DatabaseUSA.com, LLC v. Van Gilder et al

Filing 138

ORDER - The Court believes its orders are clear and consistent. However, to prevent any future misunderstanding, the Court clarifies that it has held that the waiver of privilege extends only to the specific communications between Koley Jessen and Infogroup described in Mr. Scaglione's Declaration. The waiver does not extend to emails or other documents appearing on privilege logs that relate to the communications described in the Declaration. Also, the provision regarding waiver cont ained in the November 25th order directs and advises the parties that Mr. Scaglione will not be deemed to have waived privilege over all communications concerning the flash-drive through his future deposition testimony. Ordered by Magistrate Judge Susan M. Bazis. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

DATABASEUSA.COM, LLC,

Plaintiff,

8:17CV386

vs.
ORDER
BLAKE VAN GILDER, INFOGROUP, INC., a
Corporation; and KOLEY JESSEN P.C., LLO,

Defendants.

DatabaseUSA.com, LLC (“Database”) sent the Court correspondence asking that the Court
clarify certain aspects of its November 22 and November 25, 2019 orders. Database essentially
seeks clarification regarding the scope of the Court’s finding that there has been a limited waiver
of privilege. The Court construes Database’s correspondence as a motion for clarification. 1 The
motion is granted as set forth below.
In its November 22, 2019 order, the Court held that waiver is “limited to the
communications disclosed—meaning, the conversations between Koley Jessen and Infogroup
identified in the Declaration.” (Filing No. 134.) The Court further stated that “fairness dictates
that privilege not be found waived as to all communications and documents related to the flash
drive” and that “Database will not be prejudiced if waiver is narrowly construed and privilege is
maintained as to matters outside the Declaration.” (Id.)

The Court will file Database’s correspondence, as well as Defendants’ responses to that correspondence, as restricted
documents in this case.
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The November 25, 2019 order defined the parameters of Mr. Scaglione’s anticipated
deposition by delineating topics of permissible inquiry. (Filing No. 135.) That order contains a
provision which states that Mr. Scaglione’s testimony “shall not be deemed to waive or otherwise
limit the attorney-client privilege, work product doctrine or any other privilege or doctrine with
respect to those communications or any other communications between Infogroup, Infogroup’s inhouse and outside counsel, and other Koley Jessen employees.” (Id.)
The Court believes its orders are clear and consistent. However, to prevent any future
misunderstanding, the Court clarifies that it has held that the waiver of privilege extends only to
the specific communications between Koley Jessen and Infogroup described in Mr. Scaglione’s
Declaration. The waiver does not extend to emails or other documents appearing on privilege logs
that relate to the communications described in the Declaration. Also, the provision regarding
waiver contained in the November 25th order directs and advises the parties that Mr. Scaglione will
not be deemed to have waived privilege over all communications concerning the flash-drive
through his future deposition testimony.
IT IS SO ORDERED.
Dated this 3rd day of January, 2020.

BY THE COURT:

s/ Susan M. Bazis
United States Magistrate Judge

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