United States District Court, D. Massachusetts
DANIEL P. NEELON, Plaintiff,
BLAIR KRUEGER and DESERT EAGLE RESOURCES, LTD., f/k/a GARRISON INTERNATIONAL, LTD., Defendants
ORDER ON NON-PARTY GEORGES COHEN'S MOTION FOR PROTECTIVE ORDER PROTECTING ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS (#286)
DONALD L. CABELL, District Judge.
Plaintiff Daniel P. Neelon is an attorney. He alleges that defendants Blair Krueger and Desert Eagle Resources (collectively "the defendants") published false statements about him to retaliate for Neelon having helped a client, non-party Georges Cohen ("Cohen"), to enforce Cohen's rights under a promissory note. (Dkt. No. 1) Before the Court is Cohen's Motion for Protective Order, (Dkt. No. 286), which was filed on April 7, 2015. Cohen's motion arises from a discovery dispute between the plaintiff and the defendants regarding the sufficiency of the plaintiff's privilege log in this case. On December 19, 2014, the magistrate judge found that the plaintiff had waived any privilege due to an insufficient privilege log, and accordingly ordered the plaintiff to produce a number of categories of documents the plaintiff had previously withheld as privileged. (Dkt. No. 217) The plaintiff objected and the district judge issued an order largely affirming the magistrate judge's order. However, because a number of the documents appeared to involve attorney-client communications between the plaintiff and a number of his clients, including Cohen, the Court determined that the plaintiff's clients should be afforded an opportunity to assert any privilege claims they might have with respect to the documents the plaintiff has been ordered to produce. The Court directed the plaintiff to notify his clients regarding the potential production of their privileged documents in this case and set an April 2015 deadline for the plaintiff's clients to request a protective order preventing the production of their documents. (Dkt. No. 259) Cohen was the only client to respond.
Cohen seeks a protective order preventing disclosure of the documents listed in the privilege log he submitted along with his motion, as well as an order prohibiting Cohen and the plaintiff from being compelled to testify regarding the contents of the documents. These documents fall roughly into five categories, discussed in more detail below, referenced as categories A-E. Having considered the parties' arguments, the evidence submitted and the relevant law, the Court finds that all of the documents identified in the privilege log that fall into categories A-D are privileged, and that the privilege has not been waived. The motion for a protective order is therefore ALLOWED with respect to those documents. With respect to the documents underlying category E, the Court similarly finds that the majority of the documents also are privileged and may be withheld. However, Cohen has not met his burden of proving that the documents Bates-stamped PL-0209, PL-0221, PL-0433-509, PL-0954, PL-2144, PL-2158, PL-3169-69A, PL-3199-3200, PL-3201-03, PL-3204, PL-3205-09 and PL-3614 are privileged and his motion with respect to those documents is therefore DENIED. The reasons for this ruling are set forth below.
Upon a showing of "good cause, " the Court may issue a protective order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). The Court has "broad discretion" to decide "when a protective order is appropriate and what degree of protection is required." Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir. 1993). Cohen seeks an order preventing the disclosure of the documents listed in the privilege log attached as an exhibit to his Motion for Protective Order. (Dkt. No. 287)
Cohen's privilege log divides the documents into five categories. The first four categories relate broadly to an entity called Garrison Asia, and mainly consist of communications between the plaintiff and Cohen, or the plaintiff and other attorneys representing Cohen. The subject matters include a loan negotiation and closing (category A), the loan default and default remedies (category B), a criminal investigation by Mongolian officials (category C), and a lawsuit filed in Montreal, Canada (category D). The fifth category, category E, relates to communications made in connection with an entity called GC International Investments, LLC (GC International). These communications consist of exchanges between Cohen and the plaintiff, or Cohen or the plaintiff and other individuals.
As the party asserting the attorney-client privilege, Cohen bears the burden of showing that each document on the log is privileged. Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012) (citing Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 870 N.E.2d 1105, 1114 (Mass. 2007)). Because this is a diversity action, state law governs the scope and application of the asserted privileges. F.D.I.C. v. Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000); Fed.R.Evid. 501. In Massachusetts, the attorney-client privilege protects "(1) all confidential communications (2) between a client and [his] attorney (3) undertaken for the purpose of obtaining legal advice." Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 448, 870 N.E.2d 33 (2007). To meet his burden of proof, Cohen must establish each of these elements, including the existence of an attorney-client relationship. Savoy v. Richard A. Carrier Trucking, Inc., 178 F.R.D. 346, 351 (D. Mass. 1998). Under Massachusetts law, an attorney-client relationship can be formed by express agreement or by implication where: "(1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance." In re Mahoney Hawkes, LLP, 334 B.R. 41, 50 (Bankr. D. Mass. 2005)(citing Sheinkopf v. Stone, 927 F.2d 1259, 1264 (1st Cir.1991); DeVaux v. American Home Assur. Co., 387 Mass. 814, 444 N.E.2d 355, 357 (1983)). The key issue is whether the potential client reasonably believed that the attorney was representing him in a legal matter. Id.
When a party withholds documents on the basis of the attorney-client privilege, the party must "describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed.R.Civ.P. 26(b)(5). Generally, this is accomplished by serving a privilege log that separately lists each document, specifies who created the document and all recipients, and concisely states the basis for the claim of privilege. Horace Mann Ins. Co. v. Nationwide Mut. Ins. Co., 240 F.R.D. 44, 47 (D. Conn. 2007).
In short, the relevant inquiry here is twofold. The initial question is whether the party asserting the claim of attorney-client privilege has demonstrated the existence of an attorney client relationship. If so, the inquiry turns to whether the party has provided a log that is sufficient to assess the privilege claim.
A. Did the Plaintiff Act as Cohen's Attorney?
Turning to the first question, Cohen has submitted a sworn declaration detailing the scope and duration of his client relationship with the plaintiff. (Dkt. No. 287-6) The declaration states that Cohen initially hired the plaintiff in late 2010 pursuant to a retainer agreement with Cohen's firm at that time, Denner Pellegrino LLP, and that the representation continued for "lengthy periods of time and for multiple matters." It is not clear if there was an express agreement as to the subsequent representations. Cohen avers that the plaintiff represented him during the time periods covered by his privilege log as follows:
Between October 2010 and January 2011, the plaintiff represented Cohen in negotiating a loan to Garrison Asia, drafting the loan documents and providing advice on alleged defaults under the loan agreement. (Categories A and B)
Between November 2010 and February 2011, the plaintiff, acting as Cohen's American counsel, communicated with Cohen's international counsel regarding the ...