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Banco Do Brasil, S.A v. 275 Washington Street Corp.

April 12, 2012

BANCO DO BRASIL, S.A., PLAINTIFF,
v.
275 WASHINGTON STREET CORP., AS IT IS THE TRUSTEE OF THE WASHINGTON STREET REALTY TRUST II, DEFENDANT.



The opinion of the court was delivered by: Dein, U.S.M.J.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION TO COMPEL

I. INTRODUCTION

This matter arises out of a commercial lease agreement ("Lease") under which the plaintiff, Banco do Brasil, S.A. (the "Bank"), leased a portion of the premises located at 227-275 Washington Street, Boston (the "Premises") from the defendant, 275 Washington Street Corp., Trustee of the Washington Street Realty Trust II (the "Trust"), for use as a retail branch banking facility. In connection with the leasing of the Premises, the Trust appointed the commercial real estate firm of Cushman & Wakefield, Inc. ("Cushman & Wakefield") to act as its sole agent having the exclusive right to lease the Premises on behalf of the Trust. Emily Ou, a Senior Director at Cushman & Wakefield, was the real estate broker who acted as the Trust's leasing representative with respect to its dealings with the Bank. During discovery, the Trust withheld documents on the grounds of attorney-client privilege that reflected communications between the Trust and its attorney, Michael A. Hammer, Esq., which were copied to Ms. Ou, as well as documents reflecting direct communications between Ms. Ou and Attorney Hammer.*fn1

The Trust claims that those documents are privileged, despite having been shared with Ms. Ou, because Ms. Ou was acting as an agent of the Trust at all relevant times, and because her involvement in the negotiation and execution of the Lease was necessary to assist Attorney Hammer in rendering legal advice to the Trust.

The matter is presently before this court on "Plaintiff Banco do Brasil's Motion to Compel Production of Documents Shared with Third Party and for Related Discovery." (Docket No. 75). By its motion, the Bank contends that the Trust's voluntary disclosure of its attorney-client communications to Ms. Ou and Cushman & Wakefield defeats the Trust's claim of privilege. Accordingly, the Bank is seeking an order compelling the Trust to produce all of the documents identified on its privilege log that include Ms. Ou and Cushman & Wakefield, and allowing the Bank to obtain discovery from Ms. Ou and Cushman & Wakefield pursuant to previously served subpoenas.

After consideration of the parties' submissions, their oral arguments, and this court's in camera review of the challenged documents, this court finds that the communications at issue are not covered by the attorney-client privilege. While Ms. Ou may have provided "independent information and expertise for the attorney to use in representing his or her client," she was not retained to "serve some specialized purpose in facilitating the attorney-client communications." Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 307, 308, 901 N.E.2d 1185, 1197, 1198 (2009) (internal quotations and citations omitted). For this and the other reasons detailed herein, the communications are not privileged, and the Bank's motion to compel is ALLOWED.

By April 19, 2012, the Trust shall produce all of the documents identified on its privilege log that include Ms. Ou, except for the documents that have been withheld as attorney work product. Within 14 days from its receipt of the documents, the Bank shall take the deposition and document discovery of Ms. Ou and Cushman & Wakefield pursuant to previously served subpoenas.

STATEMENT OF FACTS*fn2

This matter arises out of a Lease for the Premises, which the Bank, as tenant, entered into with the Trust, as landlord, on August 29, 2008. (Compl. (Docket No. 1), Ex. A at p.1). Michael A. Hammer, Esq. represented the Trust in connection with the negotiation and execution of the Lease. (Hammer Aff. ¶ 1). After the Lease was signed, he continued to represent the Trust in its dealings with the Bank, and to provide legal advice to the Trust with respect to the Bank's efforts to obtain federal regulatory approval, which was the prerequisite for the Lease to begin and for the Bank to operate a branch at the Premises. (Ou Aff. (Def. Ex. A) ¶ 4; Hammer Aff. ¶ 7). Among the critical issues which remain in dispute in this matter is whether the Bank breached the implied covenant of good faith and fair dealing contained in the Lease by failing to use good faith efforts to obtain the necessary regulatory approvals.

Emily Ou, a Senior Director at the commercial real estate firm of Cushman & Wakefield, acted as the agent and leasing representative of the Trust in connection with the leasing of the Premises to the Bank. (Hammer Aff. ¶ 2; Ou Aff. ¶ 2). After this litigation commenced, the Trust retained Ms. Ou as its broker to find a replacement tenant for the Premises. (Pl. Ex. 8 at 98; Pl. Ex. 9 at 70). At issue is whether the disclosure of the Trust's attorney-client communications to Ms. Ou undermines the defendant's claim that the communications are privileged.

Cushman & Wakefield's Relationship With the Trust

The record indicates that the Trust appointed Cushman & Wakefield as its sole agent with the exclusive right to lease the Premises pursuant to an Exclusive Right to Lease Contract.*fn3 (Def. Ex. B). Under that agreement, Cushman & Wakefield agreed to use its best efforts to find a satisfactory tenant for the Premises, and to solicit the cooperation of other licensed real estate brokers in order to accomplish that goal. (Id. ¶ 2). The parties also agreed in relevant part that any lease negotiations would be conducted jointly by Cushman & Wakefield and the Trust, or at Cushman & Wakefield's direction, subject to the Trust's review and final approval. (Id. ¶ 4). The Trust further agreed to pay Cushman & Wakefield a commission if the firm was successful in procuring an acceptable tenant for the Premises. (Id. ¶¶ 5-6). Although Cushman & Wakefield was appointed as the sole agent of the Trust for purposes of leasing the Premises, the Trust acknowledged the firm's right to represent potential tenants as well. (Id. ¶ 8). Accordingly, the defendant gave Cushman & Wakefield its explicit consent to engage in such dual representation. (Id.).

Ms. Ou was the broker from Cushman & Wakefield who represented the Trust in its efforts to lease the Premises. (Pl. Supp. Ex. B at 36). In her capacity as the Trust's exclusive leasing representative, Ms. Ou was the person who initially procured the leasing deal with the Bank, and interacted with the Bank's representatives on behalf of the Trust. (Ou Aff. ¶ 3; Hammer Aff. ¶ 2). Ms. Ou also kept in touch with the Trust and the Bank following the execution of the Lease, seemingly to assist in determining whether and when the Bank would begin to occupy the premises. (See Hammer Aff. ¶ 6). However, there is no indication that Ms. Ou had any special expertise in the banking industry or any particularized knowledge with respect to obtaining regulatory approval for the operation of a bank.

The Trust has submitted the affidavits of Ms. Ou and Attorney Hammer in opposition to the motion to compel. In very conclusory language, they allege that Ms. Ou provided Attorney Hammer with information to assist him in providing legal advice to the Trust. For example, Attorney Hammer has attested that Ms. Ou: served as the direct contact and liaison between me and the principals who were the other business representatives of the Trust on certain issues relating to the Lease. On many matters relating to the execution of the Lease, it was imperative that I obtain input from and keep Ms. Ou, as the Trust's agent and leasing representative, informed of matters on which I was asked to represent and provide legal advice to the Trust. I also requested that Ms. Ou provide her professional viewpoint as leasing representative and related information that would assist me on behalf of the Trust to properly reflect the business understandings and proposals to be incorporated into the negotiation and execution of the Lease. I copied Ms. Ou on communications that I had with the Trust to improve my comprehension of the facts as she, as the exclusive agent in charge of leasing the Premises, may be in possession of certain facts that would assist in my representation and provision of legal advice to the Trust. (Hammer Aff. ΒΆ 3). Further, ...


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