Robbins & Myers, Inc v. JM Huber Corporation, et al

Filing 233

DECISION AND ORDER granting 182 Motion to Compel. Signed by Hon. Leslie G. Foschio on 3/31/2009. (SDW)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ROBBINS & MYERS, INC., Plaintiff, v. 01-CV-201S(F) J.M. HUBER CORPORATION and H. MILTON HOFF, Defendant DECISION and ORDER

APPEARANCES:

THOMPSON, HINE LLP Attorneys for Plaintiff LESLIE W. JACOBS, of Counsel 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 HODGSON RUSS LLP Attorneys for Plaintiff JEFFREY C. STRAVINO, of Counsel The Guaranty Building, Suite 100 140 Pearl Street Buffalo, New York 14202-4040 DAY PITNEY, LLP Attorneys for Defendants DAVID S. SAGER, of Counsel Post Office Box 1945 Morristown, New Jersey 07962-1945 PHILLIPS LYTLE LLP Attorneys for Defendants EDWARD S. BLOOMBERG, of Counsel 3400 HSBC Center Buffalo, New York 14203

By papers filed July 16, 2008 (Doc. No. 182) Defendants move to compel production of (1) Plaintiff's documents relating to Plaintiff's knowledge of "the OffSpecification Closure" issue prior to sale of Defendants' FCE unit to Plaintiff, (2)

Plaintiff's insurance documents relating to losses or potential losses arising from any off-specification closures, and (3) permitting additional discovery by Defendants directed to locating Defendant Hoff's employment file and outside counsel letter opining on potential negligence by Plaintiff's attorneys in connection with Plaintiff's purchase of the FCE unit. At oral argument on Defendants' motion conducted August 20, 2008 (Doc. No. 192) the court directed Plaintiff to submit the disputed documents described in Plaintiff's privilege log for in camera review and reserved decision. Such documents were received by Plaintiff's letter dated August 26, 2008 (Doc. No. 193). As to Defendants' requests for production of Plaintiff's insurance documents, Defendants' motion was GRANTED. The court also GRANTED Defendants' request for additional discovery directed to Defendant Hoff's employment file and Plaintiff's outside counsel's opinion letter. Doc. No. 192. Based on the court's review of the 36 documents submitted by Plaintiff for in camera review and the argument presented by Defendant in support of the motion and Plaintiff's opposition, Defendants' motion seeking production of the documents is GRANTED. Although the court's review of the documents show that a number of the documents constitute communications from Plaintiff to its attorneys or from its attorneys to Plaintiff in connection with the intended acquisition of FCE, including documents and notes created by Mr. Rigot, Plaintiff's general counsel and corporate secretary, which might otherwise qualify as privileged communications, based on Defendants' contention, Defendants' Memorandum in Support of Defendants' Motion (Doc. No. 182)
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at 6-7, that discussion by Rigot during his deposition on the question of potential business and legal difficulties for Plaintiff used by the Off Specification Closures preacquisition issue, as well as the deposition testimony of Kevin Brown, Plaintiff's comptroller at the time of the contemplated acquisition of FCE, Defendant's Reply Memorandum at 3 (citing Exhibit A to Declaration of Paul R. Marino, in Support of Defendants' Motion (Doc. No. 189), the court finds a subject-matter waiver by Plaintiff of any such privilege occurred based on the deposition testimony of both Mr. Rigot and Mr. Brown describing the nature of such communications. See Bowne of New York City, Inc. v. AmBase Corporation, 150 F.R.D. 465, 479 (S.D.N.Y. 1993) (noting, in diversity action, absence of New York caselaw on point but holding subject-matter waiver of attorney-client privilege occurs where holder of privilege discloses a "significant part of the matter or communication.") (citing authorities).1 Here, Rigot's and Brown's deposition testimony refers to various considerations, both legal and business in nature, related to Plaintiff's awareness and assessment of the Off-Specification Closure issue as it relates to Plaintiff's planned acquisition of FCE. Accordingly, such disclosures by Plaintiff's key principals constitute a subject-matter waiver of any attorney-client privilege otherwise applicable to the documents at issue. Further, based on the court's inspection, as none of the disputed documents appears to have been created in anticipation of litigation or trial, no work-production protection pursuant to Fed.R.Civ.P. 26(b)(2)(A) is available to avoid production.
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Although because in this diversity case alleging claims arising under Texas anti-business fraud la w , Texas law would apply to the privilege issue under Fed.R.Evid. 501, the parties have by consistent r e f e r e n c e to New York law, effectively stipulated to apply New York law to this issue. See also VERNON'S T E X A S RULES OF EVIDENCE Rule 511 (attorney-client privilege waived if holder of privilege "voluntarily d is c lo s e s . . . any significant part of the privileged matter.") 3

CONCLUSION Based on the foregoing, Defendants' motion directed to the documents withheld by Plaintiff based on attorney-client privilege or work product protection is GRANTED. Plaintiff shall serve copies of such documents not later than 20 days following service of this Decision and Order. SO ORDERED. /s/ Leslie G. Foschio ________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE Dated: March 31, 2009 Buffalo, New York

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