WARTLUFT et al v. THE MILTON HERSHEY SCHOOL AND SCHOOL TRUST et al

Filing 177

MEMORANDUM OPINION AND ORDER granting in part and denying in part 136 MOTION to Compel Discovery filed by The Milton Hershey School And School Trust, The Milton Hershey School Trust. Signed by Magistrate Judge Martin C. Carlson on August 21, 2018. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al.,
Plaintiffs

v.
THE MILTON HERSHEY SCHOOL
AND SCHOOL TRUST, et al.,
Defendants

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Civil No. 1:16-CV-2145
(Chief Judge Conner)
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Factual Background

We have previously observed that this case arises out of “a singular tragedy,
the suicide of the plaintiffs' 14 year-old daughter in June of 2013, at about the time
of her expulsion from the Milton Hershey School, following two episodes of
hospitalization for severe depression.” Wartluft v. Milton Hershey Sch. & Sch. Tr.,
No. 1:16-CV-2145, 2017 WL 4698102, at *1 (M.D. Pa. Oct. 19, 2017). While the
death of this child, and questions of the defendants’ potential culpability for this
death, should be the issues which lie at the heart of this lawsuit, for some of the
protagonists the lawsuit seems to be but a small part of a longstanding and
intractable conflict between the Milton Hershey School, an advocacy group,

Protect Hershey’s Children, (PHC), and PHC’s President, an attorney named Ric
Fouad. The conflict between Fouad, PHC and Hershey spans many years and is
marked by competing accusations, mutual recriminations and shared, profound,
and unshakeable suspicions. For its part, the Milton Hershey School apparently
views PHC and Fouad, as unscrupulous provocateurs, who disseminate baseless
allegations against the Milton Hershey School, and then instigate grieving families
to file meritless lawsuits in pursuit of their ideological goals. PHC and Fouad, in
turn, identify themselves as public spirited whistle-blowers, who believe that they
are the victims of a campaign of harassment, oppression and unwarranted calumny
orchestrated by a multi-billion dollar corporate monolith.
For these protagonists their internecine dispute often seems to threaten to
overshadow the crucial issues raised by the complaint relating to the tragic
circumstances of AB’s life and death. We remind all parties of the importance of
focusing on the pivotal legal and factual issues raised by this particular complaint;
namely, the plaintiffs’ allegations that AB’s suicide was a result of unlawful
discriminatory practices by the defendants, and specifically the assertion that the
Milton Hershey School had a two-hospitalization policy which led to the expulsion
of emotionally fragile students once those students underwent two hospitalizations
for mental illness. Counsel are well-advised to focus their remaining efforts on
these issues.
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Nonetheless, recognizing that these protagonists have a focus upon one
another which goes beyond the issues in this lawsuit, we turn to the defendants’
motion to compel production of documents, (Doc. 136), which seeks:
[T]o compel Plaintiffs, and their counsel Dilworth Paxson, LLP (the
Dilworth Firm"), to: (1) produce all documents that they redacted
and/or withheld based on alleged privilege between F. Frederic Fouad
("Fouad"), and Plaintiffs; (2) produce all documents that they redacted
and/or withheld based on alleged privilege between Fouad and the
Dilworth Firm; (3) produce a revised privilege log that demonstrates
the applicability of the alleged privilege to each withheld document[.]
(Id.)
As they litigate this specific discovery dispute each of these protagonists
invites us to adopt very different characterizations of the role of Mr. Fouad in this
litigation; cast Mr. Fouad’s role in one of two utterly irreconcilable and singularly
categorical lights; and then rule upon this motion through the prism of their very
different perspectives regarding the broader motives and motivations they ascribe
to one another.
Thus, Hershey points to the fact that, at different times and in different
settings, Mr. Fouad has made very different assertions regarding whether he is
serving as counsel in this case. For example, in some public pronouncements
Fouad seems to disclaim any role as counsel, while on other occasions he appears
to cloak himself in the attorney-client privilege. Highlighting and denouncing these
disparate descriptions of his role in this lawsuit, Hershey insists that none of
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Fouad’s communications can be deemed to be privileged, and invites us to order
wholesale disclosure of all of Fouad’s communications.
The plaintiffs on the other hand embrace a very different, but equally
categorical view, and seem to insist that since Fouad is an attorney, any
communication between Fouad and any of the plaintiffs is cloaked in privilege.
Both parties have fully briefed their conflicting and irreconcilable views
regarding this issue. Moreover, the plaintiffs have provided the court and opposing
counsel with a privilege log, describing 55 documents, which comprise
approximately 240 pages of material, and have submitted these documents for our
in camera review.1 Having conducted this review, we will decline to adopt either
of these categorical approaches urged upon us by the parties. Instead, reviewing
We note that these documents appear to consist entirely of communications
involving the plaintiffs, Fouad and in some instances other counsel. Therefore the
privilege log consists exclusively of documents that are responsive to that portion
of the defendants’ discovery demand which sought production of all documents
that the plaintiffs redacted and/or withheld based on alleged privilege between F.
Frederic Fouad ("Fouad"), and Plaintiffs. We note that the defendants also
demanded production of all documents that the plaintiffs redacted and/or withheld
based on alleged privilege between Fouad and the Dilworth Firm. The plaintiffs
have submitted correspondence, (Doc. 175), suggesting that they oppose any
efforts by the defense to gain wholesale access to Mr. Fouad’s communications
with the Dilworth firm, attesting that none of the parties in this lawsuit have
possession of these communications, and indicating that such wholesale disclosure
would be particularly violative of privilege principles. While we are prepared to
address this issue with the parties, in our view it would be incumbent upon the
defendants to make a particularly compelling showing of relevance before they
could obtain access to these non-party communications among attorneys, or
compel the production of some form of privilege log relating to these non-party
communications.
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the 55 documents currently identified in the plaintiffs’ privilege log, we will
GRANT this motion to compel, in part, and DENY it in part, as described in
greater detail below.
II.

Discussion
A.

Guiding Legal Principles

Several familiar principles guide and inform our resolution of the instant
motion to compel. At the outset, rulings regarding the proper scope of discovery
are matters consigned to the court's discretion and judgment. Wisniewski v. JohnsManville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus, a court's decisions regarding
the conduct of discovery will be disturbed only upon a showing of an abuse of
discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This
far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572,
585 (D.N.J. 1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United
States, 943 F. Supp. 501, 502 (E.D. Pa. 1996)). Under that standard, a
magistrate judge's discovery ruling “is entitled to great deference and
is reversible only for abuse of discretion.” Kresefky v. Panasonic
Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see also
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Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y. 1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a
magistrate judge's resolution of discovery disputes deserves
substantial deference and should be reversed only if there is an abuse
of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17,
2010).
Although the scope of discovery is to be interpreted broadly, it “is not
without limits.” Fassett v. Sears Holdings Corp., 319 F.R.D. 143, 149 (M.D. Pa.
2017) (quoting Kresefky v. Panasonic Commc'ns & Sys. Co., 169 F.R.D. 54, 64
(D.N.J. 1996)). Federal Rule of Civil Procedure 26(b)(1), as amended, provides:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). In determining “the scope of discoverable information
under Rule 26(b)(1), the Court looks initially to the pleadings.” Trask v. Olin
Corp., 298 F.R.D. 244, 263 (W.D. Pa. 2014). Furthermore, “[i]nformation within
this scope of discovery need not be admissible in evidence to be discoverable.”
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Fed. R. Civ. P. 26(b)(1). Thus, “all relevant material is discoverable unless an
applicable evidentiary privilege is asserted. The presumption that such matter is
discoverable, however, is defeasible.” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir.
2000).
A party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth.,
203 F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party
resisting the discovery has the burden to establish the lack of relevance by
demonstrating that the requested discovery (1) does not come within the broad
scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such
marginal relevance that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad disclosure.” In re Urethane
Antitrust Litigation, 261 F.R.D. 570, 573 (D.Kan. 2009). Likewise, “[i]n deciding
whether a federal privilege against discovery exists, plaintiffs as the objecting
party have the burden of establishing the privilege.” Bayges v. Se. Pennsylvania
Transp. Auth., 144 F.R.D. 269, 271 (E.D. Pa. 1992). Indeed, because the assertion
of a claim of privilege “may result in the withholding of relevant information and
so may obstruct the search for truth,” In re Chevron Corp., 633 F.3d 153, 164 (3d
Cir. 2011), it is well-established that, “ ‘The burden of proving that the . . .
privilege applies is placed upon the party asserting the privilege.’ United States v.
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Landof, 591 F.2d 36, 38 (9th Cir. 1978).” Matter of Grand Jury Empanelled
February 14, 1978, 603 F.2d 469, 474 (3d Cir. 1979).
In this case the plaintiffs rely upon the attorney-client privilege and the
work-product doctrine to justify the decision to withhold these 55 documents,
consisting of emails and attachments. The legal tenets which govern this privilege
analysis are also familiar ones. The United States Court of Appeals for the Third
Circuit has summarized the purposes of, and distinctions between, the attorneyclient privilege and the work-product doctrine, and the importance of limiting
recognition of evidentiary privileges when necessary to achieve their purposes, as
follows:
Though they operate to protect information from discovery, the workproduct doctrine and the attorney-client privilege serve different
purposes. The purpose behind the attorney-client privilege is “ ‘to
encourage clients to make full disclosure of facts to counsel so that he
may properly, competently, and ethically carry out his representation.
The ultimate aim is to promote the proper administration of justice.’ ”
In re Impounded, 241 F.3d 308, 316 (3d Cir. 2001) (quoting In re
Grand Jury Proceedings, 604 F.2d 798, 802 (3d Cir. 1979)). The
work-product doctrine, by contrast, “promotes the adversary system
directly by protecting the confidentiality of papers prepared by or on
behalf of attorneys in anticipation of litigation. Protecting attorneys’
work product promotes the adversary system by enabling attorneys to
prepare cases without fear that their work product will be used against
their clients.”
Westinghouse Elec. Corp. v. Republic of the
Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991) (citations omitted).
In re Chevron Corp., 633 F.3d 153, 164 (3d Cir. 2011).
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Rule 501 of the Federal Rules of Evidence provides, in relevant part, as
follows:
[I]n civil actions and proceedings, with respect to an element of a
claim or defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State law.
Fed. R. Evid. 501. Accordingly, in diversity actions, such as the instant litigation,
the law governing evidentiary privileges is supplied by the courts of the state in
which the federal court sits. See, e.g., Rhone-Poulenc Rorer v. Home Indem. Co.,
32 F. 3d 851, 861 (3d Cir. 1994); Maertin v. Armstrong World Indus., Inc., 172
F.R.D. 143, 147 (D.N.J. 1997); McDowell Oil Serv., Inc. v. Interstate Fire & Cas.
Co., 817 F. Supp. 538, 545 (M.D. Pa. 1993) (in diversity action, party’s assertion
of attorney-client privilege governed by state law); see also Serrano v. Chesapeake
Appalachia, LLC, 298 F.R.D. 271, 280 (W.D. Pa. 2014) (observing that in
diversity actions a court “must look to state law for applicable legal principles on
issues of privilege.”).
The attorney-client privilege is meant to facilitate “full and frank
communication between attorneys and their clients.” Wachtel v. Health Net, Inc.,
482 F.3d 225, 231 (3d Cir. 2007). The privilege “recognizes that sound legal
advice or advocacy serves public ends and that such advice or advocacy depends
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upon the lawyer’s being fully informed by the client.” Upjohn v. United States,
449 U.S. 383, 389 (1981). The privilege “applies to any communication that
satisfies the following elements:

it must be ‘(1) a communication (2) made

between [the client and the attorney or his agents] (3) in confidence (4) for the
purposes of obtaining or providing legal assistance for the client.’ ”

In re

Teleglobe Communications Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting the
Restatement (Third) of the Law Governing Lawyers § 68 (2000)). Thus, the
privilege reaches “[c]onfidential disclosures by a client to an attorney made in
order to obtain legal assistance.” Fisher v. United States, 425 U.S. 391, 403
(1976); see also In re Ford Motor Co., 110 F.3d 954, 965 n.9 (3d Cir. 1997)
(communication made by client and an attorney are privileged if made “for the
purpose of securing legal advice.”); United States v. Amerada Hess Corp., 619
F.2d 980, 986 (3d Cir. 1980).
The privilege applies both to information that the client provides to the
lawyer for purposes of obtaining legal advice, as well as to the advice the attorney
furnishes to the client. To this end, the Supreme Court has explained that “the
privilege exists to protect not only the giving of professional advice to those who
can act on it but also the giving of information to the lawyer to enable him to give
sound and informed advice.” Upjohn, 449 U.S. at 390.

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The work-product privilege, in turn, is a creature of federal law, see Fed. R.
Civ. P. 26(b) (3)(A), and “shelters the mental processes of the attorney, providing
a privileged area within which he can analyze and prepare his client’s case.” In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003). As the Third
Circuit has explained:
The purpose of the work-product doctrine differs from that of the
attorney-client privilege . . . . [T]he attorney-client privilege promotes
the attorney-client relationship, and, indirectly the functioning of our
legal system, by protecting the confidentiality of communications
between clients and their attorneys. In contrast, the work-product
doctrine promotes the adversary system directly by protecting the
confidentiality of papers prepared by or on behalf of attorneys in
anticipation of litigation.
Protecting attorneys’ work product
promotes the adversary system by enabling attorneys to prepare cases
without fear that their work product will be used again their clients.
Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1427-28
(3d Cir. 1991). Furthermore,
The doctrine is an intensely practical one, grounded in the realities of
litigation in our adversary system. One of those realities is that
attorneys often must rely on the assistance of investigators and other
agents in the compilation of materials in preparation for trial. It is
therefore necessary that the doctrine protect material prepared by
agents for the attorney as well as those prepared by the attorney
himself.
United States v. Nobles, 422 U.S. 225, 238-39 (1975) (footnote omitted).
With these animating principles, Rule 26(b)(3) shields from discovery
“documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative (including the other party’s
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attorney, consultant, surety, indemnitor, insurer, or agent.”

Fed. R. Civ. P.

26(b)(3)(A). The rule also establishes two categories of protected work product:
fact work product and opinion work product. “Fact work product is discoverable
only upon a showing [of] ‘substantial need’ and by demonstrating that one cannot
otherwise obtain the ‘substantial equivalent’ of such materials without ‘undue
hardship.’” In re Linerboard Antitrust Litig., 237 F.R.D. 373, 381 (E.D. Pa. 2006)
(quoting Fed. R. Civ. P. 26(b)(3)). Opinion work product, “which consists of
‘mental impressions, conclusions, opinions, or legal theories of an attorney,’ is
afforded almost absolute protection” and it “is discoverable ‘only upon a showing
of rare and exceptional circumstances.’” Linerboard, 237 F.R.D. at 381 (quoting
Cendant, 343 F.3d at 663).
When examining privilege claims we must be mindful of two other legal
tenets. First, while recognizing the value served by these privileges, courts must be
mindful that the privileges obstruct the truth-finding process and should, therefore,
be “applied only where necessary to achieve its purpose.” Wachtel, 482 F.3d at
231; see also Westinghouse Elec. Corp., 951 F.2d at 1423. Accordingly, because
the purpose of the privilege is to protect and promote the “dissemination of sound
legal advice,” it applies only to communication conveying advice that is legal in
nature, as opposed to where a lawyer is providing non-legal advice. Wachtel, 482
F.3d at 231; see also Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D.
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132, 137 (N.D. Ill. 1993) (stating that the privilege is inapplicable where the legal
advice is incidental to business advice); Hardy v. New York News, Inc., 114
F.R.D. 633, 643 (S.D.N.Y. 1987) (“The attorney-client privilege is triggered only
by a client’s request for legal, as contrasted with business advice[.]”). In short,
counsel must be acting as counsel for the privilege to apply. This principle has
particular resonance here since it is apparent that at various times Mr. Fouad has
assumed an array of different roles in his often contentious relationship with
Hershey.
Finally, when addressing legal questions regarding whether the attorney
client or work product privileges apply to particular documents we are cautioned to
eschew any categorical approach which cloaks or rejects the privilege in a
wholesale fashion without regard to the specific content of particular documents.
Instead, “claims of attorney-client privilege must be asserted document by
document, rather than as a single, blanket assertion.” United States v. Rockwell
Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990).
Because the plaintiff, as the proponent of the privilege bears the burden of
proof on claims of privilege, it is often critically important that any privilege log
adequately outline the basis of the privilege claim. On this score we have described
the legal requisites of a valid privilege log in the following terms:

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The privilege log should: identify each document and the individuals
who were parties to the communications, providing sufficient detail to
permit a judgment as to whether the document is at least potentially
protected from disclosure. Other required information, such as the
relationship between...individuals not normally within the privileged
relationship, is then typically supplied by affidavit or deposition
testimony. Even under this approach, however, if the party invoking
the privilege does not provide sufficient detail to demonstrate
fulfillment of all the legal requirements for application of the
privilege, his claim will be rejected. Bowne, 150 F.R.D. at 474
(citations omitted); see also von Bulow, 811 F.2d at 146; In re Grand
Jury Subpoena Dtd. Jan. 4, 1984, 750 F.2d 223, 224-25 (2d Cir.
1984). United States v. Constr. Products Research, Inc., 73 F.3d 464,
473 (2d Cir. 1996).
Farkas v. Rich Coast Coffee, Corp., No. 1:14-CV-272, 2016 WL 4611427, at *4
(M.D. Pa. Sept. 6, 2016).
B.

This Motion to Compel Should be Granted, in Part, and
Denied, in Part.

Guided by these legal tenets, we will decline to follow either of the
categorical approaches urged upon us by the protagonists in this litigation. Thus,
while we acknowledge that Ric Fouad has a different time made very different
claims concerning his status in this litigation, we do not conclude that these
differing statements, standing alone, constitute a wholesale waiver of any privilege.
Mr. Fouad is an attorney and at different times, and in different places, may well
have played different roles in connection with this case. Likewise, we will decline
the plaintiffs’ invitation to treat all of these communications between Fouad and
the plaintiffs as privileged merely because Fouad was an attorney, or because the
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plaintiffs have now submitted declarations suggesting that Fouad was generally
acting as their counsel, particularly when those declarations are contradicted by
some of Fouad’s contemporaneous statements denying that he was counsel in this
case. Instead, conducting a “document by document” review, United States v.
Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990), we will extend the protection
of the attorney client privilege only to those “communications that satisf [y] the
following elements: it must be ‘(1) a communication (2) made between [the client
and the attorney or his agents] (3) in confidence (4) for the purposes of obtaining
or providing legal assistance for the client.’ ” In re Teleglobe Communications
Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting the Restatement (Third) of the
Law Governing Lawyers § 68 (2000)).
Applying these benchmarks, we note that the document-by-document
description of these records set forth in the privilege log provides only modest
assistance in determining whether the plaintiffs have met their burden of proving
that particular documents are privileged. Indeed, for the most part, the log simply
identifies the document and then uses the initials “AC” or “WP” to describe the
allegedly privileged nature of specific documents, a cryptic description which falls
short of “providing sufficient detail to permit a judgment as to whether the
document is at least potentially protected from disclosure.” Farkas v. Rich Coast

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Coffee, Corp., No. 1:14-CV-272, 2016 WL 4611427, at *4 (M.D. Pa. Sept. 6,
2016).
Notwithstanding these limitations in the privilege log our in camera review
of these 55 records leaves us convinced that many of these documents involved
matters that were unrelated to litigation, but rather pertained to social media
strategies, media outreach by Fouad and PHC, petition drives, and the preparation
of a multi-media memorial tribute to AB. These records further disclose Fouad
acting as a leader of PHC, as a comforter to AB’s family, as an organizer of a grass
roots protest campaign, and as a media spokesman and consultant, but many of
these documents do not appear to reflect Fouad serving as legal counsel or
providing legal advice to the plaintiffs. In short, while many of these documents
may have, at most, a marginal relevance to the issues in this lawsuit, these records
do not appear to be cloaked in privilege. Therefore finding that the requisite
elements of the privilege are not satisfied with respect to many of these documents,
it is ordered that the plaintiffs’ claims of privilege are denied with respect to the
following documents:
Privilege log documents: 2, 4-14, 16, 18, 20-28, 30-31, 33-39, 41-48, 50-51.
In contrast, we find that a smaller subset of these records entail
communications which appear to be for the purpose of securing legal advice both
from Fouad and from outside counsel. These documents, therefore, fall within the
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ambit of the attorney-client and work-product privileges, and the plaintiffs’ claims
of privilege as to these records are sustained:
Privilege log documents: 1, 3, 15, 17, 29, 40, 49, 52, 53, and 55.
Finally, there exists a smaller subset of records which we conclude contain
arguably privileged excerpts which should be redacted, but are not privileged in
their entirety. These documents, and the appropriate redactions in these records,
are described below:
Privilege log document 19: The header on the top of page 1 and the
accompanying narrative which refers to what appears to be legal advice should be
redacted; otherwise the document does not appear to contain privileged
information.
Privilege log 32: The header on the top of page 1 should be redacted;
otherwise the document does not appear to contain privileged information.
Privilege log 54: The final two pages of this document appears to involve
communications seeking legal advice and should be redacted; otherwise the
document does not appear to contain privileged information.
An appropriate order follows.
III.

Order

For the foregoing reasons, the Defendants’ Motion to Compel (Doc. 136), is
GRANTED in part and DENIED in part as follows:
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Finding that the requisite elements of the privilege are not satisfied with
respect to many of these documents, it is ordered that the plaintiffs’ claims of
privilege are denied with respect to the following documents:
Privilege log documents: 2, 4-14, 16, 18, 20-28, 30-31, 33-39, 41-48, 50-51.
Finding that a smaller subset of these records entail communications which
appear to be for the purpose of securing legal advice both from Fouad and from
outside counsel and, therefore, fall within the ambit of the attorney-client and
work-product privileges, the plaintiffs’ claims of privilege as to these records are
sustained:
Privilege log documents: 1, 3, 15, 17, 29, 40, 49, 52, 53, and 55.
Finally, there exists a smaller subset of records which we conclude contain
arguably privileged excerpts which should be redacted, but are not privileged in
their entirety. These documents, and the appropriate redactions in these records,
are described below:
Privilege log document 19: The header on the top of page 1 and the
accompanying narrative which refers to what appears to be legal advice should be
redacted; otherwise the document does not appear to contain privileged
information.
Privilege log 32: The header on the top of page 1 should be redacted;
otherwise the document does not appear to contain privileged information.
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Privilege log 54: The final two pages of this document appears to refer to
legal advice and should be redacted; otherwise the document does not appear to
contain privileged information.
So ordered this 21st day of August, 2018.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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