OWENS et al v. STIFEL NICOLAUS & COMPANY INC

Filing 48

ORDER following in camera review of documents. Stifel is ordered to produce certain documents to Plaintiffs' counsel no later than December 13, 2013. Ordered by U.S. District Judge Hugh Lawson on December 6, 2013. (mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

MARTHA F. OWENS, Individually,
and as the Executrix of the Estate of
Andrew T. Fuller; SUSAN ROCKETT;
DONALD ABNER POPE JR.; and
REFUSE MATERIALS, INC.,

Civil Action No. 7:12-CV-144 (HL)

Plaintiffs,
v.
STIFEL, NICOLAUS & COMPANY,
INC. and ANTHONY JOHN FISHER,
Defendants.

ORDER
As part of its discovery obligations, Defendant Stifel, Nicolaus & Company,
Inc. (“Stifel”) produced a privilege log listing hundreds of pages of documents that
Stifel contends are protected by the attorney-client privilege or the work product
doctrine. Plaintiffs were not satisfied with the privilege log, and so informed the
Court through a letter dated November 4, 2013 (Doc. 43). Stifel responded in
writing (Doc. 44), and shortly thereafter, the Court held a telephone conference to
discuss a number of outstanding discovery disputes. Stifel was ordered to
produce to the Court all documents listed in its privilege log no later than
December 2, 2013 for an in camera inspection. Stifel produced the documents as
ordered, some 900 pages, and the Court has conducted its review.

I.

STANDARDS
Whether documents are protected by the attorney-client privilege is a

substantive issue governed by state law. Camacho v. Nationwide Mut. Ins. Co.,
287 F.R.D. 688, 691 (N.D. Ga. 2012). In Georgia, the attorney-client privilege
generally applies in the context of communications between in-house corporate
counsel and the corporation’s management and employees. St. Simons
Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 421-22,
746 S.E.2d 98, 103 (2013); Southern Guar. Ins. Co. v. Ash, 192 Ga. App. 24, 27,
383 S.E.2d 579 (1989); Marriott Corp. v. American Acad. of Psychotherapists,
157 Ga. App. 497, 277 S.E. 785 (1981). However, the privilege is confined to “its
narrowest permissible limits under the statute of its creation” because the
exercise of the privilege results in the exclusion of evidence. Tenet Healthcare
Corp. v. La. Forum Corp., 273 Ga. 206, 208, 538 S.E.2d 441 (2000) (internal
citation and reference omitted).
A party attempting to invoke the attorney-client privilege must establish
the following elements:
(1) the asserted holder of the privilege is or sought to
become a client; (2) the person to whom the
communication is made (a) is (the) member of a 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

2

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 Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 632
F.Supp.2d 1370, 1379 (M.D. Ga. 2009) (citing United States v. Kelly, 569 F.2d
928, 938 (5th Cir. 1978)); United States v. Noriega, 917 F.2d 1543, 1550 (11th
Cir. 1990).
The work product doctrine is governed by federal as opposed to state law
in a diversity action. Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D. at
667. The work product privilege protects materials prepared in anticipation of
litigation by a party, an attorney, or other representatives of the party. Hickman v.
Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Federal Rule of Civil
Procedure 26(b)(3)(A)(ii) protects from discovery “documents and tangible things
that are prepared in anticipation of litigation or for trial by or for another party or
its representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent)” unless the requesting party “shows that it has
substantial need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P.
26(b)(3)(A)(ii).

3

The test to determine whether a document constitutes a work-product is
“whether it was prepared by the party or his representative because of the
prospect of litigation.” Shipes v. BIC Corp., 154 F.R.D. 301, 305 (M.D. Ga. 1994).
The party’s “representative” includes not only his attorney, but also his employee,
insurer, or other agent, “so long as they were working on behalf of the party and
preparing the document with the prospect of litigation in mind.” Id.
II.

FINDINGS
Stifel has grouped the documents into two categories, and the Court will

use those same categories when discussing the documents individually. The first
category consists of an email and attachments dated July 20, 2010 which Stifel
contends are privileged under the attorney-client privilege. The second category
consists of the remaining documents which Stifel states were in response to an
internal investigation, FINRA investigation, and Florida Office of Financial
Regulations investigation. Stifel asserts these documents are protected by the
attorney-client privilege and/or the work product doctrine. The Court will now
address the documents by date as listed in the privilege log. The Court
recognizes that there is a great deal of repetition in the findings below, but that is
because many of the documents submitted for inspection were duplicates.

4

A.

Category 1

The July 20, 2010 email and attachments (STIF_REV000116-0001,
STIF_REV000117-0001, STIF_REV000118-0001) are not protected by the
attorney-client privilege. The email was sent from a member of Stifel’s
compliance department to the director of branch offices with respect to broker
reviews conducted on Anthony Fisher and another broker. The email and
attachments are not protected by the attorney-client privilege because they do
not seek or contain legal advice. While Stifel’s in-house counsel was copied on
the email, information that is not otherwise privileged will not become so simply
by being communicated to or filtered through an attorney. However, the
information regarding the second broker is not relevant to this case, so Stifel will
not be required to produce that attachment (STIF_REV000118-0001).
B.

Category 2

The February 8, 2012 document (STIF_REV000287-0001) is protected by
the work product doctrine. The document is an email string about Anthony Fisher
and Plaintiffs’ accounts. In-house counsel is involved in the email string, but the
emails do not explicitly seek or contain legal advice. However, the emails are
protected by the work product doctrine because the emails were prepared
because of the prospect of litigation.

5

The February 9, 2012 document (STIF_REV000288-0001) is protected by
the work product doctrine. The document is a continuation of the email string
started on February 8. The document is protected by the work product doctrine
because it was prepared because of the prospect of litigation.
The February 15, 2012 document (STIF_REV000289-0001) is protected
by the work product doctrine. The document is a continuation of the February 8
and 9 email string. The document is protected by the work product doctrine
because it was prepared because of the prospect of litigation.
The February 16, 2012 email and attachment (STIF_REV000290-0001,
STIF_REV000291-0001) are not protected by the attorney-client privilege or work
product doctrine. The document is an email about an account overview letter for
Plaintiff Owens’ account and the Fuller Estate account, with a draft letter from
November 2010 attached. The document is not protected by the attorney-client
privilege because while the email was sent to in-house counsel at one point, the
email does not seek or contain legal advice. The document is further not
protected by the work product doctrine because it was not prepared because of
the prospect of litigation. The substantive portions of the email were created in
2010, as well as the attachment, long before Fisher’s termination in 2012. Thus,
it appears the document was prepared in the regular course of business, and not
in anticipation of litigation.

6

The March 9, 2012 email and attachments (STIF_REV000301-0001,
STIF_REV000302-0001,

STIF_REV000303-0001,

STIF_REV000304-0001,

STIF_REV000305-0001) are protected by the work product doctrine. The
documents are timelines relating to Plaintiffs’ accounts with Stifel. 1 The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 12, 2012 email and attachment (STIF_REV000306-0001,
STIF_REV000307-0001) are protected by the attorney-client privilege and the
work product doctrine. The document is an email string involving in-house
counsel about the FINRA investigation, along with a draft response concerning
the FINRA investigation. The documents are protected by the attorney-client
privilege because they contain confidential communications and contain legal
advice. The documents are also protected by the work product doctrine because
they were prepared because of the prospect of litigation.
The March 13, 2012 email and attachment (STIF_REV000308-0001,
STIF_REV000309-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.

1

The documents also include a timeline about an unrelated account.

7

The March 13, 2012 email and attachment (STIF_REV000310-0001,
STIF_REV000311-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 14, 2012 email and attachment (STIF_REV000312-0001,
STIF_REV000313-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 14, 2012 email and attachment (STIF_REV000314-0001,
STIF_REV000315-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 15, 2012 email and attachment (STIF_REV000316-001,
STIF_REV000317-001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.

8

The March 15, 2012 email and attachment (STIF_REV000318-0001,
STIF_REV000319-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 15, 2012 email and attachment (STIF_REV000320-0001,
STIF_REV000321-0001) are protected by the attorney-client privilege and the
work product doctrine. The documents are an email to in-house counsel and a
draft response concerning the FINRA investigation. The documents implicitly
seek legal advice, and thus are protected by the attorney-client privilege. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 15, 2012 email and attachment (STIF_REV000322-0001,
STIF_REV000323-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 15, 2012 document (STIF_REV000324-0001) is protected by
the work product doctrine. The document is a continuation of the February 8, 9,

9

and 15 email string discussed above. The document is protected by the work
product doctrine because it was prepared because of the prospect of litigation.
The March 20, 2012 email and attachment (STIF_REV000325-0001,
STIF_REV000326-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 26, 2012 email and attachment (STIF_REV000327-0001,
STIF_REV000328-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 26, 2012 email and attachment (STIF_REV000329-0001,
STIF_REV000330-0001) are protected by the work product doctrine. The
documents contain a draft response concerning the FINRA investigation. The
documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 26, 2012 email and attachments (STIF_REV000333-0001,
STIF_REV000334-0001, STIF_REV000335-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string

10

involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF_REV000336-0001,
STIF_REV000337-0001, STIF_REV000338-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are

11

protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF_REV000339-0001,
STIF_REV000340-0001, STIF_REV000341-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF_REV000342-0001,
STIF_REV000343-0001, STIF_REV000344-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA

12

response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF_REV000345-0001,
STIF_REV000346-0001, STIF_REV000347-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF_REV000348-0001,
STIF_REV000349-0001, STIF_REV000350-0001) are protected by the attorney-

13

client privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF_REV000351-0001,
STIF_REV000352-0001, STIF_REV000353-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are

14

protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 27, 2012 email and attachments (STIF_REV000354-0001,
STIF_REV000355-0001, STIF_REV000356-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 27, 2012 email and attachments (STIF_REV000357-0001,
STIF_REV000358-0001, STIF_REV000359-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA

15

response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The October 4, 2012 email and attachments (STIF_REV000379-0001,
STIF_REV000380-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an email string about the service of
Plaintiffs’ lawsuit on Stifel. Attached to the email are a service of process
transmittal letter and various state court documents, none of which were
prepared by Stifel. While the email involves in-house counsel, it does not seek or
contain legal advice. Instead, it appears this communication was merely
informational in nature. The email is also not protected by the work product
doctrine because it was prepared in the regular course of business.
The October 4, 2012 email and attachments (STIF_REV000381-0001,
STIF_REV000382-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an email string about the service of
Plaintiffs’ lawsuit on Stifel. Attached to the email are a service of process
transmittal letter and various state court documents, none of which were

16

prepared by Stifel. While the email involves in-house counsel, it does not seek or
contain legal advice. Instead, it appears this communication was merely
informational in nature. The email is also not protected by the work product
doctrine because it was prepared in the regular course of business.
The February 1, 2012 email and attachment (STIF_REV024005-0001,
STIF_REV024006-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The email is to in-house counsel, but the
email and attachment do not seek or contain legal advice, and thus are not
protected by the attorney-client privilege. However, the email and attachment are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The July 20, 2010 email and attachments (STIF-REV024662-0001, STIFREV024663-0001, STIF-REV024664-0001) are not protected by the attorneyclient privilege or work product doctrine. The email was sent from a member of
Stifel’s compliance department to the director of branch offices with respect to
broker reviews conducted on Anthony Fisher and another broker. The email and
attachments are not protected by the attorney-client privilege because they do
not seek or contain legal advice. While Stifel’s in-house counsel was copied on
the email, information that is not otherwise privileged will not become so simply
by being communicated to or filtered through an attorney. However, the

17

information regarding the second broker is not relevant to this case, so Stifel will
not be required to produce that attachment. There is also no indication that the
documents were prepared because of the prospect of litigation, so the work
product doctrine does not apply either.
The February 6, 2012 email and attachment (STIF-REV025221-0001,
STIF-REV025222-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an unexecuted escrow termination
agreement. While one of the recipients of the email is Stifel’s in-house counsel,
neither the email nor attachment seek or contain legal advice. Thus, the attorneyclient privilege does not apply. Further, the documents are not protected by the
work product doctrine because there is no indication they were prepared
because of the prospect of litigation.
The February 6, 2012 email and attachment (STIF-REV025223-0001,
STIF-REV025224-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an unexecuted escrow termination
agreement. While one of the recipients of the email is Stifel’s in-house counsel,
neither the email nor attachment seek or contain legal advice. Thus, the attorneyclient privilege does not apply. Further, the documents are not protected by the
work product doctrine because there is no indication they were prepared
because of the prospect of litigation.

18

The February 6, 2012 email (STIF-REV025225-0001) is not protected by
the attorney-client privilege or the work product doctrine. The document is an
email stating that the sender of an email on February 6 wanted to recall the
message. While one of the recipients of the email is Stifel’s in-house counsel, the
email does not seek or contain legal advice. Thus, the attorney-client privilege
does not apply. Further, the document is not protected by the work product
doctrine because there is no indication it was prepared because of the prospect
of litigation.
The February 6, 2012 email (STIF-REV025226-0001) is not protected by
the attorney-client privilege or the work product doctrine. The document is an
email showing that the previous message recall was successful. The document is
not protected by the attorney-client privilege because it was not sent to in-house
counsel and does not seek or contain legal advice. Further, the document is not
protected by the work product doctrine because there is no indication it was
prepared because of the prospect of litigation.
The February 6, 2012 email and attachment (STIF-REV025227-0001,
STIF-REV025228-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an email regarding a Federal Express
package sent to Anthony Fisher. The attachment consists of the Federal Express
receipt and an unexecuted escrow termination agreement. While one of the

19

recipients of the email is Stifel’s in-house counsel, neither the email nor
attachment seek or contain legal advice. Thus, the attorney-client privilege does
not apply. Further, the documents are not protected by the work product doctrine
because there is no indication they were prepared because of the prospect of
litigation.
The February 6, 2012 email (STIF-REV025229-0001) is not protected by
the attorney-client privilege or the work product doctrine. The document is an
email showing that the previous message recall failed. The document is not
protected by the attorney-client privilege because it was not sent to in-house
counsel and does not seek or contain legal advice. Further, the document is not
protected by the work product doctrine because there is no indication it was
prepared because of the prospect of litigation.
The February 6, 2012 email and attachment (STIF-REV025230-0001,
STIF-REV025231-0001) are not protected by the attorney-client privilege or the
work product doctrine. The documents are communications made between
Anthony Fisher, Brandon Chabner, and Judy Crowhurst with respect to Cardiac
Monitoring Solutions Inc. While one of the recipients of the email is Stifel’s inhouse counsel, neither the email nor attachment seek or contain legal advice.
Thus, the attorney-client privilege does not apply. Further, the documents are not

20

protected by the work product doctrine because there is no indication they were
prepared because of the prospect of litigation.
The February 6, 2012 email and attachment (STIF-REV025232-0001,
STIF-REV025233-0001) are not protected by the attorney-client privilege or the
work product doctrine. While one of the recipients of the email is Stifel’s in-house
counsel, neither the email nor attachment seek or contain legal advice. Thus, the
attorney-client privilege does not apply. Further, the documents are not protected
by the work product doctrine because there is no indication they were prepared
because of the prospect of litigation.
The February 8, 2012 document (STIF-REV025238-0001) is not protected
by attorney-client privilege but is protected by the work product doctrine. The
document is an email to Stifel’s in-house counsel about Anthony Fisher and
Plaintiffs. While the document was sent to in-house counsel, the email does not
explicitly request legal advice. However, the email is protected by the work
product doctrine because the email was prepared because of the prospect of
litigation.
The February 8, 2012 document (STIF-REV025242-0001) is not protected
by attorney-client privilege but is protected by the work product doctrine. The
document is a continuation of the February 8 email string mentioned above about
Anthony Fisher and Plaintiffs. While in-house counsel was the recipient of one

21

email in the chain, the emails do not explicitly request legal advice. However, the
document is protected by the work product doctrine because the emails were
prepared because of the prospect of litigation.
The February 9, 2012 document (STIF-REV025243-0001) is not protected
by attorney-client privilege but is protected by the work product doctrine. The
document is a continuation of the February 8 email string mentioned above about
Anthony Fisher and Plaintiffs. While in-house counsel was the recipient of one
email in the chain, the emails do not explicitly seek or contain legal advice.
However, the document is protected by the work product doctrine because the
emails were prepared because of the prospect of litigation.
The February 15, 2012 document (STIF-REV025257-0001) is protected by
attorney-client privilege. The document is an email string involving in-house
counsel about a form. The document is protected by the attorney-client privilege
because the emails contain confidential communications.
The February 15, 2012 document (STIF-REV025259-0001) is not
protected by attorney-client privilege but is protected by the work product
doctrine. The document is a continuation of the February 8 and 9 email strings
mentioned above about Anthony Fisher and Plaintiffs. While in-house counsel
was the recipient of one of the emails in the chain, the emails do not explicitly

22

seek or contain legal advice. However, the document is protected by the work
product doctrine because it was prepared because of the prospect of litigation.
The February 16, 2012 email and attachment (STIF-REV025268-0001,
STIF-REV025269-0001) are not protected by the attorney-client privilege or work
product doctrine. The document is an email about an account overview letter for
Plaintiff Owens’ account and the Fuller Estate account, with a draft letter from
November 2010 attached. The document is not protected by the attorney-client
privilege because while the email was sent to in-house counsel at one point, the
email does not seek or contain legal advice. The document is further not
protected by the work product doctrine because it was not prepared because of
the prospect of litigation. The substantive portions of the email, as well as the
attachment, were created in 2010, long before Anthony Fisher’s termination in
2012. Thus, it appears the document was prepared in the regular course of
business, and not in anticipation of litigation.
The February 16, 2012 email and attachment (STIF-REV025270-0001,
STIF-REV025271-0001) are not protected by the attorney-client privilege or work
product doctrine. The document is an email about an account overview letter for
Plaintiff Owens’ account and the Fuller Estate account, with a draft letter from
November 2010 attached. The document is not protected by the attorney-client
privilege because while the email was sent to in-house counsel at one point, the

23

email does not seek legal advice. The document is further not protected by the
work product doctrine because it was not prepared because of the prospect of
litigation. The substantive portions of the email, as well as the attachment, were
created in 2010, long before Anthony Fisher’s termination in 2012. Thus, it
appears the document was prepared in the regular course of business, and not in
anticipation of litigation.
The February 16, 2012 email (STIF-REV025272-0001) is not protected by
the attorney-client privilege or work product doctrine. The document is an email
forward to in-house counsel of an email written about Plaintiff Owens in
December of 2011. The document is not protected by the attorney-client privilege
because the email does not seek legal advice. The document is further not
protected by the work product doctrine because it was not prepared because of
the prospect of litigation. The substantive portion of the email was created in
2011, prior to Anthony Fisher’s termination in 2012. Thus, it appears the
document was prepared in the regular course of business, and not in anticipation
of litigation.
The February 16, 2012 email (STIF-REV025272-0001) is not protected by
the attorney-client privilege or work product doctrine. The document is an email
forward to in-house counsel of an email written about Plaintiff Owens in
December of 2011. The document is not protected by the attorney-client privilege

24

because the email does not seek legal advice. The document is further not
protected by the work product doctrine because it was not prepared because of
the prospect of litigation. The substantive portion of the email was created in
2011, prior to Anthony Fisher’s termination in 2012. Thus, it appears the
document was prepared in the regular course of business, and not in anticipation
of litigation.
The February 22, 2012 email and attachment (STIF-REV025275-0001,
STIF-REV025276-0001) are not protected by the attorney-client privilege or work
product doctrine. The document is an email forward to in-house counsel of an
email from May of 2011 concerning a confidentiality agreement. The attachment
is an unexecuted confidentiality agreement. The documents are not protected by
the attorney-client privilege because the documents do not seek or contain legal
advice. The documents are further not protected by the work product doctrine
because they were not prepared because of the prospect of litigation. The
substantive portion of the email was created in 2011, prior to Anthony Fisher’s
termination in 2012. Thus, it appears the documents were prepared in the regular
course of business, and not in anticipation of litigation.
The February 22, 2012 email and attachment (STIF-REV025277-0001,
STIF-REV025278-0001) are not protected by the attorney-client privilege or work
product doctrine. The document is an email forward to in-house counsel of an

25

email from May of 2011 concerning a confidentiality agreement. The attachment
is an unexecuted confidentiality agreement. The documents are not protected by
the attorney-client privilege because the documents do not seek legal advice.
The documents are further not protected by the work product doctrine because
they were not prepared because of the prospect of litigation. The substantive
portion of the email was created in 2011, prior to Anthony Fisher’s termination in
2012. Thus, it appears the documents were prepared in the regular course of
business, and not in anticipation of litigation.
The February 22, 2012 email and attachments (STIF-REV025279-0001,
STIF-REV025280-0001) are protected by the attorney-client privilege and the
work product doctrine. The document is an email from in-house counsel to
various Stifel employees about the FINRA investigation. The documents are
protected by the attorney-client privilege because they contain confidential
communications. The documents are also protected by the work product doctrine
because they were prepared because of the prospect of litigation. Further, the
documents are protected as opinion work product because they contain the
mental impressions, conclusions, opinions, or legal theories of in-house counsel.
The February 22, 2012 email and attachments (STIF-REV025281-0001,
STIF-REV025282-0001) are protected by the attorney-client privilege and the
work product doctrine. The document is an email chain containing information

26

from in-house counsel to various Stifel employees about the FINRA investigation.
The documents are protected by the attorney-client privilege because they
contain confidential communications. The documents are also protected by the
work product doctrine because they were prepared because of the prospect of
litigation. Further, the documents are protected as opinion work product because
they contain the mental impressions, conclusions, opinions, or legal theories of
in-house counsel.
The February 22, 2012 email and attachments (STIF-REV025283-0001,
STIF-REV025284-0001, STIF-REV025284-0001) are not protected by the
attorney-client privilege or work product doctrine. The document is an email
forward to in-house counsel of an email from May of 2011 concerning nondisclosure and confidentiality agreements. The attachments are unexecuted nondisclosure and confidentiality agreements. The documents are not protected by
the attorney-client privilege because the documents do not seek legal advice.
The documents are further not protected by the work product doctrine because
they were not prepared because of the prospect of litigation. The substantive
portion of the email was created in 2011, prior to Anthony Fisher’s termination in
2012. Thus, it appears the documents were prepared in the regular course of
business, and not in anticipation of litigation.

27

The February 22, 2012 email (STIF-REV025286-0001) is protected by the
attorney-client privilege and the work product doctrine, but the attachments
(STIF-REV025287-0001, STIF-REV025288-0001) are not. The document is an
email from in-house counsel to certain Stifel employees about Anthony Fisher.
The email is protected by the attorney-client privilege because it contains
confidential communications. The email is also protected by the work product
doctrine because it was prepared because of the prospect of litigation. Further,
the email is protected as opinion work product because it contains the mental
impressions, conclusions, opinions, or legal theories of in-house counsel. The
attachments,

however,

are

the

same

unexecuted

non-disclosure

and

confidentiality agreements discussed in the paragraph above, and are not
protected for the same reasons provided there.
The February 22, 2012 email (STIF-REV025289-0001) is not protected by
the attorney-client privilege or work product doctrine. The document is an email
forward to in-house counsel of two emails from March of 2011 concerning the
wiring of money to Pacific Coast Innovations LLC. The document is not protected
by the attorney-client privilege because the document does not seek legal
advice. The document is further not protected by the work product doctrine
because it was not prepared because of the prospect of litigation. The
substantive portion of the email was created in 2011, prior to Anthony Fisher’s

28

termination in 2012. Thus, it appears the document was prepared in the regular
course of business, and not in anticipation of litigation.
The February 22, 2012 email and attachment (STIF-REV025290-0001,
STIF-REV025291-0001) are not protected by the attorney-client privilege or work
product doctrine. The document is an email forward to in-house counsel of an
email chain May of 2010 concerning the Boca Raton Community Appearance
Board. The attachment is a draft letter to Anthony Fisher concerning Cardiac
Network, Inc. The documents are not protected by the attorney-client privilege
because the documents do not seek legal advice. Forwarding non-privileged
information to an attorney does not create an after-the-fact privilege. The
underlying documents would not be privileged if they remained in Stifel’s hands,
and handing them over to an attorney does not make them privileged. The
documents are further not protected by the work product doctrine because they
were not prepared because of the prospect of litigation. The substantive portion
of the documents was created in 2010, prior to Anthony Fisher’s termination in
2012. Thus, it appears the documents were prepared in the regular course of
business, and not in anticipation of litigation.
The February 22, 2012 email and attachment (STIF-REV025292-0001,
STIF-REV025293-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an email forward to a Stifel compliance

29

officer of an email chain May of 2010 concerning the Boca Raton Community
Appearance Board. The attachment is a draft letter to Anthony Fisher concerning
Cardiac Network, Inc. The documents are not protected by the attorney-client
privilege because they were not sent to in-house counsel and do not seek or
contain legal advice. Further, the documents are not protected by the work
product doctrine because they were not prepared because of the prospect of
litigation. The substantive portion of the documents was created in 2010, prior to
Anthony Fisher’s termination in 2012. Thus, it appears the documents were
prepared in the regular course of business, and not in anticipation of litigation.
The February 22, 2012 email (STIF-REV025297-0001) is not protected by
the attorney-client privilege or work product doctrine. The document is an email
forward to in-house counsel of two emails from July of 2010 concerning Cardiac
Network Inc. The document is not protected by the attorney-client privilege
because the document does not seek legal advice. The document is further not
protected by the work product doctrine because it was not prepared because of
the prospect of litigation. The substantive portion of the email was created in
2010, prior to Anthony Fisher’s termination in 2012. Thus, it appears the
document was prepared in the regular course of business, and not in anticipation
of litigation.

30

The February 22, 2012 email (STIF-REV025298-0001) is not protected by
the attorney-client privilege or work product doctrine. The document is an email
forward to in-house counsel of an email from July of 2010 concerning Cardiac
Network Inc. The document is not protected by the attorney-client privilege
because the document does not seek legal advice. The document is further not
protected by the work product doctrine because it was not prepared because of
the prospect of litigation. The substantive portion of the email was created in
2010, prior to Anthony Fisher’s termination in 2012. Thus, it appears the
document was prepared in the regular course of business, and not in anticipation
of litigation.
The February 22, 2012 email and attachment (STIF-REV025299-0001,
STIF-REV025300-0001) are protected by the attorney-client privilege and the
work product doctrine. The document is an email chain containing emails sent
from in-house counsel to various Stifel employees about the FINRA investigation.
The documents are protected by the attorney-client privilege because they
contain confidential communications. The documents are also protected by the
work product doctrine because they were prepared because of the prospect of
litigation. Further, the documents are protected as opinion work product because
they contain the mental impressions, conclusions, opinions, or legal theories of
in-house counsel.

31

The February 22, 2012 email and attachment (STIF-REV025301-0001,
STIF-REV025302-0001) are protected by the attorney-client privilege and the
work product doctrine. The document is an email chain containing emails sent
from in-house counsel to various Stifel employees about the FINRA investigation.
The documents are protected by the attorney-client privilege because they
contain confidential communications. The documents are also protected by the
work product doctrine because they were prepared because of the prospect of
litigation. Further, the documents are protected as opinion work product because
they contain the mental impressions, conclusions, opinions, or legal theories of
in-house counsel.
The February 22, 2012 email (STIF-REV025303-0001) is protected by the
attorney-client privilege and the work product doctrine. The document is an email
chain containing an email sent from in-house counsel to various Stifel employees
about the FINRA investigation. The documents are protected by the attorneyclient privilege because they contain confidential communications. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.

32

The February 23, 2012 email and attachment (STIF-REV025304-0001,
STIF-REV025305-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an email forward to in-house counsel of
an email from July of 2011 regarding a letter from Plaintiff Rockett to Anthony
Fisher. The attachment is a draft letter from Plaintiff Owens to Anthony Fisher.
The documents are not protected by the attorney-client privilege because they do
not seek or contain legal advice. Further, the documents are not protected by the
work product doctrine because they were not prepared because of the prospect
of litigation. The substantive portion of the documents was created in 2011, prior
to Anthony Fisher’s termination in 2012. Thus, it appears the documents were
prepared in the regular course of business, and not in anticipation of litigation.
The February 23, 2012 email and attachment (STIF-REV025306-0001,
STIF-REV025307-0001) are not protected by the attorney-client privilege or the
work product doctrine. The document is an email forward to in-house counsel of
an email from December of 2011 regarding an accounting of funds. The
attachment is an accounting report. The documents are not protected by the
attorney-client privilege because they do not seek or contain legal advice.
Further, the documents are not protected by the work product doctrine because
they were not prepared because of the prospect of litigation. The substantive
portion of the documents was created in 2011, prior to Anthony Fisher’s

33

termination in 2012. Thus, it appears the documents were prepared in the regular
course of business, and not in anticipation of litigation.
The March 1, 2012 email and attachment (STIF-REV025321-0001, STIFREV025322-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The document is an email to in-house
counsel regarding a timeline relating to Plaintiffs’ accounts with Stifel. The
attachment is the timeline. While the documents were sent to in-house counsel,
they do not explicitly seek or contain legal advice, and thus are not protected by
the attorney-client privilege. However, the documents are protected by the work
product doctrine because they were prepared because of the prospect of
litigation.
The March 1, 2012 email (STIF-REV025323-0001) is protected by the
attorney-client privilege and the work product doctrine, but the attachment (STIFREV025324-0001) is not. The document is an email from in-house counsel to
certain Stifel employees about the Florida Office of Financial Regulation
investigation. The email is protected by the attorney-client privilege because it
contains confidential communications. The email is also protected by the work
product doctrine because it was prepared because of the prospect of litigation.
The attachment, however, is from the Florida Office of Financial Regulation and
is not subject to protection.

34

The March 1, 2012 email (STIF-REV025325-0001) is protected by the
attorney-client privilege and the work product doctrine, but the attachment (STIFREV025326-0001) is not. The document is an email from in-house counsel to
certain Stifel employees about the Florida Office of Financial Regulation
investigation. The email is protected by the attorney-client privilege because it
contains confidential communications. The email is also protected by the work
product doctrine because it was prepared because of the prospect of litigation.
The attachment, however, is from the Florida Office of Financial Regulation and
is not subject to protection.
The March 6, 2012 email and attachment (STIF-REV025337-0001, STIFREV025338-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The document is an email chain and
attachment relating to certain wire transfers. The email chain is copied to inhouse counsel, but the documents do not seek or contain legal advice, and thus
are not protected by the attorney-client privilege. However, the documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 6, 2012 email and attachment (STIF-REV025341-0001, STIFREV025342-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The document is a continuation of the

35

email chain discussed above relating to certain wire transfers. The email chain is
copied to in-house counsel, but the emails and attachment do not seek or contain
legal advice, and thus are not protected by the attorney-client privilege. However,
the documents are protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 9, 2012 email and attachment (STIF-REV025353-0001, STIFREV025354-0001, STIF-REV025355-0001) are protected by the work product
doctrine. The documents relate to a timeline concerning Plaintiffs’ accounts with
Stifel. The documents are protected by the work product doctrine because they
were prepared because of the prospect of litigation.
The March 9, 2012 email and attachments (STIF-REV025358-0001, STIFREV025359-0001,

STIF-REV025360-0001,

STIF-REV025361-0001)

are

protected by the attorney-client privilege and the work product doctrine. The
email is to in-house counsel and implicitly seeks legal advice. Thus, it is
protected by the attorney-client privilege. The documents are also protected by
the work product doctrine because they were prepared because of the prospect
of litigation.
The March 12, 2012 email and attachment (STIF-REV025363-0001, STIFREV025364-0001) are protected by the attorney-client privilege and the work
product doctrine. The document is an email from in-house counsel about the

36

FINRA investigation, along with a draft response concerning the FINRA
investigation. The documents are protected by the attorney-client privilege
because they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 12, 2012 email and attachment (STIF-REV025365-0001, STIFREV025366-0001) are protected by the attorney-client privilege and the work
product doctrine. The document is an email string involving in-house counsel
about the FINRA investigation, along with a draft response concerning the FINRA
investigation. The documents are protected by the attorney-client privilege
because they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 13, 2012 email and attachment (STIF-REV025368-0001, STIFREV025369-0001) are protected by the attorney-client privilege and the work
product doctrine. The documents are an email to in-house counsel and a draft
response concerning the FINRA investigation. The documents implicitly seek
legal advice, and thus are protected by the attorney-client privilege. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.

37

The March 13, 2012 email and attachment (STIF-REV025370-0001, STIFREV025371-0001) are protected by the work product doctrine. The document is
an email concerning the FINRA investigation, and the attachment is a draft
response concerning the FINRA investigation. The documents are protected by
the work product doctrine because they were prepared because of the prospect
of litigation.
The March 13, 2012 email and attachment (STIF-REV025373-0001, STIFREV025374-0001) are protected by the attorney-client privilege and the work
product doctrine. The documents are an email to in-house counsel and a draft
response concerning the FINRA investigation. The documents implicitly seek
legal advice, and thus are protected by the attorney-client privilege. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 13, 2012 email and attachment (STIF-REV025375-0001, STIFREV025376-0001) are protected by the work product doctrine. The document is
an email concerning the FINRA investigation, and the attachment is a draft
response concerning the FINRA investigation. The documents are protected by
the work product doctrine because they were prepared because of the prospect
of litigation.

38

The March 14, 2012 email and attachments (STIF-REV025377-0001,
STIF-REV025378-0001) are protected by the attorney-client privilege and the
work product doctrine. The document is an email from in-house counsel to a
Stifel employee about the FINRA investigation. The attachment is a draft
response concerning the FINRA investigation. The documents are protected by
the attorney-client privilege because they contain confidential communications.
The documents are also protected by the work product doctrine because they
were prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 14, 2012 email and attachment (STIF-REV025379-0001, STIFREV025380-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 14, 2012 email and attachment (STIF-REV25386-0001, STIFREV025387-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.

39

The March 15, 2012 email and attachment (STIF-REV025396-0001, STIFREV025397-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 15, 2012 email and attachment (STIF-REV025398-0001, STIFREV025399-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 15, 2012 email and attachment (STIF-REV025400-0001, STIFREV025401-0001) are protected by the attorney-client privilege and the work
product doctrine. The documents are an email to in-house counsel and a draft
response concerning the FINRA investigation. The documents implicitly seek
legal advice, and thus are protected by the attorney-client privilege. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 15, 2012 email and attachment (STIF-REV025402-0001, STIFREV025403-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are

40

protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 15, 2012 document (STIF-REV025404-0001) is protected by
the work product doctrine. The document is an email string concerning Plaintiffs’
accounts. The document is protected by the work product doctrine because it
was prepared because of the prospect of litigation.
The March 20, 2012 email and attachment (STIF-REV025415-0001, STIFREV025416-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 26, 2012 email and attachment (STIF-REV025436-0001, STIFREV025437-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 26, 2012 email and attachment (STIF-REV025438-0001, STIFREV025439-0001) are protected by the attorney-client privilege and the work
product doctrine. The documents are an email to in-house counsel and a draft
response concerning the FINRA investigation. The documents implicitly seek

41

legal advice, and thus are protected by the attorney-client privilege. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation.
The March 26, 2012 email and attachment (STIF-REV025440-0001, STIFREV025441-0001) are protected by the work product doctrine. The documents
contain a draft response concerning the FINRA investigation. The documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 26, 2012 email and attachments (STIF-REV025442-0001,
STIF-REV025443-0001, STIF-REV025444-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email from inhouse counsel to certain Stifel employees about the FINRA investigation, along
with draft responses concerning the FINRA investigation. The documents also
contain instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.

42

The March 26, 2012 email and attachments (STIF-REV025445-0001,
STIF-REV025446-0001, STIF-REV025447-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email (STIF-REV025448-0001) is not protected by the
attorney-client privilege or the work product doctrine. The document is an email
showing that an email message did not reach an intended recipient. The
document is not protected by the attorney-client privilege because it does not
seek or contain legal advice. Further, the document is not protected by the work
product doctrine because there is no indication it was prepared because of the
prospect of litigation. Instead, it is just a form message sent by a computer
administrator.

43

The March 26, 2012 email and attachments (STIF-REV025449-0001,
STIF-REV025450-0001, STIF-REV025451-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF-REV025452-0001,
STIF-REV025453-0001, STIF-REV025454-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The

44

documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF-REV025455-0001,
STIF-REV025456-0001, STIF-REV025457-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email (STIF-REV025458-0001) is not protected by the
attorney-client privilege or the work product doctrine. The document is an email
showing that an email message did not reach an intended recipient. The
document is not protected by the attorney-client privilege because it does not

45

seek or contain legal advice. Further, the document is not protected by the work
product doctrine because there is no indication it was prepared because of the
prospect of litigation. Instead, it is just a form message sent by a computer
administrator.
The March 26, 2012 email and attachments (STIF-REV025459-0001,
STIF-REV025460-0001, STIF-REV025461-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF-REV025462-0001,
STIF-REV025463-0001, STIF-REV025464-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft

46

responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF-REV025465-0001,
STIF-REV025466-0001, STIF-REV025467-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.

47

The March 26, 2012 email and attachments (STIF-REV025468-0001,
STIF-REV025469-0001, STIF-REV025470-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachments (STIF-REV025471-0001,
STIF-REV025472-0001, STIF-REV025473-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email string
involving in-house counsel about the FINRA investigation, along with draft
responses concerning the FINRA investigation. The documents also contain
instructions and suggestions from in-house counsel regarding the FINRA
response. The documents are protected by the attorney-client privilege because
they contain confidential communications and contain legal advice. The

48

documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are
protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 26, 2012 email and attachment (STIF-REV025474-0001, STIFREV025475-0001) are protected by the attorney-client privilege and the work
product doctrine. The document is an email chain containing emails sent from inhouse counsel to various Stifel employees about the FINRA investigation. The
documents are protected by the attorney-client privilege because they contain
confidential communications. The documents are also protected by the work
product doctrine because they were prepared because of the prospect of
litigation. Further, the documents are protected as opinion work product because
they contain the mental impressions, conclusions, opinions, or legal theories of
in-house counsel.
The March 27, 2012 email and attachment (STIF-REV025478-0001, STIFREV025479-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The document is an email chain and
attachment relating to certain wire transfers. The email chain is copied to inhouse counsel, but the documents do not seek or contain legal advice, and thus
are not protected by the attorney-client privilege. However, the documents are

49

protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 27, 2012 email and attachment (STIF-REV025480-0001, STIFREV025481-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The document is an email chain and
attachment relating to certain wire transfers. The email chain is copied to inhouse counsel, but the documents do not seek or contain legal advice, and thus
are not protected by the attorney-client privilege. However, the documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 27, 2012 email (STIF-REV025482-0001) is not protected by the
attorney-client privilege or the work product doctrine. The document is an email
showing that an email message did not reach an intended recipient. The
document is not protected by the attorney-client privilege because it does not
seek or contain legal advice. Further, the document is not protected by the work
product doctrine because there is no indication it was prepared because of the
prospect of litigation. Instead, it is just a form message sent by a computer
administrator.
The March 27, 2012 email and attachment (STIF-REV025483-0001, STIFREV025484-0001) are not protected by the attorney-client privilege but are

50

protected by the work product doctrine. The document is an email chain and
attachment relating to certain wire transfers. The email chain is copied to inhouse counsel, but the documents do not seek or contain legal advice, and thus
are not protected by the attorney-client privilege. However, the documents are
protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 27, 2012 email and attachments (STIF-REV025485-0001,
STIF-REV025486-0001, STIF-REV025487-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email chain
containing an email sent from in-house counsel to various Stifel employees about
the FINRA investigation. The documents are protected by the attorney-client
privilege because they contain confidential communications. The documents are
also protected by the work product doctrine because they were prepared
because of the prospect of litigation. Further, the documents are protected as
opinion work product because they contain the mental impressions, conclusions,
opinions, or legal theories of in-house counsel.
The March 27, 2012 email (STIF-REV025488-0001) is not protected by the
attorney-client privilege or the work product doctrine. The document is an email
showing that an email message did not reach an intended recipient. The
document is not protected by the attorney-client privilege because it does not

51

seek or contain legal advice. Further, the document is not protected by the work
product doctrine because there is no indication it was prepared because of the
prospect of litigation. Instead, it is just a form message sent by a computer
administrator.
The March 27, 2012 email and attachments (STIF-REV025489-0001,
STIF-REV025490-0001, STIF-REV025491-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email chain
containing an email sent from in-house counsel to various Stifel employees about
the FINRA investigation. The documents are protected by the attorney-client
privilege because they contain confidential communications. The documents are
also protected by the work product doctrine because they were prepared
because of the prospect of litigation. Further, the documents are protected as
opinion work product because they contain the mental impressions, conclusions,
opinions, or legal theories of in-house counsel.
The March 27, 2012 email and attachment (STIF-REV025492-0001, STIFREV025493-0001) are not protected by the attorney-client privilege but are
protected by the work product doctrine. The document is an email chain and
attachment relating to certain wire transfers. The email chain is copied to inhouse counsel, but the documents do not seek or contain legal advice, and thus
are not protected by the attorney-client privilege. However, the documents are

52

protected by the work product doctrine because they were prepared because of
the prospect of litigation.
The March 27, 2012 email and attachments (STIF-REV025494-0001,
STIF-REV025495-0001, STIF-REV025496-0001) are protected by the attorneyclient privilege and the work product doctrine. The document is an email chain
containing an email sent from in-house counsel to various Stifel employees about
the FINRA investigation. The documents are protected by the attorney-client
privilege because they contain confidential communications. The documents are
also protected by the work product doctrine because they were prepared
because of the prospect of litigation. Further, the documents are protected as
opinion work product because they contain the mental impressions, conclusions,
opinions, or legal theories of in-house counsel.
The March 28, 2012 email and attachment (STIF-REV025503-0001, STIFREV025504-0001) are protected by the attorney-client privilege and the work
product doctrine. The document is an email chain containing emails between
counsel about the FINRA investigation. The documents are protected by the
attorney-client privilege because they contain confidential communications. The
documents are also protected by the work product doctrine because they were
prepared because of the prospect of litigation. Further, the documents are

53

protected as opinion work product because they contain the mental impressions,
conclusions, opinions, or legal theories of in-house counsel.
The March 28, 2012 email and attachment (STIF-REV025505-0001, STIFREV025506-0001) are not protected by the attorney-client privilege or the work
product doctrine. The documents are communications made between Anthony
Fisher, Brandon Chabner, and Judy Crowhurst with respect to Cardiac
Monitoring Solutions Inc. The email was not sent to Stifel’s in-house counsel, and
neither the email nor attachment seek or contain legal advice. Thus, the attorneyclient privilege does not apply. Further, the documents are not protected by the
work product doctrine because there is no indication they were prepared
because of the prospect of litigation.
The April 19, 2013 email (STIF-REV024034) is protected by the attorneyclient privilege. The email is to counsel in direct response to an inquiry from
counsel, and the Court finds that it is protected by the attorney-client privilege.
III.

CONCLUSION
The Court orders Stifel to produce the following documents to Plaintiffs’

counsel no later than December 13, 2013:
July 20, 2010 - STIF_REV000116-0001, STIF_REV000117-0001
February 16, 2012 - STIF_REV000290-0001, STIF_REV000291-0001
October 4, 2012 - STIF_REV000379-0001, STIF_REV000380-0001

54

October 4, 2012 - STIF_REV000381-0001, STIF_REV000382-0001
July 20, 2010 - STIF-REV024662-0001, STIF-REV024663-0001, STIFREV024664-0001
February 6, 2012 - STIF-REV025221-0001, STIF-REV025222-0001
February 6, 2012 - STIF-REV025223-0001, STIF-REV025224-0001
February 6, 2012 - STIF-REV025225-0001
February 6, 2012 - STIF-REV025226-0001
February 6, 2012 - STIF-REV025227-0001, STIF-REV025228-0001
February 6, 2012 - STIF-REV025229-0001
February 6, 2012 - STIF-REV025230-0001, STIF-REV025231-0001
February 6, 2012 - STIF-REV025232-0001, STIF-REV025233-0001
February 16, 2012 - STIF-REV025268-0001, STIF-REV025269-0001
February 16, 2012 - STIF-REV025270-0001, STIF-REV025271-0001
February 16, 2012 - STIF-REV025272-0001
February 16, 2012 - STIF-REV025272-0001
February 22, 2012 - STIF-REV025275-0001, STIF-REV025276-0001
February 22, 2012 - STIF-REV025277-0001, STIF-REV025278-0001
February 22, 2012 - STIF-REV025283-0001, STIF-REV025284-0001,
STIF-REV025284-0001
February 22, 2012 - STIF-REV025287-0001, STIF-REV025288-0001

55

February 22, 2012 - STIF-REV025289-0001
February 22, 2012 - STIF-REV025290-0001, STIF-REV025291-0001
February 22, 2012 - STIF-REV025292-0001, STIF-REV025293-0001
February 22, 2012 - STIF-REV025297-0001
February 22, 2012 - STIF-REV025298-0001
February 23, 2012 - STIF-REV025304-0001, STIF-REV025305-0001
February 23, 2012 - STIF-REV025306-0001, STIF-REV025307-0001
March 1, 2012 - STIF-REV025324-0001
March 1, 2012 - STIF-REV025326-0001
March 26, 2012 - STIF-REV025448-0001
March 26, 2012 - STIF-REV025458-0001
March 27, 2012 - STIF-REV025482-0001
March 27, 2012 - STIF-REV025488-0001
March 28, 2012 - STIF-REV025505-0001, STIF-REV025506-0001

SO ORDERED, this the 6th day of December, 2013.
/s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE

mbh

56