KEATING v. EQUISOFT INC. et al

Filing 42

MEMORANDUM. ( SIGNED BY HONORABLE GENE E.K. PRATTER ON 6/28/12. ) 7/2/12 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DANIEL KEATING,
Plaintiff,

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v.
THOMAS McCAHILL, et al.,
Defendants.

CIVIL ACTION

NO. 11-518

MEMORANDUM
GENE E.K. PRATTER, J.

JUNE 28, 2012

Plaintiff Daniel Keating has objected to Defendants Equisoft, Inc., Thomas McCahill, and
Luis Romero’s (collectively, “Equisoft”) assertion of attorney-client privilege and work product
protection over certain documents in the Defendants’ privilege log. The parties have submitted
twenty-five (25) documents – twenty-four (24) produced with redactions and one (1) withheld in
full – to the Court for an in camera review to determine whether the communications at issue are
shielded from disclosure by the attorney-client privilege and/or the work product doctrine.
For the reasons that follow, the Court finds that the twenty-four (24) redacted documents
may remain redacted as presented to the Court, but Equisoft shall produce the one (1)
unproduced document in redacted form as more fully set forth below.

I.

FACTUAL BACKGROUND1
Mr. Keating, a management consultant in the software industry, alleges that in late

November 2009, his consulting business, the Keating Consulting Group, Inc., entered into a three
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These facts are stated as alleged in Mr. Keating’s Complaint unless otherwise indicated.
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month consulting services contract with Equisoft, Inc. Compl. ¶¶ 8-9. The consulting services
contract was terminable at-will by either party with 30 days written notice. Id. ¶ 9. Mr. Keating
also entered into a Non-Solicitation Agreement, a Confidentiality Agreement, and an Intellectual
Property Agreement with Equisoft, Inc. Id. ¶ 10.
Approximately halfway through the term of the consulting agreement, Mr. Keating was
offered and accepted a position with Capgemini Financial Services USA, Inc. (“Capgemini”),
and entered an employment agreement with Capgemini on January 14, 2010. Id. ¶ 13. The next
day, Mr. Keating traveled to Equisoft’s Pennsylvania offices to give Mr. McCahill, Equisoft,
Inc.’s Life Insurance Division President, the required 30 days notice pursuant to the contract.2 Id.
¶ 14. On January 21, 2010, Mr. Keating began working for Capgemini. Id. ¶ 16.
In the immediate wake of Mr. Keating giving his notice, Mr. McCahill and certain
members of Equisoft’s senior management convened to address the issues posed by Mr.
Keating’s resignation. These individuals included the Equisoft CEO Mr. Romero, Equisoft Vice
President and COO Steeve Michaud, and then-Equisoft General Manager for Philadelphia
Operations William O’Donnell. Ex. C ¶ 3. Equisoft hired Bernard Synnott, a Canadian attorney
to advise senior management on issues relating to Mr. Keating’s resignation. Ex. B ¶¶ 4-6. Mr.
Michaud was responsible for communicating with Mr. Synnott on behalf of Equisoft, and
“relayed questions, information, comments, and advice from Mr. Synnott to [senior
management], and “conveyed questions, information and comments from [the senior

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Mr. Keating alleges that Mr. McCahill was initially congratulatory, but changed his tone
a few days later and stated “he would make sure that Keating could not work for Capgemini or
Equisoft.” Id. ¶¶ 14-15.
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management] to Mr. Synnott.” Ex. E ¶¶ 5-6.
From January 18, 2010 to February 8, 2010, Messrs. Michaud, O’Donnell, and Romero
activity assisted Mr. Synnott in formulating strategy and drafting a demand letter to effectuate
that strategy. Ex. C ¶ 7; Ex. D ¶ 7; Ex. E ¶ 7. On February 8, 2010, Mr. Synnott sent the final
version of this demand letter to Mr. Keating and Capgemini representatives threatening litigation
if Mr. Keating continued to work for Capgemini. Compl. ¶ 18. Three weeks after he began his
new job, on February 16, 2010, Mr. Keating was terminated by Capgemini. Id. ¶ 22.
In September 2010, Mr. Synnott received a letter from Mr. Keating’s attorney, Heather
Sussman, Esq., threatening to commence litigation if Equisoft did not comply with various
demands. Ex. B ¶ 7. For the remainder of September 2010, Messrs. Michaud, O’Donnell, and
Romero assisted Mr. Synnott in evaluating Ms. Sussman’s demand letter and drafting a response,
which was sent on September 24, 2010. Ex. B ¶ 8; Ex. C ¶ 9; Ex. D ¶ 9; Ex. E ¶ 9.
On January 25, 2011, Mr. Keating filed this lawsuit, asserting that his termination from
Capgemini was the result of Equisoft’s unlawful actions. He claims tortious interference with his
contractual relationship with Capgemini and his prospective economic advantage, defamation via
slander and libel, intentional infliction of emotional distress, and prima facie tort.3
After Mr. Keating served his initial document requests, the Defendants provided Mr.

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Accompanying their Answer, Defendants filed two counterclaims asserting Mr. Keating
(1) violated the Non-Solicitation Agreement by soliciting a position with Capgemini, and (2)
tortiously interfered with Equisoft and Capgemini’s contractual agreement not to hire each
other’s employees and consultants. Equisoft has twice amended these counterclaims, first, to
clarify that two separate Equisoft-Capgemini contracts contain reciprocal non-solicitation
provisions, and second, to allege that Mr. Keating was in violation of the 30-day written notice
provision of his consulting agreement with Equisoft.
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Keating with a privilege log. On October 17, 2011, one week after Equisoft provided Mr.
Keating with their privilege log, Mr. Keating filed a motion to compel requesting that Equisoft
produce every document on its privilege log not already produced because (1) Mr. Synnott, a
foreign attorney, is not “a member of the bar of a court” as, Mr. Keating claims, is necessary for
the attorney-client privilege to apply, (2) the attorney-client privilege cannot apply where the
challenged communications do not include a lawyer as a sender or a recipient, and (3) the work
product doctrine cannot apply where the documents at issue were not prepared by an attorney or
his representative.
Since the filing of that motion – which was mooted by Order of the Court – the parties
have reduced the universe of documents in dispute from 253 to 25. Twenty-four (24) of these
disputed documents have been produced in redacted form, and one document has been withheld
in its entirety. These 25 documents have been submitted to the Court for an in camera review to
determine whether the attorney-client privilege and/or the work product doctrine shields them
from disclosure. Along with the documents submitted for judicial review, Equisoft submitted
affidavits from Mr. Synnott (Ex. B), Mr. Romero (Ex. C), Mr. O’Donnell (Ex. D), and Mr.
Michaud (Ex. E) in support of its assertion of privilege and work product protection.

II.

LEGAL STANDARDS
A.

Attorney-Client Privilege

Federal courts sitting in diversity, as in this case, apply the law of the host state to
determine privilege. Fed. R. Evid. 501; United Coal Co. v. Powell Constr. Co., 839 F.2d 958,
965 (3d Cir. 1988). Thus, Pennsylvania law governs the privilege issues in this case. In order for

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the attorney-client privilege to apply in Pennsylvania, the following conditions must be met: “(1)
the asserted holder of the privilege is or sought to become a client; (2) the person to whom the
communication was made is a member of the bar of a court, or his subordinate; (3) the
communication relates to a fact of which the attorney was informed by his client, without the
presence of strangers, for the purpose of securing either an opinion of law, legal services or
assistance in a legal matter, and not for the purposes of committing a crime or tort; and (4) the
privilege has been claimed and is not waived by the client.” Carbis Walker, LLP v. Hill, Barth &
King LLC, 930 A.2d 573, 579 (Pa. Super. Ct. 2007) (citing 42 Pa. C. S. § 5928); see also Gillard
v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011) (“[I]n Pennsylvania, the attorney-client privilege
operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client
communications made for the purpose of obtaining or providing professional legal advice.”).
Here, only the second and third elements are in dispute.
The Pennsylvania rule that the lawyer must be “a member of the bar of a court . . .” does
not limit the privilege to members of the Pennsylvania bar. Rather, “the privilege applies to
communications to a person whom the client reasonably believes to be a lawyer. Thus, a lawyer
admitted to practice in another jurisdiction or a lawyer admitted to practice in a foreign nation is
a lawyer for the purposes of the privilege.” Rest. 3d Law Governing Lawyers § 72 (comment
(e)).
The attorney-client privilege protects the communications themselves, not the underlying
facts. Upjohn Co. v. United States, 449 U.S. 383, 385 (1981). The privilege may cover
documents that “while not involving employees assisting counsel, still reflect confidential
communications between client and counsel or subordinates of counsel for the purposes of either
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(1) providing legal services or (2) providing information to counsel to secure legal services.
SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005). The
privilege applies to both corporations and natural persons. Kramer v. Raymond Corp., No. 905026, 1992 WL 122856, at *1 (E.D. Pa. May 29, 1992). The “scope of an individual’s
employment is . . . highly relevant to the question of maintenance of confidentiality,” and “the
privilege is waived if the communications are disclosed to employees who did not need access to
them.” SmithKline, 232 F.R.D. at 476.
However, “[a] document need not be authored or addressed to an attorney in order to be
properly withheld on attorney-client privilege grounds.” Id. (citation omitted). Where a
corporate client is involved, “privileged communications may be shared by non-attorney
employees in order to relay information requested by attorneys.” SEPTA v. CaremarkPCS
Health, L.P., 254 F.R.D. 253, 254 (E.D. Pa. 2008) (quoting SmithKline, 232 F.R.D. at 477).
“[D]ocuments subject to the privilege may be transmitted between non-attorneys so that the
corporation may be properly informed of legal advice and act appropriately.” SEPTA, 254
F.R.D. at 258-59. “[D]rafts of documents prepared by counsel or circulated to counsel for
comments on legal issues are considered privileged if they were prepared or circulated for the
purpose of giving or obtaining legal advice and contain information or comments not included in
the final version.” Id. at 258 (quoting Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D.
609, 633 (M.D. Pa. 1997)).
Because the privilege obstructs the truth-finding process, it should be “applied only where
necessary to achieve its purpose.” Wachtel v. Health Net, Inc., 482 F.3d 225, 231 (3d Cir. 2007);
accord Westinghouse Elec. Corp. v. Republic of Phillipines, 951 F.2d 1414, 1423 (3d Cir. 1991).
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And because the privilege promotes the “dissemination of sound legal advice,” it applies only
where the advice is legal in nature, and not where the lawyer provides non-legal business advice.
Wachtel, 482 F.3d at 231. Thus, “[t]he party asserting the privilege bears the burden of proving
that it applies to the communications at issue,” King Drug Co. of Florence, Inc. v. Cephalon, Inc.,
No. 06–1797, 2011 WL 2623306, at *4 n.5 (E.D. Pa. July 5, 2011) (citing In re Grand Jury
Empaneled Feb. 14, 1978, 603 F.2d 469, 474 (3d Cir. 1979)), and “[Federal] Rule [of Evidence]
501 requires the federal courts, in determining the nature and scope of an evidentiary privilege, to
engage in the sort of case-by-case analysis that is central to common-law adjudication.”
Wachtel, 482 F.3d at 230.

B.

Work Product Doctrine

Federal Rule of Civil Procedure 26(b)(3) outlines work product protection in diversity
cases. See United Coal, 839 F.2d at 966. In order to come within the qualified immunity from
discovery created by Rule 26(b)(3) three tests must be satisfied. The material must be: (1)
“documents and tangible things;” (2) “prepared in anticipation of litigation or for trial;” and (3)
“by or for another party or by or for that other party’s representative.” Fed. R. Civ. P. 26(b)(3).
“[W]ork-product immunity protects only documents and tangible things prepared in
anticipation of litigation or for trial, such as memoranda, letters, and e-mails.” Scherling Corp. v.
Mylan Pharma., Inc., No. 09-6383, 2011 WL 3651343, at *7 (D.N.J. Aug. 18, 2011) (citing In re
EchoStar Comm. Corp., 448 F.3d 1294, 1300 (Fed. Cir. 2006).
Documents are prepared in anticipation of litigation when “in light of the nature of the
document and the factual situation in the particular case, the document can be fairly said to have

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been prepared or obtained because of the prospect of litigation.” In re Grand Jury Proceedings,
604 F.2d 798, 803 (3d Cir. 1979). The preparer’s anticipation of litigation must be objectively
reasonable. Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3d Cir. 1993).
Generally, a reasonable anticipation of litigation requires existence of an identifiable specific
claim or impending litigation at the time the materials were prepared. Montgomery Cty. v.
MicroVote Corp., 175 F.3d 296, 305 (3d Cir. 1999) (Greenberg, J. concurring).
As Rule 26(b)(3) makes clear, the materials themselves need not be prepared by a lawyer
or a lawyer’s representative to qualify for work product protection. Fed. R. Civ. P. 26(b)(3)
(acknowledging work product protection applies to documents produced “by or for another
party”). Rather, “the focus of the rule seems to be on whether the work was done in anticipation
of litigation by the person preparing the work.” Michele DeStefano Beardslee, Taking the
Business Out of Work Product, 79 Fordham L. Rev. 1869, 1907 (2011); see also Fed. R. Civ. P.
26(b)(3), Notes of Advisory Committee on 1970 Amendments (“Subsection (b)(3) reflects the
trend of the cases by requiring a special showing, not merely as to materials prepared by an
attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by
or for a party or any representative acting on his behalf.”). Indeed, the fact that the documents
sought for discovery do not include legal advice is, “as a matter of law, irrelevant provided . . .
they were prepared in anticipation of litigation.” In re Ford Motor Co., 110 F.3d 954, 968 (3d
Cir. 1997).
A party claiming work product protection bears the initial burden of showing that the
materials in question were prepared in anticipation of litigation. Holmes v. Pension Plan of
Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000); Cedrone v. Unity Sav. Ass’n, 103
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F.R.D. 423, 426 (E.D. Pa. 1984). A party seeking disclosure of documents claimed as work
product must demonstrate substantial need for the materials in the preparation of his case and is
unable without undue hardship to obtain the substantial equivalent of the materials by other
means. See In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003) (citing Fed. R. Civ.
P. 26(b)(3)); cf. Eoppolo v. Nat’l R.R. Passenger Corp., 108 F.R.D. 292, 294 (E.D. Pa. 1985)
(“The work product doctrine furnishes no shield against discovery by interrogatories or by
depositions of the facts that the adverse party has learned or the persons from whom such facts
were learned.”).

III.

DISCUSSION
Seven (7) documents contain all of the redacted material at issue, as the redacted material

in the other eighteen (18) documents is fully duplicated within these seven. Equisoft argues that
attorney-client privilege and the work product doctrine shield each of these documents from
disclosure. Accordingly, the Court will analyze each of these documents in turn.

A.

Document 96 (Doc. No. 88 Duplicated Within)

Document 96 is a February 2010 string of e-mails between Mr. Michaud and Mr.
O’Donnell regarding the February 8, 2010 demand letter.4 Equisoft produced the document to

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Neither Mr. Michaud nor Mr. O’Donnell are attorneys, and they are the only individuals
copied on either of the redacted e-mails or any e-mails in the string. Unless otherwise indicated,
the same is true for the other documents in question. However, each of the individuals in the
senior management of the Company, as well as Mr. Synnott, have affirmed that Mr. Michaud
“was responsible for communicating with [Mr. Synnott] . . . on behalf of the company,” and
“often relayed questions, information, comments, and advice” from Mr. Synnott to the control
group. Exs. B, C, D, E. Because a document “need not be authored or addressed to an attorney
in order to be properly withheld on attorney-client privilege grounds,” provided it “reflect[s]
confidential communications between client and counsel . . . for the purposes of (1) providing
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Mr. Keating but redacted two e-mails in the chain: a February 6, 2010 e-mail from Mr. Michaud
to Mr. O’Donnell, and Mr. O’Donnell’s February 7, 2010 response.
Mr. Michaud attests that the material redacted from his February 6, 2010 e-mail is
“advice that [he] received from Mr. Synnott regarding the demand letters” to be sent to Mr.
Keating and Capgemini. Ex. E ¶ 11. After careful in camera review of the redacted e-mail, the
Court concludes that Mr. Michaud’s e-mail relayed Mr. Synnott’s legal advice and strategy
regarding the demand letters to Mr. O’Donnell, and, accordingly, is privileged and may remain
withheld except as redacted. To require disclosure of this e-mail would reveal client
communications and legal advice from counsel. SEPTA, 254 F.R.D. at 254.
Mr. O’Donnell affirms that his February 7, 2010 e-mail “consists of [his] opinion
regarding the legal advice from Mr. Synnott that Mr. Michaud relayed to [him] . . . regarding the
demand letters . . . .” Ex. D ¶ 11. He further asserts generally, that he “often conveyed
questions, information, and comments, to Mr. Michaud with the understanding that he would
relay them to Mr. Synnott.” Ex. D ¶ 6.
Unlike Mr. Michaud’s e-mail, the Court does not conclude that Mr. O’Donnell’s e-mail is
a privileged communication. As an initial matter, without the disclosure of the underlying

legal services or (2) providing information to counsel to secure legal services,” the absence of an
attorney copied on the e-mails in question does not necessarily defeat the assertion of the attorney
client privilege. SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa.
2005).
Also, as noted above, the Court is not persuaded that simply because Mr. Synnott is
admitted to practice law only in foreign jurisdictions that he is not “a member of the bar of a
court . . .” for the purposes of the attorney-client privilege and the work product doctrine.
Therefore, the Court will treat Mr. Synnott as an attorney (which he, indeed, is) for the purposes
of this analysis.
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communication from Mr. Synnott via Mr. Michaud, Mr. O’Donnell’s e-mail does not contain any
confidential information and does not divulge any legal advice from Mr. Synnott. Rather, it
merely indicates Mr. O’Donnell’s agreement with the redacted advice of counsel communicated
to him via Mr. Michaud. Additionally, although Mr. O’Donnell has indicated in a general sense
that he had the “understanding” that Mr. Michaud would relay all of his comments to Mr.
Synnott relating to Mr. Keating in the month of September, Equisoft has not offered evidence
that this particular communication was made for the purpose of securing either an opinion of law,
legal services, or assistance in a legal matter.
Nevertheless, the work product doctrine shields Mr. O’Donnell’s e-mail from disclosure.
Although it does not qualify as “core or opinion work product that encompasses the mental
impressions, conclusions, opinion, or legal theories of an attorney or other representative of a
party concerning the litigation [which] is generally afforded near absolute protection from
discovery,” In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003), Mr. O’Donnell’s
e-mail most certainly qualifies as a document prepared by a party “because of” or in anticipation
of litigation. Fed. R. Civ. P. 26(b)(3); In re Grand Jury, 604 F.2d at 803. Moreover, Mr. Keating
has made no claim of substantial need or undue hardship that would justify disclosure
notwithstanding the work product claim.
Accordingly, the Court finds that protection attaches to Mr. Michaud’s February 6, 2010
e-mail, and that the work product doctrine shields Mr. O’Donnell’s February 7, 2010 e-mail from
disclosure.

B.

Document 202 (Doc. No. 196 Duplicated Within)

Document 202 is a September 2010 string of e-mails between Mr. Michaud and Mr.
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O’Donnell regarding revisions to a draft of Equisoft’s September 2010 letter. Equisoft produced
the document to Mr. Keating but redacted two e-mails in the chain: a September 15, 2010 e-mail
from Mr. Michaud to Mr. O’Donnell, and Mr. O’Donnell’s September 15, 2010 response.
Mr. Michaud attests that his e-mail “discloses requests that Mr. Romero and [he] made to
Mr. Synnott regarding Ms. Sussman’s demand letter and Mr. Synnott’s response thereto . . . .”
Ex. E ¶ 12. Based upon the text of the e-mail, the Court discerns no particular “requests” Mr.
Romero and Mr. Michaud made of Mr. Synnott. The redacted portion of Mr. Michaud’s e-mail
merely reflects Mr. Michaud’s opinion about whether the draft letter incorporates his and Mr.
Romero’s communications to counsel. The e-mail does not divulge the communications
themselves. Accordingly, the Court concludes that the redacted portion of Mr. Michaud’s e-mail
is not shielded by the attorney-client privilege.
However, the work product doctrine does shield Mr. Michaud’s e-mail from disclosure
because it is a document prepared by a party in anticipation of litigation, and Mr. Keating has
made no claim of substantial need or undue hardship that would justify disclosure. See Fed. R.
Civ. P. 26(b)(3).
Regarding Mr. O’Donnell’s redacted response, Mr. O’Donnell affirms that the redacted
portion of his e-mail “consists of [his] comments regarding a draft that [he] reviewed of Mr.
Synnott’s response to Ms. Sussman’s demand letter,” and that “[his] intent was for Mr. Michaud
to relay some or all of [his] comments to Mr. Synnott.” Ex. D ¶ 12.
Here, Mr. O’Donnell’s statement that he intended for “some or all” of his comments to be
relayed to Mr. Synnott is unhelpful in the Court’s review because it offers no specifics as to
which of his comments he intended for Mr. Michaud to forward to Mr. Synnott. However, the

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text of the redacted e-mail and the other e-mails on the chain make clear that Mr. O’Donnell
intended his comments to be forwarded to Mr. Synnott. Indeed, in a 12:10 p.m. e-mail on
September 15, 2010 in the chain, Mr. Michaud indicated to Mr. O’Donnell his intention “to give
[Mr. Synnott] [thei]r feedback later today.” Mr. O’Donnell’s e-mail, a mere five hours later, was
clearly sent with the intention that it be sent along to Mr. Synnott.
However, even if the attorney-client privilege does not apply to Mr. O’Donnell’s e-mail,
the work product doctrine protects the redacted portion of Mr. Michaud’s e-mail from disclosure
because it is a document prepared by a party in anticipation of litigation. Once again, Mr.
Keating has made no claim of substantial need or undue hardship that would justify disclosure.
See Fed. R. Civ. P. 26(b)(3).
Accordingly, the Court finds that the privilege attaches to the redacted portions of both
Mr. Michaud’s and Mr. O’Donnell’s e-mails.

C.

Document 207

Document 207 is a September 2010 string of e-mails between Mr. Michaud and Mr.
O’Donnell with an attached draft letter from Mr. Synnott to Mr. Keating’s attorney. Equisoft
produced the document to Mr. Keating but redacted a portion of Mr. Michaud’s 11:39 a.m. email on September 17, 2010, and the entirety of the attachment
Mr. Michaud attests that the redacted portion of his September 17, 2010 e-mail is “advice
[he] received from Mr. Synnott regarding the timing of his response to Ms. Sussman’s demand
letter,” Ex. E ¶ 13, and that, consistent with his responsibilities, he relayed this information from
Mr. Synnott to the other senior management, in this case, Mr. O’Donnell. Exs. B, C, D, E. After
careful in camera review of the redacted portion of the e-mail, the Court concludes that Mr.
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Michaud’s e-mail relayed Mr. Synnott’s legal advice and strategy to Mr. O’Donnell regarding the
demand letters. Accordingly, the document is privileged and may remain redacted.
Turning to the attached draft letter, Mr. O’Donnell affirms that it “consists of [his]
proposed revisions to a draft that [he] reviewed of Mr. Synnott’s response to Ms. Sussman’s
demand letter,” and that “[his] intent was for Mr. Michaud to relay some or all of [his] revisions
to Mr. Synnott.” Ex. D ¶ 13.
First, the draft letter authored by Mr. Synnott is protected by the attorney-client privilege
as “drafts of documents prepared by counsel . . . are considered privileged if they were prepared
or circulated for the purpose of giving or obtaining legal advice and contain information or
comments not included in the final version.” SEPTA, 254 F.R.D. at 258. Here, the draft
document contains both information and comments not contained in the final version.
Second, Mr. O’Donnell’s proposed revisions to the attached letter were clearly intended
to be communicated to Mr. Synnott through Mr. Michaud for the purpose of securing either an
opinion of law, legal services or assistance in the legal matter. See Walker, 930 A.2d at 579.
Although Mr. O’Donnell’s statement that he intended for “some or all” of his comments to be
relayed to Mr. Synnott is unhelpful in the Court’s review, that is of no moment. Accordingly, the
Court concludes that Mr. O’Donnell’s proposed revisions to Mr. Synnott’s draft are protected by
the attorney-client privilege.
Third, the attached letter as a whole is shielded from disclosure by the work product
doctrine. The attachment was a draft document prepared by counsel in reasonable anticipation of
litigation. See Fed. R. Civ. P. 26(b)(3). That the draft was sent to Mr. O’Donnell through Mr.
Michaud does not remove it from the protection of the work product doctrine. Regardless, Mr.

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Keating has not established a substantial need for the materials to prepare his case or undue
hardship in obtaining the substantial equivalent of the materials by other means.
Accordingly, the Court finds that the privilege attaches to Mr. Michaud’s e-mail, and both
the attorney-client privilege and the work product doctrine shields the attachment from
disclosure.

D.

Document 215 (Doc. Nos. 205, 208, 214, 216, 217, 218 Duplicated Within)

Document 215 is a September 2010 string of e-mails between Mr. Michaud and Mr.
O’Donnell regarding revisions to a draft of Equisoft’s September 2010 letter responding to Mr.
Keating’s attorney. The document includes eight e-mails, four of which contain redactions.
Mr. Michaud’s 11:39 a.m. e-mail on September 17, 2010 is a duplicate of the redacted email in Document 207. Accordingly, the Court concludes that this e-mail is privileged and may
remain redacted for the same reasons as described above. See Document 207; Ex. E ¶ 14.
Mr. O’Donnell affirms that the redacted portion of his 10:04 a.m. e-mail on September
20, 2010 “consists of [his] comments regarding a draft that [he] reviewed of Mr. Synnott’s
response to Ms. Sussman’s demand letter,” and that “[his] intent was for Mr. Michaud to relay
some or all of [this information] to Mr. Synnott.” Ex. D ¶ 14.
After careful in camera review of the redacted portions of Mr. O’Donnell’s e-mail, the
Court cannot conclude that Mr. O’Donnell’s 10:04 a.m. e-mail is shielded from disclosure by the
attorney-client privilege. As discussed above, Mr. O’Donnell’s statement that he intended for
“some or all” of his comments to be relayed to Mr. Synnott is unhelpful in the Court’s review.
The text of the e-mail and the chain as a whole does not indicate that Mr. O’Donnell intended
Mr. Michaud to communicate his comments to Mr. Synnott for the purpose of securing either an
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opinion of law, legal services or assistance in a legal matter. If anything, as indicated by the
unredacted portion of the e-mail, Mr. O’Donnell is soliciting a response from Mr. Michaud, as he
noted, “Let me know what you think.” (emphasis added). Thus, this communication is not
protected by the attorney-client privilege.
Mr. Michaud attests that the redacted portion of his 10:11 a.m. e-mail on September 20,
2010 “consists of [his] opinion regarding Mr. O’Donnell’s comments on and proposed revisions
to a draft of Mr. Synnott’s response to Ms. Sussman’s demand letter.” Ex. E. at 14. The
redactions also “consist[] of [his] opinion regarding litigation threatened by Ms. Sussman in her
demand letter and the effect Mr. Synnott’s would have on that threatened litigation.” Ex. E ¶ 14.
Upon careful in camera review of Mr. Michaud’s e-mail, the Court is not persuaded that
the redacted portions of Mr. Michaud’s e-mail are shielded from disclosure by the attorney-client
privilege. The redactions merely reflect Mr. Michaud’s own opinion about Mr. O’Donnell’s
comments, and there is no evidence that Mr. Michaud intended this opinion to be communicated
to Mr. Synnott. Also, the redacted portion does not divulge any communications between
counsel and client. The Court is not persuaded that when one non-lawyer (Mr. Michaud) gives
his opinion to a second non-lawyer (Mr. O’Donnell) about the second non-lawyer’s comments
about a lawyer’s draft document, that the communication is protected under the attorney-client
privilege. Accordingly, the Court concludes that the redacted portion of Mr. Michaud’s e-mail is
not protected by the attorney-client privilege.
Finally, Mr. O’Donnell attests that the redacted portion of his 10:15 a.m. e-mail on
September 20, 2010 “consists of [his] opinion regarding the litigation threatened by Ms. Sussman
in her demand letter and the effect Mr. Synnott’s response would have on that threatened

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litigation,” and that “[his] intent was for Mr. Michaud to relay some or all of [this information] to
Mr. Synnott.” Ex. D ¶ 14.
Once again, Mr. O’Donnell’s statement that he intended for “some or all” of his
comments to be relayed to Mr. Synnott is unhelpful in the Court’s review. Likewise, it does not
appear from the text of his e-mail or the other e-mails on the chain that Mr. O’Donnell intended
for the redacted portion of the communication to be communicated to Mr. Synnott for the
purpose of securing either an opinion of law, legal services or assistance in a legal matter.
Accordingly, the Court concludes that the redacted portion of Mr. Michaud’s e-mail is not
protected by the attorney-client privilege.
Even though the attorney-client privilege does not apply to the redacted portions of these
communications, the work product doctrine shields the redacted portions of this e-mail chain
from disclosure. The redacted statements were committed to documents and were prepared by a
party in anticipation of litigation. Fed. R. Civ. P. 26(b)(3); In re Grand Jury, 604 F.2d at 803
(noting that for a document to be prepared in anticipation of litigation, it must be prepared
“because of the prospect of litigation.”). Mr. Keating has made no claim of substantial need or
undue hardship that would justify disclosure.

E.

Document 226 (Doc. Nos. 221, 222, 223, 224, 225, 227 Duplicated Within)

Document 226 is a September 2010 string of e-mails between Mr. Michaud and Mr.
O’Donnell regarding revisions to a draft of Equisoft’s September 2010 letter responding to Mr.
Keating’s attorney. The document includes eight e-mails, six of which contain redactions.
Mr. Michaud attests that his two redacted e-mails to Mr. O’Donnell on the e-mail string
“consist[] of [his] opinion about Mr. O’Donnell’s comments on a draft of Mr. Synnott’s response
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to Mr. Sussman’s demand letter.” Ex. E ¶ 15. Mr. O’Donnell affirms that his three redacted emails to Mr. Michaud and one redacted e-mail to himself on the e-mail string “consist[] of [his]
comments regarding a draft that I reviewed of Mr. Synnott’s response to Mr. Sussman’s demand
letter,” and that his “intent was for Mr. Michaud to relay some or all of [his] comments to Mr.
Synnott.” Ex. E ¶ 15.
The redacted information in Mr. O’Donnell’s September 21, 2010 e-mails at 10:16 a.m.,
(2) 10:21 a.m., and (3) 10:21:49 a.m. contain substantive revisions to Mr. Synnott’s draft letter
and were clearly intended to be communicated to Mr. Synnott through Mr. Michaud for the
purpose of securing either an opinion of law, legal services, or assistance in the legal matter. See
Walker, 930 A.2d at 579. Indeed, in Mr. Michaud’s 8:49 p.m. e-mail of the previous day, he
included a revised version of the letter he sent to Mr. Synnott, and told Mr. O’Donnell that the
lawyer “will call me to discuss the changes.” Also, after providing all of his substantive changes,
Mr. O’Donnell asked Mr. Michaud to “call [him] after [he] talk[s] with the lawyer.”
Accordingly, in light of the factual background and the content of the letters, it seems that Mr.
O’Donnell intended the redacted portion of these e-mails to be communicated to Mr. Synnott for
the purpose of obtaining legal advice. Thus, the Court concludes that these three e-mails are
protected by the attorney-client privilege.
The Court does not find, however, that the remaining redacted material in the e-mail
string is protected by the attorney-client privilege. Regarding the redacted material in Mr.
Michaud’s September 21, 2010 e-mails at 10:49 a.m. and 1:31 p.m., as with Mr. Michaud’s
10:11 a.m. e-mail on September 20, 2010 from Document 215, the Court is not persuaded that
Mr. Michaud providing his opinion to Mr. O’Donnell about Mr. O’Donnell’s comments about a

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lawyer’s draft document is protected under the attorney-client privilege. This is especially true,
where, as here, the Court cannot discern what “opinion” about Mr. O’Donnell’s comments, if
any, Mr. Michaud is communicating. Mr. Michaud’s two e-mails in this string do not divulge
anything about Mr. Synnott’s underlying communications in the draft letter, or anything about
Mr. O’Donnell’s comments about the letter. Accordingly, the Court concludes that the redacted
portions of Mr. Michaud’s e-mails are not shielded by the attorney-client privilege.
However, the work product doctrine does shield the redacted portions of Mr. Michaud’s
e-mails from disclosure. The redacted statements clearly qualify as a document prepared by a
party in anticipation of litigation. Fed. R. Civ. P. 26(b)(3); In re Grand Jury, 604 F.2d at 803.
Mr. Keating has made no claim of substantial need or undue hardship that would justify
disclosure.
Finally, the redacted information in Mr. O’Donnell’s 10:53 a.m. e-mail on September 21,
2010 is not protected from disclosure by the attorney-client privilege because there is no
indication that he intended his redacted statements to be communicated to Mr. Synnott and the
statement does not request an opinion of law, legal services, or assistance in a legal matter.
However, this document is entitled in work product protection for the same reasons as Mr.
Michaud’s e-mails.
Accordingly, the Court finds that the attorney-client privilege and/or the work product
doctrine shields the redacted portions of these documents from disclosure.

F.

Document 240 (Doc. Nos. 236, 237, 238, 239 Duplicated Within)

Document 240 is a September 2010 string of e-mails between or among Mr. Michaud,
Mr. O’Donnell, and Mr. Synnott regarding revisions to Equisoft’s September 2010 draft letter to
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Mr. Keating’s attorney. Equisoft produced the document to Mr. Keating but redacted Mr.
Synnott’s 10:30 a.m. e-mail on September 22, 2010 to Mr. Michaud, and Mr. Michaud’s 12:15
p.m. e-mail to Mr. O’Donnell.
Mr. Michaud has affirmed that Mr. Synnott’s letter to him “consists of Mr. Synnott’s
comments regarding a draft of his response to Ms. Sussman’s demand letter,” and his e-mail to
Mr. O’Donnell “consists of [his] comments regarding that draft of Mr. Synnott’s letter and the
timing of the sending of the final version.” Ex. E ¶ 16.
Mr. Synnott’s e-mail to Mr. Michaud is protected by the attorney-client privilege because
it is a communication from an attorney to a client “relating to a fact of which the attorney was
informed by his client . . . for the purpose of securing either an opinion of law, legal services or
assistance in a legal matter. . . .” Walker, 930 A.2d at 579.
The redacted portion of Mr. Michaud’s e-mail to Mr. O’Donnell is not protected by the
attorney client privilege, however, because, as noted above, the personal opinion or comments
from a non-lawyer to another non-lawyer about communications from a lawyer are not protected
under the attorney client privilege. Rather, only the communications to or from the attorney are
protected. Accordingly, Mr. Michaud’s e-mail is not shielded from disclosure by the attorneyclient privilege.
However, the work product doctrine does shield the redacted portions of Mr. Michaud’s
e-mail from disclosure. The redacted statements are contained in a document prepared by a party
in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). Mr. Keating has made no claim of
substantial need or undue hardship that would justify disclosure.
Accordingly, the Court finds that the privilege attaches to Mr. Synnott’s e-mail, and the

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work product doctrine shields Mr. Michaud’s e-mail from disclosure.

G.

Document 253

Document 253 is a November 17, 2010 Executive Summary presented to the Equisoft
Board of Directors, the last paragraph of which reports on Ms. Sussman’s September 2, 2010
demand letter and provides Mr. Synnott’s assessment regarding the probability of litigation.
Equisoft has withheld the entire document – the final paragraph on work product and attorneyclient privilege grounds and the rest because it is irrelevant to the subject lawsuit.
As an initial matter, the Court agrees that all but the last paragraph of this document is
completely irrelevant to the subject lawsuit. Accordingly, it need not be disclosed.
With respect to the one relevant paragraph of the document, Mr. Michaud asserts that
“along with Mr. Romero and Equisoft Finance Director Aurora Ciugulan,” he prepared the
document for Equisoft’s seven board of directors, Equisoft’s Chief Information Officer Nicolas
Ledoux, Equisoft Lead Architect Stephane Boutros, and Equisoft VP for Financial Products
Jonathan Georges. Ex. E ¶ 17. Mr. Michaud asserts that “[t]he final paragraph recounts Mr.
Synnott’s assessment of the probability of Mr. Keating commencing litigation against Equisoft.”
Id.
The evidence submitted to the Court is insufficient to establish that the attorney-client
privilege protects this document from disclosure. First, Mr. Michaud and Mr. Romero have
attested that beyond the named individuals, they are “not aware of any further distribution of the
document.” Ex. C ¶ 13; Ex. E ¶ 17. Indeed, Equisoft has not and cannot argue that Document
253 was seen only by the individuals discussed above. Regardless, even if the document was
limited to these individuals, many of them were outside the group of senior management who
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Equisoft has indicated was responsible for making strategic decisions related to the legal issues
involving Mr. Keating.
Moreover, contrary to Mr. Michaud’s assertions, only the final sentence of the Executive
Summary – rather than the final paragraph – recounts Mr. Synnott’s assessment of the probability
of Mr. Keating commencing litigation against Equisoft. The remainder of the paragraph merely
recounts underlying facts that are not shielded by the attorney-client privilege. See Upjohn, 449
U.S. at 395. Nothing in the Executive Summary or in any of the supporting affidavits suggests
that Mr. Synnott drafted these underlying facts. In fact, Mr. Michaud attested that he, not Mr.
Synnott, prepared the final paragraph of the document. See Ex. E ¶ 19. Only the last sentence
offers any assessment by Mr. Synnott of the probability of litigation. Accordingly, the Court
cannot conclude that Document 253 is fully shielded from disclosure by the attorney-client
privilege.
Nor can the Court conclude that the work product doctrine shields this document from
disclosure. Mr. Michaud asserts that “[he] prepared the final paragraph . . . because of potential
litigation with Mr. Keating . . . ,” Ex. E ¶ 19, but a document “fall[s] within the scope of the
work-product doctrine only if it was prepared primarily in anticipation of future litigation.” In re
Processed Egg Prods. Antitrust Litig., 278 F.R.D. 112, 119 (E.D. Pa. 2011). “Documents created
in the ordinary course of business, even if useful in subsequent litigation, are not protected by the
work-product doctrine.” See In re Gabapentin Patent Litig., 214 F.R.D. 178, 183 (D.N.J. 2003).
Here, the Court cannot conclude that the executive summary was prepared primarily in
anticipation of litigation. To the contrary, the purpose of the document was to update the board
of directors on various issues facing the company, including the demand letter sent by Mr.

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Keating.
Accordingly, the Court finds that the last paragraph of Document 253 must be disclosed,
but the remainder of the document may remain redacted on the basis of attorney-client privilege.

IV.

CONCLUSION
In light of the foregoing, the twenty-four (24) documents that Equisoft has redacted on the

basis of attorney client privilege and/or the work product doctrine may remain redacted as
presented to the Court in Equisoft’s March 23, 2012 submission, but Equisoft shall produce
Document 253 in redacted form as discussed above.
An Order consistent with this Memorandum follows.

BY THE COURT:

/s/ Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge

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