State Farm Mutual Automobile Insurance Company v. Hawkins

Filing 104

OPINION AND ORDER Directing Third-party witnesses to produce certain documents by 7/23/2010. Signed by District Judge Robert H Cleland. (LWag)

State Farm Mutual Automobile Insurance Company v. Hawkins

Doc. 104

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. DEANNA HAWKINS, Defendant. / OPINION AND ORDER DIRECTING THIRD-PARTY WITNESSES TO PRODUCE CERTAIN DOCUMENTS On June 4, 2010, the court ordered third-party witnesses Liss, Seder, & Andrews, P.C. ("the Firm"), and attorney Arthur Y. Liss ("Liss") to produce to the court for in camera review all of the documents listed in the "Privilege Log Relative to Communication with Dean Greenblatt." The third-party witnesses have produced 130 documents and the court has inspected them to determined whether their claims of privilege are proper. In many cases, the privilege claim was unsupported, and the court will therefore order the third-party witnesses to produce some of the documents to Plaintiff. I. BACKGROUND The factual background of this case has been described in numerous other opinions, so the description here will be brief. Suffice it say, Plaintiff believes that Case No. 08-10367

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Defendant defrauded it of hundreds of thousands of dollars by submitting claims for attendant care that she did not give. Plaintiff has also argued that this fraud was perpetuated, knowingly or unknowingly, with the aid of the Firm's legal counsel. The necessity of this order arises from Plaintiff's discovery requests. Plaintiff served four subpoenas on the third-party witnesses: two on the Firm and two on Liss. The third-party witnesses withheld hundreds of responsive documents and produced three privilege logs. Plaintiff then filed two motions to compel the production of documents, one concerning both subpoenas issued against the Firm, and the other concerning a subpoena issued against attorney Liss. Liss and the Firm filed a motion for a protective order concerning all four subpoenas. On June 4, 2010, based largely on the crime-fraud exception, the court ordered the Firm to produce all of the documents that it claimed were privileged. But the court also found that Liss may have had a proper privilege claim, and so it ordered Liss to produce to the court for in camera review all of the documents listed in his "Privilege Log Relative to Communication with Dean Greenblatt" to allow the court to evaluate his assertion of privilege. II. STANDARD The third-party witnesses have asserted mainly two bases for withholding the documents: the work product doctrine and the common interest exception to waiver of the attorney client privilege. As the court stated in its June 4, 2010 Order: The work-product doctrine protects an attorney's trial preparation materials from discovery to preserve the integrity of the adversarial process. See Hickman v. Taylor, 329 U.S. 495, 510-14 (1947). The work-product doctrine is a procedural rule of federal law; thus, Federal

2

Rule of Civil Procedure 26 governs this diversity case. In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006). Rule 26(b)(3) protects (1) "documents and tangible things"; (2) "prepared in anticipation of litigation or for trial"; (3) "by or for another party or its representative." Id. (6/4/2010 Order 11 (quoting In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009).) Also, in the June 4, 2010 Order, the court reasoned that the Michigan Supreme Court, which has yet to consider the existence of the common interest exception, would adopt a formulation consistent with the Restatement's. The common interest exception may apply where the parties are represented by separate attorneys but share a common legal interest. If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged under §§ 68-72 that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication. Restatement § 76. . . . ... [Under the common interest exception,] privileged communications between an attorney and client are not waived when they are revealed to an allied lawyer, provided that the person asserting the privilege shows that the attorney-client privilege applies to the underlying attorney-client communication. After the underlying communication is determined to be privileged, the common interest exception's other requirements must be met, e.g., the communication must be related to a common litigation interest. (6/4/2010 Order 12-14.)

3

III. DISCUSSION For most of the documents here the resolution of whether the privilege claim was proper was a simple application of the rules after consideration of the particular document's nature. The results of the court's analysis are listed in the table below. One problem with the third-party witnesses' claims of privilege was pervasive; nearly every time the third-party witnesses claimed the common interest exception, the court found that it did not apply. It appears that the third-party witnesses applied an overly broad and incorrect interpretation of the common interest exception: that any communication between Firm attorneys and Greenblatt were privileged because they were in a common interest arrangement. But, as the court stated in the June 4, 2010 Order, this is not the case. The common interest exception is an exception to when the attorney client privilege is waived. It is not a separate privilege. Accordingly, for it to apply there must be an underlying privileged communication between the Firm and a Firm attorney or between Defendant and Greenblatt. The common interest exception then acts to preserve the privilege when the communication is passed between Greenblatt and a Firm attorney. The third document in the privilege log1 is a typical example. The document is an The third-party witnesses numbered neither the privilege log entries nor the documents that they submitted. The numbers in the table below were added by the court. Entries in the privilege log were matched with the submitted documents by considering the document's date, recipient, and sender. In numerous cases, where there were several documents in a row with the same date, recipient, and sender, this procedure proved somewhat difficult. The process was further complicated by the fact that one multi-page, stapled, email chain could correspond to multiple privilege log entries. Nonetheless the court was able to number, with some effort, the documents and uniquely match them to the privilege log entries by considering the pattern of dates; e.g., three June 30, 2008 documents were followed by two June 29, 2008 documents, 4
1

email from Greenblatt to Liss, informing him of a hearing on Plaintiff's motion to lift the bankruptcy stay and forwarding to Liss Defendant's bankruptcy attorney's response. Greenblatt is not revealing a communication from Defendant to a Firm attorney, but rather he is simply sending a filed brief and notice of a hearing. The common interest exception is therefore inapplicable. And, given the absence of another claim of privilege and considering that the "burden of establishing the existence of [a] privilege rests with the person asserting it," United States v. Dakota, 197 F.3d 821, 825 (6th Cir.1999), the document must be produced. Two entries in the privilege log did not have complete, corresponding documents: Nos. 103 & 128. The court will order the third party witnesses to produce complete copies of these documents for in camera inspection. The table below lists that court's determination of whether the claimed privileges apply and gives a brief description of the court's reasoning. No. Document Description Claimed Privilege 09-30-09 Email from 1 David O'Brien to Dean Greenblatt with attachment 2 08-12-09 Email from Dean Greenblatt to Arthur Liss and Nicholas Andrews 3 08-06-09 Email from Dean Greenblatt to Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Produce? No. Reasoning Work product: draft motion brief for Defendant. Work product: email containing legal analysis of bankruptcy proceedings prepared for Defendant. No underlying confidential

No.

Yes.

which was followed by one June 18, 2008 document. 5

Arthur Liss with attachment 4 06-19-09 Email from Dean Greenblatt to Nicholas Andrews with attachment 5 03-25-09 Email from Dean Greenblatt to Tom Cranmer and David O'Brien copying Arthur Liss with attachment 6 03-15-09 Email from Tom Cranmer to Dean Greenblatt 7 03-15-09 Email from Dean Greenblatt to Tom Cranmer and David O'Brien with attachment 8 03-13-09 Email from Tom Cranmer to Dean Greenblatt 9 03-13-09 Email from Dean Greenblatt to Tom Cranmer and David O'Brien 10 02-16-09 Email from Dean Greenblatt to Arthur Liss with attachment

Interest Joint Defense/Common Interest Yes.

communication between Greenblatt and Defendant. No underlying confidential communication between Greenblatt and Defendant. No underlying confidential communication between Greenblatt and Defendant. Work product: email containing legal analysis of bankruptcy proceedings prepared for Defendant. No underlying confidential communication between Greenblatt and Defendant. Work product: email containing analysis of State Farm's anticipated legal strategy in this case. No underlying confidential communication between Greenblatt and Defendant. No underlying confidential communication between Greenblatt and Defendant. Statement of attorneys fees owed to Greenblatt by Defendant is not subject to the attorney

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest

No.

Yes.

No.

Yes.

Yes.

6

client privilege because the communication is the execution of the attorney's ministerial duties and not made for the purpose of obtaining legal advice. See U.S. Fire Ins. Co. v. Citizens Ins. Co. of Am., 402 N.W.2d 11, 13 (Mich. Ct. App. 1986). 11 02-16-09 Email from Dean Greenblatt to Nicholas Andrews Joint Defense/Common Interest Yes. No underlying confidential communication between Greenblatt and Defendant. This is an email to a third party that was forwarded to an attorney in the common-interest arrangement. As such, there is no confidential communication. The fax cover sheet contains communications between the Firm and the attorneys representing the Firm. The cover sheet is privileged. But the attached letter contains no underlying confidential communication, because it is a letter from Plaintiff to Greenblatt. It should 7

12 02-13-09 Fax from Nancy Glorio to Dean Greenblatt

Joint Defense/Common Interest

Yes/No.

13 02-11-09 Email from Dean Greenblatt to Arthur Liss and Nicholas Andrews with attachment 14 02-09-09 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest

Yes.

15 02-03-09 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachments 16 02-02-09 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment 17 02-02-09 Email from Dean Greenblatt to Nicholas Andrews with attachment

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest Work Product Doctrine

Yes/No.

be produced. No underlying confidential communication: blank email with attached transcript of Defendant's deposition. No underlying confidential communication: email forwarding correspondence between Plaintiff and Greenblatt to the Firm. No underlying confidential communication: email from Greenblatt to the Firm forwarding Plaintiff's discovery requests. No underlying confidential communication: blank email with transcript of Karen Kahn's deposition. The email cover letter is work product because it contains Greenblatt's impressions concerning Plaintiff's deposition activities. But the attached discovery requests made by Plaintiff contain no underlying confidential communication nor are they work product, because Plaintiff generated the

8

18 01-30-09 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

19 01-30-09 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

20 01-29-09 Email from Dean Greenblatt to Nicholas Andrews with attachment

Joint Defense/Common Interest

Yes.

21 01-23-09 Email from Dean Greenblatt to Nicholas Andrews with attachment

Joint Defense/Common Interest

Yes.

22 01-22-09 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

23 01-20-09 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

24 01-19-09 Email from

Joint 9

Yes.

materials. No underlying confidential communication: email forwarding Plaintiff's request for dates to depose Defendant. No underlying confidential communication: blank email forwarding correspondence between Plaintiff and Greenblatt. No underlying confidential communication: blank email forwarding correspondence between Plaintiff and Greenblatt. No underlying confidential communication: email from Greenblatt to the Firm forwarding Plaintiff's correspondence with the court. No underlying confidential communication: email forwarding correspondence between Plaintiff and Greenblatt. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding discovery mechanics. No underlying

Nicholas Andrews to Dean Greenblatt

Defense/Common Interest

25 01-15-09 E-mail from Nicholas Andrews to Dean Greenblatt with attachment 26 01-14-09 Email from Dean Greenblatt to Nancy Glorio

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

confidential communication: email correspondence between Firm attorney and Greenblatt regarding discovery mechanics. Work product: Draft witness list produced for Defendant by a Firm attorney. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying

Yes.

27 01-14-09 Email from Nancy Glorio to Dean Greenblatt

Joint Defense/Common Interest

Yes.

28 01-13-09 Email from Dean Greenblatt to Nancy Glorio

Joint Defense/Common Interest

Yes.

29 01-13-09 Email from Nancy Glorio to Dean Greenblatt

Joint Defense/Common Interest

Yes.

30 01-13-09 Email from

Joint 10

Yes.

Nancy Glorio to Dean Greenblatt

Defense/Common Interest

31 01-13-09 Email from Dean Greenblatt to Nancy Glorio

Joint Defense/Common Interest

Yes.

32 01-13-09 Email from Nancy Glorio to Dean Greenblatt

Joint Defense/Common Interest

Yes.

33 01-12-09 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

34 01-12-09 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment 35 01-08-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 36 01-06-09 Email from Dean Greenblatt to

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common 11

No.

confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email correspondence between Firm attorney and Greenblatt regarding scheduling a meeting. No underlying confidential communication: email forwarding Plaintiff's objections to Defendant's discovery requests. Work product: draft discovery requests drafted for Plaintiff. Work product: draft discovery requests

No.

Nicholas Andrews 37 01-05-09 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment 38 01-05-09 Email from Nicholas Andrews to Dean Greenblatt

Interest Work Product Doctrine Joint Defense/Common Interest

produced for Plaintiff. Yes. No underlying confidential communication: email forwarding Plaintiff's questions concerning Defendant's witness list. No underlying confidential communication: email requesting copy of Defendant's draft discovery requests. Work product: draft of Defendant's "final" witness list. No underlying confidential communication: email forwarding Plaintiff's filed witness list. Work product: email containing litigation strategy and draft discovery requests. No underlying confidential communication: email forwarding one of the court's orders. Work product: email regarding appearance of new counsel for Plaintiff. Work product: email regarding discovery negotiations between Defendant and

Joint Defense/Common Interest

Yes.

39 12-29-09 Email Nicholas Andrews to Dean Greenblatt with attachment 40 12-29-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 41 12-29-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 42 12-23-08 Email from Dean Greenblatt to Arthur Liss and Nicholas Andrews with attachment 43 12-20-08 E-mail from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment 44 12-17-08 E-mail from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product 12

No.

Yes.

No.

Yes.

No.

No.

45 12-16-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 46 12-16-08 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss 47 12-16-08 E-mail from Nicholas Andrews to Dean Greenblatt

Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

Plaintiff. Work product: email containing draft motion. No underlying confidential communication: email forwarding correspondence with Plaintiff. No underlying confidential communication: email updating Greenblatt on Firm attorney's progress on a draft motion. Work product: draft of a deposition subpoena. Email forwarding correspondence with Plaintiff. (This email chain contains document No. 50, which should not be produced.) Work product: email containing legal analysis of a discovery issue. Work product: email containing analysis of discovery strategy. Email contains a notice of video deposition for another case. Accordingly,

Yes.

Joint Defense/Common Interest

Yes.

48 12-12-08 Email from Nancy Glorio to Dean Greenblatt with attachment 49 12-12-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product 13

No.

Yes.

50 12-12-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 51 12-11-08 Email from Dean Greenblatt to Nicholas Andrews with attachments 52 12-11-08 Email from Nancy Glorio to Dean Greenblatt with attachment

No.

No.

Yes.

Doctrine

53 12-11-08 Email from Nicholas Andrews to Dean Greenblatt 54 12-11-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 55 12-08-08 Email from Nicholas Andrews to Dean Greenblatt 56 12-08-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 57 12-08-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 58 12-08-08 Email from Nancy Glorio to Dean Greenblatt with attachment 59 12-08-08 Email from Dean Greenblatt to Nicholas Andrews with attachments 60 12-08-08 Email from Dean Greenblatt to Nicholas Andrews with

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest 14

No.

there is no underlying confidential communication and it is not work product created for Defendant. Work product: email containing analysis of discovery strategy. Work product: email containing draft discovery request. Work product: email containing legal analysis of a discovery issue. Work product: email forwarding a record review of a related court proceeding created by an unidentified person. Work product: legal analysis of Plaintiff's privilege claims. Work product: draft motion for Defendant.

No.

No.

No.

No.

No.

No.

Work product: drafts of correspondence with Plaintiff and draft deposition notices. No underlying confidential communication: email

Yes.

attachment

61 12-08-08 Email from Nicholas Andrews to Dean Greenblatt

Joint Defense/Common Interest

Yes.

62 12-08-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 63 12-04-08 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment 64 11-18-08 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachments 65 11-17-08 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachment 66 11-14-08 Email from Dean Greenblatt to Arthur Liss with attachment 67 10-20-08 Email from Dean Greenblatt to Arthur Liss and Nicholas Andrews with attachment

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

forwarding Plaintiff's answers to Defendant's interrogatories. No underlying confidential communication: email requesting a copy of Plaintiff's discovery response. Work product: draft of Defendant's response to Plaintiff's discovery requests. No underlying confidential communication, and the email is not work product; it is a request for Andrews to review a telephone message. No underlying confidential communication: email forwarding discovery requests that Greenblatt sent to Plaintiff. No underlying confidential communication: email forwarding Plaintiff's filed Rule 26 initial disclosures. No underlying confidential communication: email forwarding the court's scheduling order. No underlying confidential communication: email forwarding Plaintiff's filed response to

Yes.

Yes.

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest Joint Defense/Common Interest

Yes.

Yes.

15

68 10-20-08 Email from Dean Greenbatt to Nicholas Andrews and Arthur Liss with attachments

Joint Defense/Common Interest

Yes.

69 10-17-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

70 10-17-08 Email from Nicholas Andrews to Dean Greenblatt 71 10-14-08 Email from Dean Greenbatt to Nicholas Andrews and Arthur Liss with attachment 72 10-13-08 Email from Nicholas Andrews to Dean Greenblatt with attachment

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine 16

No.

Defendant's motion to compel. No underlying confidential communication between Greenblatt and Defendant. Statement of attorneys fees owed to Greenblatt by Defendant is not subject to the attorney client privilege because the communication is the execution of the attorney's ministerial duties and not made for the purpose of obtaining legal advice. See U.S. Fire Ins. Co., 402 N.W.2d at 13. No underlying confidential communication: email requesting whether Firm attorney has any objections to Plaintiff's interrogatories. Work product: draft objections to interrogatories. No underlying confidential communication: email forwarding Plaintiff's interrogatories. Work product: Draft of Defendant's response to Plaintiff's motion to compel.

Yes.

No.

73 10-10-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

74 10-10-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 75 10-01-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 76 10-01-08 Email from Nicholas Andrews to Dean Greenblatt 77 10-01-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 78 09-30-08 Email from Dean Greenblatt to Nicholas Andrews with attachments 79 09-30-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 80 09-29-08 Email from Nicholas Andrews to Dean Greenblatt with attachments 81 09-24-08 Email from Nicholas Andrews to

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

No underlying confidential communication: email requesting draft brief in a particular computer format. Work product: Draft of Defendant's response to Plaintiff's motion to compel. No underlying confidential communication: email forwarding Plaintiff's filed witness list. Work product: email containing legal analysis of Plaintiff's and Defendant's witness lists. Work product: email containing draft of Defendant's witness list. No underlying confidential communication: email forwarding Plaintiff's filed motion to compel. Work product: draft witness list for Defendant. No underlying confidential communication: email forwarding Plaintiff's filed witness list in a state court case. Work product: draft witness list for

Yes.

No.

No.

Yes.

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

Yes.

Joint Defense/Common 17

No.

Dean Greenblatt with attachment 82 09-22-08 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachments 83 09-22-08 Email from Dean Greenblatt to Nicholas Andrews and Arthur Liss with attachments 84 09-19-08 Email from Nicholas Andrews to Dean Greenblatt 85 09-19-08 Email from Nicholas Andrews to Dean Greenblatt 86 09-19-08 Email from Nicholas Andrews to Dean Greenblatt with attachments 87 09-17-08 Email from Dean Greenblatt to Nicholas Andrews with attachments 88 09-11-08 Email from Dean Greenblatt to Nicholas Andrews with attachments

Interest Work Product Doctrine Joint Defense/Common Interest Attorney-Client Privilege Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

Defendant. No. Email containing privileged communications between Greenblatt and Defendant. Work product: draft witness list for Defendant. Work product: email containing edits to interrogatories produced for Defendant. Work product: email containing edits to interrogatories produced for Defendant. Work product: email containing draft and edits of interrogatories produced for Defendant. Work product: email containing legal analysis regarding Defendant's assertion of privilege during her deposition. No underlying confidential communication: email forwarding correspondence with Plaintiff and forwarding one of the court's orders. No underlying confidential communication: email

No.

No.

No.

No.

No.

Yes.

89 09-02-08 Email from Dean Greenblatt to Nicholas Andrews and

Joint Defense/Common Interest 18

Yes.

Arthur Liss with attachment 90 08-15-08 Email from Dean Greenblatt to Arthur Liss and Nicholas Andrews 91 08-04-08 Email from Dean Greenblatt to Arthur Liss and Nicholas Andrews with attachment 92 08-04-08 Email from Nicholas Andrews to Dean Greenblatt 93 08-04-08 Email from Nancy Glorio to Dean Greenblatt with attachment 94 07-28-08 Email from Dean Greenblatt to Nicholas Andrews and Jackie Benyo1 with attachment 95 07-03-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

Yes.

No.

forwarding one of the court's orders. No underlying confidential communication: email informing Firm attorney that a motion was filed. No underlying confidential communication: email forwarding Defendant's filed reply. No underlying confidential communication: email thanking Greenblatt for sending filed brief. Work product: draft of response brief.

Yes.

Joint Defense/Common Interest

Yes.

No underlying confidential communication: email forwarding Defendant's filed response. No underlying confidential communication: email from Greenblatt stating that he followed the Firm attorney's instruction on filing a Rule 11 motion. (Included in this email chain is the email listed in entry No. 98. That email need not be produced, as stated below.)

19

96 07-03-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

97 07-03-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 98 07-02-08 Email from Nicholas Andrews to Dean Greenblatt 99 07-02-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 100 07-02-08 Email from Nicholas Andrews to Dean Greenblatt 101 07-01-08 Email from Dean Greenblatt to Nicholas Andrews 07-01-08 Email from 102 Nicholas Andrews to Dean Greenblatt with attachments 103 07-01-08 Email from Nicholas Andrews to Dean Greenblatt with attachments 104 06-30-08 Email from

Joint Defense/Common Interest

Yes.

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint 20

No.

No underlying confidential communication: email from Greenblatt acknowledging the Firm attorney's instructions on filing a Rule 11 motion. No underlying confidential communication: email from Greenblatt forwarding ECF notice of motion filing. Work product: email containing Firm attorney's motion strategy. No underlying confidential communication: email from Greenblatt to opposing counsel. Work product: email containing edits to motions. Work product: email containing strategy for filing motions. Work product: draft of a motion produced by Firm attorney for Defendant. MISSING

Yes.

No.

No.

No.

Yes.

Blank emails

Dean Greenblatt to Nicholas Andrews and Nancy Glorio with attachment

Defense/Common Interest

105 06-30-08 Email from Nancy Glorio to Dean Greenblatt 106 06-30-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 107 06-27-08 Email from Nancy Glorio to Dean Greenblatt with attachment 108 06-25-08 Email from Nancy Glorio to Dean Greenbatt with attachment 109 06-25-08 Email from Nancy Glorio to Dean Greenblatt with attachments 110 06-25-08 Email from Nancy Glorio to Dean Greenblatt with attachment 111 06-25-08 Email from Dean Greenblatt to Nancy Glorio

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest 21

No.

forwarding Defendant's deposition transcript. There is no underlying confidential communication, and it cannot be work product (or the privilege is, at least, waived) because Plaintiff has access to the transcript. Work product: email containing Firm attorney's strategy for motion practice. Work product: email containing strategy for motion practice. Work product: draft motion produced by Firm attorney for Defendant. Work product: draft motion produced by Firm attorney for Defendant. Work product: draft motion produced by Firm attorney for Defendant. Work product: draft of exhibits for motion produced by Firm attorney for Defendant. Work product: email containing Greenblatt's opinion

No.

No.

No.

No.

No.

No.

112 06-19-08 Email from Dean Greenblatt to Nicholas Andrews 113 06-09-08 Email from Nancy Glorio to Dean Greenblatt with attachment 114 06-09-08 Email from Nancy Glorio to Dean Greenblatt with attachments

Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Joint Defense/Common Interest Work Product Doctrine Attorney-Client Privilege

on a motion. No. Work product: email containing Greenblatt's strategy for this case. No underlying confidential communication: email forwarding doctor's note. No underlying confidential communication: email forwarding state court order approving settlement. The email is not work product because it is a publically filed court order. Work product: email containing Greenblatt's thoughts and concerns regarding a deposition. No underlying confidential communication: email directing Greenblatt to make arrangements to attend deposition of Defendant. No underlying confidential communication: email informing Firm attorney that Defendant's deposition would go forward. Work product: Greenblatt's analysis

Yes.

Yes.

115 06-04-08 Email from Dean Greenblatt to Nicholas Andrews with attachment 116 05-27-08 Email from Nicholas Andrews to Dean Greenblatt

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

Yes.

117 05-25-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest

Yes.

118 05-22-08 Email from Dean Greenblatt to

Joint Defense/Common 22

No.

Nicholas Andrews 119 05-14-08 Correspondence from Nicholas Andrews to Dean Greenblatt with enclosure

Interest Work Product Doctrine Joint Defense/Common Interest

of deposition scheduling. Yes. No underlying confidential communication: letter containing Defendant's affidavit, which was sworn before a notary and is therefore not a confidential communication with an attorney. Work product: email containing Firm attorney's thoughts on discovery strategy. Work product: email containing Greenblatt's thoughts on discovery strategy. No underlying confidential communication: email forwarding Defendant's filed answer. Work product: draft answer produced by Firm attorney for Defendant. No underlying confidential communication: email stating that an answer will be due soon and asking how to proceed. Confidential communication between Defendant

120 04-29-08 Email from Nicholas Andrews to Dean Greenblatt with attachments 121 04-28-09 Email from Dean Greenblatt to Nicholas Andrews 122 04-28-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

No.

Yes.

123 04-28-08 Email from Nicholas Andrews to Dean Greenblatt with attachment 124 04-24-08 Email from Dean Greenblatt to Nicholas Andrews

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

No.

Yes.

125 04-24-08 Correspondence from Nicholas Andrews to

Joint Defense/Common Interest 23

No.

Deanna Hawkins copying Dean Greenblatt with enclosures 126 04-18-08 Email from Dan Greenblatt to Nicholas Andrews and Nancy Glorio 127 04-07-08 Email from Dean Greenblatt to Nicholas Andrews with attachments 128 04-07-08 Email from Dean Greenblatt to Nancy Glorio with attachments 129 04-01-08 Email from Dean Greenblatt to Nicholas Andrews and Nancy Glorio with attachment 130 04-01-08 Correspondence from Dean Greenblatt to Arthur Liss with enclosures

Work Product Doctrine Attorney-Client Privilege Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest

and Firm.

No.

Yes.

Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Joint Defense/Common Interest Work Product Doctrine Attorney-Client Privilege

Work product: email containing Greenblatt's analysis of scheduling conference. No underlying confidential communication: blank email forwarding Plaintiff's motion to compel deposition. MISSING ATTACHMENTS.

No.

Work product: draft motion produced by Greenblatt for Defendant. Privileged communication between Defendant and Greenblatt; privilege was not waived when Greenblatt shared the communication with the Firm because of the common interest exception.

No.

IV. CONCLUSION In accordance with the reasons and conclusions stated above, IT IS ORDERED that the third-party witnesses are DIRECTED to produce the documents so identified in the above table to Plaintiff on or before July 23, 2010. 24

IT IS FURTHER ORDERED that the third-party witnesses are DIRECTED to produce to the court for in camera inspection document Nos. 103 & 128 on or before July 23, 2010. s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: July 14, 2010 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, July 14, 2010, by electronic and/or ordinary mail. s/Lisa G. Wagner Case Manager and Deputy Clerk [phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\08-10367.HAWKINS.Order.Directing.Production.bsc.wpd

25