United States District Court, S.D. New York
December 28, 2005.
NATALIE TILBERG a/k/a TASHA TILBERG, Plaintiff,
NEXT MANAGEMENT CO., et al., Defendants.
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
OPINION AND ORDER
Plaintiff, Natalie Tilberg ("Tilberg"), has brought suit
against her former modeling representatives, Next Model
Management Company ("Next"). Discovery in this case involves a
forensic search of defendant Next's computer files. Next asserts
that various documents uncovered in the search are privileged and
has submitted a privilege log pursuant to an order by this Court
on November 28, 2005. Upon Tilberg's request, this Court reviewed
twenty documents in camera (see December 8, 2005 order), which
Next claims are privileged as attorney work-product. For the
following reasons, I find the documents appear to be privileged,
but require an affidavit from counsel confirming that the
information was requested by counsel.
The documents at issue are all e-mails between defendant Milie
Pellet ("Pellet), an employee of Next Model Management Company,
and either German Galvis ("Galvis"), the company's Information
Technology consultant, or Rubing Yan ("Yan"), an employee of the
company's accounting department. The e-mails, in large part, are
brief discussions between the employees apparently responsible
for preparing documents for release in discovery. One of the e-mails indicates that counsel asked for the documents mentioned.
The party claiming a privilege bears the burden of establishing
the privilege. In re Honeymell Int'l, Inc. Sec. Litig.,
230 F.R.D. 293, 298 (S.D.N.Y. 2003) (citing von Bulow v. von
Bulow, 811 F.2d 136, 144 (2d Cir. 1987)). Next submitted nothing
to attempt to meet this burden besides the documents and the
claim itself as listed in the privilege log. However, Tilberg
also submitted nothing to counter Next's claim besides a
statement that she considers it "doubtful" that the privilege
"Under Rule 26(b)(3) [of the Federal Rules of Civil Procedure
("FRCP")], three conditions must be satisfied in order to
establish work product protection. The material in question must:
(1) be a document or tangible thing, (2) which was prepared in
anticipation of litigation, and (3) was prepared by or for a
party, or by or for its representative." Id. (quoting
Compagnie Francaise d'Assurance Pour le Commerce Exterieur v.
Phillips Petroleum Co., 105 F.R.D. 16, 41 (S.D.N.Y. 1984)).
Obviously the classic work product document is a letter or
memorandum prepared by the attorney. However, the privilege also
applies to documents prepared by a client, and the client can
also invoke the privilege. See In re Grand Jury Proceedings,
2001 WL 237377, at *17 n. 17 (S.D.N.Y. Mar. 2, 2001); In re
Grand Jury Proceedings, 604 F.2d 798, 801 (3d Cir. 1979).
Here, apparently upon the request of counsel, Pellet
communicated over e-mail with other Next employees about
preparing documents for discovery. The e-mails are tangible
objects prepared in anticipation of litigation by a party to this
case, meeting all elements of FRCP 26(b)(3). Furthermore, the
privilege is not waived simply because of the involvement of
non-parties Galvis and Yan. "Unlike the attorney-client
privilege, where the rules of waiver are rather well defined and where privilege is lost if a privileged item is
shared with a third party . . . work product protection is not
necessarily waived by disclosures to third persons." Medinol,
Ltd. v. Boston Scientific Corp., 214 F.R.D. 113, 114-15
(S.D.N.Y. 2002) (citations omitted). In particular, sharing
litigation strategy does not waive the privilege where experts,
such as an accountant, are engaged to assist with some aspect of
the litigation. Id. at 115. Only "where the third party to whom
the disclosure is made is not allied in interest with the
disclosing party or does not have litigation objectives in
common, the protection of the doctrine will be waived." Id.
That is not the case here. Instead, it appears Galvis and Yan
were asked to assist with producing the appropriate documents to
respond to Tilberg's discovery requests. As employees of Next,
their interests are aligned with the company. The documents are
covered by the attorney work-product privilege if requested as
part of litigation.
THEREFORE IT IS ORDERED that counsel for Next shall submit an
affidavit by January 6, 2006, confirming that the information
was requested "in anticipation of litigation."
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