Swift Spindrift Ltd. v. Alvada Insurance Inc. et al

Filing 46

MEMORANDUM DECISION AND ORDER: granting in part and denying in part 41 Motion to Compel. For the foregoing reasons, Alvada's motion to compel (ECF No. 41) is granted in part and denied in part. (Signed by Magistrate Judge Frank Maas on 7/24/2013) Copies Sent By Chambers to Hon. Alison J. Nathan, United States District Judge (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SWIFT SPINDRIFT, LTD.,
Plaintiff,
-againstALVADA INSURANCE, INC., et al.,

:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 7/24/2013

:
:

MEMORANDUM
DECISION AND ORDER

:

09 Civ. 9342 (AJN) (FM)

:
Defendants.
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FRANK MAAS, United States Magistrate Judge.
Plaintiff Swift Spindrift, Ltd. (“Swift”) brings this insurance coverage
action against several insurance carriers and an insurance broker to recover damages
allegedly arising out of the protracted detention of one of its cargo ships by Libyan
authorities in Tripoli. The defendants (collectively, “Alvada”) have moved to compel the
production of certain documents that Swift has withheld on the basis of attorney-client
privilege. (ECF No. 41). For the reasons that follow, that motion is granted in part and
denied in part.
I.

Background
A.

Factual Background
Swift is a Liberian single-asset corporation that operated the M/V Swift

Spindrift (“Swift Spindrift”), an oceangoing cargo ship. (See ECF No. 21 (“Amended
Complaint” or “Am. Compl.”) ¶¶ 3-4). The Swift Spindrift was one of several vessels

comprising the “Grace Line,” a fleet of ships owned by John Grace (“Grace”) and Lola
Grace through a number of closely-held companies and family trusts. (See Decl. of
Joseph G. Grasso, Esq., sworn to on Dec. 28, 2012 (ECF No. 43) (“Grasso Decl.”), Ex. B
at 9-14).
In November 2008, the Swift Spindrift arrived in Tripoli with a cargo of
corn being shipped to a Libyan importer. (Am. Compl. ¶¶ 39-40). Alleging that the corn
was defective, the importer obtained a court order arresting the Swift Spindrift in port
pending resolution of the dispute. (Id. ¶¶ 41-42 & Ex. A). The Libyan court further
directed that, to obtain the vessel’s release, Swift post security, which, according to Swift,
was to take the form of a $1.6 million bank guarantee. (Id. ¶¶ 42-43). In January 2009,
Swift posted an irrevocable letter of credit in that amount, but the Libyan government
never released the Swift Spindrift. (Id. ¶¶ 44-45). Despite numerous applications and
motions before the Libyan court, as well as an appeal, the Swift Spindrift remained
detained in port until June 17, 2010, when Swift sold the ship to a third party on an “as-is,
where-is” basis for $2.3 million. (Id. ¶¶ 46-48, 52).
Swift brings this case under the Court’s admiralty and maritime jurisdiction.
(Id. ¶ 1). Swift seeks to recover the difference between the fair market value of the vessel
and its sales price under two marine war-risk policies on the theory that the prolonged
detention of the Swift Spindrift rendered it a “constructive total loss.” (Id. ¶¶ 53-113).
Swift also seeks reimbursement for alleged “sue and labor” expenses associated with its

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efforts to recover the vessel, including the cost of counsel in Libya. (Id. ¶¶ 69-83, 100113). The total damages claimed exceeds $10 million. (Id. at 35 ¶ H).
During discovery, Swift produced approximately 8,000 documents,
including two email chains containing communications from Charles Cumming
(“Cumming”), an in-house lawyer for Grace Line, who also handled operational matters.
(Pl.’s Resp. in Opp. to Defs.’ Mot. to Compel (ECF No. 44) (“Pl.’s Opp. Mem.”) at 8;
Grasso Decl., Ex. A at 29-32, 73).
The first email chain (the “Coverage Emails”) contains, among other
matters, advice addressed to Peter Metz (“Metz”), Swift’s sole director, as to whether the
circumstances in Libya gave rise to a valid claim under Swift’s war-risk policies. (Grasso
Decl, Ex. C at 1). Cumming’s advice to Metz was that, although “[a]bandonment [of the
Swift Spindrift] may be an option, . . . there [was] no war risk involved in this situation
and[, thus,] coverage would not come into play.” (Id.). Cumming also noted that the ship
had “suffered no physical damage so Hull and Machinery cover[age also would] not
come into play.” (Id.).
The second email chain (the “Libya Emails”) reflects communications
among Cumming, Swift’s local counsel in Libya, lawyers at a London firm representing
Swift in a related arbitration, and staff at “V-Ships,” a company hired by Swift to manage
the Swift Spindrift’s daily operations. (Grasso Decl., Ex. D). These emails primarily
concern the status of the Libyan proceedings and the issuance of the letter of credit. In an
email dated November 26, 2008, Swift’s Libyan counsel estimated that a $1.6 million
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letter of credit would be sufficient to secure the release of the Swift Spindrift. (See id.).
Later, on July 1, 2009, counsel in Libya informed Cumming that the amount assessed by
the Libyan court was actually closer to $2.9 million. (Id.). Cumming expressed his
“alarm[]” at this development and noted that a judgment in that amount might render the
Swift Spindrift a constructive total loss. (Id.).
In March 2012, Grace and Metz were deposed. Both testified generally
about advice they had received from Cumming related to the Swift Spindrift’s detention
in Libya. Metz testified that, although the Libyan importer was seeking to recover close
to $3 million, Swift had furnished a letter of credit for only $1.6 million because he
believed that amount was “sufficient” to satisfy the Libyan court and secure the release of
the ship. (Id., Ex. A at 114-19, 191-93). According to Metz, in arriving at that
determination, he “relied” on Cumming, as well as Swift’s local counsel in Libya, “who
was in a position to know the facts on the ground better than [he] did.” (Id. at 192-94).
When he was asked why Swift had failed to secure the full amount sought by the Libyan
importer, Metz responded that his understanding was that “[d]eviating from the $1.6
million [letter of credit] would not have made a difference in changing when the ship
would have been released.” (Id. at 117-18).
Grace’s testimony was less detailed. He acknowledged discussions with
Metz and Cumming regarding the situation in Libya, but could not recall any specifics of
those conversations. (Id., Ex. B at 81-84, 87-88). He also did not testify about any
specific legal advice that he had received from Cumming.
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B.

Motion to Compel

The present discovery dispute arises out of Swift’s 163-page privilege log,
which includes emails relating to a wide variety of topics concerning the Swift Spindrift’s
detention in Libya, including the need to obtain legal services in Tripoli, Swift’s legal
obligations under the ship’s charter agreement, the unloading of the Swift Spindrift’s
cargo, potential legal claims against Swift, securing a bank guarantee to satisfy the
judgment of the Libyan court, delays in the ship’s release, efforts to obtain assistance
from the State Department, and the orders entered by the Libyan court. (See Grasso
Decl., Ex. E). Many of these emails involve communications between or among
Cumming, Swift’s principals, Swift’s solicitors in London, and local counsel in Libya.
(Id.). Many others, however, appear to be messages sent to third parties or
communications between or among non-lawyers. (Id.).
Alvada contends that it is entitled to all of the documents identified in
Swift’s privilege log because Swift waived its attorney-client privilege by voluntarily
disclosing the Coverage and Libya Emails and allowing Metz and Grace to testify about
the information and advice that they had received from counsel. (Defs.’ Mem. of Law in
Supp. of Mot. to Compel (ECF No. 42) (“Defs.’ Mem.”) at 3). Alvada further contends
that any documents on the privilege log that were disclosed to third parties are no longer
privileged and must be disclosed. (Id. at 5-6). Finally, Alvada alleges that Swift’s
assertion of privilege is overbroad because many of the withheld communications relate
solely to business, rather than legal, matters. (Id. at 5).
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Swift disagrees. Swift maintains that its voluntary disclosure of the
Coverage and Libya Emails did not result in a waiver of its attorney-client privilege
because it produced those communications only after determining that they were, at best,
“questionably privileged.” (Pl.’s Resp. in Opp. to Defs.’ Mot. to Compel (ECF No. 44)
(“Pl.’s Opp. Mem.”) at 8). Swift also argues that Alvada has suffered no prejudice from
its partial disclosure and that any waiver should be limited to the communications already
disclosed. (Id. at 9). Although Swift concedes that many of the emails identified in its
privilege log were shared with third parties, Swift contends that those documents
nevertheless remain privileged because those parties were acting as Swift’s “agents.” (Id.
at 14-15). Finally, Swift alleges that any communications concerning operational or
business matters were properly withheld because the communications were
predominantly of a “legal character.” (Id. at 12-13).
II.

Applicable Law
Federal law governs privilege disputes in admiralty and maritime cases.

See Am. S.S. Owners Mut. Prot. and Indem. Ass’n v. Alcoa S.S. Co., 232 F.R.D. 191,
196 (S.D.N.Y. 2005). Thus, the attorney-client privilege applies to “communications [a]
between a client and his or her attorney [b] that are intended to be, and in fact were, kept
confidential [c] for the purpose of obtaining or providing legal advice.” United States v.
Mejia, 655 F.3d 126, 132 (2d Cir. 2011). “The burden of establishing the existence of an
attorney-client privilege, in all of its elements, rests with the party asserting it.” United
States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFLCIO, 119 F.3d 210, 214 (2d Cir. 1997).
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The purpose of the privilege is to “encourage clients to make full disclosure
to their attorneys” in order to ensure the quality of subsequent legal advice. Fisher v.
United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed. 2d 39 (1976). By shielding
attorney-client communications against disclosure, however, the privilege often
forecloses parties from obtaining relevant evidence that would otherwise be discoverable.
For that reason, the privilege is “narrowly” construed and applied “only where necessary
to achieve its purpose.” In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (internal
quotation marks omitted). In addition, there are a number of ways in which the privilege
can be waived. Disclosing confidential attorney-client communications to third parties,
including litigation adversaries, generally “‘eliminates whatever privilege the
communication may have originally possessed.’” United States v. Finazzo, No. 10-CR457 (RRM) (RML), 2013 WL 619572, at *6 (E.D.N.Y. Feb. 19, 2013) (quoting In re
Horowitz, 482 F.2d 72, 81 (2d Cir. 1973)). Similarly, a party may be held to have
impliedly waived the privilege “when a client testifies concerning portions of the
attorney-client communication, . . . when a client places the attorney-client relationship
directly at issue, . . . and when a client asserts reliance on an attorney’s advice as an
element of a claim or defense.” In re County of Erie, 546 F.3d at 228 (quoting Sedco
Int’l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982)).
As the Second Circuit has explained, fairness is the principal consideration
in determining whether a party has waived the attorney-client privilege. Id. at 229; see
also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (“In dealing with testimonial privileges

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other than the psychotherapist-patient privilege, we have held that a waiver may be
implied in circumstances where it is called for in the interests of fairness.”). “Whether
fairness requires disclosure has been decided by the courts on a case-by-case basis, and
depends primarily on the specific context in which the privilege is asserted.” In re Grand
Jury Proceedings, 219 F.3d 175, 183 (2d Cir. 2000).
III.

Analysis
A.

Swift’s Disclosure of Attorney-Client Information During Discovery
Alvada contends that Swift’s disclosure of attorney-client information

during discovery has resulted in a “general waiver [of the attorney-client privilege] as to
communications concerning the proceedings in Libya and the precipitating events.”
(Defs.’ Mem. at 3). The disclosures to which Alvada refers relate to two discrete subject
matters: (1) whether Swift believed that it had a coverage claim under Swift’s war-risk
policies; and (2) whether Swift posted adequate funds to secure the Swift Spindrift’s
release. Alvada believes that Swift’s disclosure of portions of its attorney-client
communications concerning these topics entitles it to review all other privileged
communications relating to similar subject matter. (Id. at 4).
Despite its obvious application, neither party has mentioned Rule 502 of the
Federal Rules of Evidence, which governs the disclosure of privileged information to a
litigation adversary in the course of a “Federal proceeding.” Seyler v. T-Systems N.A.,
Inc., 771 F. Supp. 2d 284, 287-88 (S.D.N.Y. 2011). Perhaps this omission should not be
a surprise since remarkably few lawyers seem to be aware of the Rule’s existence despite

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its enactment nearly five years ago. See Paul W. Grimm, Lisa Yurwit Bergstrom &
Matthew P. Kraeuter, Federal Rule of Evidence 502: Has It Lived Up to Its Potential?,
XVII Rich. J. L. & Tech. 8 (2011). That is unfortunate because Rule 502 was specifically
designed to avoid vexatious and time-consuming privilege disputes such as this one. See
Fed. R. Evid. 502(d).
Rule 502 was intended to “resolve some longstanding disputes in the courts
about the effect of certain disclosures of communications or information protected by the
attorney-client privilege” and “respond[] to the widespread complaint that litigation costs
necessary to protect against waiver of attorney-client privilege or work product have
become prohibitive due to the concern that any disclosure (however innocent or minimal)
will operate as a subject matter waiver of all protected communications or information.”
Rule 502 advisory committee’s note. To effectuate these objectives, Rule 502 sets forth a
uniform framework for determining the extent to which a party’s partial disclosure of
attorney-client information waives the privilege as to undisclosed privileged
communications concerning the same subject matter.
The analysis under Rule 502 differs depending upon whether a party’s
disclosure is intentional or inadvertent. Swift acknowledges that it intentionally disclosed
the Coverage and Libya Emails by voluntarily producing them to Alvada during the
course of discovery. (Pl.’s Opp. Mem. at 8). It further concedes that these documents
were privileged, albeit “questionably” so. (Id.). In addition, to the extent that Metz or
Grace testified about attorney-client information during their depositions, it can be

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assumed that their disclosures were voluntary, since neither witness was instructed not to
answer. (See Grasso Decl. Exs. A, B). Consequently, the only question is whether other
attorney-client communications of the same nature and subject matter must be produced
as a result of Swift’s disclosures.
Rule 502(a) governs intentional disclosures. That section provides that a
partial disclosure of attorney-client information waives the privilege for undisclosed
communications only if “(1) the waiver is intentional; (2) the disclosed and undisclosed
communications or information concern the same subject matter; and (3) they ought in
fairness to be considered together.” Fed. R. Evid. 502(a). The Advisory Committee’s
Note explains that “a subject matter waiver . . . is reserved for those unusual situations in
which fairness requires a further disclosure of related, protected information, in order to
prevent a selective and misleading presentation of evidence to the disadvantage of the
adversary.” Rule 502(a) advisory committee’s note. Thus, even when a disclosure is
intentional, the scope of any subject matter waiver ordinarily is quite “narrow.” Seyler,
771 F. Supp. 2d at 288.
Swift’s disclosures in this case have not resulted in the unfairness
contemplated by Rule 502(a). At the outset, the selective production of the Coverage
Emails has not afforded Swift any tactical advantage in this litigation. Indeed, those
emails are not favorable to Swift’s case and consequently do not have the potential to be
used selectively at trial to Alvada’s detriment. The Coverage Emails, in fact, reveal only
that Swift had received legal advice that the situation in Libya likely did not give rise to a

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valid coverage claim under its war-risk policies. Even if one were to assume that this
constitutes an admission by a party-opponent, see Fed. R. Evid. 801(c)(2)(D), Alvada has
failed to demonstrate that Swift intends to rely on the Coverage Emails or that any unfair
prejudice has resulted from their partial disclosure. Thus, Swift’s production of the
Coverage Emails does not warrant compulsory disclosure of other privileged documents
related to the same subject matter. See Seyler, 771 F. Supp. 2d at 288 (citing Eden Isle
Marina, Inc. v. United States, 89 Fed. Cl. 480, 521(Fed. Cl. 2009) (declining to find
subject matter waiver where the disclosures “lacked any strategic value” and did not
benefit the disclosing party’s case)).
Turning to the Libya Emails and related deposition testimony, there
similarly is no indication that Swift’s disclosures have been selective or misleading in any
way. The emails consist of an innocuous discussion about the status of the Libyan
proceedings and the amount of security required to obtain the Swift Spindrift’s release.
The deposition testimony likewise is unremarkable. Metz stated that he sought and
received legal advice about the events in Libya before making a final decision about how
much money to post to satisfy the court’s judgment. Grace testified only that he had
consulted with attorneys, but revealed no confidential information or details about those
consultations. Accordingly, it is unclear how disclosure of this general information has
prejudiced Alvada’s case.

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Alavada contends that Swift’s assertion of privilege with respect to related
documents conceals important factual information about the action in the Libyan court and
the measures Swift took to obtain the vessel’s release. (Defs.’ Mem. at 4-5). The mere
need for factual information, however, does not entitle a party to obtain communications
protected by the attorney-client privilege. Golden Trade, S.r.L. v. Lee Apparel Co., 143
F.R.D. 514, 522 (S.D.N.Y. 1992) (“[the attorney-client] privilege, unlike most others, is
absolute in the sense that it cannot be overcome merely by a showing that the information
would be extremely helpful to the party seeking disclosure”). Alvada makes a similar
argument with respect to Swift’s “sue and labor” claim, contending that the nature of that
claim entitles it to “examine the work that these attorneys are said to have performed.”
(Defs.’ Mem. at 5). Much in the way that reasonableness is determined in attorneys’ fees
petitions, however, such an examination obviously can be conducted without having to
disclose all of Swift’s privileged communications.
Alvada argues further that Swift has waived the attorney-client privilege by
placing its reliance on the advice of counsel at issue. (See Defs.’ Mem. at 4-5; Defs.’
Reply Mem. of Law in Further Supp. of Mot. to Compel (ECF No. 45) (“Defs.’ Reply”) at
3-4). While it is true that the assertion of an advice-of-counsel defense ordinarily results
in an implied waiver of the privilege, see In re County of Erie, 546 F.3d at 228, Swift has
not raised that defense in this case. Indeed, Swift has expressly disavowed that defense.
(See Pl.’s Opp. Mem. at 10-11). Furthermore, should Swift seek to change its position at a
later date, it will risk having waived the defense. Arista Records LLC v. Lime Group

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LLC, No. 06 CV 5936 (KMW), 2011 WL 1642434, at *2 (S.D.N.Y. Apr. 20, 2011) (“a
party who intends to rely on the advice of counsel must make a full disclosure during
discovery; failure to do so constitutes a waiver of the advice-of-counsel defense”) (internal
quotation marks and emphasis omitted).
The remainder of Alvada’s argument consists of vague references to the
well-established precept that it is unfair for a party to use the attorney-client privilege as
both a “sword” and a “shield.” (See Defs.’ Mem. at 4; Defs.’ Reply at 3-4). Stated
slightly differently, that principle prohibits a party from “us[ing] the privilege to prejudice
his opponent’s case or disclos[ing] some selected communications for self-serving
purposes.” United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) (citing In re
von Bulow, 828 F.2d 94, 103 (2d Cir. 1987)). What is missing from the discussion,
however, is any showing that Alvada’s case has been unfairly disadvantaged or that it has
been prejudiced by Swift’s conduct. Indeed, Alvada simply has not demonstrated how
Swift’s partial disclosure of this information could lead to a selective and deceptive
presentation of evidence at trial. See Rule 502 advisory committee’s note. Given the
nature of the issues in the case, none of the fairness concerns enunciated in Rule 502
appear to be implicated by Swift’s partial disclosures. Accordingly, there has not been a
waiver of the privilege with respect to undisclosed communications concerning similar
subject matter.

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B.

Disclosure of Communications to Third Parties
Alvada also contends that Swift’s disclosure of attorney-client emails to

third parties has waived its privilege as to those communications. (Defs.’ Mem. at 5-6).
Alvada reasons that, because Swift had no “legal purpose” for sending these third parties
such attorney-client communications, the documents are not privileged and must be
produced. (Defs.’ Reply at 7-8). Although Swift concedes that many communications on
the privilege log were addressed or copied to non-attorney third parties, it argues that those
disclosures did not result in waiver because the third parties who received the
communications “were acting as agents of [Swift], within the scope of their contractual
duties,” and it was “necessary to provide necessary information to those concerned [and]
to facilitate fully informed advice and opinions.” (Pl.’s Opp. Mem. at 14-15).
“It is well-settled that the voluntary disclosure of confidential material to a
third party waives any applicable attorney-client privilege.” Crawford v. Franklin Credit
Management Corp., 261 F.R.D. 34, 43 (S.D.N.Y. 2009) (internal quotations omitted). An
exception to this rule exists for communications disclosed to a third party who acts as the
client’s agent. In re Application Pursuant to 28 U.S.C. § 1782, 249 F.R.D. 96, 101
(S.D.N.Y. 2008). In those circumstances, “the proponent of the privilege must show, first,
that the client had a reasonable expectation of confidentiality in the disclosure of the
material to the third party, and second, that ‘disclosure to the third party was necessary for
the client to obtain informed legal advice.’” Id. (quoting National Educ. Training Group,
Inc. v. SkillSoft Corp., No. M8-85 (WHP), 1999 WL 378337, at *4 (S.D.N.Y. June 10,
1999)).
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A review of Swift’s privilege log reveals numerous emails that include third
parties as recipients. The relationship between Swift and those parties is not apparent
from the face of the privilege log or any other materials proffered in connection with this
discovery dispute. There also appear to be emails exchanged solely between or among
third parties. These communications seem to bear no connection to the procurement of
legal advice. An example of this is document SSL 008893, which is an email from Andrea
Luzzi to Jose Seijas, Mike Littedale, and John Edward Sullivan concerning the “dispute
re[garding] cargo delivery in Libya.” (Grasso Decl., Ex. E at 13). While the privilege log
does not explain who any of these individuals are, it appears that none of them are
lawyers.
Swift is correct in observing that the attorney-client privilege may extend to
communications shared with its agents, but it makes no attempt to identify which emails it
believes are protected under this theory. Rather, Swift merely states generally that all of
the third parties included on the shared communications were “acting as [its] agents.”
(Pl.’s Opp. Mem. at 14). Swift provides only one example: a company named V-Ships
that Swift had hired to manage the “various day to day logistical and operational issues
associated with” the Swift Spindrift was included on certain communications between inhouse counsel and corporate principals in order to “facilitate” the transmission of legal
advice. (See id. at 14-15). Swift does not explain, however, how including V-Ships on
their attorney-client emails assisted the process, or even make clear which entries on the
privilege log relate to the V-Ships communications.
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Swift similarly has failed to demonstrate that disclosure to V-Ships was
necessary in order for it to obtain informed legal advice. “Necessary,” in the context of
third party disclosures, “means more than just useful and convenient, but rather requires
that the involvement of the third party be indispensable or serve some specialized purpose
in facilitating the attorney-client communications.” Allied Irish Banks v. Bank of
America, N.A., 240 F.R.D. 96, 103 (S.D.N.Y. 2007) (quoting National Educ. Training
Group, 1999 WL 378337, at *4). It does not appear that V-Ships served any specialized
purpose here other than perhaps to provide factual information to Cumming and Swift’s
principals. That, however, is insufficient to avoid a privilege waiver. See In re
Application Pursuant to 28 U.S.C. § 1782, 249 F.R.D. at 101-02 (privilege waived for
communications disclosed to third party who merely aided in “clarifying certain factual
issues,” even though those issues had “legal implications”). Consequently, any documents
disclosed to V-Ships must be produced.
Additionally, because Swift has failed to show that the disclosure of emails
to third parties other than V-Ships was necessary to facilitate the attorney-client
relationship, the privilege also has been waived with respect to such communications.
Any communications disclosed to third parties other than V-Ships consequently also must
be produced.
C.

Cumming’s Dual Role

Alvada’s final argument concerns Cumming’s dual role as in-house counsel
and business advisor at Swift. Alvada contends that any communications concerning
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Cumming that arise out of his business role are not privileged and must be disclosed. (See
Defs.’ Mem. at 5).
“The Second Circuit has made clear that only those communications related
to ‘legal, as contrasted with business, advice’ are protected.” TVT Records v. Island Def
Jam Music Group, 214 F.R.D. 143, 144 (S.D.N.Y. 2003) (quoting In re Grand Jury
Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984)); see
also In re Omnicom Group Inc. Secs. Litig., 233 F.R.D. 400, 404 (S.D.N.Y. 2006)
(“Communications that seek or involve principally the performance by the attorney of
non-legal functions are not protected.”) (citations omitted). When in-house counsel
occupies both a legal and operational role, the test for determining if a document is
privileged is “whether the predominant purpose of the communication [was] to render or
solicit legal advice.” In re County of Erie, 473 F.3d at 420.
It is undisputed that, in addition to his role as in-house counsel, Cumming
also handled certain operational and business matters for Swift. It follows that Cumming
would have generated emails or other documents that related principally to his role as a
business advisor, rather than his role as counsel. Swift concedes that the attorney-client
privilege does not apply to communications if Cumming’s predominant purpose was to
render operational or business advice. Thus, to the extent that it has not done so already,
Swift must disclose any communications, or portions thereof, that were sent or received
primarily for purposes other than providing legal advice.

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IV.

Conclusion
For thc foregoing reasons, Alvada's motion to compel (ECF No. 41) is

granted in part and dcnied in part.
SO ORDERED.
Dated:

New York, New York
July 24,2013

United tates Magistrate Judge

Copies to:
Hon. Alison J. Nathan
United States Distriet Judge
All counsel (via ECF)

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