Hope for Families & Community Services, Inc. et al v. Warren, et al.

Filing 330

MEMORANDUM OPINION AND ORDER that VictoryLand's 236 Motion to Compel Production of Documents is DENIED as moot as to the documents on Windom's privilege log numbered 4, 5, 14, 24, 25, 26, 27, 28, 29, 30, 34, 36, 37, 38 and 39, because the claim of privilege has been withdrawn and the documents produced; that said motion otherwise is DENIED. Signed by Honorable William Keith Watkins on 4/21/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, ) (Additional attachment added on 4/22/2009: # 2 Corrected Document was substituted pursuant to 331 Order entered this date) (cc, ).

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION H O P E FOR FAMILIES & COMMUNITY ) S E R V IC E , INC., et al., ) ) P l a i n t if f s , ) ) v. ) ) DAVID WARREN, et al., ) ) D e f e n d a n ts . )

C A S E NO. 3:06-CV-1113-WKW

M E M O R A N D U M OPINION AND ORDER B e f o re the court is a Motion to Compel Production of Documents or, in the A lte rn a tiv e , Submission of Documents to the Court for In Camera Review and Determination o f Privilege (Doc. # 236), filed by Defendant Macon County Greyhound Park, Inc., d/b/a V ic to ryL a n d ("VictoryLand"). VictoryLand moves to compel non-parties Steve Windom and S te v e Windom LLC (collectively "Windom") to produce certain documents listed on W ind o m 's privilege log or, in the alternative, to submit those documents to the court for in c a m e r a review. Two responses to VictoryLand's motion have been filed, one by Windom (D o c. # 249), and the second by Plaintiff Lucky Palace, LLC ("Lucky Palace") (Doc. # 280). T h e court ordered an in camera review of the documents identified on Windom's p riv ile g e log, and directed Lucky Palace to file an in camera brief. (Doc. # 258 at 1.) The c o u rt received those documents and the in camera brief on February 19, 2009, and directed L u c k y Palace to redact those portions of its in camera brief that recited allegedly privileged c o m m u n ic a tio n s and to file the redacted brief under seal (Doc. # 282). Lucky Palace

c o m p lie d . (Doc. # 289.) Also, Windom filed a Notice of Supplemental Production. (Doc. # 296.) Reply briefs have been filed, one by VictoryLand (Doc. # 306), and one by both V ic to ryL a n d and Defendant Milton McGregor (collectively "Defendants") (Doc. # 308). For th e reasons to follow, the motion will be denied. I . BACKGROUND A pivotal issue concerns the nature of the relationship between Windom and Lucky P a la c e. These facts speak to that issue. Mr. Windom is a licensed attorney in the State of A laba m a and former state senator and lieutenant governor for the State of Alabama. Mr. W in d o m formed Steve Windom, LLC ("Windom, LLC") in January 2003 for the purpose of p ro v id in g lobbying and consulting services, and his company's consulting services were re ta in e d by Lucky Palace in January 2006. Lucky Palace, a limited liability company, was " f o rm e d for the purpose of obtaining a license to operate bingo in Macon County, Alabama." (P a u l Bracy Aff. ¶ 3 (Ex. to Doc. # 280).) 1 P u rsu a n t to the consulting contract between Windom and Lucky Palace entered into o n January 9, 2006 (Bracy Aff. ¶ 4), Windom agreed to provide governmental relations and c a m p a i g n consulting services to Lucky Palace, Lucky Palace, Inc. and Libra Securities,

1

Paul Bracy is Lucky Palace's president.

2

L L C .2 (Exs. 285 & 286 to Windom Dep. (Doc. # 274).) In addition to Mr. Windom, Steve R a b y ("Raby") was a party to the Lucky Palace contract for consulting services.3 (Exs. 285 & 286 to Windom Dep.) The recited purpose of the contract was "to secure a document s ig n e d by the Sheriff of Macon County authorizing Client to operate bingo games in Macon C o u n t y, Alabama." (Exs. 285 & 286 to Windom Dep.) The contract provided that, if the c o n su lta n ts obtained that executed document prior to December 31, 2007, they would receive a bonus.4 (Ex. 286 to Windom Dep.; Windom Dep. at 86, 227.) Other contractual

r e sp o n s ib i litie s included overseeing efforts to find a formidable opponent to run against S h e rif f David Warren ("Sheriff Warren")5 in the then-upcoming election and spearheading th e campaign for the chosen opponent.6 (Ex. 285 to Windom Dep.; Windom Dep. 71 (e x p lain in g the collaborative "strategy of running a reasonably well-funded campaign to

Libra Securities, LLC, is a wholly-owned subsidiary of Libra Securities Holdings, LLC. (Doc. # 264 n.1.) Libra Securities Holdings, LLC, owns 375,000 units of shares in Lucky Palace (Doc. # 264 n.1), and the president of Libra Securities Holdings, LLC, Jess Ravich, "personally owns" 625,000 units of shares in Lucky Palace (Doc. # 264 n.1). Collectively, Libra Securities Holdings, LLC, and Mr. Ravich have a sixteen-percent ownership interest in Lucky Palace. (Doc. # 216 at 4.) "Libra is in partnership with Lucky Palace to secure financing and to raise capital for the eventual opening of Bingo operations in Shorter[, Alabama]." (Doc. # 264 n.1.)
3

2

See Windom Dep., for details of Mr. Raby's consulting role. They did not obtain that document. Sheriff Warren also is a Defendant in this lawsuit.

4

5

The campaign component of the contract included advising Lucky Palace on making campaign contributions, securing and designing billboards, engaging a direct mail firm and overseeing a direct mail campaign, engaging a phone bank firm and overseeing phone bank efforts, engaging a firm to produce and place radio advertisements, and engaging and overseeing political operatives in Macon County to support the campaign. (Ex. 285 to Windom Dep.)

6

3

d e f ea t the sheriff").) The contract also provided that Windom's and Mr. Raby's companies w o u ld serve as independent contractors. (Exs. 285 & 286 to Windom Dep.) In furtherance of this contract, Mr. Windom had "constant interaction" with Lucky P a la c e ' s representatives and was "intimately involved" with efforts to secure a bingo license f o r Lucky Palace. (Bracy Aff. ¶¶ 5-6.) He was authorized by Lucky Palace to communicate d ire c tly with its attorneys in order to further Lucky Palace's objective to obtain a bingo lice n se (Bracy Aff. ¶ 9), and Lucky Palace considered all of its communications with its atto rne ys as confidential and did not intend to waive the attorney-client privilege when Mr. W in d o m was a party to those communications (Bracy Aff. ¶ 7). Mr. Windom "had intimate k n o w le d g e of the efforts taken to secure a bingo license for Lucky Palace and had in f o rm a tio n which was relevant to Lucky Palace's reasons for seeking representation." (B ra c y Aff. ¶ 8.) Mr. Windom also "work[ed] with Lucky Palace and it's [sic] counsel in m atters critical to Lucky Palace's position in litigation." (Bracy Aff. ¶ 6.) During the pendency of the consulting contract, Mr. Windom became an investor in L u c k y Palace, apparently to assist in funding litigation. (Windom Dep. at 185.) He was an in v e sto r in Lucky Palace, beginning in late September or October, 2006, and ending in June 2 0 0 7 . (Doc. # 236 at 2-5 (citing Windom Dep. 16, 47).) In relation to this litigation, Windom withheld certain documents requested by V ic to ryL a n d and Mr. McGregor, pursuant to a Rule 45 subpoena and a Rule 30(b) deposition n o tic e and document request. The alleged privileged communications are outlined in a

4

p riv ile g e log (see Ex. I to Doc. # 236) and consist of emails which were transmitted between A p ril 11, 2006, and August 28, 2007.7 Some of the emails specifically mentioned this la w s u it which was filed on December 18, 2006; others referenced a related case in which L u c k y Palace was not a party, but which was pending before the undersigned from March 9 , 2006, to June 12, 2008 (3:06cv224) and was relevant to Lucky Palace's then-anticipated la w s u it. Four emails were transmitted by Mr. Windom. As to the other emails, Mr. Windom e ith e r was the direct recipient or was copied on the email. A few emails were exchanged b e tw e e n Mr. Windom and Mr. Bracy. One was sent from Mr. Raby to Mr. Windom, and a n o th e r was between Mr. Windom and an attorney for the Macon County nonprofit o rga n izatio n s which have joined Lucky Palace as co-Plaintiffs in this lawsuit ("Charities"). T h e majority of the emails were communications between Mr. Windom, Lucky Palace's a tto rn e ys 8 and at least one of Lucky Palace's non-attorney representatives (i.e., either Mr. B ra c y or Mr. Jess Ravich ("Ravich"), see supra note 2). At his deposition taken on November 18, 2008, Mr. Windom, through his attorney (R o b e rt Bernard Harwood, Esq.), invoked the attorney-client privilege as to the withheld e m a il communications. He asserted that "Mr. Windom was an investor in . . . Lucky Palace . . . and[,] during that period of time and immediately leading up to it[,] he was privy to

Each document on this privilege log is assigned a number in the left-hand column of that log and, in this opinion, is identified by that assigned number. At the time the communications were made, the attorneys with Bradley Arant Rose & White who either sent, authored, or were copied on the emails were Gary Huckaby, Hall Bryant, Erika JenkeHuber and Mike Huff.
8

7

5

v a rio u s discussions, communications, both written and verbal, relating to litigation strategy a n d things of that sort." (Doc. # 236 at 2 (citing Windom Dep. at 14).) The assertion also w as that Mr. Windom was part of a "client group." As stated at the deposition by Mr. W ind o m 's counsel, Lucky Palace has "expressed the view that there was this situation where h e (Mr. Windom) had been a participant in certain communications and exchanges once he b e c am e an investor or immediately leading up to it whereby [Lucky Palace] would have c o n s id e re d that he was part of the client group." (Doc. # 236 (citing Windom Dep. at 14).) In a letter to counsel for Windom, Mr. McGregor and VictoryLand argued that the m a jo rity of the communications listed on Windom's privilege log did not fall within the time f ra m e for which Windom claimed the attorney-client privilege on the basis of his status as o n e of Lucky Palace's investors. (Ex. H to Doc. # 236; see also Doc. # 236 at 4-5.) Mr. M c G r e g o r and VictoryLand also requested an updated privilege log, to include all the re c ip ie n ts of the allegedly privileged documents. (Ex. H to Doc. # 236.) Mr. Windom s u p p lie d them with an "expanded privilege log." (Doc. # 236 ¶ 11; Ex. I to Doc. # 236.) At the same time, as a concluding notation on the expanded privilege log (Ex. I to Doc. # 236), M r. Windom asserted that his claim of attorney-client privilege for certain documents was " b a se d not only on his status for a time as an investor in Lucky Palace, LLC, but also on his a w a re n e ss of the contention by Lucky Palace that some of his communications to its p e rs o n n e l were as an attorney." (Ex. I to Doc. # 236.) Although in his response to the p e n d in g motion to compel, Mr. Windom again mentions Lucky Palace's assertion, he repeats

6

w h a t he said during his deposition, that "[i]n [his] opinion [he] never rendered any legal s e rv ic e s, only political consulting services during the time [he] was a consultant and then w h e n [he] was an investor, [he] was an investor." (Doc. # 249 at 1-2; Windom Dep. 17.) M r. Windom, however, cites correspondence that he received from Steve Heninger, Esq. (" H e n in g e r" ), in which Mr. Heninger says, "We asserted that you did work as an attorney. T h e correspondence and agreement stated otherwise, but I still think you filled the attorney role on some aspects." 9 (Doc. # 249 at 1.) I I . DISCUSSION F if te e n documents of the forty-seven listed on the expanded privilege log are no lo n g e r at issue. In its in camera brief, as redacted and filed under seal (Doc. # 289), Lucky P a la c e concedes that fifteen documents on the expanded privilege log are discoverable; those d o c u m e n ts to which Lucky Palace "claims no privilege" are documents numbered 4, 5, 14, 2 4 , 25, 26, 27, 28, 29, 30, 34, 36, 37, 38 and 39. (Doc. # 289.) Windom filed a notice with th e court indicating that these documents have been produced to all counsel of record. (Doc. # 296.) The motion to compel as to these documents, therefore, is due to be denied as moot. T h e remaining thirty-two documents at issue are thus refined down to core documents e m b e d d e d with elemental issues of privilege. Lucky Palace argues that all thirty-two d o c u m e n ts are protected by the attorney-client privilege and its corollaries, namely, the

This theory for invoking the attorney-client privilege ­ i.e., Mr. Windom as Lucky Palace's attorney ­ was not raised by Lucky Palace in its brief. (See Doc. # 280.) It is deemed abandoned, and is not considered here, but it is noted that Mr. Windom strongly objects to the categorization that he acted as Lucky Palace's attorney.

9

7

c o m m o n legal interest doctrine and the theory that an independent contractor can act as a c lie n t's "representative." (Doc. # 280 at 11.) Lucky Palace also contends that some of the e m a ils are protected by the attorney-client privilege given Mr. Windom's status for a time a s an investor in Lucky Palace. As to seven of those disputed documents, Lucky Palace also in v o k e s the work product doctrine and, as to another six, the joint defense doctrine. (See D o cs. # 280, 289.) It is necessary to summarize the law pertaining to the theories relied upon by Lucky P a lac e , as well as the primary legal authorities cited by the parties in support of and in o p p o s itio n to disclosure of the communications at issue. The analysis follows. A. P r in c ip le s of Law 1. A tto r n e y -C lie n t Privilege

Federal privilege law governs the application of the attorney-client privilege because th e court has federal question jurisdiction over the subject matter. See Fed. R. Evid. 501, a d v is o ry committee's note ("In non-diversity jurisdiction civil cases, federal privilege law w ill generally apply."). "The attorney-client privilege exists to protect confidential

c o m m u n ic a tio n s between client and lawyer made for the purpose of securing legal advice." In re Grand Jury Proceedings 88-9, 899 F.2d 1039, 1042 (11th Cir. 1990) (citation and in ter n a l quotation marks omitted); see also Upjohn Co. v. United States, 449 U.S. 383, 390 ( 1 9 8 1 ) ("[T]he privilege exists to protect not only the giving of professional advice to those w h o can act on it but also the giving of information to the lawyer to enable him to give sound

8

a n d informed advice."). The privilege encourages "full and frank communication between a tto rn e ys and their clients and thereby promote[s] broader public interests in the observance o f law and the administration of justice." Upjohn Co., 449 U.S. at 389. "The party invoking the attorney-client privilege has the burden of proving that an atto rne y-c lie n t relationship existed and that the particular communications were c o n f id e n tia l." Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (citations and in ter n a l quotation marks omitted). "To determine if a particular communication is

c o n f id e n tia l and protected by the attorney-client privilege, the privilege holder must prove th e communication was `(1) intended to remain confidential and (2) under the circumstances w a s reasonably expected and understood to be confidential.'" Id. (quoting United States v. B e ll, 776 F.2d 965, 971 (11th Cir. 1985)). The essence of Defendants' argument is that disclosure to Mr. Windom of c o m m u n ic a tio n s that occurred between Lucky Palace's agents and attorneys destroys any c la im of confidentiality and possible application of the attorney-client privilege. As a general ru le , a client's and his attorney's communications are not deemed confidential when made in the presence of a third party. See United States v. Gordon-Nikkar, 518 F.2d 972, 975 (5th C ir. 1975). 10 There, however, are exceptions.

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to October 1, 1981.

10

9

L u c k y Palace says that the exceptions discussed in In re Bieter Co. ("Bieter"), 16 F.3d 9 2 9 (8th Cir. 1994) (independent consultant as client's representative), and United States v. B D O Seidman, LLP ("Seidman"), 492 F.3d 806 (7th Cir. 2007) (common legal interest d o c trin e ), apply to attorney-client communications conveyed to Mr. Windom so as not to d e stro y the attorney-client privilege. VictoryLand and Mr. McGregor disagree. First, they a ss e rt that Bieter is distinguishable and that the principles announced in In re New York Renu w ith Moistureloc Product Liability Litigation ("Renu"), No. MDL 1785,

2 :0 6 -M N -7 7 7 7 7 -D C N , 2008 WL 2338552 (D.S.C. May 8, 2008), and Haugh v. Schroder In v e stm e n t Management North America Inc., No. 02 Civ.7955 DLC, 2003 WL 21998674 ( S .D .N .Y . Aug. 25, 2003), dictate a contrary result. Second, they argue that the common le g a l interest doctrine espoused in Seidman is inapplicable because Lucky Palace has failed to show how "[Mr.] Windom's position as a political consultant to [it] is anything other than a business relationship." (Doc. # 306 at 8.) a. B ie te r

In Bieter, the plaintiff was Bieter Company ("Bieter"), a partnership formed for the p u rp o s e of commercially developing farmland. Bieter hired a consultant "to provide advice a n d guidance regarding commercial and retail development," specifically, to assist Bieter in s e c u rin g tenants for the development, Bieter, 16 F.3d at 933. The contract between Bieter a n d the consultant provided that the consultant would work out of Bieter's office and that the c o n su lta n t was an "independent contractor," and was "not an agent, employee, or partner of

10

B ie te r." Id. at 933-34. The consultant had "daily interaction" with the principals of Bieter p e rta in in g to the commercial development of the farmland, id. at 933, and in the subsequent litig a tio n resulting from the failure of Bieter to develop the property, id. at 931, 934, and city o f f ic ia ls , potential tenants and the media, as well as Bieter's counsel, viewed the consultant a s Bieter's "representative," id. at 934. Moreover, the consultant's "involvement with [ B ie te r's ] counsel was rather extensive." Id. The consultant attended meetings with counsel, " e ith e r alone or with [the client]," and "received many communications from attorneys, both th o s e sent directly to him and those on which he was copied," id., and Bieter's counsel " w o rk e d closely with" the consultant "as th[e] litigation developed," id. In the RICO lawsuit, commenced by Bieter as a result of its failed attempts to develop th e farmland commercially, see id. at 930, 934, the defendants sought disclosure of d o cu m en ts evidencing communications between the consultant and Bieter's attorney. Bieter, in turn, claimed that those documents were protected by the attorney-client privilege. S u m m in g up the issue, the Eighth Circuit said, In short, the case presents an individual who, while acting as an independent c o n su lta n t to the client, has been involved initially in the attempt to develop a parcel of property (the development of which appears to be the sine qua non o f the client's existence) and subsequently in the litigation that resulted from th e failure to develop said property. Despite any assertions to the contrary, it a p p e ars that this consultant was neither the client nor an employee of the c lie n t, but was instead a representative of the client. The legal question p re se n te d is whether communications either between this consultant and c o u n se l or merely disclosed to the consultant necessarily fall outside of the s c o p e of the attorney-client privilege because the consultant was neither the c lien t nor an employee of the client.

11

Id . at 934. The Bieter court found Supreme Court Standard 503(b) "useful," even though it was n e v e r enacted. Id. at 935; see also Seidman, 492 F.3d at 815 (Standard 503 "has been rec o g n iz ed `as a source of general guidance regarding federal common law principles.'" (c ita tio n omitted)). It recognized that the proposed rule expressly protected communications b e tw e e n a client's lawyers and a client's representative, Bieter, 16 F.3d at 935, but at the s a m e time did not define "representative," id. The Eighth Circuit examined the "only two a n a lo g o u s situations" it could find. Id. at 936 (citing McCaugherty v. Siffermann, 132 F.R.D. 2 3 4 , 239 (N.D. Cal. 1990), for its conclusion that, under Upjohn Co. v. United States, 449 U .S . 383 (1981), "the privilege would apply to communications between two independent c o n su ltan ts hired by the client and the client's lawyers just as it would apply to c o m m u n ic a tio n s between the client's employees and its lawyers," and John E. Sexton, A P o s t-U p jo h n Consideration of the Corporate Attorney-Client Privilege, 57 N.Y.U.L.Rev. 4 4 3 , 498 (1982), for its argument that "at times there will be potential information-givers w h o are not employees of the corporation but who are nonetheless meaningfully associated w ith the corporation in a way that makes it appropriate to consider them `insiders' for p u rp o s e s of the privilege."). Finding these two sources persuasive, the Eighth Circuit c o n c lu d e d that, "when applying the attorney-client privilege to a corporation or partnership, it is inappropriate to distinguish between those on the client's payroll and those who are in s te a d , and for whatever reason, employed as independent contractors." Id. at 937. On the

12

f a cts presented, the Eighth Circuit concluded that the nature of the relationship between B ie te r and the consultant ­ i.e., the consultant's daily interactions with Bieter and third p a rtie s in furtherance of Bieter's "single objective" to commercially develop farmland; the c o n su lta n t's expertise in commercial development offered to Bieter; and the information g a rn e re d by the consultant as Bieter's sole representative at certain meetings ­ and "his in v o lv e m e n t in the subject of the litigation ma[d]e him precisely the sort of person with w h o m a lawyer would wish to confer confidentially in order to understand Bieter's reasons f o r seeking representation." Id. at 938. The Eighth Circuit's conclusion that the consultant-corporation relationship justified a p p lic a tio n of the privilege was the first hurdle, but did not end the inquiry. The

c o m m u n ic a tio n s also had to satisfy the test used to examine the applicability of the attorneyc lie n t privilege in the corporate-employee setting. That test, as adapted in Bieter, provides th a t "the attorney-client privilege is applicable to an [independent contractor's] c o m m u n ic a tio n if (1) the communication was made for the purpose of securing leg a l advice; (2) the [independent contractor] making the communication did s o at the direction of [the corporation]; (3) the [corporation] made the request s o that the corporation could secure legal advice; (4) the subject matter of the c o m m u n ic a tio n is within the scope of the [independent contractor's] duties; a n d (5) the communication is not disseminated beyond those persons who, b e c a u s e of the corporate structure, need to know its contents." Id . at 936 (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 599 (8th Cir. 1977) (b ra c k ets added)). The burden is on the party claiming the privilege "to show that the c o m m u n ic a tio n s at issue meet all of the [five] requirements." Id. (brackets added). 13

A n a lyz in g each of Diversified's five factors, see id. at 939, the Eighth Circuit c o n c l u d e d that the attorney-client privilege applied to communications between the c o n s u lta n t and Bieter's attorney. Id. at 940. The consultant was "for purposes of the p riv ileg e , the functional equivalent of Bieter's employee, and the communications in q u estio n fell within the scope of his duties, were made at the behest of his superior, and were m a d e for the purpose of seeking legal advice for Bieter." Id. b. R e n u and Haugh

In Renu, the court reviewed the law concerning privilege as it relates to public relatio n s consultants.1 1 The court began by observing that "[c]ommunications to non-lawyers c a n be brought within the privilege under the Kovel doctrine." See 2008 WL 2338552, at *7 (c itin g United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)). Kovel "held that confidential co m m u n ica tio n s to non-lawyers could be protected by the privilege if the non-lawyer's s e rv ic e s are necessary to the legal representation." Id. To be entitled to protection, the serv ices performed by the non-lawyer must have been "necessary to promote the lawyer's e f f e c tiv e n e ss [ ,]" rather than merely beneficial to the client in "some way unrelated to the le g a l services of the lawyer." Id. (internal citation omitted). "[B]asic public relations advice, f ro m a consultant hired by the corporate client, is not within the privilege." Id.

Although the court applied New York privilege law, "[f]ederal courts have recognized that the New York law of privilege is substantially similar to federal common law." Renu, 2008 WL 2338552, at *1; see also NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 124 (N.D.N.Y. 2007) ("[T]he distinction between New York and federal law on attorney-client privilege is quite indistinguishable, as the law intersects in all of its facets, and are viewed interchangeably.").

11

14

T h e Renu court cited Haugh for its summary of the "basic law" in the area pertaining to consultants and the attorney-client privilege. Renu, 2008 WL 2338552, *8. In Haugh, a p u b lic relations consultant, who also was a licensed attorney, was hired by a civil litigant's a tto rn e y pursuant to a written agreement to provide and assist in "`providing legal services to [plaintiff].'" 2003 WL 21998674, at *1. The agreement also provided that all

c o m m u n ic a tio n s were "`confidential and privileged.'" Id. It was expected by the plaintiff's a tto rn e y that the consultant would handle "media strategy as it impacted on . . . litigation." Id . To that end, the consultant prepared a press release when the lawsuit was filed, provided a d v ic e to the plaintiff's attorney as to potential "public reactions," answered inquiries from th e media, participated in meetings with the plaintiff and her attorney held for the dual p u rp o s e of developing litigation and media strategies. Id. The documents sought to be p ro te c te d were sent primarily from the plaintiff to the consultant, with copies also provided to the plaintiff's attorney. Id. at *2. The documents contained "no requests for legal advice." Id . The Haugh court recognized that there was "precedent for expanding the attorneyc lie n t privilege to those assisting a lawyer in representing a client," id. at *3, but that the e x p a n sio n should be "`cautiously extended,'" id. (quoting United States v. Weissman, 195 F .3 d 96, 100 (2d Cir. 1999)). The court concluded that, notwithstanding the contractual p r o v i sio n s between the attorney and the consultant, an expansion was not warranted because th e re was an insufficient showing that "the communications were made for the purpose of

15

o b ta in in g legal advice from [the plaintiff's] attorney as opposed to public relations advice f ro m [the consultant]." Id. The evidence demonstrated that the consultant performed "stan d ard public relations services," and there was no showing that the plaintiff's c o m m u n i ca tio n s with either her attorney or the consultant "were necessary so that [the a tto rn e y] could provide [the plaintiff] with legal advice." Id. Nor did the plaintiff identify " a n y legal advice that required the assistance of a public relations consultant." Id. The fact th a t documents were sent to counsel at the same time as the consultant did not preserve the p riv ile g e . Id. "A media campaign is not legal strategy." Id. at *4. "Some attorneys may feel it is desirable at times to conduct a media campaign, but that decision does not transform th e ir coordination of a campaign into legal advice." Id. c. S e id m a n 's Common Legal Interest Doctrine

In Seidman, relied upon by Lucky Palace (Doc. # 280 at 11), the Seventh Circuit e x p la in e d that, "[a]lthough occasionally termed a privilege itself, the common interest d o c trin e is really an exception to the rule that no privilege attaches to communications b e tw e e n a client and an attorney in the presence of a third person," Seidman, 492 F.3d at 815. In that case, the Internal Revenue Service ("IRS") was investigating BDO Seidman, LLP (" S e id m a n " ), an accounting firm, based upon accusations that Seidman had failed to comply w ith the Internal Revenue Code by promoting potentially abusive tax shelters without m a in ta in in g a list of the individuals who had bought an interest in those shelters. See id. W h e n Seidman refused to comply with the IRS's summonses, the IRS petitioned the federal

16

d is tric t court for enforcement. See id. at 809. Seidman raised several objections, including th a t some of the documents summoned were protected by the attorney-client privilege. See id . One issue on appeal, which is pertinent to the present dispute in this case, was whether a memorandum authored by a lawyer/partner of Seidman to Seidman's outside counsel (a tax a tto rn e y), requesting legal advice on pending IRS regulations, was protected when it was d is c lo s e d to a third party. That third party was another law firm ("third-party law firm") that d id not represent Seidman, but that served some of the same clients as Seidman with respect to certain tax products. Id. at 813, 816. The third-party law firm allegedly received the letter f ro m Seidman as input into an opinion letter regarding tax shelters that it (the third-party law f irm ) was preparing for both Seidman and their common clients. Id. at 813. There was no litig a tio n pending when the third-party law firm received the memorandum at issue. Id. The d istric t court found that the disclosure of the memorandum to the third-party law firm "did n o t waive [Seidman's] claim of privilege because the memorandum related to a common le g a l interest shared by [Seidman] and [the third-party law firm] and therefore fell within the c o m m o n interest doctrine." Id. at 813-14 (brackets added). Reviewing whether the district court erred, the Seventh Circuit looked to the p ro p o s e d , but rejected, Supreme Court Standard 503 for authority as to the general principles g o v e rn in g the attorney-client privilege. Id. at 814-15. Specific to the common legal interest d o c trin e , the court explained:

17

In effect, the common interest doctrine extends the attorney-client privilege to o th e rw is e non-confidential communications in limited circumstances. For that re a so n , the common interest doctrine only will apply where the parties u n d e rta k e a joint effort with respect to a common legal interest, and the d o c trin e is limited strictly to those communications made to further an ongoing e n te rp ris e . Other than these limits, however, the common defense doctrine d o e s not contract the attorney-client privilege. Thus, communications need n o t be made in anticipation of litigation to fall within the common interest d o c tr in e . Applying the common interest doctrine to the full range of c o m m u n ic a tio n s otherwise protected by the attorney-client privilege e n c o u ra g e s parties with a shared legal interest to seek legal "assistance in order to meet legal requirements and to plan their conduct" accordingly. This p l a n n i n g serves the public interest by advancing compliance with the law, " f ac ilita tin g the administration of justice" and averting litigation. Reason and e x p e rie n c e demonstrate that joint venturers, no less than individuals, benefit f ro m planning their activities based on sound legal advice predicated upon o p e n communication. Id . at 815-16 (internal citations omitted). Applying these principles, the Seidman court found n o error in the district court's conclusion that Seidman and the third-party law firm, "acting a s joint venturers, shared a common legal interest `in ensuring compliance with the new r e g u la tio n issued by the IRS, and in making sure that they could defend their product against p o te n tia l IRS enforcement actions.'" Id. at 816 (internal citation omitted). The Seventh C irc u it explained, that there was ample evidence that, through the memorandum at issue, " tw o joint venturers, [Seidman] and [third-party law firm], undertook a consultation between th e ir respective in-house counsel and [Seidman]'s outside counsel with respect to the legality o f the proposed financial course of action they would recommend to their common clients." Id . at 817. "This effort . . . was clearly within the scope of the common interest doctrine." Id . The memorandum, thus, was privileged. See id.

18

2.

W o rk -P r o d u c t Doctrine

T h e work-product doctrine "protects from disclosure materials prepared by an attorney a c tin g for his client in anticipation of litigation." In re Grand Jury Proceedings, 601 F.2d 1 6 2 , 171 (5th Cir. 1979). Tracing the origins of the attorney work-product doctrine to a S u p r e m e Court decision decided more than sixty years ago, the Eleventh Circuit reiterated th a t "`it is essential that a lawyer work with a certain degree of privacy, free from u n n ec essa ry intrusion by opposing parties and their counsel.'" Cox v. Adm'r U.S. Steel & C a rn e g ie , 17 F.3d 1386, 1421 (11th Cir.) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1 9 4 7 )) , modified on other grounds, 30 F.3d 1347 (11th Cir. 1994). "This doctrine is distinct f ro m and broader than the attorney-client privilege[] . . . ; it protects materials prepared by th e attorney, whether or not disclosed to the client, and it protects material prepared by agents f o r the attorney." In re Grand Jury Proceedings, 601 F.2d at 171. Federal Rule of Civil Procedure 26(b)(3) embodies the work-product doctrine, p rov iding that "[o]rdinarily, a party may not discover documents and tangible things that are p re p a re d in anticipation of litigation or for trial by or for another party or its representative (in c lu d in g the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R . Civ. P. 26(b)(3). As explained by the D.C. Circuit, "Work product immunity covers not o n ly confidential communications between the attorney and client. It also attaches to other m a te ria ls prepared by attorneys (and their agents) in anticipation of litigation." In re Sealed C a s e , 107 F.3d 46, 51 (D.C. Cir. 1997); see also Charles Alan Wright, Arthur R. Miller, and

19

R ic h a r d L. Marcus, 8 Federal Practice & Procedure § 2024 (2d ed. 1994) (Different from th e purpose of the attorney-client privilege, "the purpose of the work-product rule `is not to p ro te c t the evidence from disclosure to the outside world but rather to protect it only from th e knowledge of opposing counsel and his client, thereby preventing its use against the law ye r gathering the materials.'" (citation omitted)). Furthermore, "because the work p ro d u c t privilege looks to the vitality of the adversary system rather than simply seeking to p re se rv e confidentiality, it is not automatically waived by the disclosure to a third party." In r e Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000). L ike the attorney-client privilege, the party seeking to assert the work-product doctrine b ea rs the initial burden of demonstrating that the document satisfies the definition of work p ro d u c t. In re Grand Jury Subpoena, 510 F.3d 180, 183 (2d Cir. 2007); United States v. R o x w o r th y , 457 F.3d 590, 593 (6th Cir. 2006). Once that showing is made, the burden shifts, a n d "Rule 26(b)(3) . . . places a twofold burden on the party seeking discovery. The [party] m u s t show both substantial need and undue hardship." Castle v. Sangamo Weston, Inc., 744 F .2 d 1464, 1467 (11th Cir. 1984) (citation omitted).

20

B.

A n a ly sis 1. A tto r n e y -C lie n t Privilege: Bieter and Seidman a. E m a ils # 1, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 2 2 , 23, 31, 32, 35 and 41 i. Bieter

A ll thirty-two communications at issue involve Mr. Windom, either as the sender, the re c ip ie n t or a copied party. Relying on Bieter, Lucky Palace says that Windom "worked c lo s e ly with [it] in both its attempt to obtain a bingo operator's license and in the subsequent litig a tio n arising out of its failure to obtain a bingo license." (Doc. # 280 at 1-2.) Drawing fro m the language of the unenacted "Supreme Court Standard 503(b)" (Doc. # 280 at 3-4), a s cited in Bieter, Lucky Palace contends that the relationship between it and its independent c o n su lta n t (Windom) supports the conclusion that Windom acted as the "representative" of L u c k y Palace, for purposes of applying the attorney-client privilege.1 2 According to Lucky P a lac e , the majority of the disputed documents on the privilege log constitute

12

Standard 503(b) provides, in part, as follows:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and his lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client. Supreme Court Standard 503(b) (emphasis added), cited in Bieter, 16 F.3d at 935.

21

c o m m u n ic a tio n s between Mr. Windom as a "representative" of Lucky Palace, and Lucky P alac e's agents or attorneys and, thus, are privileged. (Doc. # 280 at 2-9.) Citing Renu and Haugh, VictoryLand and Mr. McGregor, on the other hand, contend th a t "[t]he services provided by Windom were basic public relations services that would be p ro v id e d by any political consultant." (Doc. # 306 at 6.) In other words, they say that " W in d o m 's services were not services necessary to the legal representation of [Lucky P a la c e]," and that, therefore, any communications between Lucky Palace and Windom or b e tw e e n Lucky Palace's attorneys or agents and Mr. Windom "are not protected by the a tto rn e y-c lie n t privilege." (Doc. # 306 at 6.) T h e court is persuaded by Bieter's thorough analysis and reasoning.1 3 The first Bieter inq u iry is whether there is a sufficient factual basis from which to conclude that Mr. W in d o m 's relationship with Lucky Palace is the type that justifies the application of the

The parties have not cited, nor has the court found, any published Eleventh Circuit decisions applying Bieter. District courts in this circuit, however, have found Bieter to be persuasive authority. See Every Penny Counts, Inc. v. Am. Express Co., No. 8:07cv1255, 2008 WL 2074407, at *2 (M.D. Fla. May 15, 2008) ("The Eighth Circuit has recognized that the attorney-client privilege may be extended to include consultants of a corporation. The relationship arises when an attorney needs to be able to confer confidentially with `nonemployees who, due to their relationship to the client, possess the very sort of information that the privilege envisions flowing most freely.'" (citing Bieter Co., 16 F.3d at 929)); Abdallah v. Coca-Cola Co., No. 1:98cv3679, 2000 WL 33249254, at *3 (N.D. Ga. Jan. 25, 2000) ("Where counsel seeks and obtains outside consulting services, the attorney-client privilege has been extended to such third parties `employed to assist a lawyer in the rendition of legal services.'"); Burlington Indus., Inc. v. Rossville Yarn, Inc., No. 495-CV-0401, 1997 WL 404319, at *3 (N.D. Ga. June 3, 1997) (An independent contractor can be a "`representative'" for purposes of applying the attorney client privilege (citing Bieter, among others)). Moreover, at the same time, no Eleventh Circuit decision has been cited by the parties or found by the court that rejects Bieter's general principles.

13

22

a tto rn e y-c lie n t privilege.1 4 See Bieter, 16 F.3d at 938. The court agrees with Lucky Palace th a t this case is "remarkably similar to" Bieter. (Doc. # 280 at 4.) Lucky Palace retained a c o n su ltan t to assist it in "secur[ing] a document signed by the Sheriff of Macon County a u th o riz in g [Lucky Palace] to operate bingo games in Macon County, Alabama." (Exs. 285 & 286 to Windom Dep.; Bracy Aff. ¶ 4.) The purpose for hiring Mr. Windom went to the c o re of Lucky Palace's formation, that is, to obtain a license for the operation of bingo in M a c o n County. (Compare Ex. 285 to Windom Dep. (The purpose of the consulting contract w a s "to secure a document signed by the Sheriff of Macon County authorizing Client to o p e ra te bingo games in Macon County, Alabama."), with Bracy Aff. ¶ 3 (Lucky Palace was " f o rm e d for the purpose of obtaining a license to operate bingo in Macon County, A lab a m a .").) As in Bieter, the purpose for which Mr. Windom was hired was the "sine qua n o n of the client's existence[,]" 16 F.3d at 934. Also, similar to the situation in Bieter, Mr. Windom was "intimately involved" in e f f o rts to achieve that "single objective." Id. at 938. As part of those efforts to secure a b in g o license, Lucky Palace sought legal advice from various sources, including Bradley A ra n t Rose & White, and authorized Mr. Windom to communicate directly with Lucky P a l a c e ' s attorneys in order to further Lucky Palace's objective to obtain a bingo license. (B ra c y Aff. ¶ 9.) As is revealed by the documents sought to be protected, Mr. Windom was

Hence, applying Bieter, Mr. Windom's status as an independent contractor, rather than as an employee of Lucky Palace (Exs. 285, 286 to Windom Dep.), does not automatically vitiate Lucky Palace's claim to the attorney-client privilege as to the attorney-client communications disclosed to Mr. Windom.

14

23

p riv y to and involved in those discussions. It is clear from a review of the emails, in p a rtic u la r those sent from attorneys with Bradley Arant Rose & White, that Mr. Windom was v iew e d as a representative of Lucky Palace, the same as Mr. Bracy and Mr. Ravich, for all m a tte rs pertaining to Lucky Palace's attempts to obtain a bingo license in Macon County. M r. Windom refers to himself, Lucky Palace's attorneys, and its agents in the first person p lu ral ("We" and "Our") (see email # 2), and other emails include specific discussions p e rta in in g to pending litigation and litigation strategy (see, e.g., emails # 6, 7, 8, 13, and 41). M o reo v er, many of the emails sought to be protected support Mr. Bracy's attestation that Mr. W in d o m 's consulting work with Lucky Palace and its attorneys pertained to "matters critical to Lucky Palace's position in litigation." (Bracy Aff. ¶ 6.) Those emails, occurring pre- and p o s t-litig a tio n , reveal that Mr. Windom's behind-the-scenes involvement in the litigation and litig a tio n strategy were sizeable. The foregoing facets of Mr. Windom's and Lucky Palace's relationship make Mr. W ind o m the sort of individual with whom Lucky Palace's lawyers would wish to confer ­ a n d , in fact, did confer ­ in confidence in order to better understand Lucky Palace's reasons a n d motivations for obtaining counsel to represent and assist it in its efforts to obtain a bingo lic e n s e in Macon County. See Bieter, 16 F.3d at 938. In other words, by virtue of Mr. W in d o m 's relationship with Lucky Palace, the evidence establishes that Mr. Windom p o s s e ss e d important information not known to others, that, if communicated to Lucky P a la c e's attorneys, would assist them in providing more effective representation to Lucky

24

P alac e in the pursuit of the common goal shared by Lucky Palace, its attorneys and Mr. W in d o m . This, finding, however, does not mean that the specific communications at issue a u to m a tic a l ly are privileged, because, as already noted, the Bieter doctrine is not an ind ep en d e n t source of privilege, but rather applies to communications that already are p ro te c te d by a privilege. Lucky Palace also must demonstrate, as in Bieter, that the c o m m u n ica tio n s satisfy the five-pronged test that Bieter adopted and borrowed from the c o rp o ra te -e m p lo ye e context. See Bieter, 16 F.3d at 936, 938. G en era lly, Defendants object to non-disclosure on the basis that, given Mr. Windom's co n su lting role, the communications flowing between Mr. Windom and Lucky Palace's a g e n ts and attorneys cannot be said to have been made for the purpose of seeking legal a d v ice . They also argue that Lucky Palace has failed "to prove that it took effective steps to e n su re that all participants were aware of the need to maintain confidentiality and to show th a t mechanisms were in place to accomplish that objective before the information was s h a re d ." (Doc. # 306 at 8-9.) Defendants did not specifically address the Bieter five-pronged tes t, instead asserting that Bieter was inapplicable altogether, but their objections nonetheless re la te to the first, third and fifth requirements of the five-pronged Bieter test.1 5

There is no serious objection to the second and fourth Bieter requirements. There is evidence that Mr. Windom worked closely with Lucky Palace's agents in the efforts to obtain a bingo license for Lucky Palace in Macon County and that Lucky Palace's attorneys authorized Mr. Windom to speak with its attorneys on such matters. (Bracy Aff. ¶¶ 5 & 9.) From this evidence, the court finds that it is reasonable to presume that Lucky Palace directed Mr. Windom's communications with Lucky Palace's attorneys, as mandated by Bieter's second requirement. See Bieter, 16 F.3d at 939. As to the fourth Bieter requirement, the evidence supports a finding that Mr. Windom's responsibilities were coterminous with the reason for Lucky Palace's existence and with the scope of the matter that resulted in this litigation. Id.

15

25

B ie te r defines the first requirement of what types of communications qualify as c o m m u n ic a tio n s "made for the purpose of securing legal advice," Bieter, 16 F.3d at 936. T h a t definition is broad: "[W]hen a matter is committed to a professional legal advisor, it is `prima facie committed for the sake of legal advice and [is], therefore, within the privilege a b se n t a clear showing to the contrary.'" Id. at 938 (quoting Diversified Indus., 572 F.2d at 6 1 0 ). In Bieter, there was no clear showing to the contrary, id., and in an affidavit counsel f o r Bieter represented that the withheld documents were "relate[d]" either to the lawsuit at is s u e or to Bieter's "related state court lawsuit." Id. Based upon that attestation, which the E ig h th Circuit acknowledged was "not as strong a statement as one might like," and "the p re su m p tio n that the communication was made for the purpose of seeking legal advice," id. a t 938-39, it held that the communications were "made for the purpose of seeking legal a d v ic e ," id. The third requirement ­ i.e., that "the [corporation] made the request so that the c o rp o ra tio n could secure legal advice," id. at 936 ­ is related to the first requirement, see id. a t 939. "If the communication was made for the purpose of seeking legal advice and it was d o n e at the direction of the superior, it is reasonable to infer that, absent evidence to the c o n tra ry, the superior directed that the communication be made for the purpose of securing le g a l advice." Id. The fifth requirement, which focuses on confidentiality, is satisfied when the communication is not "disseminated beyond those persons who, because of the structure o f the client's operations, need to know its contents." Id.

26

In this subsection, the court turns first to consideration of Bieter's first, third and fifth re q u ire m e n ts and then to consideration of the common legal interest doctrine as applied to e m a ils # 1, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 31, 32, 35 and 41 in o rd e r to address Defendants' specific objections. in d iv id u a lly. To reiterate, Bieter concerned communications between the consultant and Bieter's atto rne ys; some of the communications were sent directly to the consultant, and as to others th e consultant was copied, see Bieter, 16 F.3d at 934. Here, the foregoing twenty-two emails o c c u rre d between Mr. Windom (the consultant) and Lucky Palace's attorneys, either with or w i t h o u t disclosure to Lucky Palace's agents (Mr. Ravich and Mr. Bracy). Stated with g e n e ra lity to avoid comprising the privilege, these emails concern specific discussions about p e n d in g or anticipated litigation and/or litigation strategy and about actions, the legality of th o s e actions, and legal opinions surrounding pre-litigation strategies in furtherance of Lucky P a la c e's goal of obtaining a bingo license in Macon County (emails # 1, 6, 7, 8, 9, 10, 11, 12, 1 3 , 15, 16, 17, 18, 19, 20, 21, 22, 23, 31, 32, 35 and 41). Based upon a review of the emails, it is apparent that Mr. Windom, in his role as a consultant, had information relevant and n e c es s a ry to aid Lucky Palace's attorneys in the representation of their client. The in camera re v iew of the communications reveals that Mr. Windom's services were not "standard public re la tio n s services," Haugh, 2003 WL 21998674, at *3, but instead "were necessary so that [ L u c k y Palace's attorneys] could provide [Lucky Palace] with legal advice," id. In short, the Each email has been examined

27

n e c es s a ry showing has been made by Lucky Palace that Mr. Windom's participation in the c o m m u n ica tio n s, and the disclosure of documents and attorney-client communications to h im , enabled Lucky Palace's attorneys to provide more effective representation to Lucky P a la c e than they could have without his participation and contribution. On these facts, Lucky Palace has demonstrated that the matters communicated were " c o m m i tt e d to a professional legal advisor." Bieter, 16 F.3d at 938. Accordingly, under B ie te r, the communications were "`prima facie committed for the sake of legal advice[.]'" Id . (quoting Diversified Indus., 572 F.2d at 610). Because no "`clear showing to the c o n tra ry'" has been made, id. (quoting Diversified Indus., 572 F.2d at 610), the first Bieter re q u ire m e n t is present. M o re o v e r, because the first and second Bieter requirements have been demonstrated, s e e supra note 15, "it is reasonable to infer [for purposes of the third Bieter requirement] th a t, absent evidence to the contrary, the [corporation] directed that the communication be m a d e for the purpose of securing legal advice." Bieter, 16 F.3d at 939. No evidence to the c o n tra ry has been presented; therefore, the third requirement is met. A s to Defendants' complaint that Lucky Palace has failed to prove that the c o m m u n ic a tio n s were made in confidence (i.e., Bieter's fifth requirement), the email com m u n ica tio n s demonstrate the contrary. The affidavit from Mr. Bracy provides that Lucky P alac e treated all communications with its attorneys as confidential and that the disclosure o f those communications to Mr. Windom was not intended to be a waiver of the attorney-

28

c lie n t privilege. (Bracy Aff. ¶ 7.) The emails themselves note their confidential nature and in d ic a te that no copies of any of the emails were forwarded or sent to any individual other th a n select representatives and agents of Lucky Palace and its attorneys. One email in p articu lar contains a specific caution from a Bradley Arant attorney to Mr. Windom and Mr. B ra c y not to disclose matters protected by the attorney-client privilege outside of the p e rc e iv e d protected group and confirms that Mr. Windom was intended to be part of the g ro u p for which the attorney-client privilege would extend. (Email # 3.) The court finds that th e evidence is sufficient to demonstrate that no confidentiality concerns arise from the p re p a ra tio n and distribution of the documents for which the privilege is claimed. These facts a re sufficient to establish the fifth Bieter requirement. In sum, the same conclusion is warranted in this case as in Bieter. On this record, the a tto rn e y-c lie n t privilege applies to communications made between Mr. Windom and Lucky P a la c e 's attorneys, and "the disclosure of otherwise privileged documents to [Mr. Windom] in the course of his confidential communications with counsel does not destroy the privilege. B ie te r, 16 F.3d at 939-40. Mr. Windom was, "for purposes of the privilege, the functional e q u iv a le n t of [Lucky Palace's] employee, and the communications in question fell within the s c o p e of his duties, were made at the behest of his superior, and were made for the purpose o f seeking legal advice for [Lucky Palace]." Id. at 940 (brackets added).

29

ii.

S e id m a n

L u c k y Palace also says that the common legal interest doctrine, as defined and applied in Seidman protects the communications at issue from disclosure.1 6 (See Doc. # 280 a t 11-12.) It says that Windom and Lucky Palace shared a "common legal interest" to " se c u r e a document signed by the Sheriff of Macon County authorizing [Lucky Palace] to o p e ra te bingo games in Macon County, Alabama." (Doc. # 280 at 11.) Defendants, on the o t h e r hand, say that Lucky Palace has failed to show how "[Mr.] Windom's position as a p o litic a l consultant to [it] is anything other than a business relationship." (Doc. # 306 at 8.) No argument has been made that the interests between Mr. Windom and Lucky Palace a re anything other than identical. The identical interests are revealed by the specific terms o f the consulting contract and the nature of the relationship between Mr. Windom and Lucky P a lac e . The sole reason for Mr. Windom's representation of Lucky Palace, and as clearly re c ite d in the contract, was to obtain a bingo license in Macon County for Lucky Palace, and th e sole purpose for Lucky Palace's formation was to obtain a bingo license in Macon C o u n ty. These parallel purposes make their interests essentially identical. T h e objection by Defendants is that this interest is not legal. It is clear from Seidman th a t the legal interest need not involve the litigation at hand, see 492 F.3d at 816. A d m itte d ly, however, all of the boundaries as to what constitutes a common legal interest,

The parties have not cited, and the court is unaware, of any published Eleventh Circuit cases discussing the common legal interest doctrine, as defined in Seidman. Nor has any precedent been cited from this circuit that rejects the doctrine. The court finds Seidman's analysis persuasive and applies it.

16

30

a s opposed to a common non-legal interest, are not explored in Seidman. Defendants focus o n the fact that Mr. Windom had a business relationship with Lucky Palace, which a d m itte d l y he did, but no argument has been made, and no authority cited, that a business relatio n s h ip cannot be formed for the purpose of pursuing a common legal interest. In S e id m a n , the third-party law firm and Seidman were involved in a common quest to research a n d provide consistent advice to their joint clients concerning certain tax products. It was a rg u e d that the communication at issue did not involve a common legal interest because its p u rp o s e "was to coordinate the content of the message to their common clients," id. at 817. T h e Seventh Circuit, however, disagreed. It held that, because the "two joint venturers, [ S e id m a n ] and [the third-party law firm] undertook a consultation between their respective in -h o u s e counsel and [Seidman]'s outside counsel with respect to the legality of the proposed f in a n c ia l course of action they would recommend to their common clients," their "effort . . . w a s clearly within the scope of the common interest doctrine." Id. Here, Mr. Windom and Lucky Palace contracted with each other for the purpose of jo in in g forces in the pursuit of obtaining a bingo license for Lucky Palace. As is revealed b y the email communications with Lucky Palace's attorneys, that joint venture comprised e x p lo rin g the legal implications and obtaining professional legal advice with respect to the m u l tif a c e t e d course of action the joint venturers were undertaking to secure a bingo license f o r Lucky Palace in Macon County. That shared interest is not all that different from parties jo in tly developing patents: "[T]hey have a common legal interest in developing the patents

31

t o obtain greatest protection and in exploiting the patents." Baxter Travenol Labs., Inc. v. A b b o t t Labs., No. 84-C-5103, 1987 WL 12919, at *1 (N.D. Ill. June 19, 1987), cited in S m ith k lin e Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 539 (N.D. Ill. 2000), as an e x a m p l e of a common legal interest for purposes of the doctrine by the same name. On these f a c ts, it is not difficult to conclude that the common interest is legal.17 N o t only does the court find that there was a common legal interest, but after careful r e v ie w of Windom's ex parte documents line by line, the court finds that the communications a re "limited strictly to those communications made to further an ongoing enterprise," S e id m a n , 492 F.3d at 816, and the communications all relate to communications pertaining to the common strategy developed to achieve a single legal goal. The fact that not all of th o s e communications were made in the throes of litigation (but some were) does not defeat ap p lica tio n of the common legal interest doctrine. Accordingly, the court finds that Mr. W in d o m and Lucky Palace possess the requisite common legal interest for the attorney-client p r iv i le g e to attach to communications between Mr. Windom and Lucky Palace's attorneys, a n d Defendants' argument that there is an inadequate showing of confidentiality has been a d d re ss e d and rejected. These emails, therefore, are protected from disclosure under the a tto rn e y-c lie n t privilege's common legal interest doctrine. These emails are numbered as f o llo w s : # 1, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 31, 32, 35 and 41.

By comparison, Sheriff Warren and Mr. McGregor did not share a common legal interest. (Doc. # 252 at 53 ("[O]ne party is the regulator, the other is the regulated; their interests could not be more legally adverse.").)

17

32

b.

E m a ils # 2 and 3

F o u r of the emails at issue involve communications with Mr. Raby, two of which are em ails # 2 and 3.1 8 Mr. Raby was a recipient of emails # 2 and 3. Mr. Raby and Mr. W ind o m worked together as independent consultants on behalf of Lucky Palace, and Mr. R a b y, alongside Mr. Windom, was a signatory on the consulting contract. (Exs. 285 & 286 to Windom Dep.) Mr. Raby's relationship with Lucky Palace and Mr. Windom is discussed in detail in Mr. Windom's deposition. (Doc. # 274.) Lucky Palace claims the common legal interest doctrine as to emails # 2 and 3. It a rg u e s that Mr. Raby, as one of Lucky Palace's consultants, was part of the "client group for w h ic h the attorney-client privilege would extend" and that the communications in emails # 2 a n d 3 reveal that Mr. Raby "had information relevant and necessary to Lucky Palace's litig a tio n strategy." (Doc. # 289 at 2-3.) Lucky Palace also points out that, as shown in email # 3, "the communications were intended to be treated as `confidential[.]'" (Doc. # 289 at 2.) D e f e n d a n ts argue that "[d]isclosure to Raby, a third party, destroys any possible attorneyc lie n t privilege." (Doc. # 308 at 4.) In itia lly, it is pointed out that Lucky Palace did not argue that Bieter's theory also a p p lie d to Mr. Raby given his consulting relationship with Lucky Palace. (Doc. # 280 at 49 .) Bieter's applicability or not to Mr. Raby's and Lucky Palace's relationship, thus, will not b e addressed. Nonetheless, for the reasons set out in the preceding subsection, the court finds

The other two emails ­ # 46 and # 47 ­ are discussed below, in the section addressing the work-product doctrine.

18

33

th a t the communications in emails # 2 and 3 are protected by the common legal interest d o c trin e . By virtue of the consulting contract (Exs. 285 & 286 to Windom Dep.) and the e v id e n c e with respect to Mr. Raby's consulting involvement (see generally Windom Dep.), M r. Raby's interest is exactly the same as Mr. Windom's and, thus, the interest is legal, and th a t legal interest is shared with Lucky Palace. Moreover, the communications received by M r. Raby are directly related to the subject of the common legal interest and contain litig a tio n strategy. c. E m a ils # 33, 40, 43, 44 and 45

Five of the emails for which the privilege is claimed stand in a slightly different p o s tu re than the others because they involve communications solely between Mr. Windom a n d Lucky Palace's president, Mr. Bracy. (Emails # 33, 40, 43, 44 & 45.) As to email # 33, L u ck y Palace contends that it has demonstrated that Mr. Windom, as Lucky Palace's in d e p e n d e n t consultant, was a "representative" of Lucky Palace and that, therefore, these " c o m m u n ic a tio n s between [Mr.] Windom and the [p]resident of Lucky Palace concerning litig a tio n [are] privileged under federal common law." (Doc. # 289 at 13.) The basis for L u c k y Palace's claim of attorney-client privilege based upon Mr. Windom's "representative" s ta tu s is steeped in Supreme Court Standard 503(b), in particular its admonition that the p riv ile g e extends to certain communications "between the client and a representative of the c lie n t." (Doc. # 280 at 2; Doc. # 289 at 12.) As to emails # 40, 43, 44 and 45, Lucky Palace c o n te n d s that, during the time frame these emails were sent ­ December 28, 2006 to June 14,

34

2 0 0 7 ­ Mr. Windom had an "undisputed affiliation" with Lucky Palace because he was an " in v e s to r" /" s h a re h o ld e r" in Lucky Palace and that this affiliation gives rise to the type of re la tio n s h ip to which the attorney-client privilege can attach. (Doc. # 289 at 15; Doc. # 280 at 1.) Defendants, however, say that Standard 503(b) is not "authoritative" because it was n o t enacted by Congress (see, e.g., Doc. # 308 at 19), but that, in any event "[Mr.] Windom's s e rv ic e s were not services necessary to the legal representation of [Lucky Palace]" (Doc. # 308 at 2). As to emails # 40, 43, 44 and 45, Defendants contend that Lucky Palace's a rg u m e n t that Mr. Windom's investor status justifies non-disclosure of any communications m a d e during that time period is too conclusory to be adopted and is not supported by "su ff icien t authority." (Doc. # 308 at 22.) The pertinent portion of Standard 503 provides that "[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications m a d e for the purpose of facilitating the rendition of professional legal services to the client . . . (4) between representatives of the client or between the client and a representative of the c lie n t[ .]" Supreme Court Standard 503(b) (emphasis added), cited in Bieter, 16 F.3d at 935. B oth Bieter, supra, and Seidman, supra, considered Standard 503(b) persuasive, even though n o t enacted, and the court likewise is persuaded that, contrary to Defendants' assertion, S ta n d a rd 503(b) should not be discarded. See Bieter, 16 F.3d at 935 (finding Supreme Court S ta n d a rd 503(b) "useful" even though it was never enacted, and observing that "`courts have

35

re lie d upon it as an accurate definition of the federal common law of attorney-client p riv ileg e '" (citation omitted)); see also Seidman, 492 F.3d at 814-15 (observing that Standard 5 0 3 "has been recognized `as a source of general guidance regarding federal common law p ri n c ip le s '" ). The court already has determined that the consulting relationship between Mr. W in d o m and Lucky Palace qualifies Mr. Windom as Lucky Palace's representative; Lucky P a la c e expressly contracted with Windom to provide expertise and assistance in its legal goal o f obtaining a bingo license in Macon County. Also, Mr. Bracy, as Lucky Palace's president, is the "client." Accordingly, the court finds that the communications at issue (emails # 33, 4 0 , 43, 44 and 45) are between the client and a representative of the client, within the m e a n in g of Supreme Court Standard 503(b). Furthermore, upon careful review of emails # 33, 40, 43, 44 and 45, the court finds th a t the communications were made for the purpose of facilitating the rendition of p ro f e ss io n a l legal services to Lucky Palace. The communications were germane and directly re la te d to the purpose for which Lucky Palace's attorneys were retained. The content of th o s e emails, among other things, includes an analysis of the present litigation and discussion o f the p