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America’s Test Kitchen, Inc. v. Kimball

Superior Court of Massachusetts, Suffolk, Business Litigation Session

March 30, 2018

AMERICA’S TEST KITCHEN, INC. as the Sole General Partner of America’s Test Kitchen Limited Partnership
v.
Christopher KIMBALL et al.[1]

          File Date: April 2, 2018

          MEMORANDUM AND ORDER ON CROSS MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS

          Kenneth W. Salinger, Justice of the Superior Court

         Christopher Kimball, Melissa Baldino, Christine Gordon, and Deborah Broide used to work for America’s Test Kitchen on a television cooking show and on related programming and publications distributed through various media. This lawsuit concerns and arises from their development of a competing business. ATK brought suit first. Kimball and CPK Media, LLC asserted counterclaims. The Court will refer to America’s Test Kitchen, Inc., and America’s Test Kitchen Limited Partnership as the " ATK Parties" and to Defendants as the " CPK Media Parties."

         The parties have filed cross motions to compel the production of documents withheld under a claim of privilege or litigation work product. The party asserting that a particular set of documents is protected from disclosure by the attorney-client privilege or the work product doctrine has the burden of proving that contention. See Commissioner of Revenue v. Comcast, 453 Mass. 293, 304 & 315 (2009); Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 619-20 (2007).

         The Court will allow the ATK Parties’ motion to the extent that it seeks production of any disputed communications with Matthew Sutton or those disputed communications with William Thorndike that are not protected by the work product doctrine. It will deny the ATK Parties’ motion to the extent that it seeks production of protected work product in communications with Thorndike, or the production of any disputed communications with Melissa Baldino or Thomas Hagopian. And it will deny the CPK Media Parties’ motion in its entirety, as to communications with ATK’s public relations consultants, with its lawyers, or among its board members.

         1. The ATK Parties’ Motion to Compel

         1.1. Matthew Sutton

         The CPK Media Parties have withheld communications with Mr. Sutton regarding legal advice sought by or provided to CPK Media, LLC on the ground that those communications are protected by the attorney-client privilege. They argue that (i) this privilege protects confidential communications that share legal advice with a client’s employee who is needed to understand or implement that advice, or that concern information known to the employee that is needed to inform or formulate requests for legal advice; (ii) the same is true regarding similar communications with someone who is the functional equivalent of an employee; (iii) Sutton was the functional equivalent of an employee of CPK Media, LLC and was involved in seeking and making sense of legal advice for CPK Media; and (iv) therefore the attorney-client privilege applies just as if Sutton were a CPK Media employee with a similar involvement in obtaining and implementing legal advice.

         The Court agrees with the legal premises of this argument. But the CPK Media Parties have not shown that Sutton was the functional equivalent of an employee who could share or participate in communications about legal advice without thereby waiving any otherwise applicable privilege.

         The attorney-client privilege " protects communications between a client and an attorney that are made in confidence for the purpose of giving or obtaining legal advice." McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190 (2012). It therefore covers confidential communications conveying legal advice from attorney to client as well as confidential communications conveying questions or information from client to attorney in order to obtain legal advice. Id., n.21.

         In addition, this privilege also protects other " confidential communications made for the purposes of obtaining or providing professional legal services," including such communications between parties that are " involved in a joint defense," " between representatives of the client[,] or between the client and a representative of the client." Mass. Guide Evid. § 502(b); accord Hanover Ins., 449 Mass. at 614-17 (privilege covers confidential communications among parties involved in joint defense or sharing other common interest in legal matter, just as it covers such communications with or among a client’s necessary agents).

         In the context of a corporate client, the attorney-client privilege protects communications that gather or convey information from knowledgeable employees or agents that is needed by counsel in formulating legal advice, as well as communications that relay legal advice obtained from an attorney to employees or other agents of the client who must understand and help to implement that advice. See generally RFF Family Partnership, LP v. Burns & Levinson, LLP, 465 Mass. 702, 708 (2013); Upjohn Co. v. United States, 449 U.S. 383, 389-96 (1981). After all, since a corporate entity like CPK Media, LLC " is not a living person, it can act only through its agents." Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 135 (2006).

         Where an outside consultant to a business is the functional equivalent of an employee, and plays a " pivotal role" in matters as to which the business obtains legal advice from an attorney, the attorney-client privilege protecting communications between the business and its counsel is not lost merely because the consultant is involved in, copied on, or becomes privy to those communications. See One Legemont, LLC v. Town of Lexington Zoning Bd. of Appeals, no. 13-PS-477585(GHP), 2014 WL 2854788, at *2-*4 (Mass. Land Ct. 2014) (Piper, J.); accord, e.g., United States v. Graf, 610 F.3d 1148, 1158-59 (9th Cir. 2010); Federal Trade Comm’n v. Glaxo Smith Kline, 294 F.3d 141, 147-48 (D.C.Cir. 2002); In re Bieter Co., 16 F.3d 929, 936-40 (8th Cir. 1994); Alliance Const. Solutions, Inc. v. Department of Corrections, 54 P.3d 861, 867-70 (Colo. 2002).

         This necessarily follows from the general principle that the privilege encompasses confidential communications " made to or shared with necessary agents of the attorney or the client." Hanover Ins., 449 Mass. at 616.

         This " functional equivalent doctrine" does not, however, encompass all outside consultants. Where the consultant’s " relationship with the company is one the non-employee has with many other clients or customers; is single-purpose and limited in scope, duration, and responsibility; or does not put the non-employee in a high-level, trusted decision-making or guiding role, equivalent to that of an employee, the non-employee does not hold the status necessary to keep communications involving him or her privileged." One Legemont, 2014 WL 2854788, at *4.

         Nor does this doctrine mean that all communications regarding legal advice with consultants who perform functions similar to employees will be privileged. Even if a consultant is the functional equivalent of an employee for some purposes, distribution of legal advice or other attorney-client communications to the consultant will only be privileged if the client needed the consultant to help facilitate the rendition of legal advice by the lawyer or the implementation of that advice by the client. GlaxoSmithKline, 294 F.3d at 147; In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 219 (S.D.N.Y. 2001). If otherwise privileged communications are shared willy-nilly among the client’s employees or functionally equivalent agents, even though their participation is not necessary to obtain or implement legal advice from an attorney, the privilege will be lost. See Commonwealth v. Senior, 433 Mass. 453, 457 (2001) (" the privilege is destroyed when such communications are made in the presence of a non-necessary agent of the attorney or client" ).

         The CPK Media Parties have not established that Sutton was the functional equivalent of a CPK Media employee who could share in attorney-client communications on a privileged basis. The evidence presented to the Court shows only that in the Fall of 2016 Sutton advised Kimball to consult with a lawyer and recommended particular lawyers to him, and that from February 2016 to February 2017 Sutton was paid by CPK Media for serving as an " independent advisor" to the company. That is not enough to establish that CPK Media needed to gather information from Sutton in order to obtain legal advice, that CPK Media had some need to share confidential legal advice with Sutton, or that Sutton was a necessary agent in seeking or implementing legal advice for any other reason. The mere fact that Sutton directed Kimball and CPK Media to a particular lawyer and law firm does not mean that his communications about that legal representation are protected by the attorney-client privilege.

         As a result, voluntary disclosure to Mr. Sutton of what otherwise would have been privileged attorney-client communications, or of any asserted attorney work product, would constitute a waiver of that ...


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