Norman A. Abood shall immediately serve a copy of this Order on all parties in interest who do not receive electronic notice and shall file a certificate of service forthwith.