Hebert et al v. Vantage Travel Service, Inc.

Filing 109

Magistrate Judge Judith G. Dein: SUPPLEMENTAL ORDER on 82 Plaintiffs' Motion to Compel. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

RONALD HEBERT and AIME DENAULT,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.
VANTAGE TRAVEL SERVICE, INC. d/b/a
VANTAGE DELUXE WORLD TRAVEL and
VANTAGE ADVENTURES,
Defendant.

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CIVIL ACTION
NO. 17-10922-DJC

SUPPLEMENTAL ORDER ON PLAINTIFFS’ MOTION TO COMPEL
June 18, 2019
DEIN, U.S.M.J.
I. INTRODUCTION
Pursuant to this court’s Order (Docket No. 108) on “Vantage Travel Service, Inc.’s
Motion for Leave to File Under Seal and for a Protective Order” (Docket No. 81) and “Plaintiffs’
Motion to Compel Responses to Requests for Production of Documents, Supplemental Answers
to Interrogatories and to Produce a Witness for Deposition” (Docket No. 82), the defendant has
submitted three sets of ship meeting notes to this court for an in camera review. The
defendant asserts attorney-client privilege as to two of the three documents and has produced
the third document with substantial redactions on the basis of relevancy and confidentiality.
This court concludes that the documents provided for in camera review are not protected by
attorney-client privilege. The court further concludes, however, that the defendant may redact

portions of the unproduced documents that contain irrelevant confidential information.
Accordingly, as detailed in this court’s prior Order (Docket No. 108) and as further outlined
herein, the plaintiffs’ motion to compel is ALLOWED IN PART and DENIED IN PART.
II. DISCUSSION
The subject of the instant litigation is a luxury river cruise organized by the defendant in
July of 2016. The documents provided to this court for in camera review consist of notes from
three meetings held by the defendant in its Boston office in the summer of 2016. For each
document, the defendant has highlighted in yellow the portion(s) that it believes are relevant to
the incident at issue in this litigation. The defendant produced the meeting notes from August
5, 2016 in redacted form to the plaintiffs, but has withheld the meeting notes from July 21,
2016 and August 11, 2016 in their entirety. The primary basis for withholding the latter two
sets of notes appears to be the presence of the defendant’s then-general counsel at those
meetings.
As the First Circuit has explained, the “essential elements” of attorney-client privilege
consist of the following:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.
Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002) (internal citation omitted). While
the privilege may be applied to communications between corporate officers and in-house
counsel, it does not apply “when in-house counsel is engaged in nonlegal work.” United States
v. Windsor Capital Corp., 524 F. Supp. 2d 74, 81 (D. Mass. 2007) (internal quotations and
citation omitted); see City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 9 (D. Mass. 2000) (“an
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in-house lawyer may wear several other hats (e.g., business advisor, financial consultant) and
because the distinctions are often hard to draw, the invocation of the attorney-client privilege
may be questionable in many instances”). The defendant has the burden of establishing that
the privilege applies to the documents at issue. Windsor Capital Corp., 524 F. Supp. 2d at 81.
Here, the July 21, 2016 meeting notes contain two lines relevant to the incident at issue
in this litigation, which were highlighted in yellow by the defendant for this court’s in camera
review. The first line merely summarizes what occurred during the cruise and the second line
contains business advice. Similarly, the August 11, 2016 meeting notes summarize the status of
an expert investigation solicited by the defendant and do not pertain to legal advice. While
general counsel for the defendant was present at both meetings, there is no indication from the
highlighted portion of the meeting notes that he rendered legal advice pertinent to the
incident. Accordingly, the defendant must produce both the July 21, 2016 meeting notes and
the August 11, 2016 meeting notes.
The defendant also contends that the vast majority of the two withheld sets of meeting
notes, as well as the redacted portion of the third set of notes, contain confidential business
and financial information that is not relevant to the instant litigation. This court agrees. The
meeting notes largely discuss business matters that are entirely separate from the incident at
issue. They involve financial, strategic, and other confidential information. Thus, the
defendant’s redactions of the August 5, 2016 meeting notes were proper and the defendant
may redact the non-highlighted portions of the July 21, 2016 and August 11, 2016 meeting
notes accordingly.

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IV. CONCLUSION
In accordance with the prior order of this court (Docket No. 108) and this order,
“Plaintiffs’ Motion to Compel Responses to Requests for Production of Documents,
Supplemental Answers to Interrogatories and to Produce a Witness for Deposition” (Docket No.
82) is ALLOWED IN PART and DENIED IN PART as detailed herein.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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