Equal Employment Opportunity Commission v. Kelley Drye & Warren, LLP

Filing 112

ENDORSED LETTER addressed to Magistrate Judge Michael H. Dolinger from Bettina B. Plevan dated 2/21/2012 re: counsel for defendant write with respect to a dispute concerning the inadvertent production of a privileged document notwithstanding Kelley Drye's best efforts to resolve the issue. Kelley Drye therefore seeks an Order requiring the immediate return or destruction of all inadvertently produced copies of the document. In light of the forgoing Kelley Drye respectfully requests a conference to discuss resolution of this dispute. ENDORSEMENT: If defendant wishes to pursue return of the document, it is to do so by formal motion since it has the burden of establishing by competent evidence the facts on which its privilege claim is based. (Signed by Magistrate Judge Michael H. Dolinger on 2/29/2012) (pl)

02/21/2012 TUE 16: 13

FAX

02/003

FEB 2 1 2012

Re:

EEOC v. KellevDrye & Warren UP, No. lO-CIV-0t555 (LTSilMHD)

Dear Judge Dolinger:
We are counsel to defendant Kelley Drye & Warren LLP ("Kelley Drye') in the above­
referenced matter. We write with respect to a dispute concerning the inadvertent production of a
privileged document notwithstanding Kelley Drye ~ s best efforts to resolve the issue.
During the deposition of Kel1ey DI)'e's Managing Partner, James Kirk, Mr. Burstein marked as
an exhibit an e-mail string, inadvertently produced in discovery by Kelley Drye, which included
an e-mail trom Mr. Kirk to firm Counsel Steven Caley, Finn Chairman John Callagy, and
Executive Committee Member Robert Bickford. The e-mail contained a draft of the
memorandum Mr. Kirk intended to send to the Finn's Partners, transmitting the proposed
amendment to the firm's Partnership Agreement which eliminated the mandatory transition to
Life Partnership.
Mr. Kirk's draft e-mail discussed the genesis of the amendment, and made specific reference to
the EEOC's actions in this litigation. Given the pelldencyofthis matter, Mr. Kirk' primary
purpose was to seek legal advice and guidance with respect to the dissemination of the proposed
amendment. There would have been no other reason to send the draft memorandum to Mr.
Caley. who is not a member of the Executive Conunittee. It was not Mr. Kirk's practice
routinely to copy Mr. Caley on all issues involving timl policy. Mr. Kirk limited distribution of
this e-mail to Messrs. Caley, Callagy. and Bickford, because it was not his intention to share his
draft memorandum with a wider audience. Rather he wanted to make sure that the legal advice
he sought was kept confidential.
At the deposition we immediately asserted an objection to Mr. Burstein's use of the privileged
document and demanded its return or destruction. Mr. Burstein refused. Subsequent to the
deposition we wrote to Mr. Burstein demanding return or destruction ofthe document (and of
additional copies of the document in the Kelley Drye Production), We again asserted that the

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02/21/2012

TUE

16~

13

FAX

Proskauer»
Hon. Michael H. Dolinger, U.S.M.J.

U.S, District Court. Southern District of New York

February 21, 2012.

Page 2

production was inadvertent. Mr. Burstein again refused to return the privileged docwnent {and
the copies of the document).l
In his letter rejecting our demand for return of the document Mr. Burstein acknowledged that
privilege attaches to "a communication between client and counsel. made for the purpose of
obtaining legal advice that was intended to be and in fact was kept confidential." In re Grand
Jury Proceedings, 219 F.3d 175, 183 (2d Cir. 2000). As shown above, there can be no question
that the document is protected by privilege, was kept confidential, was inadvertently produced,
and should accordingly be returned or destroyed. Kelley Drye therefore seeks an Order requiring
the immediate return or destruction of all inadvertently produced copies of the document.
In light of the forgoing Kelley Drye respectfully requests a conference to discuss resolution of
this dispute.
.

Respectfully,

{?dItM.:c (k~/~
Bettina B. Plevan

cc:

Jeffrey Burstein, Esq. (By PDF)

1 While the EEOC challenges Kelley Drye's assertion of privilege, and not whether it is entitled
to the return of inadvertently produced privileged dOCl.lments, Kelley Drye's General Objections
set forth in its responses to document demands contemplate the return of inadve11ently produced
privileged documents. stating "Inadvertent identification or production of any such documents
shall not constitute a waiver of any privilege with respect to the subject matter thereof or the
information contained therein, and shall not waive Defendant's right to object to the use of any
such documents or information during this or any subsequent proceeding or to demand the return
of any such documents!'

0507/42495-001 current/27229880v3

~003/003

FAX Cover Sheet

Date:

February 29,2012

To:
Elizabeth Anne Grossman, Esq.

Fax: [phone]

Alt Fax: [phone]

Jeffrey Charles Burstein, Esq.

Fax: [phone]

Bettina Barasch Plevan, Esq.

Fax: [phone]

Joseph C. O'Keefe, Jr, Esq.

Fax: [phone]

Re:

EEOC v. Kelley Drye & Warren, LLP.

10 Civ. 655 (LTS) (MHD)

Text of endorsed order enclosed: "If defendant wishes to pursue return
of the document, it is to do so by formal motion since it has the burden of
establishing by competent evidence the facts on which its privilege claim is
based."
From:

Magistrate Judge Michael H. Dolinger

United States District Court

Southern District of New York

500 Pearl Street, Room 1670

New York, New York 10007-1312

FAX [phone]
TELEPHONE NUMBER [phone]
This document contains

2. pages, including this cover sheet.