Ceglia v. Zuckerberg et al
DECISION AND ORDER re 294 Fifth MOTION to Compel and For Other Relief filed by Facebook, Inc., Mark Elliot Zuckerberg. Signed by Hon. Leslie G. Foschio on 4/19/2012. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
MARK ELLIOT ZUCKERBERG, and
PAUL A. ARGENTIERI, ESQ.
Attorney for Plaintiff
188 Main Street
Hornell, New York 14843
BOLAND LEGAL LLC
Attorneys for Plaintiff
DEAN M. BOLAND, of Counsel
18123 Sloane Avenue
Lakewood, Ohio 44107
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Defendants
ALEXANDER H. SOUTHWELL, and
THOMAS H. DUPREE, of Counsel
200 Park Avenue, 47th Floor
New York, New York 10166-0193
HARRIS BEACH LLP
Attorneys for Defendants
TERRANCE P. FLYNN, of Counsel
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, New York 14210
This case was referred to the undersigned by Honorable Richard J. Arcara on
May 27, 2011 for pretrial matters. The action is presently before the court on
Defendants’ Fifth Motion to Compel (Doc. No. 294), filed February 21, 2012.
BACKGROUND and FACTS1
The parties to this action dispute the authenticity of a contract (“the contract”)2
allegedly executed between Plaintiff Paul D. Ceglia (“Plaintiff”) and Defendant Mark
Elliot Zuckerberg (“Zuckerberg”), on April 28, 2003, pursuant to which Plaintiff and
Zuckerberg, then a student at Harvard University (“Harvard”), established a partnership
for the development and commercialization of two separate internet business ventures,
including StreetFax.com (“StreetFax”), an on-line database developed by Plaintiff, and
“The Face Book,” the social-networking website created and maintained by Zuckerberg,
and now known as Defendant Facebook, Inc. (“Facebook”). The putative contract
provides that Plaintiff would hire Zuckerberg to perform web programming for
StreetFax, and Plaintiff would help fund the development of Facebook in exchange for a
one-half interest in Facebook.
On February 21, 2012, Defendants filed Defendants’ Fifth Motion to Compel
(Doc. No. 294) (“Defendants’ motion”), supported by a memorandum of law (Doc. No.
295) (“Defendants’ Memorandum”), and the Declaration of Alexander H. Southwell,
Esq. (Doc. No. 296) (“Southwell Declaration”) with attached exhibits (“Defendants’
Exh(s). __”). In their motion, Defendants seek an order directing, inter alia, Plaintiff to
produce for in camera inspection 11 documents as to which Plaintiff asserts either the
The Facts are taken from the pleadings and m otion papers filed in this action.
A copy of the contract is attached as Exhibit A to the Am ended Com plaint (Doc. No. 39).
attorney-client privilege or work product doctrine, as well as an order finding none of the
documents are privileged and directing their production. On March 12, 2012, Plaintiff
filed his Response in Opposition to Defendants’ Fifth Motion to Compel (Doc. No. 310)
(“Plaintiff’s Response”), in which Plaintiff agreed to produce one of the documents
previously withheld, but attaching as Exhibit H “Privilege Designations” in which Plaintiff
asserts that the other 10 documents, including Privilege Log3 Items Nos. 334, 348, 360,
373, 379, 400, 401, 402, 403, and 405, are shielded from disclosure pursuant to the
attorney-client privilege, asserts the work product doctrine with regard to Privilege Log
items Nos. 360 and 379, and also consented to in camera review of the 10 documents.
Plaintiff also filed on March 12, 2012, the Declaration of Paul Argentieri, Esq. (Doc. No.
311) (“Argentieri Declaration”), and the Declaration of Edward Flaitz (Doc. No. 312)
(“Flaitz Declaration”). On March 19, 2012, Defendants filed a Reply Memorandum in
further support of their motion to compel (Doc. No. 313) (“Defendants’ Reply”), the
Declaration of Matthew J. Benjamin (Doc. No. 314) (“Benjamin Declaration”), and the
Declaration of Bryan J. Rose (Doc. No. 315) (“Rose Declaration”). On March 26, 2012,
Plaintiff submitted the 10 withheld documents to the undersigned for in camera review.
Plaintiff asserts the attorney-client privilege as to all 10 documents submitted for
in camera review.4 Plaintiff also maintains an email, dated March 6, 2011, was
A copy of the relevant entries of Plaintiff’s Privilege Log is attached as Exh A to the Southwell
As this is a diversity action, insofar as Plaintiff invokes the attorney-client privilege, the court is
required to apply New York law pursuant to Fed.R.Evid. 501. Because New York and federal caselaw
inadvertently disclosed to Defendants, and requests Defendants return or destroy all
copies of the email. Defendants contend that Plaintiff’s assertions of attorney-client
privilege with regard to the 10 withheld privilege log items should be rejected and all ten
documents produced. With regard to the March 6, 2011 email, Defendants argue
Plaintiff has failed to meet his burden under Fed.R.Evid. 502(b), governing whether an
inadvertent disclosure waives an otherwise validly asserted privilege.
It is basic that privileged documents are exempt from disclosure. United States
v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (citing United
States v. Morton Salt Co., 338 U.S. 632, 639 (1950)). The burden is on the party
asserting the privilege to establish the essential elements of the privilege. Id. (citing
United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995); and In re von Bulow, 811
F.2d 136, 144 (2d Cir.), cert. denied, 481 U.S. 1015 (1987)). A party invoking the
attorney-client privilege must demonstrate three elements, including (1) a
communication between a client and counsel, (2) intended to be and kept confidential,
and (3) made for the purpose of obtaining or providing legal advice or services.
Construction Products Research, Inc., 73 F.3d at 473 (citing Fisher v. United States,
425 U.S. 391, 403 (1976), Adlman, 68 F.3d at 1499, and United States v. Abrahams,
905 F.2d 1276, 1283 (9th Cir. 1990)). The burden of establishing each element of the
construing New York’s statutory form ulation of the attorney-client privilege, N.Y.C.P.L.R. 4503, are
essentially sim ilar, see In re Pfohl Bros. Landfill Litig., 175 F.R.D. 12, 21 (W .D.N.Y. 1997), the court
applies federal caselaw in this circuit, as well as New York caselaw.
privilege, including the absence of any waiver, is upon the party asserting the privilege.
United States v. Int’l. Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997) (citing United
States v. Schwimmer, 892 F.2d 237, 234 (2d Cir. 1989)); see also In re Keeper of the
Records (XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“the party who invokes the
privilege bears the burden of establishing that . . . it has not been waived”). Because
the attorney client privilege limits the admissibility of relevant evidence in judicial and
other proceedings, it is strictly construed. Id. (citing In re Horowitz, 482 F.2d 72, 81 (2d
Cir.) (citing 8 Wigmore, EVIDENCE §§ 2192 at 70, 554 (1961)), cert. denied, 414 U.S.
When information that is otherwise protected by the attorney-client privilege is
disclosed to third parties, the element of confidentiality is destroyed, and the privilege is
waived. In re Horowitz, 482 at 81 (“We deem it clear that subsequent disclosure to a
third party by the party of a communication with his attorney eliminates whatever
privilege the communication may have originally possessed, whether because
disclosure is viewed as an indication that confidentiality is no longer intended or as a
waiver of the privilege.” (citing McCormick, Evidence § 93, at 197 (Cleary ed., 1972),
and cases there cited)). Further, communications between a client and attorney
intended for publication or communication to third-parties are not intended to be
confidential when made to obtain legal assistance and, thus, are not within the attorneyclient privilege. Robbins & Meyers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 83-84
(W.D.N.Y. 2011) (citing cases); 5 MC CORMICK ON EVIDENCE § 91 at 408 (Kenneth S.
Broun, 6th ed. 2006) (“Whenever the matters communicated to the attorney are
intended by the client to be made public or revealed to third persons, . . . the element of
confidentiality is wanting.”). Even the dissemination of confidential and privileged
information to persons within an organization “not shown to have a need to know such
information” waives the attorney client privilege. Id. at 93-94 (citing cases).
Here, in camera review of each of the 10 documents establishes that the
attorney-client privilege protects from disclosure Privilege Log Item 334 in part, and
Privilege Log Items 373, 400, 401, 402, 403 and 405 in their entirety, but does not
protect Privilege Log Items 348, 360, and 379.
Privilege Log Item 334 (“Item 334"). Defendants maintain Plaintiff has failed to
establish that Item 334, described in Plaintiff’s privilege log as an email from Argentieri
to Ceglia “discussing, among other things, a hushmail account,” Privilege Log Item 334,
“does not appear to involve the provision of legal advice.” Defendants’ Memorandum at
10. Plaintiff asserts Item 334 is protected by the attorney-client privilege because it is a
communication between Plaintiff and his attorney, was not disclosed to any third party,
and involves the provision of legal advice by discussing case strategy concerning the
filing of an amended complaint, securing communications regarding the action, and the
retention of counsel. Plaintiff’s Memorandum at 6. In opposition, Defendants argue
Plaintiff has failed to submit any evidence establishing Item 334 was sent for the
purpose of obtaining legal advice. Defendants’ Reply at 4.
In camera review establishes Item 334 is a series of eight emails dated
December 1 to December 4, 2010, and exchanged between Plaintiff and his counsel,
Paul A. Argentieri. With the exception of some discussion of Plaintiff’s concerns about
legal representation and the filing of an amended complaint, the remainder of the
emails neither contain nor seek legal advice, but discuss the District Judge assigned to
the case, personal finances, and the condition of the accommodations in which Plaintiff
was then staying in Costa Rica. Accordingly, Item 334 is to be produced, redacted as
to the discussion regarding whether Plaintiff should seek new counsel and file an
Privilege Log Item 348 (“Item 348"). In the Privilege Log, Item 348 is described
as “February 15, 2007 email from firstname.lastname@example.org to email@example.com and
CC’ed to firstname.lastname@example.org with subject ‘FW: Paul D. Ceglia’.” Defendants
maintain that Item 348 is an email from one “Jim Kole” who, as of February 15, 2007,
was an Assistant Attorney General at the office of the Illinois Attorney General, working
in the Consumer Fraud Bureau and, as such, was not then a private attorney providing
Plaintiff with legal advice. Defendants’ Memorandum at 9. Plaintiff concedes that Item
348 is an email sent by James Kole, Esq. (“Kole”), who when formerly in private
practice with Sidley Austin, a large Chicago law firm, was Plaintiff’s attorney, and that
Amanda C. Wornhoff (“Wornhoff”), who was copied on the email, remains on staff at
Sidley Austin. Plaintiff’s Response at 8. Defendants argue that Plaintiff does not claim
that Item 348 contains any legal advice from Kole. Defendants’ Reply at 4.
Upon in camera review, Item 348 is an email sent on February 15, 2007 from
Kole to Plaintiff, with copies to Wornhoff, and inquiring as to where corporate records of
StreetFax should be sent, and copies of two earlier emails exchanged on February 15,
2007, between Kole and Wornhoff, a plain reading of which reveals both Kole and
Wornhoff were unable to locate any contact information for Plaintiff, other than an email
A copy of redacted Item 334 shall be prom ptly subm itted to the court.
address. Plaintiff fails to explain how these emails constitute legal advice or services
from an attorney. Because the substance of these emails were not intended by
Plaintiff, Kole, or Wornhoff to serve as confidential communication to or from legal
counsel to obtain or provide legal advice or services, Item 348 is outside the attorneyclient privilege and should be produced.
Privilege Log Items 360 and 379 (“Item 360" and “Item 379"). Item 360 is an
email dated March 17, 2011, from Plaintiff to one Jason Holmberg (“Holmberg”), whom
Plaintiff asserted is Plaintiff’s attorney’s agent, the subject of which email is “file for
DLA” with two files attached. Privilege Log Item 360. Item 379 is an April 19, 2011
email from Argentieri to Plaintiff with the subject “Fwd: Follow-up” and containing emails
with Kcross@lippes.com, Amarks@kasowitz.com, Jerry.Trippitelli@dlapiper.com, and
email@example.com with attachments. Privilege Log Item 379.
Defendants maintain Holmberg, as the president and owner of PA Pellets (LLC),
a manufacturer of wood pellets, is not an attorney, a point underscored by the fact that
Argentieri formerly provided Defendants with another email from Holmberg to Plaintiff,
specifically, an email dated March 6, 2011 from Holmberg to Plaintiff with the attached
“Lawsuit Overview.pdf” document which Holmberg, in the text of the March 6, 2011
email, claims to have “put together.” Defendants’ Memorandum at 9 and 12; Southwell
Declaration ¶ 20. As such, even if the communications contained in Items 360 and 379
were confidential communications between Plaintiff and his attorney, by disclosing the
communications to Holmberg, Plaintiff waived any attorney-client privilege with regard
to the documents. Defendants’ Memorandum at 9. Plaintiff asserts in opposition that
his counsel, Argentieri, retained Holmberg as a consultant and agent with regard to the
instant litigation. Plaintiff’s Memorandum at 6-7. According to Argentieri, he hired
Holmberg in February 2011 as a consultant and “to perform executive secretarial
duties,” Argentieri Declaration ¶ 17, that although Argentieri handwrote most of the
content of the Lawsuit Overview, because Argentieri cannot type, he faxed the
handwritten pages to Holmberg who typed, edited, proofread and formatted the Lawsuit
Overview into pdf format. Id. ¶¶ 18-20. Defendants argue that in the absence of any
consulting agreement between Argentieri and Holmberg, Argentieri’s statements
regarding Holmberg’s role as a consultant is a “self-serving assertion, absurd on its face
given Holmberg’s apparent lack of legal training . . . .” Defendants’ Reply at 4.
Defendants further maintain that Argentieri’s description of Holmberg’s role as an agent
is limited to the assistance Holmberg purportedly rendered in connection with the
Lawsuit Overview, and not to the two files attached to Holmberg’s March 17, 2011 email
or the emails comprising Item 379. Id. at 5. Nor is there any indication Holmberg
prepared Item 360 or Item 379 at Argentieri’s request. Id.
The attorney-client privilege may protect “communications made to agents of an
attorney . . . hired to assist in the rendition of legal services.” Schwimmer, 892 F.2d at
243 (citing United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)). As such, “‘the
attorney-client privilege can attach to reports of third parties made at the request of the
attorney or the client where the purpose of the report was to put in usable form
information obtained from the client.’” Occidental Chemical Corporation v. OHM
Remediation Services Corp., 175 F.R.D. 431, 436 (W.D.N.Y. 1997) (quoting Federal
Trade Commission v. TRW, Inc., 628 F.2d 207, 212 (D.C.Cir. 1980)). Here, insofar as
Holmberg may have been retained by Argentieri to type the Lawsuit Overview and
convert it into pdf format, not only has the Lawsuit Overview already been determined
not to be confidential or protected by the attorney-client privilege, November 3, 2011
Order (Doc. No. 208), ¶ 14, but the record is completely devoid of any explanation as to
why Holmberg’s services were retained in connection with the two documents attached
to the March 17, 2011 email submitted as Item 360, or why the information contained in
the emails comprising Item 379 were also circulated to Holmberg, much less that
Holmberg had any “need to know” the information contained therein. Robbins &
Meyers, Inc., 274 F.R.D. at 93-94 (disclosure of information to persons within plaintiff’s
corporate organization whose need-to-know of the asserted privileged communications
was not established waived privilege).
Insofar as Plaintiff asserts Items 360 and 379 are also protected by the work
product doctrine, just as disclosure to third-party Holmberg whose services were not
retained in connection with Items 360 and 379, and who has not been shown to have a
need to know the information contained therein, waived the attorney-client privilege, the
disclosure to Holmberg also waived any protection under the work product doctrine.
S.E.C. v. Gupta, __ F.Supp.2d __, 2012 WL 990779, at *1 (S.D.N.Y. Mar. 26, 2012)
(“Work product protection [ ] may be waived if the work product is voluntarily
disclosed.”). Furthermore, the work product doctrine was not asserted in the original
privilege log, but first appears in Plaintiff’s papers filed in opposition to Defendants’
motion and, thus was waived. See Brown v. Department of Correctional Services, 2011
WL 2182775, at * 15 (W.D.N.Y. June 2, 2011) (failure to timely assert privilege waives
Accordingly, even if Items 360 and 379 were ever protected by the attorney10
client privilege and work product doctrine, the protection has been waived by the
disclosure of the information to a third party, Holmberg, without establishing Holmberg
had any need to know the information or had been retained to render professional
services with regard to the documents. Further, the work product doctrine was not
timely asserted and, as such, has also been waived as to Items 360 and 379, which are
therefore subject to production.
Privilege Log Items 373, 400, 401, 402, 403 and 405 (respectively, “Item 373",
“Item 400", “Item 401", “Item 402", “Item 403", and “Item 405"). Items 373, 400,
401, 402, 403 and 405 are emails sent by or to David Grable, Esq. (“Dave Grable”), an
attorney at Quinn Emanuel, another law firm located in Chicago, Illinois. Defendants
maintain that in the absence of any evidence that Quinn Emanuel ever provided Plaintiff
with any legal services in connection with this action, these six items are not privileged,
and that Plaintiff’s burden of establishing that Quinn Emanuel did represent Plaintiff is
not met by Plaintiff’s attorneys’ “‘mere conclusory or ipse dixit assertions’ in unsworn
papers authored by attorneys.” Defendants’ Memorandum at 10 (quoting Allied Irish
Banks, P.L.C. v. Bank of America, N.A., 252 F.R.D. 163, 168 (S.D.N.Y. 2008)). Plaintiff
maintains that although the documents contain discussions about confidential facts
relating to this case, case strategy and legal advice, because the communications
within these six items occurred while Plaintiff was considering whether to retain Quinn
Emanuel as counsel in this action, they are protected by the attorney-client privilege.
Plaintiff’s Response at 5-6. Defendants object that no evidence establishes that when
these communications were made, Plaintiff was considering whether to formally retain
Dave Grable and Quinn Emanuel. Defendants’ Reply at 3.
Although Dave Grable and Quinn Emanuel have never appeared as counsel of
record in this action, communications between Plaintiff and Dave Grable made while
Plaintiff was considering whether to retain Dave Grable and Quinn Emanuel are
privileged provided Plaintiff reasonably understood such communications to be
confidential. United State v. Dennis, 843 F.2d 652, 656-57 (2d Cir. 1988) (statements
made while potential client considered employing counsel were privileged, even though
employment was never accepted, where potential client intended communications with
attorney to be confidential); Newmarkets Partners, LLC v. Sal. Oppenheim Jr. & Cie,
S.C.A., 258 F.R.D. 95, 100 (S.D.N.Y. 2009) (holding although plaintiff never officially
retained attorney, plaintiff’s attorney-client privilege encompassed any confidences and
secrets divulged to attorney by plaintiff to the extent plaintiff understood attorney was
approached in professional capacity with the intent to secure legal advice for plaintiff).
Although the identity of the client or fee arrangements typically are not protected by the
attorney-client privilege, Vingrelli v. United States Drug Enforcement Agency, 992 F.2d
449, 453 (2d Cir. 1993), communications revealing the client’s motive in seeking
representation, litigation strategy, or the specific nature of any services provided such
as researching a particular area of law, are within the attorney-client privilege.
Newmarket Partners, LLC, 258 F.R.D. at 101 (citing cases).
Item 373 is a December 2, 2010 email from James W. Grable, Esq. (“Jim
Grable”) at Connors & Vilardo, LLP (“Connors & Vilardo”), to Dave Grable at Quinn
Emanuel, and one Eric M. Soehnlein (“Soehnlein”) at Connors & Vilardo, copied to
Plaintiff, with a subject of “FW: Zuck signature.” Privilege Log Item 373. Connors &
Vilardo was counsel of record for Plaintiff from July 16, 2010 until April 14, 2011, when
Item 373 was created, and Quinn Emanuel has never appeared as counsel of record in
this matter. Nevertheless, in camera review of Item 373 reveals a discussion of
litigation strategy between Jim Grable, Soehnlein, David Grable and Plaintiff, but no
third parties. As such, Item 373 is within the attorney-client privilege and need not be
Item 400 is a December 2, 2010 email from Jim Grable to Plaintiff and Dave
Grable, copied to Soehnlein, with the subject “RE: Zuck signature.” Privilege Log Item
400. In camera review establishes that an exact copy of all of the information contained
in Item 400 is attached to the December 2, 2010 email submitted as Item 373. As
such, Item 400 reveals a discussion of litigation strategy between Jim Grable,
Soehnlein, David Grable and Plaintiff, but no third parties, and is within the attorneyclient privilege and need not be produced.
Item 401 is a December 8, 2010 email from Plaintiff to Dave Grable with the
subject “Re: Zuck Signature.” Privilege Log Item 401. The court’s in camera review of
Item 401 reveals that attached to the December 8, 2010 email from Plaintiff to Dave
Grable are 14 other email messages dated between December 2, and December 7,
2010, and exchanged between Plaintiff, Dave Grable, Jim Grable, and Argentieri, but
no third parties. Discussed in the emails is litigation strategy for this case. Item 401 is
thus protected by the attorney-client privilege and need not be produced.
Item 402 is a December 8, 2010 email from Dave Grable to Plaintiff, with the
subject “RE: Zuck Signature.” Privilege Log Item 402. In camera review of Item 402
establishes it is essentially a copy of Item 402, attached to the December 8, 2010 email
from Dave Grable to Plaintiff acknowledging receipt of the information contained in Item
401. Nothing indicates this information has been disclosed to any third parties.
Accordingly, Item 402 is protected by the attorney-client privilege and need not be
Item 403 is a December 17, 2010 email from Plaintiff to Dave Grable with the
subject “Re: Zuck signature.” Privilege Log Item 403. In camera review of Item 403
establishes that attached to the December 17, 2010 email are 17 other emails dated
from December 2 and December 17, 2010, exchanged between Plaintiff, Dave Grable,
Jim Grable, Argentieri , and Terrence M. Connors of Connors & Vilardo, some of which
are among the 14 emails included in Item 401. Discussed in these emails is litigation
strategy, including retaining handwriting and computer forensics experts. Nothing within
Item 403 indicates that any of the information contained therein has been disseminated
to any third party. As such, Item 403 is subject to the attorney-client privilege, and need
not be produced.
Item 405 is a December 2, 2010 email from Jim Grable to Argentieri, copied to
Plaintiff and Dave Grable, with subject “Zuck Signature.” Privilege Log Item 405.
Careful review of Item 405 reveals it is one of the 14 emails attached to Item 401. Item
401 at 12. Because Item 405 has not been disclosed to any third parties, for the same
reasons that Item 401 is protected by the attorney-client privilege, Item 405 is also
protected and need not be produced.
Accordingly, Defendants’ motion is GRANTED in part and DENIED in part.
Plaintiff is to serve Defendants with copies of Item 334, redacted in accordance with
this court’s discussion, as well as Items 348, 360, and 379, but Items 373, 400, 401,
402, 403, and 405 need not be produced.
Plaintiff asserts for the first time in responding to Defendants’ motion that he has
asked Defendants to return or destroy copies of the March 6, 2011 email from
Holmberg to Plaintiff and Argentieri (“March 6, 2011 email”)6 that accompanied the
attached Lawsuit Overview.pdf file and requested Plaintiff and Argentieri advise
Holmberg of any desired changes. Plaintiff’s Response at 7, n. 1. Plaintiff explains that
the inadvertent disclosure of the March 6, 2011 email occurred when Edward Flaitz
(“Flaitz”), an information technology expert Argentieri hired to recover from Argentieri’s
law office computer, a document titled “Lawsuit Overview.pdf” and produce the
document to Stroz Friedberg LLC (“Stroz Friedberg”), a digital forensic consulting firm
whose services Defendants have retained in connection with this action, on December
16, 2011. Argentieri Declaration ¶ 2; Flaitz Declaration ¶¶ 3-5. Both Argentieri and
Flaitz state that the Lawsuit Overview.pdf file was an attachment to the March 6, 2011
email, which was inadvertently forwarded to Defendants along with the file. Argentieri
Declaration ¶ 3; Flaitz Declaration ¶¶ 6-7. Flaitz maintains that despite Argentieri’s
instruction to copy only the attachment, i.e., the Lawsuit Overview file, Flaitz
inadvertently also copies the March 6, 2011 email with the Lawsuit Overview.pdf file,
burning, or copying, both to a CD which Flaitz then gave to Argentieri’s secretary who
forwarded the CD, containing both the Lawsuit Overview.pdf file and the March 6, 2011
email. Flaitz Declaration ¶¶ 6-8.
Defendants dispute Plaintiff’s description of the inadvertent disclosure, asserting
Southwell Declaration Exh. H.
that Bryan J. Rose (“Rose”), of Stroz Friedberg, actually received the Lawsuit
Overview.pdf file, along with the March 6, 2011 email, on December 16, 2011, by email
from Argentieri’s Gmail account (“December 16, 2011 email”),7 rather than on a CD.
Rose Declaration ¶ 3. The December 16, 2011 email contains a message stating:
“Bryan [forward from origianl [sic] email to Paul Argentieri containing image of contract]
Forwarded by Ed Flaitz (12/15/11 at 5:09 pm)”. Rose Declaration ¶ 4; December 16,
2011 email. Rose states that he interpreted the December 16, 2011 email as
establishing Flaitz had forwarded the March 6, 2011 email, with the Lawsuit
Overview.pdf attachment, from Argentieri’s Gmail account to Rose, and that because
Rose received the email on December 16, 2011, rather than on December 15, 2011,
Rose considered the reference to “12/15/11" to be a typographical error. Rose
Declaration ¶ 5. On January 4, 2011, Stroz Friedberg produced the December 16,
2011 email from Argentieri’s Gmail account in its native-file format simultaneously to all
parties to this action. Id. ¶ 6. Rose maintains he never received any CD containing the
March 6, 2011 email from Flaitz, Argentieri’s secretary, or anyone else. Id. ¶ 7.
Defendants maintain that it was not until they received the March 6, 2011 email
on December 16, 2011, that Defendants were aware that Holmberg had prepared the
Lawsuit Overview and, as such, was a custodian of the Lawsuit Overview whose
identity should have been made earlier in accordance with the undersigned’s direction
that Plaintiff identify all persons in possession of the Lawsuit Overview. Defendants’
Memorandum at 14. According to Plaintiff, because the March 6, 2011 email was
A copy of the Decem ber 16, 2011 em ails is attached as Exh. A to the Rose Declaration.
inadvertently disclosed, Plaintiff has not waived any privilege regarding the email.
Plaintiff’s Response at 7, n. 1. Plaintiff further maintains that “Plaintiff has subsequently
requested on March 12, 2012 that Defendants retrieve and destroy all copies of the
errantly provided, privileged material.” Id. Defendants argue Plaintiff’s belated request
fails to meet Plaintiff’s burden under Fed.R.Evid. 502(b). Defendants’ Reply at 5-8.
Whether an inadvertent disclosure waives a privilege is governed by Fed.R.Evid.
502(b) which provides the privilege will not be waived if (1) the disclosure is inadvertent;
(2) the privilege holder took reasonable steps to prevent disclosure; and (3) the
privilege holder took reasonable steps to rectify the error. Fed.R.Evid. 502(b)(1)-(3).
“The burden is on the party claiming a communication is privileged to demonstrate it
‘took reasonable steps to prevent’ any inadvertent disclosure, tried to remedy such
disclosure immediately, and that the opposing party will not be unduly prejudiced by a
protective order.” Chapel Park Villa, Ltd. v. The Travelers Ins. Co., Inc., 2006 WL
2827867 at * 5 (W.D.N.Y. Sept. 29, 2006) (citing AFA Protective Sys., Inc. v. City of
New York, 788 N.Y.S. 2d 128, 129-30 (2d Cir. 2004)). In the instant case, Plaintiff has
failed to meet this burden.
With regard to the first element, Argentieri, by failing to personally supervise
Flaitz’s retrieval of the LawsuitOverview.pdf filed from the computer in Argentieri’s law
office in Hornell, while Argentieri was in California, also failed to take reasonable steps
to prevent the inadvertent disclosure of the March 6, 2011 email. Although Argentieri
cannot be admonished for retaining the services of Flaitz to retrieve from Argentieri’s
Hornell law office, while Argentieri was in California, information responsive to
Defendants’ discovery requests, Argentieri could have had Flaitz first forward any
documents to Argentieri in California where Argentieri could have reviewed the
documents to ensure there was no extraneous, privileged materials attached. If
Argentieri’s physical presence in Hornell was necessary to properly and thoroughly
oversee the production of evidence, Argentieri, as lead counsel in this high-profile case,
should have made himself present to do so, and Argentieri has not proffered any
explanation at to why his presence was not possible. Nor has Plaintiff produced an
affidavit from Argentieri’s secretary establishing any CD containing the March 6, 2011
email was ever sent to Stroz Friedberg as Plaintiff claims. See Flaitz Declaration ¶¶ 7-8
(averring Flaitz burned the March 6, 2011 email and the Lawsuit Overview.pdf filed onto
a CD which he gave to Argentieri’s secretary and “[u]pon information and belief, Mr.
Argentieri’s secretary forwarded it to the Defendants.”).
Second, with regard to the reasonableness of Plaintiff’s steps to rectify the
inadvertent disclosure, the delay in seeking to remedy an inadvertent disclosure of
privileged material is measured from the date the holder of the privilege discovers the
such disclosure. Valentin v. Bank of New York Mellon Corp., 2011 WL 2437644, at * 2
(S.D.N.Y. May 31, 2011); U.S. Fidelity & Guaranty Co. v. Braspetro Oil Services Co.,
2000 WL 744369, at * 6 (S.D.N.Y. June 8, 2000) (citing cases). Nor will a party’s failure
to realize a document is privileged until after it has been disclosed not bar finding a
waiver of the privilege that could have been, but was not, asserted. Jacob v. Duane
Reade, Inc., 2012 WL 651536, at *5 (S.D.N.Y. Feb. 28, 2012) (Defendants’ failure to
perceive that email contained “secret and confidential information” from in-house
counsel that would support a privilege argument until two months after its disclosure did
not delay the running of time in which to attempt to remedy disclosure). Generally, a
request for the return or destruction of inadvertently produced privileged materials
within days after learning of the disclosure is required to sustain this second element.
See U.S. Fidelity & Guaranty Co., 2000 WL 744369, at * 6 (request for return of
documents made on first business day following notification of inadvertent production
constituted prompt action rectifying disclosure); Aramony v. United Way of America,
969 F.Supp. 226, 237 (S.D.N.Y. 1997) (response within one day of learning of
production was timely); and Georgia-Pacific Corp. v. GAF Roofing Mfg. Co., 1995 WL
117871, at *2 (S.D.N.Y. Mar. 20, 1995) (response within two business days of learning
of inadvertent disclosure did not constitute waiver).
Here, according to Defendants, after the March 6, 2011 email was forwarded to
Stroz Friedberg on December 16, 2011, Boland had knowledge of the disclosure by
January 4, 2012 when Stroz Friedberg produced the email in its native-file format to all
parties to this action, yet took no steps to rectify the error until March 12, 2012, more
than two months later. Nor does Plaintiff proffer any explanation for the delay. On this
record, Plaintiff is unable to establish he took reasonable steps to remedy the
inadvertent disclosure of the March 6, 2011 email by waiting more than two months
before seeking the return or destruction of the information.
Finally, Plaintiff has utterly failed to offer any explanation demonstrating that
protecting belated protection of the March 6, 2011 email will not be unduly prejudicial to
Defendants. Accordingly, Plaintiff has also failed to establish the third element of his
As such, Plaintiff has, by its disclosure of the March 6, 2011 email, waived any
privilege that may have attached to it, and Plaintiff’s request that Defendants be
directed to return or destroy all copies of the March 6, 2011 email is DENIED.
Based on the foregoing, Defendants’ motion to compel (Doc. No. 296) is
GRANTED in part and DENIED in part. Plaintiff shall serve Defendants with copies of
Item 334, redacted in accordance with this court’s discussion, and Items 348, 360, and
379, within 10 days of this Decision and Order. Items 373, 400, 401, 402, 403, and
405 need not be produced.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 19, 2012
Buffalo, New York