Speedfit LLC et al v. Woodway USA, Inc. et al

Filing 141

ORDER re 134 Letter. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 12/14/2015. (Kandel, Erin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SPEEDFIT LLC and AUREL A. ASTILEAN,
Plaintiffs,
ORDER
- against CV 13-1276 (KAM) (AKT)
WOODWAY USA, INC.,
Defendant.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
During the November 12, 2015 motion hearing, the Court gave Plaintiffs a final
opportunity to provide further support for their claim that Plaintiff Astilean did not waive the
attorney-client privilege protecting a December 1, 2012 email (Bates No.001-00020743) sent to
his former counsel, Attorney Danzig, by inadvertently disclosing that email to a third party,
Bruce Bickford. See DE 132 ¶ 4. Plaintiffs thereafter submitted the unsworn (i.e., jurat not
completed) affidavit of Plaintiff Astilean, see Affidavit of Aurel A. Astilean (“Astilean Affid.”)
[DE 134-1], and Defendant filed its opposition [DE 139].
As the Court noted during the conference, the burden is on Plaintiffs, as the parties
asserting the attorney-client privilege, to demonstrate that the privilege has not been waived. See
DE 132 ¶ 4; Denney v. Jenkens & Gilchrist, 362 F. Supp. 2d 407, 412 (S.D.N.Y. 2004). Having
reviewed the parties’ submissions, the Court concludes that Plaintiffs have not met their burden
under the circumstances presented here. “[O]ne of the most important factors in the waiver
inquiry is the effort ‘taken to rectify the error,’ including the speed of such efforts.” United
States v. Finazzo, No. 10-CR-457, 2013 WL 619572, at *14 (E.D.N.Y. Feb. 19, 2013). In his
affidavit, Plaintiff Astilean states that he “called [Bickford] and told him to disregard the email”

because it was “meant for [Astilean’s] attorney.” Astilean Affid. ¶ 5. However, Astilean has not
indicated how much time elapsed between when he inadvertently sent the email to Bickford and
this follow-up conversation.1 Plaintiffs also did not provide any other evidence which may shed
light on this issue, such as an affidavit from Bickford or Attorney Danzig. Without this
information, the Court cannot conclude that Astilean or his counsel acted diligently and
affirmatively in seeking to rectify Astilean’s inadvertent disclosure of the December 1, 2012
email. See, e.g., Niceforo v. UBS Glob. Asset Mgmt. Americas, Inc., 20 F. Supp. 3d 428, 437
(S.D.N.Y. 2014); Bus. Integration Servs., Inc. v. AT & T Corp., 251 F.R.D. 121, 129-30
(S.D.N.Y. 2008) aff’d, No. 06 CIV 1863, 2008 WL 5159781 (S.D.N.Y. Dec. 9, 2008).
Accordingly, the Court finds that the attorney-client privilege has been waived as to the
December 1, 2012 email and the document must therefore be disclosed. The Court is directing
Plaintiffs to produce the December 1, 2012 email to Defendant by December 21, 2015.

SO ORDERED.
Dated: Central Islip, New York
December 14, 2015
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

1

Astilean also stated that he does not know if Bickford did, in fact, disregard or delete the
email as Astilean directed him to do. Astilean Affid. ¶ 5.
2