Regions Bank v. Kaplan et al

Filing 504

ORDER denying 472 Bridgeview Bank Group's motion to determine that certain testimony of Marvin Kaplan is not privileged. Signed by Magistrate Judge Mark A. Pizzo on 9/25/2015. (CRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

REGIONS BANK,
Plaintiff,
v.

CASE NO. 8:12-cv-1837-T-17MAP

MARVIN I. KAPLAN, et al
Defendants.
__________________________/
ORDER
Before me is Bridgeview Bank Group’s motion to determine that certain testimony of Marvin
Kaplan is not privileged (doc. 472). Specifically, Bridgeview Bank Group (“BBG”) asks me to find
that Mr. Kaplan’s communications with his attorney, Mr. Parrish, that occurred during their first
meeting and concerned a deal with Smith Advertising & Associates, Inc., G. Todd Smith a/k/a Todd
Smith, and Gary T. Smith (the “Smith deal”) are not protected by the attorney-client privilege.
Regions Bank and Wells Fargo, N.A. join the motion (id.). Mr. Kaplan, R1A Palms, LLC, Triple Net
Exchange, LLC, MK Investing, LLC, and BNK Smith, LLC oppose the motion (doc. 499). For the
reasons stated below, I deny BBG’s motion.
A. Background
During his April 9, 2015 deposition, Mr. Kaplan revealed that he first met Mr. Parrish, his
attorney in this action, in 2010 or 2011. See Kaplan Trans. at 828:12-14. During the meeting, which
occurred in Mr. Kaplan’s office, Mr. Kaplan and Mr. Parrish discussed a deal involving one of Mr.
Kaplan’s properties. Id. at 829:6-13. Mr. Kaplan subsequently retained Mr. Parrish to represent him,
and Mr. Parrish charged Mr. Kaplan for the initial meeting. Id. at 828:25-829:13.

Mr. Kaplan and Mr. Parrish also discussed the Smith deal at that meeting. Id. at 808:14-25.
During Mr. Kaplan’s deposition, BBG’s counsel asked Mr. Kaplan whether he was seeking legal
advice when he spoke to Mr. Parrish concerning the Smith deal. Id. at 809:14-17. Mr. Kaplan
answered “no,” and subsequently disclosed the substance of those communications. Id. at 809:18-21.
Mr. Parrish then interposed a privilege objection. Id. at 809:23-810:2.
B. Discussion
The party invoking a privilege has the burden of proving its existence. Universal City Dev.
Partners, Ltd. v. Ride & Show Eng’g, Inc., 230 F.R.D. 688 (M.D. Fla. 2005) (citing United States v.
Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991)). The elements of the attorney-client privilege
are as follows:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with this communication is acting
as a lawyer; (3) the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c) for the purpose
of securing primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing
a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by
the client.
In re Grand Jury Proceedings 88–9(MIA), 899 F.2d 1039, 1042 (11th Cir. 1990). When advice given
by an attorney relates to both business and legal matters, the legal advice must predominate for the
attorney-client privilege to apply. Carpenter v. Mohawk Indus., Inc., No. 4:07-CV-0049-HLM, 2007
WL 5971741, at *9 (N.D. Ga. Oct. 1, 2007). Accordingly, general business advice, unrelated to legal
advice, is not protected by the privilege. U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No.
6:09-CV-1002-ORL-31, 2012 WL 5415108, at *2 (M.D. Fla. Nov. 6, 2012) (citing In re Vioxx Prods.
Liab. Litig., 501 F.Supp.2d 789, 797 (E.D. La. 2007) (internal quotations omitted)).

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BBG first alleges that Mr. Kaplan’s communications with Mr. Parrish concerning the Smith
deal are not privileged because Mr. Kaplan was speaking with Mr. Parrish prior to retaining him and
was just “telling Mr. Parrish about the deal.” Kaplan Trans. at 809:20. In other words, BBG asserts
that the communications concerned business and Mr. Kaplan was not seeking legal advice. Mr.
Kaplan argues that, while the conversation concerned a business venture, he was primarily seeking
legal advice concerning his different business affairs.
Mr. Kaplan stated during his deposition that his initial meeting with Mr. Parrish was related
to a deal for which he subsequently retained Mr. Parrish. See Kaplan Trans. at 829:5-13. Mr. Kaplan
was aware that Mr. Parrish was an attorney, and was paying for time spent with him during that
meeting. Id. at 828:25-829:1. Because Mr. Kaplan was introduced to Mr. Parrish in his capacity as
a lawyer, it logically follows that Mr. Kaplan would have sought Mr. Parrish’s legal advice
concerning other deals in which Mr. Kaplan was involved. Accordingly, I find that Mr. Kaplan has
met his burden of establishing that his communication was for the purpose of securing primarily an
opinion on law, legal services, or assistance in some legal proceeding, and is protected by the
attorney-client privilege.
BBG next argues that Mr. Kaplan waived the privilege by testifying that he was not seeking
legal advice from Mr. Parrish concerning the Smith deal and by not timely seeking to rectify the
disclosure. The Eleventh Circuit has identified three methods by which a party can waive the
attorney-client privilege by implication: (1) when a client testifies concerning portions of the
attorney-client communication; (2) when a client places the attorney-client relationship directly at
issue; and (3) when a client asserts reliance on an attorney’s advice as an element of a claim or
defense. Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1418 (11th Cir.1994). However,

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waiver must be an intentional abandonment of a privilege. Ray v. Cutter Labs., Div. of Miles, Inc.,
746 F. Supp. 86, 87 (M.D. Fla. 1990) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A
disclosure does not operate as a waiver of privilege if “(1) the disclosure is inadvertent; (2) the
holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder
promptly took reasonable steps to rectify the error.” Fed. R. Evid. 502(b).
Here, Mr. Kaplan inadvertently identified that he was not seeking legal advice from Mr.
Parrish and answered one question on the substance of his conversation with Mr. Parrish. Kaplan
Trans. at 809:19-21. Immediately after Mr. Kaplan answered the question, Mr. Parrish stated that he
was going to interpose a privilege objection and move to have the testimony stricken and sealed. Id.
at 809:23-810:2. And, Mr. Parrish instructed his client to not answer all other questions on the topic.
Id. at 829:19-832:1. BBG argues that this was not enough to rectify the error and that Mr. Kaplan was
also required to file a motion with the Court. However, BBG cites no authority for this proposition.
Accordingly, I find that Mr. Kaplan did not waive the attorney-client privilege.
C. Conclusion
For these reasons, it is ORDERED
1. BBG’s motion to determine that certain testimony of Marvin Kaplan is not privileged (doc.
472) is DENIED.
DONE AND ORDERED at Tampa, Florida on September 25, 2015.

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