Rosenfield v. GlobalTranz Enterprises Incorporated et al

Filing 13

ORDER granting 4 Defendants' Motion to Strike. The Clerk shall strike from the record the documents containing privileged materials [1,8]. ORDER that the parties shall file replacement documents omitting the privileged materials. ORDER granting jurisdiction to Maricopa County Superior Court and requests that the Superior Court strike paragraphs 44, 46, 47, and 48 from the Complaint (see attached pdf for complete information). Signed by Judge Neil V Wake on 1/27/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alla Josephine Rosenfield,
Plaintiff,

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ORDER

vs.

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No. CV 11-02327-PHX-NVW

GlobalTranz Enterprises, Inc., a Delaware
corporation; Andrew J. Leto, an Arizona
citizen and a married man; Jane Doe Leto,
an Arizona citizen and a married woman;
Anthony Albanese, a Florida citizen and a
married man; Jane Doe Albanese, a Florida
citizen and a married woman; John Does IX; Jane Does I-X; ABC corporations I-X;
Def Limited Liabilities Company I-X; and
XYZ Partnerships or LLP, I-X,

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Defendants.

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Before the Court is Defendants’ Motion to Strike (Doc. 4). Defendants request

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that the Court strike paragraphs 44, 46, 47 and 48 of Plaintiff’s Complaint (Doc. 1-1)

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because these paragraphs include improperly disclosed attorney-client privileged

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materials. Defendants also request that the Court authorize the filing of a similar motion

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in state court, where this case originated, in order to request that the privileged materials

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be stricken from the complaint on record there. Because Plaintiff restated the privileged

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materials in her response to Defendants’ motion, Defendants also request that the

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privileged materials disclosed in Plaintiff’s response be stricken.

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The attorney-client privilege “protects confidential communications between
attorneys and clients[] which are made for the purpose of giving legal advice.” United
States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citing Upjohn Co. v. United States,
449 U.S. 383, 389 (1981)). The privilege applies to “legal advice of any kind . . . from a
professional legal adviser in his capacity as such” where “the communications relat[e] to
that purpose . . . [and are] made in confidence . . . by the client.” United States v. Graf,
610 F.3d 1148, 1156 (9th Cir. 2010) (quoting United States v. Ruehle, 583 F.3d 600, 607
(9th Cir. 2009)).

Such privileged materials are “permanently protected . . . from

disclosure by [the client] or the legal adviser . . . unless the protection be waived.” Id.
The party asserting the attorney-client privilege has the burden of establishing all the
elements of the privilege.

See Richey, 632 F.3d at 566.

Both the substance of

communications between client and attorney regarding the provision of legal assistance
as well as the purpose and motivation for seeking legal advice are privileged. See In re
Grand Jury Witness, 695 F.2d 359 (9th Cir. 1982) (“As a general proposition, the client’s
ultimate motive for litigation or for retention of an attorney is privileged.”).
Defendants have satisfied their burden of establishing that paragraphs 44, 46, 47,
and 48 of Plaintiff’s complaint contain attorney-client privileged materials. Plaintiff has
not challenged whether the attorney client-relationship exists here or whether the
privilege has otherwise been waived. Rather, Plaintiff simply alleges that the disclosed
information does not contain “confidential disclosures that rise[] to the level of attorneyclient privileged information” (Doc. 8 at 2) and is otherwise by its nature not properly
characterized as privileged. However, these paragraphs relate both Defendants’ motive
for seeking legal advice as well as the substance of Defendants’ attorney’s
communications in response to the inquiry for legal advice, and thus fall plainly within
the protection of the attorney-client privilege.1 This privileged material is therefore
inadmissible, and may accordingly be stricken as immaterial under Rule 12(f). See Fed.
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In order to avoid further disclosure of Defendants’ privileged information, the
Court will not discuss specifically the allegations contained in paragraphs 44, 46, 47, and
48.
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R. Civ. P. 12(f) (authorizing Court to strike from pleading all allegations that are
“immaterial, impertinent or scandalous.”).
Because the Court agrees that paragraphs 44, 46, 47, and 48 contain information
protected by the attorney-client privilege, the Court will grant Defendants’ Motion to
Strike (Doc. 4) and related requests to strike the privileged material from Plaintiff’s
response (Doc. 8) and from the state court record. The parties shall re-file redacted
versions of Documents 1 and 8 omitting the privileged materials.
IT IS THEREFORE ORDERED that Defendants’ Motion to Strike (Doc. 4) is
granted. The Clerk shall strike from the record the documents containing privileged
materials (Docs. 1, 8).
IT IS FURTHER ORDERED that the parties shall file replacement documents
omitting the privileged materials as provided by this order for Documents 1 and 8.
IT IS FURTHER ORDERED granting jurisdiction to Maricopa County Superior
Court for the limited purpose of striking paragraphs 44, 46, 47, and 48 from the
Complaint in this matter that remains on file in the Superior Court’s public record. The
Court requests that the Superior Court strike paragraphs 44, 46, 47, and 48 from the
Complaint to provide the relief granted by this order.
Dated this 27th day of January, 2012.

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