Ceglia v. Zuckerberg et al
Filing
367
APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Paul D. Ceglia re 361 Order on Motion for Miscellaneous Relief, 357 Decision and Order (Dumain, Sanford)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Plaintiff,
PLAINTIFF’S OBJECTION TO
THE MAGISTRATE JUDGE’S
APRIL 19, 2012, ORDER
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
1:10-cv-00569-RJA
Defendants.
TABLE OF CONTENTS
Page
I.
BACKGROUND .................................................................................................................1
A.
Plaintiff’s Claims .....................................................................................................1
B.
Defendants’ Forgery Defense ..................................................................................2
C.
Judge Foschio Ruled That Certain of the Documents Are Not Privileged ..............3
D.
Judge Foschio Denied Plaintiff’s Motion for Clarification Regarding
Whether Plaintiff Was Permitted to Redact Emails Included in Privilege
Log Item 379 for which Mr. Holmberg Was Neither the Sender nor the
Recipient ..................................................................................................................5
II.
STANDARD OF REVIEW .................................................................................................6
III.
ARGUMENT.......................................................................................................................7
A.
B.
Judge Foschio Improperly Applied a “Need to Know” Standard to Mr.
Holmberg ...............................................................................................................11
C.
IV.
Mr. Holmberg Was Mr. Argentieri’s Agent When the Communications
Were Sent Such that the Attorney-Client Privileged Was Not Waived...................8
Mr. Holmberg’s Assistance with the Lawsuit Overview Document Does
Not Preclude or Waive the Assertion of Privilege as to Other Documents
and Communications He Received........................................................................13
CONCLUSION..................................................................................................................14
i
TABLE OF AUTHORITIES
CASES
Allied Irish Banks, P.L.C. v. Bank of America, N.A., 252 F.R.D. 163 (S.D.N.Y. 2008) .............. 12
Dolin, Thomas & Solomon LLP v. United States Dept. of Labor, 719 F. Supp. 2d 245 (W.D.N.Y.
2010) ................................................................................................................................. 12
In re Pfohl Bros. Landfill Litig., 175 F.R.D. 13 (W.D.N.Y. 1997)................................................. 8
Lavigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504 (N.D.N.Y 2010)........................ 6
Occidental Chemical Corporation v. OHM Remediation Services Corp., 175 F.R.D. 431
(W.D.N.Y. 1997) .............................................................................................................7, 8
Robbins & Meyers, Inc., 274 F.R.D. 63 (W.D.N.Y. 2011)....................................................... 7, 11
Scholtisek v. Eldre Corporation, 441 F. Supp. 2d 459 (W.D.N.Y. 2006) .................................... 12
U.S. v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011).............................................................. 11
U.S. v. Mejia 655 F.3d 126 (2d Cir. 2011)...................................................................................... 8
U.S. v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) ....................................................................... 7, 8
U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961)................................................................................. 8, 9
RULES
Fed. R. Civ. P. 72............................................................................................................................ 6
Fed. R. Evid. 502 .......................................................................................................................... 14
N.Y. C.P.L.R. § 4503................................................................................................................ 9, 13
i
Pursuant to 28 U.S.C. Section 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a),
Plaintiff Paul D. Ceglia objects to Magistrate Judge Leslie G. Foschio’s April 19, 2012, Order
(the “Discovery Order”) [ECF No. 357], granting in part Defendants’ Fifth Motion to Compel
[ECF Nos. 294-95]. The Discovery Order directs, in pertinent part, that Plaintiff produce two
documents, previously withheld on the basis of attorney-client privilege (Privilege Log Items
360 and 379), on the ground that the documents were accessed by Jason Holmberg, a nonattorney. Discovery Order at 8-11, 20. But, Mr. Holmberg was an agent of Paul Argentieri, one
of Plaintiff’s attorneys, and the attorney-client privilege thus extends to his communications.
Under Magistrate Judge Foschio’s ruling, administrative support staff’s access to
documents would waive privilege, such that attorneys could no longer be assisted by secretaries,
filing clerks, or other administrative personnel. Accordingly, and for the reasons described
below, Plaintiff respectfully requests that the Court vacate the Discovery Order.1
I.
BACKGROUND
A.
Plaintiff’s Claims
Plaintiff asserts claims against Defendants Mark Elliot Zuckerberg and Facebook, Inc.
(“Facebook”) for declaratory relief, breach of fiduciary duty, constructive fraud, fraud, breach of
contract, and breach of the implied covenant of good faith and fair dealing. Id. Plaintiff alleges
that on April 28, 2003, he entered into a contract with Zuckerberg (the “Ceglia-Zuckerberg
Contract”) pursuant to which Plaintiff contributed funds towards the development of Facebook in
exchange for an interest in the company, as described below. Amended Complaint at ¶¶ 22-29
[ECF No. 39].
1
Plaintiff incorporates by reference all of argument and authority included in Plaintiff’s
Opposition to Defendants’ Fifth Motion to Compel [ECF No. 345].
In 2003, Plaintiff was developing a website with the domain name StreetFax.com, which
sought to provide insurance adjusters photographic information about traffic intersections. Id. at
¶ 13. Plaintiff placed an advertisement on Craigslist seeking a programmer to develop the search
engine feature for StreetFax.com. Id. at ¶ 15. Zuckerberg responded to the advertisement, and
discussed with Plaintiff performing that work while also receiving funding for the development
of Facebook, which Zuckerberg was then cultivating. Id. at ¶ 17.
Plaintiff and Zuckerberg ultimately entered into the Ceglia-Zuckerberg Contract, which
provided that: (1) Plaintiff would pay Zuckerberg $1,000 to perform work “directly for the
Streetfax Database and the programming language”; and (2) Plaintiff would pay Zuckerberg an
additional $1,000 “for the continued development of the software, program and for the purchase
and design of a suitable website for the project [Zuckerberg] has already initiated that is designed
to offer the students of Harvard university access to a website similar to a live functioning
yearbook with the working title of ‘The Face Book.’” Id. at ¶¶ 23-28. The Ceglia-Zuckerberg
Contract further provided that in exchange for funding the development of Facebook, Plaintiff
“will own a half interest (50%) in the software, programming language and business interests
derived from the expansion of that service to a larger audience.” Id. at ¶ 23.
B.
Defendants’ Forgery Defense
Defendants contend that the Ceglia-Zuckerberg Contract is a fraud. See Motion to
Dismiss [ECF Nos. 318-19].
They concede that Zuckerberg entered into a contract with
Plaintiff, but they argue that it related only to StreetFax and bore no mention of Facebook.
Specifically, Zuckerberg submitted a declaration describing that “[i]n or about April 2003, I
entered into a written contract with StreetFax, pursuant to which I agreed to provide limited
website services solely in connection with the development of StreetFax’s website. . . . The
2
written contract I signed concerned only the development of StreetFax’s website. It did not
mention or concern Thefacebook.com or any related social networking service or website.” See
Declaration of Mark Elliot Zuckerberg in Support of Defendants’ Motion for Expedited
Discovery ¶¶ 7, 9 [ECF No. 46].
On June 2, 2011, Defendants filed a Motion for Expedited Discovery [ECF Nos. 44-53],
arguing that “one-sided” expedited discovery of Plaintiff was necessary to determine if his
claims are fraudulent. Id. On July 1, 2011, the Court issued an Order [ECF No. 83] awarding
Defendants expedited discovery of Plaintiff.
In connection with that discovery, Plaintiff provided Defendants a privilege log claiming
attorney-client privilege as to certain documents. See Privilege Log [ECF No. 296-1].
C.
Judge Foschio Ruled That Certain of the Documents Are Not
Privileged
On February 21, 2012, Defendants moved to compel (the “Fifth Motion to Compel”)
[ECF No. 295], challenging Plaintiff’s privilege designations as to eleven documents. Plaintiff
agreed to produce one of the documents, and after an in camera review of the remaining ten, the
Court ordered that Plaintiff produce four of the challenged documents. This objection relates to
two of those documents, which the Court ruled were not privileged because they were sent to a
non-attorney, Jason Holmberg [ECF No. 357]. Specifically, the documents include: 1) Privilege
Log Item 360, an email dated March 17, 2011, from Plaintiff to Mr. Holmberg, with the subject
“file for DLA” and which attaches two files, and 2) Privilege Log Item 379, an April 19, 2011,
email from Mr. Argentieri to Plaintiff with the subject “Fwd: Follow-up,” which included in the
body a composite of numerous emails, not in date order, that an attorney Plaintiff previously
approached for representation forwarded to the attorneys then representing Plaintiff.
3
Plaintiff opposed that motion, arguing, inter alia, that “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.” Fifth Motion to Compel Opp. at 67 [ECF No. 310]. In support of the opposition, Mr. Argentieri submitted a declaration stating
that he hired Mr. Holmberg to perform executive secretarial duties as Mr. Argentieri cannot type
and lacks the necessary computer skills to format documents or convert them into .pdf form.
Declaration of Paul Argentieri at ¶¶ 17-20 [ECF No. 311]. After the Court’s preliminary order
on the Fifth Motion to Compel (requiring that the documents be provided for in camera review)
Mr. Holmberg also submitted a declaration stating in part that “Paul Argentieri retained my
services as a consultant in February 2011 to assist him in prosecuting Paul Ceglia’s lawsuit.”
Declaration of Jason Holmberg at ¶ 2 [ECF No. 341].
In their reply brief [ECF No. 313], Defendants complained that “Argentieri did not
submit a consulting agreement in support of this self-serving assertion [that Mr. Holmberg was
retained as a consultant], absurd on its face given Holmberg’s apparent lack of legal training”
and that Mr. Argentieri’s declaration describes Mr. Holmberg’s role only with regard to the
Lawsuit Overview document.2 Fifth Motion to Compel Reply at 4 [ECF No. 313]. But Mr.
Argentieri and Mr. Holmberg each provided a declaration addressing the consulting arrangement
-- ample evidence of Mr. Holmberg’s role -- both of which made clear that Mr. Holmberg was
2
The Lawsuit Overview document is a case summary that the Court previously determined was
not privileged and which Plaintiff has since produced. [ECF 208]. In the Fifth Motion to
Compel [ECF No. 295], Defendants disputed whether Mr. Holmberg or Mr. Argentieri authored
the document, who had possession of the document, and whether all copies of that document had
been produced. As such, Mr. Argentieri and Mr. Holmberg submitted declarations addressing
these topics, but also describing Mr. Holmberg’s role generally.
4
retained to perform administrative duties that did not require “legal training.” Moreover, while
the declarations address the Lawsuit Overview document (because Defendants had raised
questions as to its authorship), they do not state that Mr. Holmberg’s role was restricted to work
on that single document.
On March 22, 2012, the Court ordered that Plaintiff submit the documents at issue for in
camera review [ECF No. 317], and ultimately, on April 19, 2012, ordered that Plaintiff produce
Privilege Log Items 360 and 379 on the grounds that the record did not explain why Holmberg’s
services were retained in connection with those documents or that Holmberg had any “need to
know” the information contained therein. Discovery Order at 9-11 [ECF No. 357].
D.
Judge Foschio Denied Plaintiff’s Motion for Clarification Regarding
Whether Plaintiff Was Permitted to Redact Emails Included in
Privilege Log Item 379 for which Mr. Holmberg Was Neither the
Sender nor the Recipient
On April 23, 2012, Plaintiff filed a Motion for Clarification [ECF No. 358], noting that
Privilege Log Item 379 was a composite of numerous emails, not in date order, that was
forwarded by an attorney previously approached by Plaintiff for representation as a means of
transferring his electronic correspondence regarding the case to Plaintiff’s counsel at the time. A
significant number of the emails contained in Privilege Log Item 379 did not include Mr.
Holmberg as a sender or recipient. The motion sought clarification regarding whether Plaintiff
could redact those emails contained in Privilege Log Item 379 that did not include Mr.
Holmberg.
Defendants did not oppose Plaintiff’s motion for clarification, but on April 26, 2012,
Judge Foschio issued an Order treating the motion for clarification as a motion for
reconsideration, and denying Plaintiff’s request.
See Decision and Order [ECF No. 361]
(“Clarification Order”). In so ruling, the Court questioned “why Holmberg’s services were
5
necessary, e.g., why Argentieri’s legal secretary could not have performed this seemingly
unsophisticated task, or why Holmberg had any ‘need to know’ the information contained in the
emails comprising Item 379, so as to maintain the attorney-client privilege . . .” Clarification
Order at 1.
The Court again acknowledged Mr. Argentieri’s “assertion that he hired Holmberg ‘to
perform executive secretarial duties’” but questioned “why his secretary was unable to type, edit
and proof read the Lawsuit Overview,” as well as “what training or skills of Holmberg Argentieri
perceived as so special that persuaded Argentieri to retain Holmberg’s services in connection
with the instant litigation.” Clarification Order at 4.
The Court denied Plaintiff’s motion, finding that “the context of the emails strongly
implies” that, even where he was not a sender or recipient of the emails, Mr. Holmberg was
“privy to the information contained therein, given that the emails pertain to Plaintiff’s attempts to
retain legal counsel,” which was “a task with which Mr. Holmberg assisted.” Id. at 4-5.
II.
STANDARD OF REVIEW
Rule 72(a) provides that “[t]he district judge in the case must consider timely objections
and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.
R. Civ. P. 72(a).3 “Under a clearly erroneous standard, a district court can reverse a magistrate
judge’s order only if the court ‘is left with the definite and firm conviction that a mistake has
been committed.’” Lavigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504, 509-10
(N.D.N.Y 2010) (quoting Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir. 2004)). “Under a
contrary to law standard, a district court can reverse a magistrate judge’s order only if the order
fails to apply the relevant law.” Id.
6
As discussed below, Magistrate Judge Foschio’s Discovery Order was both clearly
erroneous and contrary to law.
III.
ARGUMENT
In the Discovery Order, Magistrate Judge Foschio acknowledged that “[t]he attorney-
client privilege may protect ‘communications made to agents of an attorney . . . hired to assist in
the rendition of legal services’ [and] ‘can attach to reports of third parties made at the request of
the attorney or the client where the purpose of the report was to put in usable form information
obtained from the client.’” Discovery Order at 9 (quoting U.S. v. Schwimmer, 892 F.2d 237,
243 (2d Cir. 1989) and Occidental Chemical Corporation v. OHM Remediation Services Corp.,
175 F.R.D. 431, 436 (W.D.N.Y. 1997)). But Judge Foschio erroneously concluded, in relevant
part, that:
insofar as Holmberg may have been retained by Argentieri to type the Lawsuit
Overview and convert it into pdf format, not only has the Lawsuit Overview
already been determined not to be confidential or protected by the attorney-client
privilege . . . but the record is completely devoid of any explanation as to why
Holmberg’s services were retained in connection with the two documents attached
to the March 17, 2011 email submitted as Item 360, or why the information
contained in the emails comprising Item 379 were also circulated to Holmberg,
much less that Holmberg had any ‘need to know’ the information contained
therein.
Discovery Order at 9-10 (holding that “disclosure of information to persons within plaintiff’s
corporate organization whose need-to-know of the asserted privileged communications was not
established waived privilege”) (citing Robbins & Meyers, Inc., 274 F.R.D. 63, 93-94 (W.D.N.Y.
2011) (Foschio, J.)).
This holding is contrary to the applicable law and the factual record, and for the reasons
explained below, should be vacated. In addition, the Court should direct Defendants to return the
3
Rule 72(a) applies to a magistrate judge’s order regarding discovery. Fed. R. Civ. P. 72(a).
7
privileged documents and preclude Defendants from using in the litigation any of the
information contained therein.4
A.
Mr. Holmberg Was Mr. Argentieri’s Agent When the
Communications Were Sent Such that the Attorney-Client Privileged
Was Not Waived
The Second Circuit has long recognized that the attorney-client privilege5 may extend to
communications with a lawyer’s agent: “[F]ew lawyers could now practice without the
assistance of secretaries, file clerks, telephone operators, messengers, clerks not yet admitted to
the bar, and aides of other sorts.” United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961); see
also U.S. v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) (“The privilege also is held to cover
communications made to certain agents of an attorney . . . hired to assist in the rendition of legal
services.”); Occidental Chemical Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 436
(W.D.N.Y. 1997) (“[T]he attorney-client privilege can attach to reports of third parties made at
the request of the attorney or the client where the purpose of the report was to put in useable
form information obtained from the client.”); see also In re Pfohl Bros. Landfill Litig., 175
F.R.D. 13, 23-24 (W.D.N.Y. 1997) (Foschio, J.) (“[T]he presence of a third party will not waive
the attorney-client privilege where such third party’s presence is necessary to facilitate
4
On April 27, 2012, Plaintiff filed a motion for a partial stay of the Discovery Order pending a
ruling on the instant objection, which Plaintiff represented it would file on or before April 30,
2012. [ECF No. 362.]. The requested stay would have allowed Plaintiff to wait to produce
Privilege Log Items 360 and 379 -- which Plaintiff maintained and continues to maintain are
privileged -- until an order by this Court on the applicability of the attorney-client privilege. On
April 30, 2012, the Court denied that motion. [ECF No. 365]. Accordingly, Plaintiff is required
to produce the documents before final resolution of the matter.
5
“The attorney-client privilege protects communications (1) between a client and his or her
attorney or agent, (2) that are intended to be, and in fact were, kept confidential, (3) and which
were for the purpose of obtaining or providing legal advice.” See U.S. v. Mejia 655 F.3d 126,
132 (2d Cir. 2011).
8
communication between the client and the attorney.”).6 A party cannot be compelled to disclose
a “confidential communication made between the attorney or his or her employee and the client
in the course of professional employment . . . .” N.Y. C.P.L.R. § 4503(a)(1) (emphasis added).
In Kovel, the Second Circuit equated the retention of an accountant to the retention of a
translator of a foreign language -- noting that communications would be protected in either
circumstance. 296 F.2d at 920. However, the privilege also extends to communications with an
attorney’s ministerial employees. Id. at 922 (noting that the privilege is not “confined to ‘menial
or ministerial’ employees”). A solo practioner’s (in this case, Mr. Argentieri’s) retention of an
assistant to perform administrative and computer-related tasks and liaise via email with potential
additional representation is no different -- “if the lawyer has directed the client, either in the
specific case or generally, to tell his story in the first instance to an accountant [or here, agent]
engaged by the lawyer, who is then to interpret it so that the lawyer may better give legal advice,
communications by the client reasonably related to that purpose ought [to] fall within the
privilege. . . .” Id. at 923.
The record shows that Mr. Holmberg was retained by Mr. Argentieri to perform
administrative functions related to this litigation because neither Mr. Argentieri nor his secretary
had the typing or technical skills to do so. Nevertheless, the Discovery Order stated that the
6
A potential client’s communications with attorneys, prior to their retention, are protected. 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.”); United States v.
Dennis, 843 F. 2d 652, 656 (2d Cir. 1988) (“[P]rivilege may attach to a prospective client’s
‘initial statements’ to an attorney who is not ultimately hired.”); see also Fierro v. Gallucci, No.
06-5189, 2007 WL 4287707, at *6 (E.D.N.Y. Dec. 4, 2007) (“[W]hether or not employment
occurs, preliminary discussions between an attorney and a prospective client are subject to the
attorney client privilege.”) (citing cases); Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d
507, 513 (S.D.N.Y. 2003) (holding that the privilege attaches when an attorney is “approach[ed]
in a professional capacity with the intent to secure legal advice”).
9
“record is completely devoid of any explanation as to why Holmberg’s services were retained in
connection with the two documents attached to the March 17, 2011 email submitted as Item 360,
or why the information contained in the emails comprising Item 379 were also circulated to
Holmberg . . . .” Discovery Order at 10. This finding was clearly erroneous and contrary to law.
The record demonstrates that Mr. Holmberg was “hired to perform executive secretarial
duties,” Argentieri Decl. ¶ 3 [ECF No. 311], and was “retained . . . to assist [Mr. Argentieri] in
prosecuting Paul Ceglia’s lawsuit,” Holmberg Decl. ¶ 2 [ECF No. 341]. Indeed, Judge Foschio
found that Mr. Holmberg “assisted” with “Plaintiff’s attempts to retain legal counsel with
litigation experience similar to the instant action.” Clarification Order at 4-5.
Indeed, the Clarification Order acknowledged Mr. Holmberg served in such an agency
position to Mr. Argentieri, as supported by the record:
[T]he emails pertain to Plaintiff’s attempts to retain legal counsel with litigation
experience similar to the instant action, a task with which Holmberg assisted not
only in preparing the Lawsuit Overview, but by arranging and attending meetings
with several attorneys whose services Plaintiff contemplated retaining . . . .
Clarification Order at 4-5. This makes clear that Mr. Holmberg acted as an agent to Mr.
Argentieri for the purpose of providing and/or obtaining legal advice -- thus rendering the
documents at issue privileged (or, stated differently, negating any argument that Mr. Holmberg’s
receipt of the documents was a waiver of privilege). Yet, contrary to these findings, Magistrate
Judge Foschio erroneously ruled that Privilege Log Items 360 and 379 are not privileged.
It is unorthodox, and unsupported by the law, to require that a party describe the context
of its attorney’s relationships with employees in this manner. The notion that an attorney would
have to explain why his or her secretary, paralegal, or assistant was hired -- and why that agent
needed access to any given document -- in order to support the application of attorney-client
privilege would create an insurmountable burden and quell the very openness of communication
10
the attorney-client privilege is intended to protect. See U.S. v. Jicarilla Apache Nation, 131 S.
Ct. 2313, 2320 (2011) (“The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law. Its aim is to encourage full and frank
communication between attorneys and their clients and thereby promote broader public interests
in the observance of law and administration of justice.”) (internal quotations and citations
omitted). Here, the Discovery Order goes even further and questions why Mr. Argentieri’s other
staff lacked the necessary skills to perform the tasks for which Mr. Holmberg was retained.
This ruling was clearly erroneous.
B.
Judge Foschio Improperly Applied a “Need to Know” Standard to
Mr. Holmberg
Judge Foschio also erred in ruling that Privilege Log Items 360 and 379 were not
privileged because Plaintiff failed to establish “that Holmberg had any ‘need to know’ the
information contained” therein, citing in support Robbins & Meyers, 274 F.R.D. at 93-94. See
Discovery Order at 10-11. The “need to know” standard only applies when evaluating whether
an organization has waived privilege by providing documents to its agents or employees (e.g.,
whether a company maintained the confidentiality of a document by only allowing access to
those with a need to know). It does not apply where a lawyer allows his agent or employee
access to a document.
Indeed, in Robbins, Judge Foschio addressed waiver of privilege regarding documents
provided to the plaintiff corporation’s “employees . . . whose status as policy-makers or persons
within a corporation with need-to-know of the asserted privileged communications Plaintiff has
failed to establish as is its burden.” Robbins & Meyers, 274 F.R.D. at 93-94 (emphasis added).
There, the Court cited cases that addressed the narrow issue of communications provided to
persons within the corporation -- not communications provided to staff hired or retained by a law
11
firm. See Scholtisek v. Eldre Corporation, 441 F. Supp. 2d 459, 464–65 (W.D.N.Y. 2006)
(“[W]hether the dissemination of privileged communications to corporate employees vitiates the
privilege is decided by applying a ‘need to know’ standard”) (emphasis added); see also Dolin,
Thomas & Solomon LLP v. United States Dept. of Labor, 719 F. Supp. 2d 245, 253–54
(W.D.N.Y. 2010) (“In order to demonstrate entitlement to the privilege, the agency must show . .
. that confidentiality of the communications was expected and maintained. ‘If facts have been
made known to persons other than those who need to know them, there is nothing on which to
base a conclusion that they are confidential. . . .’”) (citations omitted) (emphasis added); Allied
Irish Banks, P.L.C. v. Bank of America, N.A., 252 F.R.D. 163, 169 (S.D.N.Y. 2008) (“[A]
corporation asserting the attorney-client privilege has the burden of showing ‘that it preserved
the confidentiality of the communication by limiting dissemination only to employees with a
need to know.’”) (emphasis added).
Mr. Holmberg was hired by Mr. Argentieri. See supra § I.C. He is not the agent of a
corporate or organizational litigant. The question of whether he had a “need to know” the
information therefore does not apply, and the Court’s finding was clearly erroneous and contrary
to law. Surely, even Defendants would not be in favor of a privilege standard under which all
communications made to law firm administrative personnel are not privileged. However, even if
the “need to know” standard applied here, Mr. Holmberg’s role as Mr. Argentieri’s assistant with
the requisite computer skills to handle typing and document formatting demonstrates his “need to
know” the information he received, just as an interpreter would need to hear the substance of an
otherwise-protected conversation in order to translate it.
12
C.
Mr. Holmberg’s Assistance with the Lawsuit Overview Document
Does Not Preclude or Waive the Assertion of Privilege as to Other
Documents and Communications He Received
In ruling that Privilege Log Items 360 and 379 are not privileged, Magistrate Judge
Foschio ruled that while “Holmberg may have been retained by Argentieri to type the Lawsuit
Overview and convert it into pdf format . . . the Lawsuit Overview [has] already been determined
not to be confidential or protected. . . .” Discovery Order at 10. The Discovery Order does not
explain how or why the confidentiality of the Lawsuit Overview document is relevant to
assessing whether Privilege Log Items 360 and 379 are privileged.
The Court had previously determined that the Lawsuit Overview document was not
privileged [ECF No. 208], and it has since been produced. However, in the Fifth Motion to
Compel [ECF No. 295], Defendants questioned who authored the Lawsuit Overview document;
who had possession of the Lawsuit Overview document; and whether all copies of that document
had been produced. As such, Plaintiff sought to address these questions by submitting the
declarations of Mr. Argentieri and Mr. Holmberg as discussed herein. But these declarations
also described Mr. Holmberg’s role generally.
As noted above, see supra § I.C., Mr. Holmberg’s role was to provide Mr. Argentieri
administrative support in connection with the prosecution of Mr. Ceglia’s lawsuit.
More
importantly, the applicability of the attorney-client privilege to the Lawsuit Overview document
is irrelevant to determining whether sharing other, unrelated documents with Mr. Holmberg
waived privilege, and Plaintiff is unaware of any authority to support such a finding. Privilege
must be assessed on a document-by-document basis based on whether the “communication” was
made between an “attorney or his or her employee and the client in the course of professional
employment.” N.Y. C.P.L.R. § 4503(a)(1) (emphasis added); see also Mejia, 655 F.3d at 132
13
(“The attorney-client privilege protects communications (1) between a client and his or her
attorney or agent, (2) that are intended to be, and in fact were, kept confidential, (3) and which
were for the purpose of obtaining or providing legal advice.”). Even where intentional waiver
has occurred, the Court must look to the undisclosed documents before requiring that they be
produced, and determine that “the disclosed and undisclosed communications . . . concern the
same subject matter; and they ought in fairness to be considered together. ” See Fed. R. Evid.
502(a). Other, unrelated documents are not subject to the waiver. See id. In any regard, the
Court previously held that the attorney-client privilege did not apply to the Lawsuit Overview
document [ECF No. 208], and thus there could be no “waiver” as to its subject matter.
IV.
CONCLUSION
For the foregoing reasons, the Court should (1) vacate the Discovery Order as clearly
erroneous and contrary to law and uphold Plaintiff’s privilege designations as to communications
accessed, sent, or received by Mr. Holmberg; and (2) order Defendants to return the privileged
documents to Plaintiff with a directive that Defendants are prohibited from using in the litigation
any of the information contained therein. Even if the Court should affirm the Discovery Order,
the Court should nevertheless vacate the Clarification Order and allow Plaintiff to redact those
emails contained in Privilege Log Item 379 that Mr. Holmberg never sent or received.
Local Rule 72 Certification
I hereby certify that this Objection does not raise new arguments.
Dated: April 30, 2012
Respectfully submitted,
s/ Sanford P. Dumain
Sanford P. Dumain
Jennifer L. Young
Melissa Ryan Clark
Milberg LLP
One Pennsylvania Plaza, 48th Floor
14
New York, NY 10119
212-594-5300 phone
212-868-1229 fax
sdumain@milberg.com
jyoung@milberg.com
mclark@milberg.com
Dean Boland
Boland Legal, LLC
1475 Warren Road
Unit 770724
18123 Sloane Avenue
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
dean@bolandlegal.com
Robert B. Calihan
Calihan Law PLLC
16 West Main Street
Suite 761
Rochester, NY 14614
585-232-8291 phone
866-533-4206 fax
rcalihan@calihanlaw.com
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
paul.argentieri@gmail.com
Peter K Skivington
Jones & Skivington
31 Main Street
PO Box 129
Geneseo, NY 14454
585-243-0313 phone
585-243-3625 fax
peter@jsklaw.com
15
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
CERTIFICATE OF SERVICE
Plaintiff,
v.
1:10-cv-00569-RJA
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
I hereby certify, under penalty of perjury pursuant to 28 U.S.C. Section 1746, that on the
30th day of April, 2012, I caused PLAINTIFF’S OBJECTION TO THE MAGISTRATE
JUDGE’S APRIL 19, 2012, ORDER to be filed with the Clerk of the District Court for the
Western District of New York using its Case Management/Electronic Case Filing System which
would then electronically notify all counsel of record in this case.
Dated: April 30, 2012
s/ Sanford P. Dumain
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