Giuffre v. Dershowitz

Filing 477

ORDER re: #458 Letter, filed by Alan Dershowitz, Virginia L. Giuffre, #469 Letter filed by Alan Dershowitz. As to Documents 11 and 12, the Court finds that Dershowitz has met his burden of establishing that these communications are protected by the work product privilege and that the privilege was not waived. As to Document 13, the Court finds that any privilege that may have existed has been waived as the stated purpose of the meeting memorandum was to provide information to a reporter from the New York Times. As to Document 14, the Court finds that Dershowitz has failed to meet his burden of establishing that the communication was prepared in anticipation of litigation. By its terms, the communication was prepared for the purpose of revealing certain information to the U.S. Attorney's Office. As to Document 15, the Court finds that Dershowitz has failed to meet his burden of establishing that the communication falls within the protections of the work product privilege. Simply put, this communication is not attorney work product. The unprivileged documents shall be produced forthwith. SO ORDERED. (Signed by Judge Loretta A. Preska on 5/10/2022) (kv)

Case 1:19-cv-03377-LAP Document 477 Filed 05/10/22 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIRGINIA L. GIUFFRE,
Plaintiff,

No. 19 Civ 3377(LAP)

-against-

ORDER

ALAN DERSHOWITZ,
Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Giuffre filed a motion to compel on December 3, 2021,
arguing, among other things, that Dershowitz improperly withheld
documents on the basis of (1) the common interest doctrine, (2)
attorney-client privilege, and (3) work product privilege.
(Dkt. nos. 373-374.)
(dkt.

Dershowitz opposed on December 13, 2021

nos. 380-381), and Giuffre replied on December 15, 2021

(dkt. nos. 384-385).

By order dated February 14, 2022, the

Court ordered Plaintiff to select five documents from each of
the above three categories for in camera review.
401.)

(Dkt. no.

On April 4, 2022, Plaintiff indicated by letter the 15

documents she had selected for the Court’s review, along with
additional argument relating to those documents.
458.)

(Dkt. no.

On April 18, 2022, Defendant produced the 15 documents to

the Court, along with a letter containing additional argument.
(Dkt. no. 469.)

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A.

Common Interest Doctrine

The Court reviewed in camera the following documents, which
Plaintiff challenges on the basis that they do not fall within
the common interest exception to waiver of privilege:
1.

“Ranch. Confidential,” Doc. ID 111602, withheld
as a joint defense/common interest communication
concerning Jane Doe #1, et al. v. United States,
Case No. 08-80736 (S.D. Fla.) (“CVRA Action”),
dated February 6, 2015.

2.

“REDACTED,” Doc. ID 114762, withheld as a joint
defense/common interest communication concerning
Edwards v. Dershowitz, dated April 19, 2015.

3.

“Dershowitz Claims Alleged Sex Victim Tried to
Extort $1 Billion | Daily Business Review,” Doc.
ID 493068, withheld as a joint defense/commoninterest communication concerning Edwards v.
Dershowitz, dated October 16, 2015.

4.

“Please csll me.” Doc. ID 90433, withheld as a
joint defense/common interest communication
concerning Giuffre accusations v. Dershowitz,
dated May 19, 2019.

5.

“Villafonte email of sept 2007,” Doc. ID 509849,
withheld as a joint defense/common interest
communication concerning this action and Giuffre
accusations v. Dershowitz, dated September 16,
2019.

“A ‘common interest’ doctrine, erroneously called ‘common
interest privilege’ or ‘joint defense privilege,’ is an
exception to the general rule that voluntary disclosure of
confidential, privileged material to a third party waives any
applicable privilege.”

Sokol v. Wyeth, Inc., No. 07 Civ.

8442(SHS)(KNF), 2008 WL 3166662, *5 (S.D.N.Y. Aug. 4, 2008)

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(citation omitted).

“It serves to protect the confidentiality

of communications passing from one party to the attorney for
another party where a joint defense effort or strategy has been
decided upon and undertaken by the parties and their respective
counsel.”

United States v. Schwimmer, 892 F.2d 237, 243 (2d

Cir. 1989).

It exists “to protect the free flow of information

from client to attorney . . . whenever multiple clients share a
common interest about a legal matter.”

Id. at 243–44.

The

doctrine “is not an independent source of privilege or
confidentiality” so that “[i]f a communication is not protected
by the attorney-client privilege or the attorney work-product
doctrine, the common interest doctrine does not apply.”

Sokol,

2008 WL 3166662, at *5; see also HSH Nordbank AG New York Branch
v. Swerdlow, 259 F.R.D. 64, 71 (S.D.N.Y. 2009).
Obtaining the protections of the common interest doctrine
requires a two-part showing.

First, the parties exchanging

otherwise privileged information must establish “a common legal,
rather than commercial, interest.”
*5.

Sokol, 2008 WL 3166662, at

“Although some courts in this circuit have articulated a

requirement that the common interest be ‘identical’ and not
merely ‘similar,’” other courts have questioned this, and “have
simply focused on whether the parties had interests in common
without exploring whether they were identical.”

Am. Eagle

Outfitters, Inc. v. Payless ShoeSource, Inc., No. 07 Civ. 1675
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(ERK) (VVP), 2009 WL 3786210, at *2 (E.D.N.Y. Nov. 12, 2009).
For courts to find a common legal interest, the parties must
have come to an agreement, “though not necessarily in writing,
embodying a cooperative and common enterprise towards an
identical legal strategy.”
237 (N.D.N.Y. 2003).

Lugosch v. Congel, 219 F.R.D. 220,

Courts may look to whether “multiple

persons are represented by the same attorney” or any other
evidence to demonstrate the existence of “coordinated . . .
legal efforts.”

Bank Brussels Lambert v. Credit Lyonnais

(Suisse) S.A., 160 F.R.D. 437, 446, 448 (S.D.N.Y. 1995).
Second, the parties must establish that any exchange of
privileged information was “made in the course of formulating a
common legal strategy” and that the parties understood that the
communication would be in furtherance of the shared legal
interest.

Sokol, 2008 WL 3166662, at *5, 7.

One fact courts

often consider in assessing this factor is whether an attorney
for either party participated in the exchange of privileged
information.

See, e.g., HSH Nordbank, 259 F.R.D. at 72

(“[C]ounsel for one of the parties was actively engaged in the
communications at issue.

Thus, this is not a situation where

the various non party lenders and Nordbank discussed subject
matter previously discussed with counsel and now seek to assert
privilege for that reason alone.”); cf. Walsh v. Northrop
Grumman Corp., 165 F.R.D. 16, 18 (E.D.N.Y.1996) (“Salomon wants
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to protect confidences it shared with its own attorneys and then
shared, not with Northrop's attorneys, but with Northrop.

To

extend the common interest doctrine that far would mean that a
party could shield from disclosure any discussions it had with
another person about a matter of common interest simply by
discussing that matter first with its attorneys.”).
Dershowitz and Jeffrey Epstein entered into a Common
Interest and Joint Defense Agreement in or about March 2015.
(See Dkt. no. 373-4.)

By its terms, the agreement extends to

the matters styled as Jane Doe #1, et al. v.
United States, Case No. 08-80736 (S.D. Fla.)
and Edwards, et al., v. Dershowitz, Case No.
CACE 15000072, in the Circuit Court of the
Seventeenth Judicial Circuit, in and for
Broward County, Florida and in connection with
any other proceeding and/or investigation
relating to or arising from this matter.
(Id. at 1.)
After conducting an individualized review of these
documents in camera, and with the benefit of the parties’
arguments, the Court concludes as follows.
As to Documents 1 and 2, the Court finds that Defendant has
met his burden of establishing that the communications are
protected by the attorney-client privilege and that the common
interest exception applies.

These communications were made for

the purpose of providing or obtaining legal advice, and they
fall within the scope of a joint defense agreement.

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Dershowitz

Case 1:19-cv-03377-LAP Document 477 Filed 05/10/22 Page 6 of 12

may withhold Documents 1 and 2 under the attorney-client
privilege.
As to Document 3, the Court finds that the communication
was not made for the purpose of providing or obtaining legal
advice; it is simply a communication between Dershowitz and
Epstein concerning a publicly available news article and certain
facts with no relation to legal strategy or advice.

As a

result, the common interest doctrine is irrelevant as to this
document.

Dershowitz shall produce Document 3.

As to Document 4, the Court finds that the communication is
largely unprotected by the attorney-client privilege; like
Document 3, it is largely a communication between Dershowitz and
Epstein concerning a publicly available interview with no
relation to legal strategy or advice.

There are, however, nine

words following the words “marty said” which constitute
protected legal advice.

Document 4 shall be produced, with the

caveat that those nine words shall be redacted.
As to Document 5, even assuming this communication is
privileged, it was sent at a time when Mr. Epstein was deceased,
and therefore he and Dershowitz could not have shared a common
legal interest in the outcome of these matters.

This document

shall be produced.
Defendant shall review the remaining documents on his
privilege log that are purportedly protected by the common
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interest doctrine and produce any that (1) lack attorney-client
privilege because the communications were not made for the
purpose of providing or obtaining legal advice and/or (2) postdate Mr. Epstein’s death when the common interest doctrine could
no longer apply.
B.

Attorney-Client Privilege

The Court reviewed in camera the following documents, which
Plaintiff challenges on the basis that they are not protected by
attorney-client privilege:
6.

Rory Millson, Doc. ID 516400, dated June 2, 2015.

7.

Jesse Diner, Doc. ID 518250, dated November 10,
2015.

8.

Lawrence Marshall, Doc. ID 175727, dated May 19,
2016.

9.

Stephen Trachtenberg, Doc. ID 56835, dated April
8, 2019.

10.

Michael and Marc Mukasey, Doc. ID 508261, dated
April 16, 2019.

Under New York law, the attorney-client privilege protects
confidential communications between client and counsel where
such communications are made for the purpose of providing or
obtaining legal advice.

See N.Y. C.P.L.R. § 4503(a)(1); Rossi

v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 593
(1989); see also Sokol v. Wyeth, Inc., No. 07 Civ. 8442, 2008 WL
3166662, at *5 (S.D.N.Y. Aug. 4, 2008).

Accordingly, “[a]

document is not privileged merely because it was sent or
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received between an attorney and client.”

Dep't of Econ. Dev.

v. Arthur Andersen & Co., 139 F.R.D. 295, 300 (S.D.N.Y. 1991).
Instead, it “must contain confidential communication relating to
legal advice.” Id.

Hence, “[w]hen an attorney is consulted in a

capacity other than as a lawyer, as (for example) a policy
advisor, media expert, business consultant, banker, referee or
friend, that consultation is not privileged.”

Scott v. Chipotle

Mexican Grill, Inc., 94 F. Supp. 3d 585, 596 (S.D.N.Y. 2015).
The burden of establishing attorney-client privilege is on
the party asserting it.

Spectrum Sys. Int'l Corp. v. Chem.

Bank, 78 N.Y.2d 371, 377 (1991).

Such a party satisfies its

burden of proof where it “establish[es] that the information was
a communication between client and counsel, that it was intended
to be and was kept confidential, and [that] it was made in order
to assist in obtaining or providing legal advice or services to
the client.”

Charter One Bank, F.S.B. v. Midtown Rochester,

LLC, 191 Misc.2d 154, 166, 738 N.Y.S.2d 179 (N.Y. Sup. Ct.2002);
see also United States v. Constr. Prods. Research, Inc., 73 F.3d
464, 473 (2d Cir. 1996).
The Court concludes that Dershowitz has not met his burden
of establishing that any of these communications are protected
by the attorney-client privilege.

He has produced no evidence

of an attorney-client relationship, and the challenged
communications are far more consistent with a friend seeking the
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advice of a friend than of a client seeking the advice of
counsel.

Mr. Dershowitz is admonished to review his privilege

log and to produce to Giuffre any similar communications.
Sanctions may follow if production is not forthcoming and the
Court’s intervention is required to compel the production of
communications such as these that are obviously not protected by
any privilege.
C.

Work Product Privilege

The Court reviewed in camera the following documents, which
Plaintiff challenges on the basis that they are not protected by
the work product privilege:
11.

“Investigation Quotation,” Doc. ID 114598, dated
May 4, 2015.

12.

“South Florida Dates,” Doc. ID. 517279, dated
July 8, 2015.

13.

“Boies Memos for NYT Reporter,” Doc. ID 511868,
dated November 18, 2015.

14.

“memo to U.S. Attorneys,” Doc. ID 514586, dated
November 4, 2016.

15.

“11/9/15,” Doc. ID 73894, dated February 2, 2019.

The work product privilege provides that materials prepared
in anticipation of litigation are not discoverable absent a
showing that the party seeking discovery has a substantial need
for the materials and cannot obtain the equivalent without undue
hardship.

See Hickman v. Taylor, 329 U.S. 495 (1947); Fed. R.

Civ. P. 26(b)(3).

This doctrine “is intended to preserve a zone
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of privacy in which a lawyer can prepare and develop legal
theories and strategy ‘with an eye toward litigation,’ free from
unnecessary intrusion by his adversaries.”

United States v.

Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (citing Hickman, 329
U.S. at 510–11).

The policy underlying work product protection

is “to promote the adversary system by safeguarding the fruits
of an attorney's trial preparations from the discovery attempts
of the opponent.”

United States v. Am. Tel. & Tel. Co., 642

F.2d 1285, 1299 (D.C. Cir. 1980).

The privilege principally

extends to legal opinions and analysis but may also apply to
facts obtained by the attorney.

In re Grand Jury Subpoena Dated

Oct. 22, 2001, 282 F.3d 156, 161 (2d Cir. 2002).
To secure the protections of the work product privilege,
the party asserting the privilege bears the “burden of proving
that the document was prepared in anticipation of litigation and
that it would not have been prepared in substantially similar
form but for the prospect of litigation.”

United States v.

Stewart, 287 F. Supp. 2d 461, 467 (S.D.N.Y. 2003).
Generally speaking, “[t]he work product privilege should
not be deemed waived unless disclosure is inconsistent with
maintaining secrecy from possible adversaries.”

Stix Prods. v.

United Merchants & Mfrs., 47 F.R.D. 334, 338 (S.D.N.Y. 1969).
“The work product privilege is not automatically waived by any
disclosure to third persons.

Rather, the courts generally find
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a waiver of the work product privilege only if the disclosure
substantially increases the opportunity for potential
adversaries to obtain the information.”

In re Pfizer Inc. Sec.

Litig., No. 90 Civ. 1260, 1993 WL 561125, at *6 (S.D.N.Y. Dec.
23, 1993) (cleaned up).

Courts have generally held that where

the disclosing party and the third party share a common
interest, there is no waiver of the work product privilege. See,
e.g., In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 221
n.6 (S.D.N.Y. 2001).

But where the third party to whom the

disclosure is made is not allied in interest with the disclosing
party or does not have litigation objectives in common, the
protection of the doctrine will be waived.

See, e.g., Verschoth

v. Time Warner, No. 00 Civ. 1339 (AGS), 2001 U.S. Dist. LEXIS
6693, at *14, 2001 WL 546630, at *4 (S.D.N.Y. May 22, 2001)
(ruling that work product privilege was waived where defendant
showed work product to a third party whose “interests may not
have been aligned” with those of defendant).
As to Documents 11 and 12, the Court finds that Dershowitz
has met his burden of establishing that these communications are
protected by the work product privilege and that the privilege
was not waived.
As to Document 13, the Court finds that any privilege that
may have existed has been waived as the stated purpose of the

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meeting memorandum was to provide information to a reporter from
the New York Times.
As to Document 14, the Court finds that Dershowitz has
failed to meet his burden of establishing that the communication
was prepared in anticipation of litigation.

By its terms, the

communication was prepared for the purpose of revealing certain
information to the U.S. Attorney’s Office.
As to Document 15, the Court finds that Dershowitz has
failed to meet his burden of establishing that the communication
falls within the protections of the work product privilege.
Simply put, this communication is not attorney work product.
*

*

*

The unprivileged documents shall be produced forthwith.
SO ORDERED.
Dated:

May 10, 2022
New York, New York
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

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