Ceglia v. Zuckerberg et al

Filing 480

DECISION AND ORDER affirming Magistrate Judge Foschio's April 19, 2012 Decision and Order in its entirety. Signed by Hon. Richard J. Arcara on 8/15/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

PAUL D. CEGLIA,
Plaintiff,
v.

DECISION AND ORDER
10-CV–00569

MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28
U.S.C. § 636(b)(1). On February 21, 2012, Defendants filed a fifth motion to compel
various discovery documents. On April 19, 2012, Magistrate Judge Foschio issued
a Decision and Order granting in part and denying in part Defendants’ fifth motion
to compel. On April 30, 2012, Plaintiff filed objections to the portion of Magistrate
Judge Foschio’s Decision and Order directing Plaintiff to produce two documents
previously withheld on the basis of attorney-client privilege.
Pursuant to 28 U.S.C. §636(b)(1)(A), the district court “may reconsider any
pretrial matter under this subparagraph (A), where it has been shown that the
magistrate’s order is clearly erroneous or contrary to law.” Id. The Court has
carefully considered Magistrate Judge Foschio’s Decision and Order as well as the
parties’ submissions. As explained further below, the Court finds that Magistrate

1

Judge Foschio’s Decision and Order was neither clearly erroneous nor contrary to
law.
BACKGROUND
On February 21, 2012, Defendants Mark Elliot Zuckerberg and Facebook, Inc.
(collectively, “Defendants”) filed a fifth motion to compel [Dkt. 294], seeking an order
compelling Plaintiff inter alia: (1) to produce eleven documents for in camera
inspection; and, ultimately (2) to produce the disputed documents for discovery.
Plaintiff voluntarily produced one of the disputed documents, but invoked attorneyclient privilege to shield the remaining ten documents from discovery.
On April 19, 2012, Magistrate Judge Foschio issued a Decision and Order
[Dkt. 357] granting in part and denying in part Defendants’ fifth motion to compel
[Dkt. 294]. The Magistrate ordered Plaintiff to produce sections of Privilege Log Item
334, and the entirety of Privilege Log Items 348, 360, and 379. The Magistrate
determined Privilege Log Items 373, 400, 401, 402, 403, and 405 were protected by
attorney-client privilege and thus shielded from Defendants’ discovery request.
Plaintiff objects to Magistrate Judge Foschio’s decision insomuch as it
requires Plaintiff to produce two documents: Privilege Log Items 360 (“Item 360”)
and 379 (“Item 379”). Item 360 is an email with two attachments dated March 17,
2011, from Plaintiff to Jason Holmberg (“Holmberg”). Item 379 is an email dated
April 19, 2011, from Paul Argentieri (“Argentieri”), Plaintiff’s counsel, to Plaintiff. Item
379 appears to include copies of email correspondence with four persons, including

2

Holmberg. Magistrate Judge Foschio held that disclosure of the contents of Items
360 and 379 to a third party—Holmberg—effectively waived any claim of attorneyclient privilege. Plaintiff argues that attorney-client privilege extends to Items 360
and 379 because Holmberg viewed the communications as Argentieri’s agent, and
not as an unrelated third party.

DISCUSSION
Magistrate judges are afforded “broad latitude [to] resolv[e] discovery disputes,
including questions of privilege.”

Thompson v. Keane, 95-cv-2442, 1996 W L

229887, at *1 (S.D.N.Y. May 6, 1996); see also Tracy v. NVR, Inc., 791 F. Supp. 2d
340, 342 (W .D.N.Y. 2011). A magistrate judge’s ruling on a discovery issue is
“clearly erroneous” only when “‘the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.’” Thompson,
1996 W L 229887, at *1 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)). A decision is “contrary to law” if it “fails to apply or misapplies relevant
statutes, case law[,] or rules of procedure.” Thompson, 1996 W L 229887, at *1.
Attorney-client privilege applies to: (1) communications; (2) between a client
and his or her attorney; (3) that are intended to be, and in fact were, kept
confidential; (4) for the purpose of obtaining or providing legal advice. See United
States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011). Attorney-client privilege may
extend to include communications made by or to an attorney’s employees, including

3

secretaries, legal assistants, and paralegals. United States v. Kovel, 296 F.2d 918,
921 (2d Cir. 1961).

Notably, Kovel further expands the privilege to include

communications by or to consultants, such as accountants, provided the
communications were made “in confidence for the purpose of obtaining legal advice
from the lawyer.” Id. at 922. Attorney-client privilege is deemed waived where
otherwise-privileged communications are disclosed to a third party. In re Horowitz,
482 F.2d 72, 81 (2d Cir. 1973). The party asserting privilege bears the burden of
establishing the privilege applies. See United States v. Schwimmer, 892 F.2d 237,
244 (2d Cir. 1989).
In his March 12, 2012 Declaration, Argentieri indicates that he engaged
Holmberg in February 2011 “as a consultant and/or at times, to perform executive
secretarial duties” [Dkt. 311]. Holmberg’s duties appear to relate only to a document
referred to as the Trial Overview, this document plays no role in the instant dispute.
Holmberg claims Argentieri “retained [his] services as a consultant in February[,]
2011 to assist [Argentieri] in prosecuting [Plaintiff’s] lawsuit” [Dkt. 341]. W hile the
Magistrate Judge found it plausible Argentieri, admittedly lacking computer skills,
had retained Holmberg to type the Trial Overview and format it as a .pdf document,
the Magistrate Judge noted that the record did not indicate why or how Argentieri
required Holmberg’s services in relation to Items 360 and 379. Magistrate Judge
Foschio correctly concluded that absent information indicating Argentieri employed
Holmberg consistently as a legal assistant or secretary, or that Argentieri sought

4

Holmberg’s secretarial assistance with respect to Items 360 and 379, the attorneyclient privilege did not apply.
Plaintiff’s argument that Kovel extends privilege to Holmberg because
Holmberg was Argentieri’s consultant is unavailing. W hile Kovel stands for the
proposition that communications between consultant and client or between
consultant and attorney may be privileged, the Court notes privilege may only apply
where a consultant’s “role is to clarify communications between attorney and client.”
United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999). The record fails to
indicate that Holmberg’s contact with Items 360 and 379 was intended to “improve
the comprehension of the communications between [Argentieri] and [Plaintiff].” Id.
Because Holmberg did not act as translator or interpreter of communications
between Plaintiff and Argentieri, Kovel does not support Plaintiff’s privilege claim.

CONCLUSION
For the foregoing reasons, and for the reasons set forth by Magistrate Judge
Foschio, the Court affirms the April 19, 2012 Decision and Order in its entirety.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: August 15, 2012

5