Tracy et al v. Telemetrix et al

Filing 237

MEMORANDUM AND ORDER that based on the parties' statements on remaining discovery disputes, (Filing No. 230, Filing No. 231), Plaintiffs' motion to determine the sufficiency of the defendants' answers to requests for admission, (Fi ling No. 204), is denied as moot. As to the plaintiffs' motion, (Filing No. 216), the GE defendants will be required to: a. On or before July 23, 2015, serve a written statement, signed under oath, which explains the efforts they have made to locate within their own files, or obtain from the bank, copies of the cancelled checks and deposit slips for the Becker Capital Management account at Wells Fargo Bank for 2006-2009, along with a statement of whether responsive documents could be located and were produced as a result of those efforts. b. Supplement their production of non-privileged emails responsive to Plaintiffs' discovery by July 20, 2015. As to the plaintiffs' motion, (Filing No. 215), the Telemetrix defend ants will be required to prepare a privilege log in compliance with this order, and shall serve that log on plaintiffs' counsel no later than July 31, 2015. Upon review of the filings, with the exception of Filing No. 217-39 (the Green Eagle 2011 Federal Income Tax Return), the plaintiffs' motion to restrict, (Filing No. 221), is denied. Filing No. 217-39 shall remain filed as a restricted access document. Plaintiffs' motion for sanctions is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. TRACY, an individual and
Derivatively as a shareholder of Telemetrix
and Convey; and TRACY
BROADCASTING CORPORATION, a
Nebraska corporation;

8:12CV359
MEMORANDUM AND ORDER

Plaintiffs,
vs.
TELEMETRIX, Inc.; et. al;
Defendants.
The plaintiffs filed discovery motions to determine the sufficiency of the
defendants’ answers for requests for admission, (Filing No. 204), to compel production of
documents from Defendants William Becker, Gary Brown and Telemetrix, Inc., (Filing
No. 215), and compel production of documents from Defendants Larry Becker, Becker
Capital Management, L.L.C., Green Eagle Communications, Inc. and Green Eagle
Networks, Inc., (Filing No. 216). The court ordered the parties to further confer, provide
a succinct statement of the discovery issues that remain pending, and participate in a
recorded hearing on any unresolved issues. (Filing No. 226). That hearing was held on
July 14, 2015.

The motion to compel (Filing No. 216), was fully resolved (as discussed on the
record and set forth in the court’s order below) as to Larry Becker, Becker Capital
Management, LLC, Green Eagle Communications, Inc., Green Eagle Networks, Inc. (the
GE defendants).

As to the Telemetrix defendants (William Becker, Gary Brown and Telemetrix,
Inc.), the current and threshold dispute is whether the Telemetrix defendants have
prepared and served a sufficiently informative privilege log. The plaintiffs claim the

privilege logs fails to adequately identify the name and corporate position of the person
who sent or received the documents identified in the privilege log, and fails to identify
the proper custodian of the documents. The Telemetrix defendants argue they need not
name the specific person who sent and received the documents; that identifying the
author or recipient by the entity’s name (e.g., Telemetrix, Inc,, the law firm name, etc.) is
sufficient.

The Telemetrix defendants have further identified their attorney as the

document custodian. But Plaintiffs claim that for the purpose of a privilege log, the
custodian is the person from whom the attorney received the documents—the person who
could lay foundation for admissibility at trial.
“The attorney-client privilege attaches to corporations as well as to individuals,”
and “serves the function of promoting full and frank communications between attorneys
and their clients.” Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348
(1985). The attorney-client privilege protects communications made in confidence by a
client and a client's employees to an attorney, acting as an attorney, for the purpose of
obtaining legal advice.

A corporation communicates through its employees, but the privilege is held by
the corporation, not the employee. The privilege is not waived when a management
employee is terminated or resigns and then moves to another job. “[W]hen control of a
corporation passes to new management, the authority to assert and waive the
corporation's attorney-client privilege passes as well.” Commodity Futures Trading, 471
U.S. at 349. New managers installed to replace departing management may waive the
corporation’s attorney-client privilege with respect to communications made by former
officers and directors. Displaced managers may neither assert the privilege over the
wishes of current managers, (Commodity Futures Trading, 471 U.S. at 349), nor waive it.
In re Richard Roe, Inc., 168 F.3d 69, 72 (2d Cir. 1999) (“The fact that the author of
Document 195 no longer works for John Doe, Inc. is irrelevant. “It follows a fortiori that

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since a corporate employee cannot waive the corporation's privilege, that same individual
as an ex-employee cannot do so.”); United States v. Chen, 99 F.3d 1495, 1502 (9th Cir.
1996) (holding the privilege remained intact, despite the former employee’s disclosure of
privileged information, where there was no evidence former employee had authority to
waive privilege).

The attorney-client privilege does not attach to every communication between an
attorney and a client. For example, the privilege does not attach to communications that
do not contain confidential information and reveal only the relationship between the
parties, the reason a law firm was hired, and the steps which the law firm intends to take
in discharging its obligation to the client. Diversified Industries, Inc., 572 F.2d at 603 (en
banc). And documents that do not disclose the substance of the attorney-client
communications, but merely indicate that discussions occurred, legal services were
rendered, and documents were provided to the client are not protected by attorney-client
privilege. Burke v. Messerli & Kramer, P.A., 2010 WL 2520615, at *3 (D. Minn. June
15, 2010).
The attorney-client privilege protects a corporate employee’s communication if:
(1) the communication was made for the purpose of securing legal advice;
(2) the employee making the communication did so at the direction of a
corporate superior;
(3) the superior made the request so that the corporation could secure legal
advice;
(4) the subject matter of the communication was within the scope of the
employee's corporate duties; and

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(5) the communication was not disseminated beyond those persons who,
because of the corporate structure, need to know its contents.
In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (quoting Diversified Indus., Inc. v.
Meredith, 572 F.2d 596, 609 (8th Cir. 1977)). As to work product, the test is whether,
“in light of the nature of the document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained because of the prospect of
litigation.” Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987). But “there is
no work product immunity for documents prepared in the regular course of business
rather than for purposes of litigation.” Simon, 816 F.2d at 401.

Since the party asserting a privilege against disclosure bears the burden of
establishing the privilege, (United States v. Hatcher, 323 F.3d 666, 675 (8th Cir. 2003)),
that party must provide a privilege log which explains the basis of the claimed privilege
for each document in question. Rabushka ex rel. U.S. v. Crane Co., 122 F.3d 559, 565
(8th Cir.1997). The privilege log must be detailed enough to fulfill its purpose. That is,
it must provide enough information for the requesting party to determine whether the
non-disclosing party has properly asserted the privilege.
Telemetrix’ privilege log fails to fully meet this standard.

For example, the

privilege log lists:

Various billing records and invoices from the Van Steenberg Law Firm to
Telemetrix, Inc., dated 7/1/1998 to 11/1/2000.

(Filing No. 224-6, at CM/ECF p. 5). This privilege log entry does not state whether the
billing records list anything which could reasonably be interpreted as “legal advice” or
from which the parties’ legal strategy in preparation or litigation could be ascertained. If
the entries simply state, e.g., “reviewing correspondence from client,” “drafting cover
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letter to client with forwarded draft discovery responses,” or “conferring with client
regarding options going forward,” absent some unusual circumstances not revealed in the
record before this court, such entries cannot be interpreted as privileged. No legal advice
or legal strategy is disclosed in the billings.

In contrast, if the billings state, e.g.,

“conferring with client re: option of filing a change of venue motion to limit exposure to
punitive damages,” the entry may include confidential information.

As another example, the Telemetrix privilege log lists:
Correspondence to Telemetrix from Shughart Thomson & Kilroy dated
March 20, 2007 (with attachments) related to Telemetrix v. Nyssen, LLP.

(Filing No. 224-6, at CM/ECF p. 5).

This entry fails to state who wrote the

correspondence, who it was sent to, and who was allowed to receive a copy. And like the
billing records described above, there is nothing indicating that any legal advice or legal
strategy was discussed in the correspondence.

For example, a cover letter stating,

“Enclosed please find the discovery responses received from Nyssen, LLP. Please call at
your earliest convenience to discuss this information. . . . ”, does not contain confidential
information entitled to attorney client or work product protection.

As to all of the privilege log entries, the Telemetrix defendants state their attorneys
are the custodians of the documents. While it is true that the attorneys currently possess
the documents, the privilege log is meant to assist is determining whether the documents,
when in the clients’ hands, were maintained and kept in a manner indicating the client did
not consider the documents confidential, or if they ever did, they waived that
confidentiality. As such, the privilege log prepared by the Telemetrix defendants must
state how, where and by whom the responsive documents were maintained and kept by
the client before they were forwarded to counsel for this litigation.

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Simply stated, as to the privilege log of a corporation or other entity client, the log
must provide enough information so apprise the requesting party of whether the
documents listed are protected by the attorney-client privilege under the Eighth Circuit’s
five-part standard, (Diversified Indus., Inc., 572 F.2d at 609), or were prepared or
obtained because of the prospect of litigation,” (Simon, 816 F.2d at 401). The court
understands that the line between insufficiently describing a document and providing
such a detailed description that the confidentiality is lost can be somewhat gray. For this
reason, and others, the court expects attorneys to discuss privilege log entries in good
faith before filing motions to compel and/or requesting an in camera review. The court
further notes that the level of specificity required in corporate client privilege logs is not
discussed in Eighth Circuit law (at least by this judge’s research), and it has not been
previously outlined by this magistrate judge. Under these circumstances, I find an award
of expenses to the plaintiffs and against the Telemetrix defendants for the lack of
specificity in the privilege log would be unjust. Fed. R. Civ. P. 37.

Finally, the court notes that while this complex litigation has been pending since
October 2012, the first two years were spent on extensive Rule 12(b)(6) motion practice
and confirming that all persons who must or should be parties were named and served.
The case was not suitable for progression until September 2014, and since that time, the
plaintiffs have served and the defendants have responded to and answered numerous
written discovery requests, including hundreds of document production requests. While
the progression of this case is certainly not ideal, the court is not convinced the
defendants have engaged in delay tactics to avoid case progression. That said, further
delay in defendants’ discovery responses may not be viewed the same.

Accordingly,
IT IS ORDERED:

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1)

Based on the parties’ statements on remaining discovery disputes, (Filing
No. 230, Filing No. 231), Plaintiffs’ motion to determine the sufficiency of
the defendants’ answers to requests for admission, (Filing No. 204), is
denied as moot.

2)

As to the plaintiffs’ motion, (Filing No. 216), the GE defendants will be
required to:
a.

On or before July 23, 2015, serve a written statement, signed under
oath, which explains the efforts they have made to locate within their
own files, or obtain from the bank, copies of the cancelled checks
and deposit slips for the Becker Capital Management account at
Wells Fargo Bank for 2006-2009, along with a statement of whether
responsive documents could be located and were produced as a
result of those efforts.

b.

Supplement their production of non-privileged emails responsive to
Plaintiffs’ discovery by July 20, 2015.

3)

As to the plaintiffs’ motion, (Filing No. 215), the Telemetrix defendants
will be required to prepare a privilege log in compliance with this order,
and shall serve that log on plaintiffs’ counsel no later than July 31, 2015.

4)

Upon review of the filings, with the exception of Filing No. 217-39 (the
Green Eagle 2011 Federal Income Tax Return), the plaintiffs’ motion to
restrict, (Filing No. 221), is denied. Filing No. 217-39 shall remain filed as
a restricted access document.

5)

Plaintiffs’ motion for sanctions is denied.

July 17, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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