Bower v. El-Nady Bower et al

Filing 99

Ch. Magistrate Judge Judith G. Dein: FURTHER ORDER entered re 30 Plaintiff's Motion to Compel Response to Subpoena from Michael Traft. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

COLIN BOWER, on his own behalf
)
and as the guardian and legal custodian )
of his minor children, N and R,
)
)
Plaintiff,
)
v.
)
)
MIRVAT EL-NADY BOWER and
)
EGYPTAIR AIRLINES,
)
)
Defendants.
)

CIVIL ACTION
NO. 10-10405-NG

FURTHER ORDER RE: PLAINTIFF’S MOTION THAT
ATTORNEY TRAFT PRODUCE DOCUMENTS
May 9, 2011
DEIN, U.S.M.J.
I. INTRODUCTION
This court has reviewed the documents produced by Attorney Michael Traft for an
in camera inspection. Below is the order describing the results of that inspection. As an
initial matter, however, this court will address the plaintiff’s “Notice Regarding In
Camera Review of Documents from Michael Traft” (Docket No. 95) whereby the
plaintiff has asked the court to confirm that 43 specific documents have been produced.
While it appears to this court that these documents have been produced, in many cases
the hour of the emails on plaintiff’s list do not coincide with those recorded on the
documents produced by Attorney Traft. The court cannot determine if the hour as
described by the service provider that gave the information to the plaintiff is in the same
time zone as the hour recorded on Attorney Traft’s copy of the emails. Therefore, this

court will not further delve into whether the documents listed on the plaintiff’s “Notice”
have been produced to the court.
Further, the plaintiff has expressed concern that the crime-fraud exception may
apply to negate any claim of privilege. See In re Grand Jury Proceedings, 417 F.3d 18,
22 (1st Cir. 2005) (crime-fraud exception to the attorney-client privilege “withdraws
protection where the client sought or employed legal representation in order to commit or
facilitate a crime or fraud”). Based on this court’s review of the documents submitted,
the crime-fraud exception has no application to the communications with Attorney Traft.
II. ANALYSIS
Seven categories of documents have been produced and will be addressed
separately.
Exhibit A: These are letters between Attorney Traft and Mirvat El Nady Bower
(“Mirvat”) in connection with the Probate Court litigation. They are privileged and need
not be produced.
Exhibit B: These are communications between Attorney Traft and Bruce Bower.
This court finds that there was no actual or proposed attorney-client relationship between
Attorney Traft and Bruce Bower prior to September 21, 2010. Therefore, the following
documents shall be produced:
8/25/09
8/19/09
9/3/10
9/3/10

Michael Traft email to Bruce Bower
Laura Hoyle email to Michael Traft, cc: Barry S.
Pollack
Bruce Bower email to Michael Traft
Michael Traft email to Bruce Bower
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The emails between Bruce Bower and Michael Traft dated September 21, 2010 do
not need to be produced.
Exhibit C: These are emails by and between Attorney Traft, Maged El Nady
(“Maged”), Mirvat El Nady and Solicitor Hugh Sullivan relating to litigation between
Colin Bower, Mirvat El Nady and Nadi International Trade pending in London, England
(the “London Litigation”). These documents do not need to be produced on the grounds
of joint representation and/or because they are irrelevant to the pending litigation.
Exhibit D: With the exceptions described below, these are emails by and between
Attorney Traft and Mirvat, which are privileged, as well as communications similar to
those contained in Exhibit C relating to the London Litigation. These documents do not
need to be produced.
There are emails dated August 20, 2009 and August 25, 2009 from Attorney Traft
to Mirvat, with a copy to Maged. It is clear from the contents that the copy to Maged was
only to insure that Mirvat received the communication. I find that under the
circumstances, the copy to Maged does not destroy the attorney-client privilege. Rather,
Maged served only as a “communicating agent” through whom the privileged communication was to be conveyed. See Certain Underwriters of Lloyds v. Fid. & Cas. Co. of
N.Y., No. 89C 0876, 1997 WL 769467, at *2 (N.D. Ill. Dec. 9, 1997), and cases cited
(unpub. op.); Am. Safety Cas. Ins. Co. v. Waukegan, Ill., No. 07C 1990, 2011 WL
180561, at *2 n.1 (N.D. Ill. Jan. 19, 2011). See also E. Epstein, The Attorney-Client
Privilege & the Work-Product Doctrine at 333 (4th ed.) (ABA 2001) (“When the
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convenience of communicating through a third party is so marked . . . it will be deemed
sufficient to guard confidentiality and, hence, the privilege”). Therefore, these
documents do not need to be produced.
Exhibit E: These are emails by and between Attorney Traft and Mirvat, communications similar to those contained in Exhibit C relating to the London Litigation, and
copies of communications from Colin Bower to Maged and/or Mirvat. These documents
are either privileged and/or irrelevant and do not need to be produced.
Exhibit F: These are emails between Attorney Traft and Solicitor Hugh Sullivan
relating to the London Litigation and do not need to be produced.
Exhibit G: These are emails between Attorney Traft and Julie Ginsburg dated
July 7, 2009. These appear to be protected by the work-product doctrine and are, in any
event, irrelevant and need not be produced.
III. SCHEDULE
Any objection by Attorney Traft to producing the documents ordered produced
herein shall be filed within seven (7) days of the date of this Order. Any documents
ordered produced to which Attorney Traft has no objection shall be produced within
fourteen (14) days of the date of this order.
/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge

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