SM Kids, LLC v. Google LLC et al

Filing 219

ORDER re: 206 Order on Motion for Local Rule 37.2 Conference. NOW, THEREFORE, it is hereby ORDERED, as follows: 1. The February 23 Opinion (ECF No. 206) is hereby VACATED. 2. No later than March 17, 2021, Plaintiff may submit legal argument rega rding the foregoing language in Ambac, as well as evidence and/or legal argument as to why the presence of agents was required on the following exemplar documents to enable the attorney-client communication: Doc. No. 20201106_817-000022018, Doc. No . ID20201106_817-000057003, Doc. No. 20201106_817-000052461, Doc. No. 20201106_817-000052477-78, Doc. No. 20201106_817-000066660, Doc. No. 20201121_546-000019059, Doc. No. 20201121_546-000019983; Doc. No. 20201106_817-000033649, Doc. No. 20201106_817 -000033650 and Doc. No. 20201106_817-000033669. No later than March 22, 2021, Defendants may submit a response to any submission from Plaintiff. 3. The parties shall appear for a telephone conference with the Court on Thursday, March 11, 2021, a t 5:00 p.m. to discuss what additional privilege issues may be further addressed between Plaintiff and Defendants and submitted to the Court so that such issues may be addressed in the Amended Opinion and Order that the Court intends to issue . At the scheduled time, the parties shall each separately call [phone] (or [phone]) and enter access code 6489745. It is the Courts intention to address all the overarching privilege issues in its Amended Opinion and Order so that any objections the parties wish to make to Judge Schofield from the Court's privilege rulings can be made and decided a single time. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 3/10/2021) (kl)

Case 1:18-cv-02637-LGS-SDA Document 219 Filed 03/10/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

3/10/2021

SM Kids, LLC, as successor-in-interest to
Stelor Productions, LLC,
Plaintiff,

1:18-cv-02637 (LGS) (SDA)
ORDER

-againstGoogle LLC et al.,
Defendants.
STEWART D. AARON, United States Magistrate Judge:

WHEREAS, the Court issued an Opinion and Order, dated February 23, 2021 (“February
23 Opinion”), addressed to issues of attorney-client privilege (ECF No. 206); and
WHEREAS, on March 9, 2021, Defendants timely filed objections to my February 23
Opinion (see ECF Nos. 214-18); and
WHEREAS, on March 9, Defendants for the first time cited to language in the New York
Court of Appeals opinion in Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616,
624 (2016), that “statements made to the agents or employees of the attorney or client . . . retain
their confidential (and therefore, privileged) character, where the presence of such third parties
is deemed necessary to enable the attorney-client communication[.]” Id. at 624; 1 and

Defendants also cite in their objections to the New York Court of Appeals opinion in People v. Osorio, 75
N.Y.2d 80 (1989). However, in a decision prior to Ambac, the New York Commercial Division noted that
“[r]elying on Osorio, Courts have applied the attorney-client privilege to communications of one serving
as an agent of either attorney or client. . . . Osorio [does] not state . . . that the attorney-client privilege
will attach to third-party communications only where the participation of the third-party is necessary in
order to facilitate the provision of legal advice.” Lehman Bros. Intern. v. AG Financial Products, Inc., No.
653284/2011, 2016 WL 392709, at *4-5 (N.Y. Sup. Ct. Jan. 11, 2016) (citations and internal quotation
marks omitted).
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Case 1:18-cv-02637-LGS-SDA Document 219 Filed 03/10/21 Page 2 of 3

WHEREAS, while the Court relied upon other portions of the Ambac opinion in issuing its
February 23 Opinion, the Court overlooked the language cited by Defendants in their March 9
objections; and
WHEREAS, the foregoing language in Ambac causes the Court to believe that further
submissions are necessary with regard to the issue of the attorney-client privilege as applied to
agents of the client, and as applied to certain of the exemplar documents, and that the Court
needs to amend its February 23 Order.
NOW, THEREFORE, it is hereby ORDERED, as follows:
1. The February 23 Opinion (ECF No. 206) is hereby VACATED.
2. No later than March 17, 2021, Plaintiff may submit legal argument regarding the
foregoing language in Ambac, as well as evidence and/or legal argument as to why
the presence of agents was required on the following exemplar documents to enable
the attorney-client communication: Doc. No. 20201106_817-000022018, Doc. No.
ID20201106_817-000057003, Doc. No. 20201106_817-000052461, Doc. No.
20201106_817-000052477-78, Doc. No. 20201106_817-000066660, Doc. No.
20201121_546-000019059,

Doc.

No.

20201121_546-000019983;

Doc.

No.

20201106_817-000033649, Doc. No. 20201106_817-000033650 and Doc. No.
20201106_817-000033669. No later than March 22, 2021, Defendants may submit a
response to any submission from Plaintiff.
3. The parties shall appear for a telephone conference with the Court on
Thursday, March 11, 2021, at 5:00 p.m. to discuss what additional privilege issues
may be further addressed between Plaintiff and Defendants and submitted to the
Court so that such issues may
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Case 1:18-cv-02637-LGS-SDA Document 219 Filed 03/10/21 Page 3 of 3

be addressed in the Amended Opinion and Order that the Court intends to issue. At
the scheduled time, the parties shall each separately call [phone] (or (214) 7650479) and enter access code 6489745. It is the Court’s intention to address all the
overarching privilege issues in its Amended Opinion and Order so that any objections
the parties wish to make to Judge Schofield from the Court’s privilege rulings can be
made and decided a single time.
SO ORDERED.
DATED:

New York, New York
March 10, 2021
______________________________
STEWART D. AARON
United States Magistrate Judge

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