BTU Ventures, Inc. et al v. Betancourt

Filing 90

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: PLAINTIFFS MOTION TO COMPEL PRODUCTION OF DOCUMENTS 82 is ALLOWED in part and DENIED in part.(Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BTU VENTURES, INC., and BTU
INDUSTRIES HOLDINGS USA,
INC.,
Plaintiffs,
v.

CIVIL ACTION NO.
09-10058-JLT

MARTIN BETANCOURT,
Defendant and
Third Party Plaintiff,
v.
WAEL AL MAZEEDI and BTU
VENTURES, INC.,
Third Party Defendants.

MEMORANDUM AND ORDER RE:
PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
(DOCKET ENTRY # 82)
August 3, 2011

BOWLER, U.S.M.J.
Pending before this court is the above styled motion to
compel filed by plaintiffs BTU Ventures, Inc. and BTU Industries
Holdings USA, Inc. (“plaintiffs”).

(Docket Entry # 82).

After

conducting a hearing on July 20, 2011, this court took the motion
(Docket Entry # 82) under advisement.

DISCUSSION
After considering the disputed facts in the record,
including the August 24, 2009 email (Docket Entry # 84, Ex. 3),

and conducting an in camera review of the withheld documents,
this court finds that defendant Martin Betancourt (“defendant”)
established that Pierre F. de Ravel d’Esclapon, Esq. (“de Ravel”)
was acting in a legal capacity and that defendant was seeking
confidential legal advice from de Ravel.

See F.D.I.C. v. Ogden

Corp., 202 F.3d 454, 461 (1st Cir. 2000) (attorney client
“relationship comes into being ‘when (1) a person seeks advice or
assistance from an attorney, (2) the advice or assistance sought
pertains to matters within the attorney’s professional
competence, and (3) the attorney expressly or impliedly agrees to
give or actually gives the desired advice or assistance’”); see
also In re Moore, 866 N.E.2d 897, 900 n.3 (Mass. 2007) (“lack of
a writing does not preclude a finding that an attorney-client
relationship was formed”); see generally Texaco Puerto Rico, Inc.
v. Department of Consumer Affairs, 60 F.3d 867, 883 (1st Cir.
1995) (“privilege protects ‘not only the giving of professional
advice to those who can act on it but also the giving of
information to the lawyer to enable him to give sound and
informed advice’”).
Carefully considering the waiver argument, however,
defendant fails to establish that the privilege has not been
waived with respect to the subject matter of certain previously
disclosed communications.

See Texaco Puerto Rico, Inc. v.

Department of Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995)

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(waiver of attorney client privilege “premised on inadvertent
disclosure will be deemed to encompass ‘all other such
communications on the same subject’”); see also Matter of
Reorganization of Elec. Mut. Liability Ins. Co., Ltd. (Bermuda),
681 N.E.2d 838, 840 (Mass. 1997) (burden to show the protected
communications have not been waived “rests on the party asserting
the privilege”).

In addition, a number of documents simply refer

to dates and times of meetings or telephone calls.

See Refuse &

Environmental Systems, Inc. v. Industrial Services of America,
120 F.R.D. 8, 12 (D.Mass. 1988) (allowing the plaintiffs to
“inquire, for example and without limitation, as to the dates,
times, places and duration of meetings between Attorney Joseph
and his clients’ but not allowing inquiry “into the actual
contents of any communications”).

Applying the foregoing

caselaw, the in camera documents subject to production are
DM006685, DM006686, DM006690, DM006691, DM006692, DM006693,
DM006710, DM006711, DM006712, DM006713, DM006714 and DM006717.

CONCLUSION
In accordance with the foregoing discussion, the motion to
compel (Docket Entry # 82) is ALLOWED in part and DENIED in part.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
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