Ceglia v. Zuckerberg et al

Filing 310

RESPONSE in Opposition re 294 Fifth MOTION to Compel and For Other Relief filed by Paul D. Ceglia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Boland, Dean)

Dean Boland <[e-mail]>

Privilege Designations
Dean Boland <[e-mail]>
Fri, Feb 24, 2012 at 8:04 PM
To: Alexander Southwell <[e-mail]>, Paul Argentieri <[e-mail]>
Cc: Bryan Rose <[e-mail]>
Bcc: Paul Ceglia <[e-mail]>
Alex:
We will produce Document 337.
Document 348 is an email between James Kole, Paul Ceglia and Amanda C. Wornhoff. Although Mr. Kole was Senior
Assistant Attorney General of Illinois at the time of the email, he previously worked at Sidley Austin and, while in private
practice, served as Mr. Ceglia’s counsel in legal matters related to StreetFax and Facebook. Ms. Worhoff is a staff member at
Sidley, and this document concerns the existence of communications--relevant to this litigation and/or Mr. Kole’s Sidley Austin
files. This document concerns matters related to Mr. Kole’s representation of Mr. Ceglia, and are thus protected by the attorneyclient privilege.
Documents 373, 400, 401, 402, 403 and 405 are emails that were sent to or by David Grable, an attorney at Quinn Emanuel.
Each of these communications discusses matters related to this litigation, and occurred while Mr. Ceglia was considering
whether to formally retain Mr. Grable as counsel. The documents discuss confidential facts relating to this case, case strategy,
and legal advice. Such communications are plainly protected by the attorney-client privilege. See Newmarkets Partners, LLC v.
Sal. Oppenheim Jr. & Cie. S.C.A., 258 F.R.D. 95, 100 (S.D.N.Y. 2009) (“An attorney-client relationship can arise prior to formal
engagement. As a result, privilege may attach to a prospective client's ‘initial statements’ to an attorney who is not ultimately
hired. See United States v. Dennis, 843 F.2d 652, 656 (2d Cir.1988).
Document 334, which was previously described as concerning “a hushmail” account, is protected by the attorney-client
privilege. It is a communication between Mr. Ceglia and his attorney, Mr. Argentieri; it was not addressed or disclosed to any
third party; and it involves the provision of legal advice in that it discusses case strategy, the filing of an amended complaint,
securing communications regarding the case, and the retention of counsel.
Documents 360 and 379 are communications to which Jason Holmberg was a party. Mr. Holmberg was retained as a consultant
to Mr. Ceglia’s attorney, Paul Argentieri, and he has served as Mr. Argentieri’s consultant and agent on matters pertaining to
this litigation. Documents 360 and 379 are communications that were prepared in the context of this position, at the behest of an
attorney. Because they were prepared in anticipation of the litigation and for a party by his representative, they are protected by
the attorney-client privilege and work product doctrine. N.Y. C.P.L.R. § 4503(a)(1) (absent waiver, a client cannot be compelled
to disclose any “confidential communication made between the attorney or his or her employee and the client in the course of
professional employment…”) (emphasis added); See United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir.1995) (noting that
the work product doctrine “shields from disclosure materials ‘prepared in anticipation of litigation’ by a party or the party’s
representative, absent a showing of substantial need.”)
The disclosure of one document can only serve as waiver of the attorney-client privilege and work product doctrine if the waiver
was intentional, the disclosed and undisclosed communications concern the same subject matter, and they ought in fairness to
be considered together. Fed. R. Evid. 502(a). Here, the purported “waiver” was not intentional, except to the extent that Plaintiff
intended to comply with this Court’s order. Moreover, Document 360 concerns work for hire contracts, a completely unrelated
subject matter to the disclosed email, and it does not impact the ability to evaluate the produced email or its attachment.
To the extent the Court’s order did not require that the email be produced together with the attachment, such disclosure was
inadvertent. Inadvertent disclosures do not operate as a waiver if Plaintiff took reasonable steps to prevent disclosure and
promptly took reasonable steps to rectify the error. Fed. R. Evid. 502(b). Plaintiff plainly attempted to prevent disclosure by
including the document on its August 29, 2011, privilege log. Mr. Argentieri and Mr. Holmberg signed an agreement indicating
his work was on behalf of Paul Ceglia.
Dean Boland.
-Dean Boland
Owner/Member
Boland Legal, LLC

EXHIBIT H