MARGULIS v. THE HERTZ CORPORATION

Filing 120

OPINION regarding Plaintiff's Request to Compel Privileged Documents. Signed by Magistrate Judge Mark Falk on 2/28/17. (LM, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANIEL MARGULIS, individually and on
behalf of all others similarly situated,
Civil Action No. 14-1209 (JMV)
Plaintiff,
v.

THE HERTZ CORPORATION,
OPINION
Defendant.

FALK, U.S.M.J.
This is a putative class action involving The Hertz Corporation’s currency
conversion practices associated with car rentals in foreign countries. Before the Court
is a long-running dispute in which Plaintiff seeks the production of emails Defendant
has withheld as privileged. More than 15 letters have been submitted on this issue.
Although the case has only one Defendant—United States-based The Hertz
Corporation—the privilege issues in this case involve complex questions of corporate
relationships, the use of the attorney-client privilege in the corporate context, and the
subtle questions that can arise when a single in-house legal department purports to
represent multiple, legally-distinct corporate entities, both foreign and domestic.

A summary of the dispute. Defendant has withheld a number of emails
pursuant to the attorney-client privilege and the common-interest doctrine. However,
the emails are almost exclusively between and among, not Defendant’s employees,
but employees of two of Defendant’s foreign subsidiaries—Hertz U.K. Ltd. and Hertz
Italiana S.r.l.—which are separate corporate entities and not parties to the case.
Despite this, Defendant claims that withheld documents are protected by its own
attorney-client privilege due to the structure of Hertz’s in-house legal department and
in-house counsel’s alleged “joint” representation of all three companies. Documents
withheld on this basis are referred to as “Category 1.”
There is also a Category 2. Specifically, some withheld documents were also
shared by employees of the foreign Hertz companies with employees of a non-party,
non-Hertz entity, Monex Financial Services, Ltd. Monex is an Irish company that
provides currency conversion services for Hertz rentals. Defendant contends sharing
documents with Monex is permissible, and does not waive the attorney-client
privilege, because the disclosures occurred pursuant to New Jersey’s version of the
common-interest doctrine.
Plaintiff has challenged Defendant’s claims of privilege, arguing that the
attorney-client privilege does not stretch to cover the situation presented, that
corporate form must be respected, and that the common-interest doctrine does not
apply.

2

The questions presented are: (1) are the documents withheld protected by the
attorney-client privilege at all?; and (2) if the documents are privileged, was sharing
some of them with third-party Monex permissible pursuant to the common-interest
doctrine or has the privilege been waived?
To answer these questions, the Court required an in camera submission of
sample documents for both categories. After much difficulty (explained more below),
forty (40) sample Category 1 documents and eleven (11) Category 2 documents were
submitted for in camera review.
For the reasons set forth below, Plaintiff’s motion to compel is GRANTED IN
PART AND DENIED IN PART.
I.

BACKGROUND
A.

Introduction

Plaintiff, Daniel Margulis, a New Jersey citizen, commenced this putative class
action on February 25, 2014, alleging that Hertz is conducting a broad-ranging
currency conversion scheme, labeled “dynamic currency conversion” (“DCC”), to
defraud its customers who rent vehicles abroad. Plaintiff alleges that Hertz quotes
customer rates for vehicle rentals without including any currency conversion fee,
charges the fee directly to the customer’s credit card, and then falsely claims the
customer specifically chose the currency conversion and subsequent overcharge.
Plaintiff claims that he was the victim of Hertz’s DCC practices in connection with
two car rentals—one in the United Kingdom and one in Italy. The operative
3

Complaint contains claims based on this alleged scheme for (1) breach of contract; (2)
unjust enrichment; (3) fraud; and (4) violations of the New Jersey Consumer Fraud
Act.
On August 1, 2014, Hertz moved for judgment on the pleadings pursuant to
Rule 12(c) and for failure to join indispensable parties pursuant to Rule 12(b)(7),
claiming that Hertz U.K. Ltd. and Hertz Italiana S.r.l. were necessary parties to the
action because they were the entities that contracted with Plaintiff. Defendant also
contends that the subsidiaries, not Hertz, provide DCC service in foreign countries.
On April 30, 2015, the Honorable Madeline C. Arleo, U.S.D.J., denied Hertz’s
Rule 12 motion. No effort was made to add the alleged indispensible parties to the
case.
B.

Plaintiff’s Request to Compel

Discovery is ongoing and contentious. Two prior Opinions detail the parties
overall discovery problems. See Margulis v. The Hertz Corp., 2016 WL 6434183
(D.N.J. Oct. 28, 2016); Margulis v. The Hertz Corp., 2016 WL 4009819 (D.N.J. July
25, 2016). The current privilege dispute has its own chapter; only select sections are
recounted here.
On May 13, 2016, Plaintiff wrote to the Court about “several” outstanding
discovery issues. Included in that letter (among other issues) was: (1) Plaintiff’s
objection to Defendant’s attempt to withhold documents on grounds of what was then
being referred to as the “common-interest privilege”; and (2) a request for in camera
4

review “of approximately 30 documents” that Defendant was claiming are protected
by the attorney-client privilege, an assertion Plaintiff disagreed with.
On May 20, 2016, Defendant responded, claiming that it is essentially the
wrong party in the case (something already rejected by Judge Arleo) and proposing a
summary judgment and briefing schedule on that and choice of law issues. With
respect to the privilege disputes raised in Plaintiff’s letter, it claimed that Hertz
“properly asserts the common interest privilege,” and opposed any in camera review
of any documents.
On July 14, 2016, the Undersigned held a conference to attempt to narrow or
resolve the dispute as required by the Court’s Local Civil Rules. See L. Civ. R. 37.1.
The Court gave informal guidance to attempt to narrow the disputes, but directed that,
if privilege disputes remain, documents should be submitted for in camera review.
On September 28, 2016, Defendant submitted for in camera review a binder
that contained: (a) 40 sample documents withheld on attorney-client privilege
grounds; (b) a number of sample documents allegedly withheld as privileged pursuant
to the common interest “privilege”; and (c) two separate privilege logs.
On October 28, 2016, the Undersigned issued an Opinion and Order which
stated that there is no such thing as the common-interest “privilege,” and that any
documents withheld on that basis alone should be produced immediately. See
Margulis v. The Hertz Corp., 2016 WL 6434183 (D.N.J. Oct. 28, 2016). As stated,
the common-interest doctrine is a waiver-related concept; it is not a free-standing
5

privilege. The doctrine allows a party to share with another party an already
privileged communication, without waiving the privilege, if the two have a “common
interest.” Id. Plaintiff was directed to re-evaluate the documents that it was
withholding and determine how it wished to proceed.
On November 11, 2016, Defendant submitted a new binder of documents and a
new privilege logs. This binder contained 11 sample documents and a new privilege
log, purporting to show both an underlying privilege and the common interest for the
Category 2 documents. Nothing new was submitted with respect to Category 1.
On November 17, 2016, the Undersigned held an in-person conference. In
informal discussions with both parties, the Court expressed concern over the
application of the common interest doctrine in this case, the shifting record, and how
best to proceed in deciding a somewhat unwieldy privilege dispute. It was agreed that
the Undersigned would pose written questions relating to the privilege dispute to
which both parties would have an opportunity to respond.
On December 14, 2016, I posed a series of written questions to Defendant
relating to its privilege claims, including: how can Defendant be claiming attorneyclient privilege with respect to various documents that do not involve an attorney,
client, or anyone even employed by the named defendant in the case? Also, after an
initial review of some of the emails, the Court realized that 102 individuals are
involved in the emails withheld, either as authors or recipients. Out of 102
individuals, only 5 are employed by the actual Defendant in this case. And out of the
6

5, only 2 are attorneys. The problem was the papers submitted (including the logs)
did not explain who these individuals are or how they were involved in privileged
communications. Accordingly, I also directed Defendant to provide a chart, listing the
102 individuals involved in the documents; who they are employed by; and their
general job responsibilities. This was appropriate and necessary since it is
Defendant’s burden (as the asserter of the privilege) to establish all of the elements of
privilege.
On January 17, 2017, Defendant responded to the Court’s questions.
Chief among its responses was a discussion of the structure of Hertz’s legal
department. For the first time, Plaintiff contended that a group of in-house attorneys,
none employed by the Defendant but rather employed by the foreign Hertz entities,
were joint attorneys for “joint” clients, which were all of the Hertz companies.
Defendant also posited that the communications of these non-Defendant, non-attorney
employees were privileged for a variety of reasons, including that they were
“necessary intermediaries and agents through which attorney communications were
made,” or were providing or “needed to know” legal advice. (Def.’s Jan. 17, 2017
Ltr. at 11.)
C.

Current Briefing

Unfortunately, the Court’s attempts to simplify the dispute have created a
confusing record: the Court has two binders, three sets of documents, three privilege

7

logs; and 15 letters.1 What remains pending are: (1) the 40 Category 1 documents
submitted on September 28, 2016; and (2) the 11 common-interest doctrine documents
submitted on November 11, 2016. In addition, the privilege log that applies to the
Category 1 documents is that dated “April 15, 2016” and submitted with Plaintiff’s
binder on September 28, 2016. However, the privilege log that applies to the
Category 2 documents is the revised privilege log submitted to the Court on
November 17, 2016, during the case management conference.
Even more confusing is the nature of the privilege logs. For example, the first
document on the Category 1 log (Tab 29) is described as follows:
Row

Control
Number

Date
Sent

From
(Email)

To
(Email)

CC
(Email)

29

CNTRL
00064533

2/13/14

nhorne@he
rtz.com

Cristoph
Mueller

Gianluca
Colmaedici;
John Finch;
Nuns
Moodliar;
Stefania
Versari;
Richard H.
Davies

BCC

Description

Privilege
grounds

Email
regarding
CYC
policies and
procedures,
providing
information
requested
by counsel
to provide
legal advice
in CPCC
class action.

Attorney
Client

The referenced letters are ECF Nos. 91, 92, 93, 94, 95, 97, 103, 104, 105, 106, 108,
113, 116, 117, and 119.
1

8

Despite the description, the document appearing at Tab 29 is not simply an
email from “nhorne” to “Cristoph Muller” dated February 13, 2014. Rather, it is an
email chain of 6 different emails, with different authors and recipients, sent on
different dates, discussing different matters. More confusing, all 6 emails (the one
actually listed on the log and 5 more) are all stamped with the same “Control
Number,” rather than individual Bates numbers. The other five emails are not
referenced anywhere on the privilege log. This scenario exists for every single one of
the documents listed on the privilege log—thus, for each entry on the log, which lists
one date and one author and ostensibly one withheld document, there are actually
multiple (at times 10 or more) emails, never listed on the privilege log.
Having multiple embedded emails that are not listed anywhere on the privilege
logs is problematic. It is unfair to an adversary who is inherently challenged in
making arguments in a privilege dispute and must rely on what is on the log to do so.
Defendant has essentially asked the Court to accept that all email participants
were necessary intermediaries helping attorneys render legal advice; agents of an
attorney; or somehow otherwise in a position to “need to know” the legal advice
allegedly involved. This is not an effective way to argue privilege disputes, which
must be assessed document-by-document and case-by-case. See United States v.
Rockwell Int’l, 897 F.2d 1255, 1265 (3d Cir. 1990) (“[C]laims of attorney-client
privilege must be asserted document by document, rather than as a single blanket
assertion.”).
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The Court has struggled with how to proceed in light of the above. Under
the circumstances, it would be reasonable to deny all claims of privilege by finding
that the party asserting the privilege has not met its burden of establishing all of the
elements. See, e.g., Schaeffer v. Tracey, 2017 WL 465913 (D.N.J. Feb. 2, 2017)
(“The production of an inadequate privilege log . . . may be viewed as a waiver of the
privilege.’” (citing Advisory Committee Notes to Fed. R. Civ. P. 26(b)(5) (2013
Amendments))); Wachtel v. Health Net, Inc., 239 F.R.D. 81, 107 (D.N.J. 2006);
Eureka Fin. Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 183-85 (E.D. Cal.
1991). However, given how important the privilege is, and how much time has
already been spent on the issue, the Court is not convinced that such an approach
would be in the interests of justice. Rather, the Court will analyze the issues and some
of the documents, to the extent possible, to provide guidance to the parties. This is a
variant of the “sampling” approach used in large privilege disputes. See, e.g., E.I. du
Pont de Numours & Co. v. MacDermid, Inc., 2009 WL 3048421, at *1 (D.N.J. Sept.
17, 2009); In re Gabapentin Patent Litig., 214 F.R.D. 178, 181 & n.1 (D.N.J. 2004).
Specifically, the Court will, for the most part, address the single document listed on
the privilege log. The parties are directed to meet-and-confer in-person and attempt to
resolve their disputes using the principles discussed herein. Any remaining disputes
will be addressed by the Court, or if appropriate, a Special Master.

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II.

GENERAL LEGAL STANDARDS
A.

Attorney-Client Privilege2

The attorney-client privilege exists to promote full and frank discussions
between attorneys and their clients. Upjohn v. United States, 449 U.S. 383, 389
(1981). In New Jersey, the privilege is codified and protects: “communications” made
“in confidence,” between a “lawyer and client” in the course of a “professional
relationship.” N.J.S.A. 2A:84A-20; N.J.R.E. 504; see In re Envtl. Ins. Declaratory
Judgment Actions, 259 N.J. Super. 308, 313 (App. Div. 1992) (elements of the
privilege). A communication made in the course of relationship between lawyer and
client “shall be presumed to have been made in professional confidence unless
knowingly made within the hearing of some person whose presence nullified the
privilege.” N.J.R.E. 504(3) (emphasis added). Despite the presumption of
confidentiality, “the essence of the privilege” is limited to communications intended to
be confidential. State v. Schubert, 235 N.J. Super. 212, 220-21 (App. Div. 1989),
certif. denied, 121 N.J. 597 (1990). The party asserting the privilege bears the burden
2 This

case is in federal court based on the Class Action Fairness Act, which is an
extension of federal diversity jurisdiction. See, e.g., In re Burlington N. Santa Fey Ry.
Co., 606 F.3d 379, 381 (7th Cir. 2010) (“CAFA is, at base, an extension of diversity
jurisdiction.”). When federal jurisdiction is based on diversity, courts are to decide
issues of privilege based on state law. See, e.g., In re Ford Motor Co., 110 F.3d 954,
965-66 (3d Cir. 1997). Therefore, New Jersey privilege law applies in this case. See
id.; see also Gallo v. PHH Mortgage, 2015 WL 12851917 (D.N.J. June 4, 2015)
(CAFA is diversity jurisdiction and state law applies to questions of privilege);
Martin v. Lafon Nursing Facility of Holy Family, Inc, 244 F.R.D. 352, 355-56 (E.D.
La. 2007) (same).
11

to prove that it applies to any given communication. Horon Holding Corp. v.
McKenzie, 341 N.J. Super. 117, 125 (App. Div. 2001).
Although the attorney-client privilege is narrowly construed because
it “obstructs the truth-finding process,” the privilege is not disfavored, and where
applicable, “must be given as broad a scope as its rationale requires.” United Jersey
Bank v. Wolosoff, 196 N.J. Super. 553, 561-62 (App. Div. 1984). Courts should be
cautious in their application of the privilege mindful that “it protects only those
disclosures necessary to obtain informed legal advice which might not have been
made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976).
Confidential communications relaying factual information in furtherance of an
attorney’s representation are privileged. See id. At the same time, underlying facts
themselves are never privileged. In re Human Tissue Prod. Liab. Litig., 255 F.R.D.
151, 164 (D.N.J. 2008)
In order to ensure that the privilege is not abused, the privilege does not apply
simply because the communication was made to a person that is a licensed attorney.
Id. Rather, the privilege applies only if the communication was made to an attorney
acting as an attorney. Id. In the event the attorney was functioning in some other
business or professional role, the privilege does not apply. See, e.g., Robertson v.
Central Jersey Bank & Trust Co., 834 F. Supp. 705, 708 (D.N.J. 1993); Metalsalts
Corp. v. Weiss, 76 N.J. Super. 291, 299 (Ch. Div. 1962) (privilege denied where
attorney acted as investigator); Newark Bd. of Ed. v. Newark Teachers Union Local
12

481, AFT, AFL-CIO, 152 N.J. Super. 51, 62-63 (App. Div. 1977) (privilege did not
protect notes prepared by an attorney serving as a negotiating representative in a labor
dispute); Leonen v. Johns-Manville, 135 F.R.D. 94, 98-99 (D.N.J. 1990) (privilege did
not protect the communications with in-house counsel relating to business rather than
legal matters).
Communications which relate to business rather than legal matters do not fall
within the protection of the privilege. Leonen, 135 F.R.D. at 98. Generally stated, the
rule is “while legal advice given to a client by an attorney is protected by the
privilege, business advice generally is not.” In re Nat’l Smelting of New Jersey, Inc.
Bondholders’ Litig., 1989 U.S. Dist. LEXIS 16962, at *18 (D.N.J. June 29, 1989)
(citation omitted).
While this rule seems simple, its application is much less so; the reason being,
“in the corporate community, legal advice ‘is often intimately intertwined with and
difficult to distinguish from business advice.’” Leonen, 135 F.R.D. at 98-99 (quoting
Sedco Int’l SA v. Cory, 683 F.2d 1201, 1205 (8th Cir. 1982)). The proper inquiry in
the business versus legal context “is focused on whether the communication is
designed to meet problems which can fairly be characterized as predominately legal.”
Leonen, 135 F.R.D. at 99. In order to meet this standard, the claimant should
demonstrate “that the communication would not have been made but for the client’s
need for legal advice or services.” Leonen, 135 F.R.D. at 99 (quotations omitted).
In the context of emails, “emails in which in-house or outside attorneys are
13

merely sent copies of the text of the email, or in which they are merely one of many
addresses, should not be privileged, unless the email is directed to the attorney or sent
by the attorney .... To rule otherwise would allow parties to evade the privilege
limitations by sending copies of every company-generated email to the company's
attorney so as to protect the communication from discovery, regardless of whether
legal services were sought or who the other recipients of the email were.” In re
Avantel, S.A., 343 F.3d 311, 321 n.11 (5th Cir. 2003). Finally, if an email is
privileged but contains attachments, “each attachment must individually satisfy the
criteria for establishing the privilege. Merely attaching something to a privileged
document will not, by itself, make the attachment privileged.” Leonen, 135 F.R.D. at
98-99.
A voluntary relinquishment of a privileged communication by a holder of the
privilege to someone not a party to the privilege generally waives its protection. In re
State Com’n of Investigation Subpoena Number 5441, 226 N.J. Super. 461, 466 (App.
Div. 1998). However, there is no waiver of the privilege if privileged
communications are shared with “necessary intermediaries and agents.” Rivard v.
American Home Prods. Inc., 391 N.J. Super. 129, 154 (App. Div. 2007). Finally,
“waiver of the privilege can occur only through the client, not counsel.” State v.
Davis, 116 N.J. 341, 362 (1989).
B.

Joint Client Representation

The sole Defendant in this case is the New Jersey-based, The Hertz
14

Corporation. However, as discussed, nearly all of the documents at issue involve
communications between various employees of the Hertz foreign subsidiaries. This
raises the question of, in the context of the attorney-client privilege, who exactly is the
attorney and who exactly is the client when considering privilege questions in the
context of multiple-related companies with a centralized in-house legal department.
The Third Circuit addressed this question in In re Teleglobe:
[T]reating members of a corporate family as one
client fails to respect the corporate form. It is a
bedrock principle of corporate law in Delaware
and elsewhere that courts must respect entity
separateness unless doing so would work an
inordinate inequity. By structuring its various
activities by forming separate corporations, a
parent company realizes numerous benefits, not
the least of which are the liability shields. With
that structure comes the responsibility to treat the
various corporations as separate entities.
...
. . . [I]n any event, absent some compelling
reason to disregard entity separateness, in the
typical case courts should treat the various
members of the corporate group as the separate
corporations they are and not as one client.
493 F.3d 345, 371-72 (3d Cir. 2007) (emphasis added).
If Teleglobe holds that all the members of a corporate family are not a single
client for purposes of addressing privilege questions, that begs the follow-up question:
how does the modern in-house counsel’s office work? Back to Teleglobe for the
answer. The Third Circuit recognized that “parent companies often centralize the
provision of legal services to the entire corporate group in one in-house legal
15

department,” and can be, and often are, “represented by the same in-house counsel.”
Id. at 372. As a result, the Third Circuit concluded that, although not one client, the
separate corporate members of a larger corporate family can be considered
joint clients of the same in-house counsel for purposes of the privilege, regardless of
which specific company employs the lawyer: “it makes sense . . . that the members of
the corporate family are joint clients. This reflects both the separateness of each
entity and the reality that they are all represented by the same in-house counsel
whether that counsel typically takes up office with the parent or a subsidiary,” and any
other result, “would wreak havoc on corporate counsel’s office.” Id.
Of course, the particular facts and circumstances of the corporate structures and
relationships must be such that there is an actual joint attorney-client relationship
between the in-house counsel and the corporation that the attorney represents. A joint
representation—that is, that a given lawyer actually has as separate clients the
individual members of a larger corporate family—will always be a fact specific
inquiry. Simply stating it does not make it so.
Here, Defendant has represented the following with respect to the Hertz legal
department in this case:
The Hertz Corporation’s outside counsel had to coordinate
with in-house counsel who were working on behalf of both
The Hertz Corporation and its European subsidiaries. The
documents that The Hertz Corporation has withheld as
privileged arise almost exclusively from the email files of
employees of Hertz subsidiaries located in Europe.
...
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. . . [A]s relevant to this case, Hertz has one group of in-house
counsel located in the United States, a second group of inhouse counsel located in the United Kingdom, and individual
attorneys located within certain other countries in Europe.
The in-house counsel in the United States hold primary
responsibility for representing The Hertz Corporation, as a
general matter, and the in-house counsel located in Europe
generally hold primary responsibility for representing
European subsidiaries, but all Hertz in-house counsel,
regardless of where they are located, may perform legal
services on behalf of the other Hertz entities as required.
In this matter specifically, Hertz’s US-based in-house
counsel have delegated some of their responsibility for
defending The Hertz Corporation in this matter to other of the
European based in-house counsel. As such, The Hertz
Corporation is represented in this matter by in-house counsel
Richard McEvily, Kevin McIver, Nuns Moodliar, John Finch,
Gianluca Colamedici, and Nelly Bouilly.
(Def.’s January 17, 2017 letter at 2, 6.)
None of this represented in-house legal structure is presented in an affidavit.
And Plaintiff has challenged it as follows:
[T]his appears to be another in a long line of attempts by
Hertz to use its corporate structure to its immediate
advantage. When it suits Hertz’ purpose, its European
subsidiaries have been completely independent from the US
parent. For example, in its motion to dismiss, it argued that it
was not responsible for any rentals, such as those of Plaintiffs,
that were actually serviced by its European subsidiaries. With
respect to witness employed by Hertz UK that the Plaintiff
wished to depose, it was Hertz’ position that it had not control
over those witnesses, so Plaintiff had to seek letters of request
from this Court. Now that it suits its purpose to keep from
producing potentially damaging documents, Hertz’ European
subsidiaries are part of one large corporate family under
common control. Hertz’ corporate structure cannot be that
pliable, as the Court appeared to note by some of its
questions.
17

(Pl.’s Letter dated January 17, at 1-2.)
Plaintiff’s position is understandable though not dispositive. There seemingly
has been a somewhat shifting approach to corporate structure at times in this litigation.
However, with that said, the Court will accept the representations of Defendant’s
counsel on this subject. If further issues arise as a result of this Opinion, the Court
may consider further investigation into the issue, including the taking of sworn
testimony. At this time, however, the Court will proceed to analyze the submitted
documents assuming the lawyers identified above represent all of the Hertz
companies.
C.

Intra-Corporate Communications

Traditional notions of attorney-client privilege require a communication
between an attorney and a client. Here, many documents that Defendant has withheld
involve communications between and among non-lawyer employees of the various
Hertz entities. No binding case law has been cited, but the general view is that
“sharing documents amongst corporate employees does not necessarily vitiate a
privilege; [rather,] communications remain privileged if they assist the attorney to
formulate and render legal advice.” In re Riddell Concussion Reduction Litig., 2016
WL 7108455, at *5 (D.N.J. Dec. 5, 2016). It is clear that there is no privilege if the
communication includes lower-level employees that are not vital to the provision of
legal advice. See TransWeb, LLC v. 3M Innovative Props. Co., 2012 WL 2878076, at
*14 (D.N.J. July 13, 2012). Similarly, “general group-wide descriptions such as
18

‘management’ do not allow for the Court to assess whether the recipients require, or
have the capacity to act upon, the information requested.” Id.
However, the privilege does apply when a communication is “by a corporate
employee concerning matters within the scope of his/her duties and that were
purposefully made to enable an attorney to provide legal advice to the corporation.”
See id. In sum, the privilege protects communications with those that must be
consulted in order for a lawyer to provide legal advice—i.e., those that “need to
know” or have information necessary to assist the lawyer in providing legal advice.
Id.; see also Rawlings v. Police Dep’t of Jersey City, 133 N.J. 182, 196 (1993).3

Defendant’s various letters mention the similar, but different concept of disclosure to
an “attorney’s agent,” see, e.g., Tractenberg v. Twp. of West Orange, 416 N.J. Super.
354, 376 (App. Div. 2010), as a basis to withhold documents. (See Def.’s Letter dated
Jan. 17, 2017, at 12.) The Court does not see an “agent” theory of the attorney-client
privilege present in this case. Here, the documents at issue are emails between and
among employees of the various Hertz companies referenced above. The application
of privilege to such communications would be more appropriately described as “intra“ or “inter-“ corporate communications between employees and analyzed under that
standard. See In re Riddell Concussion Reduction Litig., 2016 WL 7108455, at *5-6.
In contrast, an “agent” is most commonly a non-lawyer third-party that assists a
lawyer in providing legal services, such as an investigator, paralegal, or accountant.
See, e.g., La. Mun. Pol. Emplys. Ret. Sys. v. Sealed Air, 253 F.R.D. 300, 311-14
(D.N.J. 2008); see also Paul Rice, Attorney-Client Privilege in the United States, § 3:3
(“The concept of the attorney-client privilege extending to third-party agents has been
developed through case law and has included investigators, interviewers, technical
experts, accountants, physicians, patent agents, and other specialists in a variety of
other social and physical sciences.”). Except for very minor exceptions identified
herein, the agent theory of the attorney-client privilege is largely inapplicable to this
dispute. See, e.g., In re Riddell, 2016 WL 7108455, at *5-6 (identifying difference
between inter-corporate communications and third-party agents).
3

19

D.

Common-Interest Doctrine

Defendant initially argued that the common-interest doctrine was a “privilege”
that protected many of the withheld documents from disclosure. However, the
common-interest rule is a waiver-related doctrine; it is an exception to the general rule
that disclosure of an privileged communication results in waiver of the privilege:
All agree, however, that the common interest rule does
not create a new privilege. Rather, it permits
disclosure of privileged material, attorney-client
confidential communications or work product, to third
parties without waiving any privilege as long as the
applicable features of the common interest rule in the
jurisdiction are satisfied.
O’Boyle, 218 N.J. at 168
Documents may be withheld on attorney-client privilege or work-product
grounds. The common-interest rule allows the withholding party to share that
privileged communication with others that are within a community of
interest without waiving the underlying privilege. In order to avoid waiver of
privilege protection when sharing protected communications, the disclosure of
privileged information must be (1) made due to actual or anticipated litigation, (2) for
the purpose of furthering a common interest, and (3) made in a manner not
inconsistent with maintaining confidentiality against adverse parties. Id. at 199 (citing
LaPorta v. Gloucester County, 340 N.J. Super. 254, 262 (App. Div. 2001)).
Therefore, the first question is always whether an underlying communication is
privileged to begin with, whether it be attorney-client, work-product, or otherwise.
20

See O’Boyle, 218 N.J. at 198. If that is established, the Court may then consider
whether the privileged document was shared with someone and whether such sharing
was permissible.
Certain aspects of the common interest doctrine are subject to wide-ranging
interpretations across the Country.4 However, this Court is bound to apply New
Jersey privilege law in this case, and New Jersey law favors an extremely expansive
view of the doctrine. Indeed, O’Boyle has made clear that disclosure may occur prior
to the commencement of litigation; may involve communications between counsel for
one party and a representative of another party; that the shared interest need not be
strictly legal but also may be commercial; and that the parties’ shared interests need
not be identical -- a “common purpose” will suffice. Id. at 199..4 The burden to show
For example, the degree of common legal interest required to qualify under the
doctrine ranges from “substantially similar” to “identical.” Compare La. Mun. Police
Empl. Ret. Sys. v. Sealed Air, 253 F.R.D. 300, 309-10 (D.N.J. 2008) (substantially
similar legal interests sufficient); with Duplan Corp. v. Deering Milliken, Inc., 397 F.
Supp. 1146, 1172 (D.S.C. 1974) (identical interests required). Some courts also
require that the parties’ shared interests be strictly legal, or that there be an imminent
threat of litigation. See O’Boyle, 218 N.J. at 168 (discussing various distinctions).
4

One thing O’Boyle is not clear on is applicable to this case. Specifically, O’Boyle
holds that the common interest rule “applies to communications between attorneys
and also communications between an attorney for one party and a representative for
another; not communications between two representative as a general matter.” Gallo,
2015 WL 12851917, at 5 (emphasis added). Following O’Boyle, the Gallo court
appears to be the only court to have addressed the question of whether employee-toemployee conversations not involving an attorney qualify for protection under the
New Jersey common interest doctrine. The Gallo court’s conclusion is that such
communications fall within O’Boyle’s construct of the common-interest doctrine. See
id. Given the conclusions reached later in this Opinion, it is not necessary to
conclusively decide whether the Undersigned will follow Gallo. However, it is worth
4

21

the privilege has not been waived, and thus, that the doctrine applies, rests with the
party resisting disclosure. See Greene, Tweed of Del., Inc. v. DuPont Dow
Elastomers, LLC, 202 F.R.D. 418, 423 (E.D. Pa. 2001).
III.

SAMPLE DOCUMENTS
A.

Attorney-Client Documents; Category 1

Against the backdrop of the legal standards identified above, the Court will
evaluate a sample of the Category 1 documents. Note: The only documents that have
been reviewed in this section are the documents with the “date” and “to” and “from”
listed on the privilege log, since that is all that Defendant has properly listed for
review; the remainder of the email chains are not discussed further in the opinion and
will have to be individually listed and addressed if Defendant contends they are
privileged.

noting that, if federal law applied in this case, there is a strict attorney-sharing
requirement, and any document that was shared between non-lawyer representatives
of Hertz and Monex would not qualify and would be produced. See, e.g., Hoffmann
La-Roche v. Roxane Labs, 2011 WL 1792791, at *5-6 (D.N.J. May 11, 2011) (“‘the
common-interest rule only supplants the disclosure rule when attorneys, not clients,
decide to share information in order to coordinate legal strategies.’” (quoting
Teleglobe, 493 F.3d at 365 (emphasis added))).
22

Log
Entry

Control
Number

29

CNTRL
00064533

From/To; Description

Decision

Email from Nick Horne
(Hertz Europe Revenue
Director International) to
Christoph Mueller (Hertz
Europe Operations
Services Manager)

This document is privileged.

The opening of the email is
addressed to Nuns Moodliar,
even though the “to” is Christoph
Muller. The document amounts
to Mr. Horne responding to Mr.
Copied to: Nuns Moodliar Moodliar’s request for
(Vice President,
information relating to the
Corporate and Legal
allegations in this case.
Affairs; Hertz Europe,
Moreover, the information
Ltd.); Gianluca
requested by Mr. Moodliar of Mr.
Colamedici (Hertz Italia,
Horne was originally requested
srl, Legal Counsel); John by Hertz’s Senior Vice President
Finch (Hertz Europe Ltd, and Deputy General Counsel
Senior Counsel); Stefania Richard P. McEvily earlier in the
Versari (Hertz Italia;
email chain.
Operations Service
Manager); Richard H.
Davies (Hertz UK,
Operations Director).

23

30

CNTRL
00064534

Email from Gianluca
Colmedici (Hertz Italia,
S.r.l, Legal Counsel) to
Nuns Moodliar (Vice
President, Corporate and
Legal Affairs; Hertz
Europe, Ltd.).
Copied to Christoph
Muller (Hertz Europe
Operations Services
Manager) and John Finch
John Finch (Hertz Europe
Ltd, Senior Counsel).

39

CNTRL
00064553

None Provided

This document is privileged.
This is an email between counsel
relating to the allegations in the
case. Although the lawyers are
employed by different Hertz
entities, the joint client
relationship protects the
communication.
The carbon copies do not waive
the privilege under these facts
because the substance of the
email and those earlier in the
chain suggest that they were all
involved in responding to a
request for legal advice.

This document is not privileged.
Defendant describes it as a
document with “with comments
to facilitate legal advice for CYC
litigation.” However, there is
nothing that suggests this
document is privileged. There is
no author or recipient identified.
There is no attorney; no client.
There is no further information
about the origins of the
document, its creation, or its
disclosure and dissemination
within Hertz.

24

68

CNTRL
00075727

None Provided

Not privileged. The document
appears to be a duplicate of Log
Entry 39 and is not privileged for
the same reasons.

93

CNTRL
00064643

None Provided

Not privileged. This document is
a screenshot of an unidentified
document, which refers to
“France (Hertz Interactive
Platform).” The only name
appearing on the document is
“Brenda.”
Defendant has not identified a
lawyer or client involved in this
communication, or even Brenda’s
last name.

125

CNTRL
00064694

Email from Fabrice
Quinquenel (Hertz
France, President) to
Stephanie Auberville
(Hertz France Revenue
Manager-France) and
Christine Stoos (Hertz
France Director of
Quality).
Copied to: Martial Dore
(Hertz France Operation
Service Director); Nelly
Bouilly (Hertz France
Legal Director); Nuns
Moodliar (Vice President
Corporate and Legal
Affairs)

25

This document is privileged.
The email is a message from the
President of Hertz France to
Hertz personnel, including the
Hertz France Legal Director,
forwarding a message from Nuns
Moodliar about DCC and the
allegations in the case. The
substance of the message
includes the legal advice of Mr.
Moodliar relating to DCC.
Moreover, the intent appears to
be to treat the communication as
privileged, as the subject line
states: “CPCC/US Class
Action/Confidential.”

126

CNTRL
00064696

Email from Martial Dore
(Hertz France Operation
Service Director) to
Fabrice Quinquenel
(Hertz France, President),
Christine Stoos (Hertz
France Director of
Quality)
Copied to: Nelly Bouily
(Hertz France Legal
Director); Nuns Moodliar
(Vice President Corporate
and Legal Affairs);
Stephanie Auberville
(Hertz France Revenue
Manager -France);
Francois Deygas (Hertz
France Operations
Director); Olivier Robert
(Hertz France Operations
Director – South).

26

The document is not privileged.
The privilege log refers to this
document as an email forwarding
legal advice. However, the actual
document contains little to no
substance. Nor has Defendant
established that it is to or from an
attorney. Nor are any of the
recipients employees of the sole
Defendant in this case. Nor has
Defendant established that all
individuals copied are necessary
intermediaries such that they fall
within the small group in the
company that “needs to know” of
an attorney’s legal advice.
Defendant has not carried its
burden to show that this
document is privileged.

130

CNTRL
00064731

Email from Fabrice
Quinquenel (Hertz
France, President) to
Nuns Moodliar (Vice
President Corporate and
Legal Affairs); Henk
Van-Den-Helder (Hertz
Benelux, General
Manager); Neil
Cunningham (Hertz UK,
General Manager);
Francis Waddington
(Hertz France Regional
General Manager); Elyes
Mrad (Hertz
International, VP Sales &
Marketing); Rafael
Girona (Hertz Autoverm
ietung GMBH, Managing
Director); Massimilliano
Archiapatti (Hertz
Italiana srl, General
Manager); Jiri Katolicky
(Hertz Autopujc ovna
s.r.o., General Manager).
Copied to: Michael
Taride (President, Hertz
International); Toby
McHenry (Hertz
International, Division
VP and Finance Business
Partner EMA and
APAC); Sonja Clarke
(Hertz International, Vice
President, France
International); Mike
Clarke (Hertz
International, Vice
President Human
Resources).
27

This document is not privileged.
Although the document is labeled
“CPCC/US CLASS
ACTION/Confidential,” and
although it is responding to Nuns
Moodliar, an attorney, the email
is written to 7 additional
recipients and carbon copied to 4
more, for a total of 11 email
recipients separate and apart from
the attorney (Moodliar) and client
(Quinquenel), neither of which, it
should be noted, are employed by
Defendant in this case.
The document is not privileged
because Defendant has not
established that all of the
individuals that are included on
this email are necessary
intermediaries or that they “need
to know” the legal
communication made. The
attorney-client privilege is meant
to be an intimate relationship.
Sending an email to 11 people,
not one of whom is employed by
the Defendant in this case,
suggests lack of privilege and/or
waiver.

146

CNTRL
00097720

Email from Nicole
Strathdee (Hertz UK,
Area Operations Manager
Heathrow) to Neil
Cunningham (Hertz UK,
General Manager)

The document is privileged.
It is a communication between
two intermediaries, who, by title,
seem necessary to discuss and
“need to know” the legal advice
given by Nuns Moodliar earlier in
the email chain.
The document also seems to have
been treated as confidential as the
subject states: “Confidential: RE:
FW: CPCC/US CLASS
ACTION/Confidential.”

147

CNTRL
00097723

Email from Nicole
Strathdee ((Hertz UK,
Area Operations Manager
Heathrow) to Scott
Dackonbe (Hertz UK,
Airport Manager); Syed
M. Basheer (Hertz UK,
Airport Shift Manager);
Adam Cuffy (Hertz UK,
Airport Shift Manager);
Lukas Theophilou (Hertz
UK Ancillary Sales
manager)

28

This email is not privileged.
It is a one sentence email that
does not involve an attorney and
is sent between non-party rental
car managers in Europe, none of
whom are parties in the case. Nor
has Defendant shown that they
are necessary parties to a
privileged communication or
need to know privileged
discussions; this conclusion is
reinforced, practically, by the
description of one of the
managers as “Ancillary” by title.

257

CNTRL
00097777

Email from Nicole
Strathdee ((Hertz UK,
Area Operations Manager
Heathrow) to Richard H.
Davies (Hertz UK,
Operations Director)

This document is not privileged.
It does not expressly refer to an
attorney’s legal advice, nor is it
sent to or from an attorney.
Defendant has not otherwise
explained how the document is
privileged.
The privilege log entry also refers
to attorney work-product, but
work-product does not seem to
apply in this context, nor has
Defendant addressed the issue.

645

CNTRL
00067065

Email from Sandrine
Clerambourg (The Hertz
Corporation, Project Lead
Counter Systems) to Alex
Bendle (Hertz Europe,
Learning Solutions
Specialist/Manager,
Learning & Development
International Region).

The document is privileged.

The email is a response to a
question originally posed by
Nuns Moodliar (counsel) to Mr.
Bendle, who advised that he
needed to obtain the information
from Ms. Clearambourg.
Therefore, an attorney (Moodliar)
requested of an intermediary
Copied to: Nuns Moodliar (Bendle) information related to a
(Vice President Corporate legal issue, which then had to be
and Legal Affairs); David requested of the person who had
Green (Hertz Europe
the necessary information
Service Center, Senior
(Clearambourg).
Business Analyst).

29

675

CNTRL
00073174

Email from Alex Bendle
(Hertz Europe, Learning
Solutions
Specialist/Manager,
Learning & Development
International Region) to
Sandrine Clerambourg
(The Hertz Corporation,
Project Lead Counter
Systems)
Copied to: Nuns Moodliar
(Vice President Corporate
and Legal Affairs); David
Green (Hertz Europe
Service Center, Senior
Business Analyst);
Christoph Mueller (Hertz
Europe Operations
Services Manager); David
Whittle (Hertz Europe
Service Centre, Talent
Management Team); John
Finch (Hertz Europe,
Ltd., Senior Counsel);
Lisa Weston (Employee
of Intellinx LLC, A
Xerox company, a Hertz
contractor).

30

This document is not privileged.
First, the document includes as a
carbon copy a Xerox employee,
Ms. Weston. Ms. Weston is not
an attorney or client in any way
relating to Hertz, nor has
Defendant established that she is
an “agent” for purposes of
expanding the attorney-client
privilege.
Second, the document itself is a
training document that is not
“legal” but part of the Hertz
“business.” Thus, any attorney
included in the email is acting in
a business capacity, not in the
capacity of an attorney providing
legal advice. Thus, there is no
privilege that applies.
Third, apart from Ms. Weston,
there are numerous recipients of
the email (direct and cc’d) that
Defendant has not established are
necessary intermediaries for
Hertz’s counsel to provide legal
advice. Only those employees
that “need to know” are permitted
to be included in privileged
communications and Defendant
has failed to establish that each
and every recipient involved
“needed to know” attorney-client
privileged communications.

679

680

CNTRL
00086025

CNTRL
00086027

Email from Christoph
Mueller (Hertz Europe
Operations Services
Manager) to Sandrine
Clerambourg (The Hertz
Corporation, Project Lead
Counter Systems).

This document is not privileged.

Email from Christoph
Mueller (Hertz Europe
Operations Services
Manager) to Sandrine
Clerambourg (The Hertz
Corporation, Project Lead
Counter Systems).

This document is not privileged.

31

The document does not include or
reference an attorney or any legal
advice.
It is a “business” rather than
“legal” document, as no attorney
or legal advice is involved.

As with the last document, it does
not include or reference an
attorney or legal advice.
Moreover, the mere inclusion of
Mr. Moodliar earlier in the email
chain is irrelevant, as merely
copying an attorney on an email
is insufficient to establish the
attorney-client privilege.

681

CNTRL
00073176

Email from Sandrine
Clerambourg (The Hertz
Corporation, Project Lead
Counter Systems) to
Alex Bendle (Hertz
Europe, Learning
Solutions
Specialist/Manager,
Learning & Development
International Region)
Copied to: Christoph
Mueller (Hertz Europe
Operations Services
Manager); Nuns Moodliar
(Vice President Corporate
and Legal Affairs); David
Whittle (Hertz Europe
Service Centre, Talent
Management Team); John
Finch (Hertz Europe,
Ltd., Senior Counsel);
David Green (Hertz
Europe Service Center,
Senior Business Analyst);
Lisa Weston (Employee
of Intellinx LLC, A
Xerox company, a Hertz
contractor).

32

This document is not privileged
for the same reasons stated with
respect to Log Entry 675 above.

682

CNTRL
00073177

Email from Christoph
Mueller (Hertz Europe
Operations Services
Manager) to Alex Bendle
(Hertz Europe, Learning
Solutions
Specialist/Manager,
Learning & Development
International Region)
Copied to: Nuns Moodliar
(Vice President Corporate
and Legal Affairs);
Sandrine Clerambourg
(The Hertz Corporation,
Project Lead Counter
Systems); David Green
(Hertz Europe Service
Center, Senior Business
Analyst); David Whittle
(Hertz Europe Service
Centre, Talent
Management Team); John
Finch (Hertz Europe,
Ltd., Senior Counsel);
Lisa Weston (Employee
of Intellinx LLC, A
Xerox company, a Hertz
contractor).

33

This document is not privileged
for the same reasons as Log
Entries 675, 679, 680, and 681.

683

CNTRL
00073178

Email from Alex Bendle
(Hertz Europe, Learning
Solutions
Specialist/Manager,
Learning & Development
International Region) to
Christoph Mueller (Hertz
Europe Operations
Services Manager).
Copied to: Nuns Moodliar
(Vice President Corporate
and Legal Affairs);
Sandrine Clerambourg
(The Hertz Corporation,
Project Lead Counter
Systems); David Green
(Hertz Europe Service
Center, Senior Business
Analyst); David Whittle
(Hertz Europe Service
Centre, Talent
Management Team); John
Finch (Hertz Europe,
Ltd., Senior Counsel);
Lisa Weston (Employee
of Intellinx LLC, A
Xerox company, a Hertz
contractor).

34

This document is not privileged
for the same reasons as Log
Entries 675, 679, 680-82.

684

CNTRL
00073179

Email from Alex Bendle
(Hertz Europe, Learning
Solutions
Specialist/Manager,
Learning & Development
International Region) to
Nuns Moodliar (Vice
President Corporate and
Legal Affairs)
Copied to: Sandrine
Clerambourg (The Hertz
Corporation, Project Lead
Counter Systems);
Christoph Mueller (Hertz
Europe Operations
Services Manager); David
Green (Hertz Europe
Service Center, Senior
Business Analyst); David
Whittle (Hertz Europe
Service Centre, Talent
Management Team); John
Finch (Hertz Europe,
Ltd., Senior Counsel);
Lisa Weston (Employee
of Intellinx LLC, A
Xerox company, a Hertz
contractor).

35

This document is not privileged.
Although the email is written to
counsel asking him to approve
something, it is not an attorneyclient privileged communication
for a couple of reasons.
First, the request seems more
business in nature as opposed to
legal.
Second, there are multiple parties
to the conversation that remove it
from any privileged protection
that might otherwise exist.
Defendant has not established
that any of the copied recipients
are necessary to the privileged
communication. This especially
applies to Ms. Weston, an
employee of XEROX, a copy
company. A critical element of
the attorney-client privilege is the
concept of confidentiality; an
intention to keep the
communication closely-held.
Parties cannot have an
expectation of confidentiality—at
least not to the level that the
communication could be
privileged—when a non-Hertz
employee is involved in the
communication, and there is no
treatment of the document as
confidential.

710

CNTRL
00021528

Email from Robert Evans
(Hertz Europe, Ltd.,
Director Global Payment
Solutions) to Grace
Winters (Hertz Europe
Service Centre, Director –
Order to Cash)

This document is not privileged.

Email from Christoph
Mueller (Hertz Europe
Operations Services
Manager) to Robert
Evans (Hertz Europe,
Ltd., Director Global
Payment Solutions);
Grace Winters (Hertz
Europe Service Centre,
Director – Order to Cash)

This document is not privileged.

The document involves CYC
revenue in a year-to-year
comparison.

While an attorney—Mr.
Moodliar—is copied on the
document, it could only be for
Copied to: Nuns Moodliar “business” and not legal
(Vice President Corporate purposes. Indeed, the Subject of
and Legal Affairs);
the email is “DCC – Revenue
Christoph Mueller (Hertz Decrease.”
Europe Operations
Services Manager); Alex
Job (Director of Financial
Shared Services &
Reporting).
714

CNTRL
00027332

It involves the revenue associated
with CYC. It is a business
document.

Again, while Mr. Moodliar is
copied on the email, he is neither
the author nor recipient and no
legal advice is given, asked for,
or received in the
Copied to: Nuns Moodliar communication. Nor does the
(Vice President Corporate communication reflect any legal
and Legal Affairs);
advice that was given.
Christoph Mueller (Hertz
Europe Operations
Services Manager); Alex
Job (Director of Financial
Shared Services &
Reporting).

36

719

CNTRL
00067838

Email from Robert Evans
(Hertz Europe, Ltd.,
Director Global Payment
Solutions) to Grace
Winters (Hertz Europe
Service Centre, Director –
Order to Cash)

This document is not privileged
for the same reasons stated with
respect to Log Entries 710 and
714.

Copied to: Nuns Moodliar
(Vice President Corporate
and Legal Affairs);
Christoph Mueller (Hertz
Europe Operations
Services Manager); Alex
Job (Director of Financial
Shared Services &
Reporting).

886

CNTRL
00089054

Email from Christoph
Mueller (Hertz Europe
Operations Services
Manager) to Manuela
Vermeulen (Hertz
Automobielen Nederland,
Management Assistant).

37

This document is not privileged.
Defendant refers to the document
as an “email requesting legal
review of training documents.”
The actual email does not reflect
the description. Moreover,
Defendant has failed to carry its
burden to explain who the
recipient to the email is and how
the recipient would be involved
in providing legal advice or
facilitating the provision of legal
advice.

956

CNTRL
00014785

Email from Robert Evans
(Hertz Europe, Ltd.,
Director Global Payment
Solutions) to Brian P.
Slovak (SR IT specialist;
IBM Global)
Copied to: Brent J. Lay
(Hertz Corporation,
Director, IT Business
Partner); Brent Lessing
(Hertz Corporation, Vice
President Improvement
Processes & Program
Management).

B.

This document is privileged.
The subject of the document
states: “Margulis v. Hertz . . . .”
This appears to be a
communication by a necessary
intermediary seeking information
relating to the Hertz litigation.
While a non-Hertz employee is
involved (Mr. Slovak) he is
acting as an agent in this context
in the sense that he is acquiring
and providing information to a
Hertz employee to relay back to
Hertz counsel on a legal issue in
the case. Mr. Slovak’s
involvement is different from that
of Ms. Weston’s (see, e.g., Log
Entry 684), because it appears
that Mr. Slovak is capable of, and
is, providing information to
counsel that could not be
provided by any other individual,
rending him a necessary
intermediary.

Common-Interest Doctrine; Category 2

Hertz, or more specifically the employees of its foreign subsidiaries, shared
communications with employees of Monex. In Defendant’s view, this sharing was
permissible because Monex and Hertz share a “common-interest” in defending the
litigation.
At the outset, the same problems that exist with respect to Defendant’s
privilege log on the Category 1 documents exist equally with respect to Category 2.
38

And for the same reasons, analysis of individual documents is nearly impossible. We
do not conclusively reach the question of common-interest until an underlying
privilege is established. And, for multiple entries on the Log submitted, the single
document listed is almost assuredly not privileged (see, e.g., Category 2 Log; Entries
673, 992).
Nevertheless, both sides have argued, in letters in general terms, whether a
common-interest could ever exist between Monex and Hertz or whether the sharing of
documents with Monex destroys any applicable privilege. (See Pl.’s May 13, 2016
letter at 1; Def.’s August 4, 2016 Ltr. at 1-7.)
It seems as if the parties real dispute is over the first factor of the commoninterest question: whether sharing occurred due to actual or anticipated litigation.
O’Boyle, 218 N.J. at 199. In this Court’s view, it is possible that Monex and Hertz
had a reasonable anticipation of litigation. At the time of the communications, it
appears Hertz was already aware that it may be sued by Plaintiff for conduct
associated with DCC. Monex is the vendor that provides DCC services offered by the
Hertz subsidiaries. DCC is at the center of the case; it is the main issue in dispute. As
Defendant explains, Monex sets the exchange rate for DCC, trains Hertz’ employees
and earns revenue on each DCC transaction. Since DCC is at the heart of the case, it
is possible that Hertz and Monex could have believed that they could have been part
of this litigation. See, e.g., B.E. Myers & Co., Inc. v. United States, 41 Fed. Cl. 729,
734 (Ct. Cl. 1998) (common interest present when party supplied infringing product);
39

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 617 Fed. Appx. 227, 243 (4th Cir. 2015).
At the same time, further sharing with Monex on a going forward basis would likely
not be protected, as it is no longer reasonable for Monex to believe it will be added to
the suit, as Plaintiff has not sought to do so for three years. However, at the time the
sharing occurred, and based upon the services Monex provides to Hertz, which are the
subject of the case, a reasonable belief of potential or anticipated litigation could exist.
The second factor is the purpose of the sharing. O’Boyle, 218 N.J. at 199.
Defendant represents that the purpose of the sharing was to obtain additional
information relating to DCC to assist Hertz’ counsel in defense of the litigation. This
would seem to satisfy the second prong of the common-interest test, at least under the
far-reaching New Jersey formulation of the doctrine.
The third factor is whether the sharing was made in a manner not inconsistent
with maintaining the privilege and confidentiality against adverse parties. Id. The
answers to those questions are document specific. From what the Court has seen from
reviewing the limited entries on the log submitted, that is not necessarily the case,
although at times it could be. Some log entries refer to emails with the subject listed
as “Hertz Legal Case – Extremely Urgent” (see Category 2 Log; 403). However,
other documents make no reference to the case, and it is unclear how the recipient
viewed the document and its confidentiality (see, e.g., Category 2 Log; 673.)
Based on the above, the Court finds that the first and second factors of the
common-interest question are satisfied in this case. Whether the third and final factor
40

is satisfied, and thus whether sharing was permissible, would depend on the
particulars of the specific documents, which have not been properly presented.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion to compel is GRANTED IN
PART AND DENIED IN PART. As stated previously, the parties are ordered to
meet-and-confer in-person to resolve disputes with the remaining documents,
considering the statements in this Opinion.

s/Mark Falk
MARK FALK
United States Magistrate Judge

DATED: February 28, 2017

41