Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 1915

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Plaintiff SDRs Motion for In Camera Review and to Compel Production of Non-Privileged Documents [ECF No. 1686 ] is GRANTED. Signed by District Judge E. Richard Webber on 11/14/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

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Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
This matter comes before the court upon “Plaintiff SDR’s Motion for In Camera Review
and to Compel Production of Non-Privileged Documents” [ECF No. 1686].
In their Motion, Plaintiff SDR requests the court conduct an in camera review of
documents listed on National City’s privilege log and order any non-privileged documents to be
produced [ECF No. 1686]. Plaintiff SDR states many of the communications listed as privileged
by National City seek business advice regarding a review of pre-need trusts rather than legal
advice and as such are not privileged. Plaintiffs assert other documents appear not to be
privileged because they were sent to third parties, waiving any privilege.
In their Response in Opposition, National City Bank states Plaintiff SDR’s Motion
should be denied because Plaintiff SDR did not make a good faith attempt to confer prior to
filing their motion [ECF No. 1837]. National City claims Plaintiff SDR first raised the issue
only hours before filing their motion, on the last day available to file motions to compel.
Additionally, National City asserts all of the communications listed as privileged were seeking
legal advice in regards to how to assess the risk of money laundering, how to verify the insurance

policies actually existed, and the legal duties and risks associated with acting as trustee for the
pre-need trusts. National City states any documents relating to business advice or its due
diligence review of the pre-need trusts have been disclosed and witnesses have been allowed to
testify as to the underlying facts discovered during its review. Lastly, National City argues
Plaintiff SDR’s request for in camera review is not appropriate as National City has made a
facially valid claim of privilege.
In their Reply, Plaintiff SDR asserts an in camera review is appropriate [ECF No. 1888].
Plaintiff SDR states prior review of National City’s documents, where they asserted attorney
client privilege, found non-privileged documents, thus a review in this instance is also
appropriate. Plaintiffs also state they conferred in good faith and continued to confer with
National City on October 1, after filing their Motion.
The Court recognizes the difficulty in differentiating between legal advice and business
advice. The Court believes the most expeditious ay of addressing the controversy is to review
the disputed documents in camera. The Court orders National City to produce the documents
listed on its privilege log to the Court within 5 days for review.
IT IS HEREBY ORDERED that Plaintiff SDR’s Motion for In Camera Review and to
Compel Production of Non-Privileged Documents [ECF No. 1686] is GRANTED.

So Ordered this 14th day of November, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE