Smith Maritime Inc v. Lay D/B Akpevweoghene et al

Filing 182

ORDER re 143 MOTION for Sanctions filed by Generation Marine Services Inc, and 141 MOTION for Sanctions filed by Smith Maritime Inc and the 165 Motion Hearing concerning information provided to the court under seal f rom Smith Maritime and possibility of attorney-client privilege for Fenog. Court determines items may have been subject to attorney-client privilege. It is also recognized that attorney-client privilege is voluntarily waived when disclosed in a mann er inconsistent with the confidential nature of the attorney client relationship. Should Fenog wish to argue this waiver was somehow inadvertent, it is to notify the court by filing an appropriate pleading on or before November 19, 2014. Should nothing be filed addressing this issue by that time the information will be unsealed and made available to Smith Maritime and GMSI. Signed by Magistrate Judge Kathleen Kay on 11/14/2014. (crt,FinnSld, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

SMITH MARITIME, INC.

:

CIVIL ACTION NO. 11-cv-731

VERSUS

:

JUDGE TRIMBLE

LAY DRILLING BARGE
AKPEVWEOGHENE (EX CHEROKEE)
and its owner, FENOG NIGERIA, LTD.

:

MAGISTRATE JUDGE KAY

:

IN ADMIRALTY (IN REM)

ORDER

At the hearing on the Motions for Sanctions filed by Smith Maritime, Inc., (“Smith
Maritime”) and Generation Marine Services, Inc. (“GMSI”), Docs. 141 and 143, counsel for
Smith Maritime presented to the court under seal an envelope containing email information
obtained by Smith Maritime’s forensic expert that could possibly be subject to attorney-client
privilege for Fenog. They were discovered while their expert was examining the hard drives of
Eddie Hill, former employee of defendant Fenog Nigeria, Ltd. (“Fenog”). Smith Maritime
provided particular search terms to their expert designed to target potentially confidential
information and instructed the expert to maintain custody of those documents and not to reveal
the documents to anyone other than the court. Smith Maritime at the hearing asked the court to
review the documents to determine whether they would be subject to attorney-client privilege.
After review we determine that these items may have been subject to attorney-client
privilege. We also recognize, however, that attorney-client privilege is voluntarily waived when
disclosed in a manner inconsistent with the confidential nature of the attorney client relationship.
See Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993).

In this case counsel for Fenog delivered the hard drives of Eddie Hill to GMSI and
provided the Yahoo! email account information and password before being ordered to do so.
Fenog made no effort to conduct its own investigation or otherwise seek to protect information
that might be privileged.
Should Fenog wish to argue that this waiver was somehow inadvertent and that its
handing over this information should not constitute a waiver as addressed in Federal Rule of
Evidence 502, it is to so notify the court by filing an appropriate pleading on or before November
19, 2014. Should nothing be filed addressing this issue by that time then the information will be
unsealed and made available to Smith Maritime and GMSI.
THUS DONE this 14th day of November, 2014.