Derma Pen v. 4EverYoung Limited et al

Filing 180

MEMORANDUM DECISION AND ORDER granting in part and denying in part 171 Short Form Discovery Motion. Signed by Magistrate Judge Evelyn J. Furse on 6/3/14 (alt)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
DERMA PEN, LLC,
Plaintiff,

MEMORANDUM DECISION AND
ORDER RE SHORT FORM DISCOVERY
MOTION (ECF No. 171)

v.

Case No. 2:13-cv-729-DN-EJF

4EVERYOUNG LIMITED, et al.,

District Judge David Nuffer

Defendants.

Magistrate Judge Evelyn J. Furse

Defendants and Plaintiff each filed Short Form Discovery Motions on May 28 and 29,
2014, respectively. (ECF No. 171.) The parties’ dispute arises from Rory Tringali’s disclosure
of certain documents to Plaintiff Derma Pen, LLC.
Stene Marshall—an individual Defendant and director of other corporate Defendants in
this action—has a prior business relationship with Mr. Tringali, and Mr. Tringali may have
played an insignificant role in establishing a United States distributor for the Dermapen product.
(Marshall Decl. ¶¶ 7–8, ECF No. 177.) After Plaintiff Derma Pen initiated this action in August
2013, Mr. Marshall engaged Justin Williams and Mr. Tringali to assist with locating and
retaining counsel, ultimately retaining Magleby & Greenwood PC (“M&G”). (Id. at ¶ 11.) After
Defendants retained M&G, Mr. Tringali continued to communicate with Mr. Marshall and M&G
regarding the litigation. (Id. at ¶¶ 13–15.) Although Mr. Tringali communicated with Mr.
Marshall and attorneys from M&G regarding the litigation, Mr. Tringali never had the authority
to act as a decision maker. (Id. at ¶ 16.) At some point, Mr. Marshall and Mr. Tringali’s
relationship soured, and Mr. Tringali provided Plaintiff with communications between
Defendants and M&G. (See id. at ¶ 18; ECF No. 169 at 3.)

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Shortly after Plaintiff’s counsel received the documents from Mr. Tringali, Plaintiff’s
counsel notified M&G about the documents. These Short Form Discovery Motions followed,
and the Court held a telephonic hearing on May 30, 2014. Following the hearing, the parties
submitted the documents at issue to the Court for in camera review.
ANALYSIS
The Court finds the attorney-client privilege applies to the documents related to
Defendants’ initial engagement of M&G. “[A] corporation can only act through its officers,
directors, agents, and employees.” Shriver v. Baskin-Robbins Ice Cream Co., Inc., 145 F.R.D.
112, 114 (D. Colo. 1992). The attorney-client privilege thus applies to communications between
corporate agents and counsel. See id. Mr. Tringali acted as Defendants’ agent in the initial
engagement of M&G. In one e-mail, Mr. Tringali states he represents Defendants’ U.S.
interests, and Mr. Marshall’s declaration supports Mr. Tringali’s role in M&G’s engagement.
(Marshall Decl. ¶ 11, ECF No. 177.) Because Mr. Tringali acted on the Defendants’ behalf in
engaging M&G, the privilege attached to these communications belongs to the corporate
Defendant, and Mr. Tringali—a former agent for a limited purpose only—has no power to waive
that privilege. See Dexia Credit Local v. Rogan, 231 F.R.D. 268, 277 (N.D. Ill. 2004) (citing
CFTC v. Weintraub, 471 U.S. 343, 349 (1985)).
The Court finds Defendants waived the attorney-client privilege on the remaining
documents by disclosing the documents to Mr. Tringali, a third party with no attorney-client
relationship with M&G. See Roe v. Catholic Health Initiatives Colorado, 281 F.R.D. 632, 636
(D. Colo. 2012) (citation omitted) (noting disclosure of privileged communications results in
waiver). “Because confidentiality is key to the privilege, ‘[t]he attorney-client privilege is lost if
the client discloses the substance of an otherwise privileged communication to a third party.’”

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Id. (quoting United States v. Ryans, 903 F.2d 731, 741 n.13 (10th Cir.1990)). Even disclosure to
a corporation’s own employee may constitute waiver of privilege, if the employee does not need
to know the information. See Schwarz Pharma., Inc. v. Teva Pharm. USA, Inc., No. 01-4995
(DRD), 2007 WL 2892744, at *4 (D.N.J. Sept. 27, 2007). Mr. Tringali assisted Defendants in
the case’s early stages by investigating facts, by communicating with Mr. Marshall and M&G,
and by discussing case strategy. (See Marshall Decl. ¶ 13, ECF No. 177.) However, no evidence
before the Court indicates Mr. Tringali maintained a relationship with Defendants to support
attorney-client privilege after Defendants initially retained M&G.
The Tenth Circuit has noted “[t]he confidentiality of communications covered by the
privilege must be jealously guarded by the holder of the privilege lest it be waived. The courts
will grant no greater protection to those who assert the privilege than their own precautions
warrant.” Ryans, 903 F.2d at 741 n.13 (quoting In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir.
1989)). By disclosing the documents to Mr. Tringali, Defendants waived the attorney-client
privilege.
CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ Short Form Discovery Motion (ECF No. 171), and finds as follows:
1) the attorney-client privilege applies to the documents related to Defendants’ initial
engagement of M&G;
2) Defendants have waived the attorney-client privilege as to the remaining documents.

Because of the short time frame, this Order constitutes the Court’s ruling on this issue.
The parties should make their best efforts and act in good faith in determining which documents

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are privileged as a result of this decision. If additional evidence exists regarding Mr. Tringali’s
relationship that may affect the Court’s determination of this issue, either party may file an
appropriate motion with that information.
DATED this 3rd day of June, 2014.
BY THE COURT:

________________________________
Evelyn J. Furse
United States Magistrate Judge

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