Threshold Enterprises Ltd. v. Functional Brands, LLC

Filing 50

ORDER by Magistrate Judge Bernard Zimmerman granting 49 Motion to Seal Document (bzsec, COURT STAFF) (Filed on 2/4/2008)

Threshold Enterprises Ltd. v. Functional Brands, LLC

Doc. 50

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KRONENBERGER BURGOYNE, LLP Karl S. Kronenberger (CA Bar No. 226112) Jeffrey M. Rosenfeld (CA Bar No. 222187) Margarita Calpotura (CA Bar No. 244711) 150 Post Street, Suite 520 San Francisco, CA 94108 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant, FUNCTIONAL BRANDS, LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

THRESHOLD ENTERPRISES LTD., a Delaware corporation, Plaintiff, vs. FUNCTIONAL BRANDS, LLC, a Michigan limited liability company; et al., Defendants.

Case No. C-07-01400 BZ NOTICE OF ADMINISTRATIVE MOTION AND ADMINISTRATIVE MOTION FOR ORDER SEALING DOCUMENTS AND GRANTING IN CAMERA REVIEW OF THEREOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION IN SUPPORT THEREOF; [PROPOSED] ORDER Date: In Chambers The Honorable Bernard Zimmerman

Case No. C-07-01400 BZ

NOTICE OF MOTION AND MOTION FOR IN CAMERA REVIEW; MPA & DECLARATION

Dockets.Justia.com

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TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT pursuant to 79-5 ("Local Rule 79-5") and the inherent authority of the Court to administer justice, Kronenberger Burgoyne, LLP

("Kronenberger"), counsel of record for defendant Functional Brands, LLC ("Functional Brands"), hereby moves the Court for an order: 1) sealing documents filed by Kronenberger Burgoyne, LLP ("Kronenberger") in support of its Motion to Withdraw as Counsel of Record; and 2) granting an in camera review of the sealed documents and/or an in camera hearing regarding Kronenberger's Motion to Withdraw. This Motion is

necessary to preserve privileged communications between Kronenberger and Functional Brands. Such communications describe some of the bases for Kronenberger's Motion to Withdraw as Counsel of Record. This Motion is based on Kronenberger's Memorandum of Points and Authorities set forth below; the Declaration of Karl S. Kronenberger in Support of this Motion set forth below; and all pleadings on file in this case.

Dated: January 30, 2008 Karl S. Kronenberger Henry M. Burgoyne, III Jeffrey M. Rosenfeld Kronenberger Burgoyne, LLP By:_____________/s/_________________ Karl S. Kronenberger Attorneys for Functional Brands, LLC

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MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND Kronenberger Burgoyne, LLP ("Kronenberger") has served as counsel of record for defendant Functional Brands, LLC ("Functional Brands") since the inception of this lawsuit. Over the past two months, however, certain conflicts have developed between Kronenberger and Functional Brands, which make it impossible for Kronenberger to continue to represent Functional Brands. As a result, Kronenberger is moving the Court to withdraw as Functional Brands' counsel. In support of its Motion to Withdraw, Kronenberger seeks to describe certain privileged communications between itself and Functional brands. These communications evidence some of the conflicts at issue and provide good cause for Kronenberger's Motion to Withdraw. Accordingly, in order to preserve the sanctity of the attorney-client relationship, Kronenberger seeks an order sealing the documents that describe these communications and granting an in camera review of these documents and/or an in camera hearing of Kronenberger's Motion to Withdraw. ARGUMENT Pursuant to Local Rule 79-5 and the inherent authority of the Court to administer justice, Kronenberger seeks an order sealing portions of documents and granting an in camera review of these documents, which contain descriptions of privileged communications between Kronenberger and Functional Brands. These descriptions,

contained in Kronenberger's Memorandum of Points and Authorities in support of its Motion to Withdraw and the declaration of Karl S. Kronenberger in support of Kronenberger's Motion to Withdraw, explain the bases for Kronenberger's Motion to Withdraw. The Court has the authority to conduct an in camera review of privileged documents in order to preserve the attorney-client privilege. See American Nat. Bank and Trust Co. of Chicago v. Equitable Life Assur. Soc. of U.S., 406 F.3d 867, 878-79 (7th Cir. 2005) (finding that court abused its discretion when it refused to conduct a full in
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camera inspection of the documents at issue and compelled their disclosure); see also U.S. v. Zolin, 491 U.S. 554, 565 (1989) (finding that in camera review may be used to determine whether allegedly privileged attorney-client communications fall within crimefraud exception; Beaty v. Stewart, 303 F.3d 975, 989 (9th Cir. 2002) (holding in camera hearing to evaluate counsel's motion to withdraw). Without an in camera review of documents evidencing the communications between Kronenberger and Functional Brands, Kronenberger cannot provide the Court with a complete explanation of the bases for its need to withdraw. If Kronenberger were to disclose these communications to the Court through traditional filing procedures, it could potentially breach its obligations to preserve the confident of client

communications. Moreover, the portions of the documents in support of Kronenberger's Motion to Withdraw that contain confidential information are limited in scope, and the in camera review of this information will not affect the administration of justice. CONCLUSION Based on the foregoing, Kronenberger respectfully requests that the Court issue an order sealing portions of Kronenberger's Memorandum of Points and Authorities in support of its Motion to Withdraw as well as the declaration of Karl S. Kronenberger in support of Kronenberger's Motion to Withdraw. Kronenberger also respectfully requests that the Court grant an in camera review and/or hearing regarding these documents. Kronenberger herewith submits, the entirety of these documents to be filed under seal, and the redacted versions to be filed in the public record. Dated: January 30, 2008 Karl S. Kronenberger Henry M. Burgoyne, III Jeffrey M. Rosenfeld Kronenberger Burgoyne, LLP By:_____________/s/_________________ Karl S. Kronenberger Attorneys for Functional Brands, LLC
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DECLARATION IN SUPPORT OF MOTION TO SEAL I, Karl S. Kronenberger declare as follows: 1. I am an attorney admitted to practice in the State of California and the

United States District Court for the Northern District of California. I am a partner at the law firm of Kronenberger Burgoyne, LLP ("Kronenberger"), counsel of record for Defendant Functional Brands, LLC ("Functional Brands"). have personal knowledge of the facts stated herein. Portions of Kronenberger's Memorandum of Points and Authorities in Unless otherwise stated, I

support of its Motion to Withdraw as Counsel of Record describe communications between Kronenberger and Functional Brands protected by the attorney-client privilege. 3. Portions of the Declaration of Karl S. Kronenberger in support of

Kronenberger's Motion to Withdraw as Counsel of Record describe communications between Kronenberger and Functional Brands protected by the attorney-client privilege. 4. Submitted herewith by manual filing is a true and correct copy of

Kronenberger's Memorandum of Points and Authorities in support of its Motion to Withdraw as Counsel of Record. 5. Submitted herewith by manual filing is a true and correct copy of the

Declaration of Karl S. Kronenberger in support of Kronenberger's Motion to Withdraw as Counsel of Record. 6. Submitted herewith by electronic filing is a redacted version of

Kronenberger's Memorandum of Points and Authorities in support of its Motion to Withdraw as Counsel of Record. 7. Submitted herewith by electronic filing is a redacted version of the

Declaration of Karl S. Kronenberger in support of Kronenberger's Motion to Withdraw as Counsel of Record.
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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this Declaration was executed this 30th day of January 2008, at San Francisco, California. /s/_______________ Karl S. Kronenberger

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PROPOSED ORDER Kronenberger Burgoyne, LLP's ("Kronenberger")

Administrative Motion for Order Sealing Documents and Granting in Camera Review Thereof, and good cause having been shown, IT IS HEREBY ORDERED that Kronenberger's Motion is GRANTED. IT IS HEREBY FURTHER ORDERED that the designated portions of Kronenberger's Memorandum of Points and Authorities in support of its Motion to Withdraw as Counsel of Record shall be filed under seal. IT IS HEREBY FURTHER ORDERED that the designated portions of the Declaration of Karl S. Kronenberger in support of Kronenberger's Motion to Withdraw as Counsel of Record shall be filed under seal. IT IS HEREBY FURTHER ORDERED this Court shall conduct an in camera review of the above-designated documents and/or an in camera hearing of Kronenberger's Motion to Withdraw as Counsel of Record. IT IS SO ORDERED.

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HONORABLE BERNARD ZIMMERMAN Magistrate Judge, United States District Court for the Northern District of California

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