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Retail Brand Alliance, Inc. v. Factory Mutual Insurance Co.

March 7, 2008

RETAIL BRAND ALLIANCE, INC., PLAINTIFF,
v.
FACTORY MUTUAL INSURANCE CO., DEFENDANT.



The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I write to resolve several outstanding discovery disputes in this matter.

I. Background

This is an insurance coverage dispute arising out of the terrorist attacks in New York City that took place on September 11, 2001. Plaintiff operated three retail shops in the underground shopping mall formerly located at the World Trade Center site. The shops sold women's apparel, primarily to young career women. Because a large percentage of the individuals who formerly worked at the World Trade Center were young career women and because these women would have passed plaintiff's stores while commuting between the subway or PATH station and their offices, plaintiff's World Trade Center stores are alleged to have had a uniquely favorable location that contributed to their generating greater profit than any of plaintiff's other stores.

Plaintiff purchased business interruption insurance for the World Trade Center Stores from defendant, and the principal dispute in this action is the duration of the time period for which benefits should be paid. Plaintiff claims that it is entitled to receive business interruption benefits for the period of time that it would take, acting with due dispatch and diligence, to replace the stores and make them ready for operation at a location with a sales environment comparable to that which existed at the World Trade Center prior to September 11, 2001. Defendant claims that the coverage period is limited to the period of time it would reasonably take to replace the World Trade Center stores with reasonably equivalent stores in a reasonably equivalent location. The facts and the contentions of the parties are set forth in greater detail in the Memorandum Opinion and Order of the Honorable Richard J. Holwell, United States District Judge, denying plaintiff's motion for partial summary judgment and granting defendant's motion for partial summary judgment. Retail Brand Alliance, Inc. v. Factory Mut. Ins. Co., 489 F. Supp.2d 326 (S.D.N.Y. 2007).

II. 8-31-04 Email

The parties' first discovery dispute concerns a document being withheld by plaintiff on the basis of the attorney-client privilege and the work-product doctrine. The document is an August 31, 2004 email and attachment from Jim Bettner to C. Bertho, Greg Muntel, B. Bauman, G. Feola and M. Dunn, with a copy being sent to J. Kocott. At all relevant times, Mr. Feola was plaintiff's in-house counsel. Plaintiff's log of documents withheld on the ground of privilege describes the document as "Email to in-house counsel with draft outline, seeking legal advice in anticipation of litigation regarding outline for discussion re: 9/11 insurance claim" (Letter to the undersigned from Marshall Gilinsky, Esq., dated November 5, 2007).

The email in issue has been submitted to my chambers for in camera review and consists of the email itself and a one page attachment. The e-mail transmits an agenda of subjects to be discussed on the following day during a conference call with plaintiff's president and CEO. As noted above, the email was sent to five addressees, one of whom was Mr. Feola. There is no express request for advice directed to Mr. Feola in either the email or the attachment nor is there any indication in either the email or the attachment that the email was being sent to Mr. Feola (or any other addressee) for some reason unique to that addressee. The attachment is a list of points for discussion concerning plaintiff's claim against defendant. The first five points are simply recitations of particular events that have occurred in the case. By their nature, all five of these events must be known to defendant. The balance of the attachment lists prospective steps that plaintiff was contemplating taking concerning this action. There is no indication on the face of the document that its author deemed it to be privileged nor is there any instruction to the recipients that the document was a privileged communication that should not be disseminated.

The email and the attachment are not protected by the attorney-client privilege. The elements of the attorney-client privilege are well settled:

"The [attorney-client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."

Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995), quoting United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990).*fn1

Neither the face of the email nor the face of the attachment even remotely suggests that either document was seeking legal advice. Although I do not doubt that a document can be found to be privileged where it constitutes an implicit request for legal advice and the other elements of the privilege are present, there is nothing about the email and the attachment that even suggests an implicit request for legal advice. If anything, it appears that the email and attachment were sent to Mr. Feola as a matter of general corporate information. Since plaintiff has not submitted any evidence establishing that the email and the attachment constituted a request for legal advice, see von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (party asserting a privilege bears the burden of establishing its elements); In re Grand Jury Subpoena Dated Jan. 4, 1989, 750 F.2d 223, 224 (2d Cir. 1984) (same), I conclude that neither document is protected by the attorney-client privilege.

Nevertheless, I conclude that a substantial portion of the attachment is protected by ...


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