Coventry Capital US LLC v. EEA Life Settlements, Inc. et al

Filing 301

OPINION AND ORDER. The Motion is GRANTED IN PART AND DENIED IN PART, as follows: (1) The Motion is DENIED as to the Manager Recommendations (and cover emails) and the Contracts. (2) With respect to the redactions, the Motion is GRANTED to the exte nt that Coventry must remove the redactions from and produce: (i) the first two emails on ECF No. 283-25; and (ii) the email dated 4/20/17 at 9:17 am on ECF No. 283-26, and is otherwise DENIED. (3) EEA Inc. shall apply the Court's guidance as to any other redactions, remove redactions that are similar to (2)(i) and (ii) above, and re-produce any such documents accordingly. The Clerk of Court is respectfully directed to close ECF No. 283. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 9/15/21) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
COVENTRY CAPITAL US LLC,
Plaintiff,
-v-

CIVIL ACTION NO.: 17 Civ. 7417 (VM) (SLC)
OPINION AND ORDER 1

EEA LIFE SETTLEMENTS INC. et al.,
Defendants.

SARAH L. CAVE, United States Magistrate Judge.
I.INTRODUCTION
Before the Court is the motion of Plaintiff Coventry Capital US LLC (“Coventry”) to compel
(ECF No. 283 (the “Motion”)), which challenges several privileges that Defendant EEA Life
Settlements, Inc. (“EEA Inc.”) has asserted over certain documents belonging to or held by EEA
Life Settlements Fund PCC Limited (the “Fund”). First, Coventry objects to EEA Inc.’s withholding
on grounds of attorney-client privilege certain drafts of documents, other versions of which EEA
Inc. did produce. (Id. at 4–5). Second, Coventry argues that EEA Inc. has applied overly-broad
redactions based on attorney-client privilege, and asks the Court to conduct an in camera review
of an exemplar of disputed redactions. (Id. at 6). EEA Inc. stands on its privilege assertions, and
does not oppose the Court’s in camera review of the disputed redactions. (ECF No. 288). 2 For
the reasons set forth below, Coventry’s Motion is GRANTED IN PART AND DENIED IN PART.

This Order was previously filed under seal on September 15, 2021. (ECF No. 299). On September 21,
2021, the parties informed the Court that they had no objections to the public filing of this Order. (ECF
No. 300).
2
The Motion also raised a dispute concerning EEA Inc.’s assertion of regulatory privilege as to certain
documents. (ECF No. 283 at 2–4). EEA Inc. subsequently withdrew the assertion of regulatory privilege
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II.BACKGROUND
A. Factual Background
The factual background of this matter appears in several previous decisions issued by the
Honorable Victor Marrero, as well as the undersigned, over the course of this contentious
litigation arising from the negotiation of a contract to sell a portfolio of life insurance policies to
Coventry. See Coventry Cap. US LLC v. EEA Life Settlements Inc., No. 17 Civ. 7417 (VM) (SLC),
2021 WL 961750 (S.D.N.Y. Mar. 15, 2021) (overruling Coventry’s objections to two aspects of the
Dec. 16, 2020 order resolving various discovery disputes); Coventry Cap. US LLC v. EEA Life
Settlements Inc., No. 17 Civ. 7417 (VM) (SLC), 2020 WL 7383940 (S.D.N.Y. Dec. 16, 2020)
(resolving various discovery disputes); Coventry Cap. US LLC v. EEA Life Settlements Inc., 439 F.
Supp. 3d 169 (S.D.N.Y. 2020) (granting in part a motion for reconsideration of an order compelling
directors’ production of documents); Coventry Cap. US LLC v. EEA Life Settlements Inc., 334 F.R.D.
68 (S.D.N.Y. 2020) (affirming grant of Coventry’s motion to compel production from EEA Inc.’s
affiliated entities); Coventry Cap. US LLC v. EEA Life Settlements Inc., No. 17 Civ. 7417 (VM) (SLC),
2019 WL 6336326 (S.D.N.Y. Nov. 26, 2019) (granting Coventry’s renewed motion to compel
production from EEA Inc.’s affiliated entities); Coventry Cap. US LLC v. EEA Life Settlements Inc.,
333 F.R.D. 60 (S.D.N.Y. 2019) (granting Coventry’s motion to compel production of documents
from EEA Inc.’s affiliated entities); Coventry Cap. US LLC v. EEA Life Settlements Inc., 357 F. Supp.
3d 294 (S.D.N.Y. 2019) (denying motion for reconsideration of denial of preliminary injunction);
Coventry Cap. US LLC v. EEA Life Settlements Inc., No. 17 Civ. 7417 (VM) (SLC), 2018 WL 7080327

and produced the withheld documents. (ECF No. 296 at 1). Therefore, the Court does not render any
opinion on the regulatory privilege in this Order.
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(S.D.N.Y. Dec. 17, 2018) (denying motion for preliminary injunction); Coventry Cap. US LLC v. EEA
Life Settlements Inc., No. 17 Civ. 7417 (VM) (SLC), 2018 WL 3231718 (S.D.N.Y. Mar. 9, 2018)
(denying letter-motions to dismiss). Accordingly, the Court incorporates the factual summaries
in those decisions and presumes the reader’s familiarity with the relevant background to the
current discovery disputes.
B. Procedural Background
Discovery in this action has been ongoing for several years, and as is apparent from the
decisions listed above, has involved numerous disputes requiring Court intervention. At the
Court’s encouragement, the parties engaged in considerable negotiations over several months
regarding EEA Inc.’s assertion of privilege, but were unable to resolve all of their disputes. (See
ECF Nos. 271; 272; 275; 277). The parties agreed to and the Court adopted (and subsequently
extended) a briefing schedule for the unresolved privilege disputes. (ECF Nos. 279; 280; 287).
On June 18, 2021, Coventry filed its Motion (ECF No. 283), on July 19, 2021, EEA Inc. filed its
Opposition (ECF No. 288), and on July 30, 2021, Coventry filed its Reply. (ECF No. 293). The Court
scheduled, and later adjourned at the parties’ request, oral argument on the Motion, which
occurred on September 9, 2021. (ECF Nos. 289; 291; 292).
III.DISCUSSION
A. Draft Documents
Coventry objects to two categories of draft documents EEA Inc. has withheld from its
production based on attorney-client privilege: (1) certain “versions of a document reflecting the
EEA entities’ business plans” referred to as the “Manager Recommendations” and accompanying

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cover emails, 3 and (2) “dozens of drafts of contracts that were exchanged with Coventry”
referred to as the “Contracts.” 4 (ECF No. 283 at 4).
1. Legal standard
“The attorney-client privilege was designed ‘to encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in the
observance of law and [the] administration of justice.’” TVT Records v. Island Def Jam Music Grp.,
214 F.R.D. 143, 144 (S.D.N.Y. 2003) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389
(1981)). “Because the privilege ‘stands in derogation of the public’s right to every [person’s]
evidence . . . it ought to be strictly confined within the narrowest possible limits consistent with
the logic of its principle.’” Id. (quoting In re Grand Jury Proc., 219 F.3d 175, 182 (2d Cir. 2000));
see Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 648 (S.D.N.Y. 2019) (“The privilege is
narrowly construed because it renders relevant information undiscoverable.”). The Second
Circuit has explained that the attorney-client privilege applies:
(1) where legal advice of any kind is sought (2) from a professional legal advisor in
his [or her] capacity as such, (3) the communications relating to that purpose, (4)
made in confidence (5) by the client, (6) are at his [or her] instance permanently
protected (7) from disclosure by himself or by the legal advisor, (8) except [where]
the protection [is] waived . . .

The Manager Recommendations (and cover emails) that EEA Inc. has withheld bear the following batesnumbers: COV-00296606, COV-00296698, COV-00296910, COV-00296911, COV-00297625, COV00296605, COV-00296909, COV-00297516, COV-00297617, and COV-00297624. (ECF No. 283 at 4 n. 5).
4
The Contracts bear the following bates-numbers: COV-00277855, COV-00278599, COV-00278672, COV00278900, COV-00279813, COV-00279814, COV-00279815, COV-00302812, COV-00302813, COV00303125, COV-00303126, COV-00303127, COV-00303166, COV-00303167, COV-00304659, COV00306329, COV-00306330, COV-00306331, COV-00306567, COV-00306568, COV-00306569, COV00306570, COV-00307717, COV-00307718. Slip sheets were inserted for some of the Contracts with the
following bates-numbers: EEA-017490, EEA-017495, EEA-017507, EEA-017508, EEA-017550, EEA-017555,
EEA-017559, EEA-017603, EEA-017644, EEA-017662, EEA-017696, EEA-017719, EEA-017758, EEA-17759,
EEA-021072, and EEA-021073. (ECF No. 283 at 4).
3

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In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1036 (2d Cir. 1984).
A party who invokes attorney-client privilege “must demonstrate that the information at issue
was a communication between client and counsel or his [or her] employee, that it was intended
to be and was in fact kept confidential, and that it was made in order to assist in obtaining or
providing legal advice or services to the client.” Bowne of New York City, Inc. v. AmBase Corp.,
150 F.R.D. 465, 470–71 (S.D.N.Y. 1993). 5
The mere fact that a document was transmitted between an attorney and his or her client
does not render the document privileged; rather, it “must contain confidential communication
relating to legal advice.” Dep’t of Econ. Dev. v. Arthur Andersen & Co., 139 F.R.D. 295, 300
(S.D.N.Y. 1991); see Renner v. Chase Manhattan Bank, No. 98 Civ. 926 (CSH), 2001 WL 1356192,
at *1 (S.D.N.Y. Nov. 2, 2001) (rejecting argument that “any reference to any communication
between [a client] and one of his attorneys on any document shields that entire document from
disclosure, whether or not the document reveals communications made by [the client] to his
attorneys in confidence and for the purpose of obtaining legal advice”).
As this Court has explained, “the privilege attaches not only to communications by the
client to the attorney, but also to advice rendered by the attorney to the client, at least to the
extent that such advice may reflect confidential information conveyed by the client.” In re Keurig
Green Mtn. Single-Serve Coffee Antitrust Litig., No. 14 Md. 2542 (VSB) (SLC), 2020 WL 8465433,

Bowne described the showing required under New York law, and although the parties here do not
articulate whether New York or U.K. law should apply to the attorney-client privilege analysis, the Court
notes that “[t]he privilege analysis under U.K. law parallels the analysis under New York law.” Guiffre v.
Maxwell, No. 15 Civ. 7433 (RWS), 2016 WL 1756918, at *4 (S.D.N.Y. May 2, 2016) (noting that privilege
analysis under U.K. law requires “(i) a communication between an attorney and client, (ii) made in the
course of the representation, (iii) for the purpose of providing legal advice”).
5

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at *2 (S.D.N.Y. Oct. 30, 2020) (quoting Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160
F.R.D. 437, 441–42 (S.D.N.Y. 1995)). Because in-house lawyers often perform both legal and
business functions, however, “communications between a corporation’s employees and its inhouse counsel, though subject to the attorney-client privilege, must be scrutinized carefully to
determine whether the prominent purpose of the communication was to convey business advice
and information or, alternatively, to obtain or provide legal advice,” with only the latter being
protected by the attorney-client privilege. Brown, 474 F. Supp. 3d at 648. “In addition, ‘the
privilege protects from disclosure communications among corporate employees that reflect
advice rendered by counsel to the corporation,’ and thus ‘the dissemination of confidential
communications to [the corporation’s employees] does not defeat the privilege.’” In re Keurig,
2020 WL 8465433, at *2 (quoting Bank Brussels, 160 F.R.D. at 442).
2. Application
a. Manager Recommendations
The Manager Recommendations (and their cover emails), Coventry argues, “contain only
business information,” and are therefore not privileged. (ECF No. 283 at 5). And, Coventry
maintains, EEA Inc.’s production of four versions of the Manager Recommendations operates as
a waiver over any attorney-client privilege that could arguably apply to the withheld versions of
the same document, all of which are authored by a non-lawyer, Vincent Piscaer. (Id. at 4). At
most, Coventry insists that EEA Inc. may only redact “a specific comment or edit from a lawyer
that is privileged,” while producing the balance of the document. (Id. at 5).
EEA Inc. argues that Mr. Piscaer drafted the withheld versions of the Manager
Recommendations “following discussions with, and at the direction of, Andrew Harrop (General
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Counsel for the Manager),” who “provided input ahead of the preparation of the first version of
the ‘Manager Recommendation[s],’” such that those documents “entirely reflected Mr. Harrop’s
legal advice.” (ECF No. 288 at 4). EEA Inc. states that “[e]ach subsequent draft was then sent
between Mr. Piscaer and Mr. Harrop for the latter to review and provide legal advice . . . as part
of a continuous chain of confidential and privileged communications.” (Id.) EEA Inc. contends
that the disclosure of some drafts does not waive the privilege as to other drafts that were never
shared with Coventry, and rejects Coventry’s assertion that the Manager Recommendations
contain only business information, pointing to Mr. Harrop’s role in “mitigating the Manager’s
legal risks.” (Id.)
The Court finds that each of the drafts of the Manager Recommendations (and their cover
emails) are protected by the attorney-client privilege because they constitute communications
for the purpose of seeking or providing legal advice. Each document reflects communications
between Mr. Piscaer and Mr. Harrop concerning legal review of the contents of the respective
draft of the Manager Recommendations. It is undisputed that the withheld drafts were not
shared with third parties, and EEA Inc.’s production of versions of the Manager
Recommendations, which did not contain such a request for or provision of legal advice, did not
act as a waiver of the privilege. See Pearlstein v. Blackberry Ltd., No. 13 Civ. 07060 (CM) (KHP),
2019 WL 1259382, at *19–20 (S.D.N.Y. Mar. 19, 2019) (holding that drafts of contract containing
notes from business manager to in-house counsel requesting legal review were privileged);
Valassis Commc’ns, Inc. v. News Corp., No. 17 Civ. 7378 (PKC), 2018 WL 4489285, at *4 (S.D.N.Y.
Sept. 19, 2018) (holding that confidential drafts of meeting minutes from general counsel “to
employees in a position to act on the advice” were privileged). This is a situation in which “a draft
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document sent to a lawyer [is] a confidential communication made for the predominant purpose
of obtaining legal advice even though the draft is intended ultimately to become a business
document when and if the lawyer’s legal input or approval is received.” Id. at *2. In addition,
the Court finds that redaction would not be feasible for the Manager Recommendations, given
the extent of the markups in the drafts. Therefore, EEA Inc. may continue to withhold the
Manager Recommendations (and cover emails) in their entirety. See Pearlstein, 2019 WL
1259382, at *12 (finding that redaction would not be “appropriate or feasible”).
b. Contracts
Coventry argues that EEA Inc. exchanged draft versions of the Contracts with Coventry
during the parties’ 2017 negotiation process, and has thus improperly withheld other versions of
the same Contracts. (ECF No. 283 at 5). Coventry also notes that EEA Inc.’s Investment Advisor
also included versions of the Contracts in its document production in this action. (Id.) Coventry
contends that such “voluntary disclosure” effected a waiver of the attorney-client privilege. (Id.)
At most, Coventry contends, EEA Inc. may redact only those portions of the Contracts reflecting
requests for or provision of legal advice. (Id.)
EEA Inc. responds that the versions of the Contracts it has withheld are versions that it
did not share with Coventry, and therefore did not voluntarily disclose. (ECF No. 288 at 5).
Because the withheld versions were exchanged with an attorney “for the purpose of seeking legal
advice,” EEA Inc. maintains that they remain protected by the attorney-client privilege. (Id.)
The Court concludes that EEA Inc. has “met its burden” of showing that the withheld
Contracts, like the Manager Recommendations, reflect requests for or provision of legal advice,
and are protected by the attorney-client privilege. Pearlstein, 2019 WL 1259382, at *12.
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Similarly, the Court finds that redaction of the extensive edits would not feasible, and EEA Inc.
may withhold the documents in their entirety. Id. at *12, 18.
B. Redactions
1. Legal standard
Coventry contests the redactions EEA Inc. has made based on attorney-client privilege
(ECF No. 283 at 6), and therefore, the same legal standards set forth in § III.A.1, supra, apply.
2. Application
The first type of redactions to which Coventry objects appear on five documents that do
not “involve any lawyer or indicate that legal advice was being discussed.” (ECF No. 283 at 6; see
ECF Nos. 283-22 – 283-26). The Court finds that the redactions on ECF Nos. 283-22 and 283-23
are appropriate because they concern communications between a lawyer—Mr. Harrop—and
contain either requests for or provision of legal advice. The redactions on ECF No. 283-24 cover
the “intra-corporate distribution of legal advice received from counsel, [which] does not
necessarily vitiate the privilege, even though the legal advice is relayed indirectly from counsel
through corporate personnel.” Tower 570 Co. LP v. Affiliated FM Ins. Co., No. 20 Civ. 799 (JMF),
2021 WL 1222438, at *3 (S.D.N.Y. Apr. 1, 2021) (quoting Nat’l Educ. Training Grp., Inc. v. Skillsoft
Corp., No. M8-85 (WHP), 1999 WL 378337, at *3 (S.D.N.Y. June 10, 1999)). EEA Inc. has redacted
the top three emails in the chain that appears on ECF No. 283-25. The Court finds that the first
two redacted emails do not copy Mr. Harrop or reflect the intra-corporate distribution of legal
advice that appeared in ECF No. 283-24, and, accordingly, must be unredacted. In contrast, the
third email on ECF No. 283-25 does reflect an internal distribution of Mr. Harrop’s advice, and is
therefore properly redacted. In ECF No. 283-26, the Court finds that although Mr. Harrop is
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copied on the email dated 4/20/17 at 9:17 am, that email does not contain a request for or
provision of legal advice, and is therefore not privileged and should be un-redacted. See Tower
570 Co. LP, 2021 WL 1222438, at *6 (directing the production of communications on which
lawyer was copied but was not “done for the purpose of obtaining or providing legal advice”).
The second category of redactions to which Coventry objects are on three documents
“that appear[] to have been business related, not legal.” (ECF No. 283 at 6; see ECF Nos. 283-27
– 283-29). The Court finds that the redactions on these three documents reflect Mr. Harrop’s
legal advice concerning the possible exposure to the Fund of certain courses of action, steps to
mitigate such risks, and/or the legal significance of certain events in the negotiation process.
Accordingly, they are privileged and properly redacted.
Finally, Coventry objects to the redactions on three documents that “include selective
redactions and productions of Mr. Harrop’s own communications regarding business-related
matters about the negotiations with Coventry.” (ECF No. 283 at 6; see ECF Nos. 283-30 – 28332)). Coventry is concerned that EEA Inc. has “produced portions that are critical of Coventry,
while redacting other portions,” (ECF No. 283 at 6), and objects to EEA Inc. using the privilege “as
a shield and a sword.” (Id. (quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)).
The Court finds that the redactions in each of these three documents concern Mr. Harrop’s legal
advice, his interpretations of the legal significance of events, or strategies for soliciting the advice
of other law firms on the law of other jurisdictions. Accordingly, these three documents are also
properly redacted.

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IV.CONCLUSION
For the reasons set forth above, the Motion is GRANTED IN PART AND DENIED IN PART,
as follows:
(1) The Motion is DENIED as to the Manager Recommendations (and cover emails) and
the Contracts.
(2) With respect to the redactions, the Motion is GRANTED to the extent that Coventry
must remove the redactions from and produce:
(i) the first two emails on ECF No. 283-25; and
(ii) the email dated 4/20/17 at 9:17 am on ECF No. 283-26, and is otherwise
DENIED.
(3) EEA Inc. shall apply the Court’s guidance as to any other redactions, remove
redactions that are similar to (2)(i) and (ii) above, and re-produce any such documents
accordingly.
The Clerk of Court is respectfully directed to close ECF No. 283.
Dated:

New York, New York
September 15, 2021
SO ORDERED.

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