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Business Integration Services, Inc. v. AT&T Corp.

December 9, 2008

BUSINESS INTEGRATION SERVICES, INC., PLAINTIFF,
v.
AT&T CORP., DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

This is a discovery dispute about a possible waiver of the attorney-client privilege. The defendant, AT&T Corporation ("AT&T"), raises two objections to the Memorandum and Order of Magistrate Judge Dolinger dated April 22, 2008 (the "Order"). The defendant argues that (1) the Magistrate Judge erred in finding that the defendant ratified AT&T regional manager James Glackin's disclosure to the plaintiff, Business Integration Services, Inc. ("BIS"), of a summary of certain conclusions of the defendant's corporate counsel; and (2) the Magistrate Judge erred in finding that even if the disclosure were involuntary and inadvertent, the circumstances were such that it triggered a limited waiver of the attorney-client privilege.

I.

A.

This discovery dispute has already been the subject on two occasions of a Memorandum and Order by the Magistrate Judge, Docket Nos. 29 and 49, and on one occasion of a Memorandum Opinion by this Court, Docket No. 47, familiarity with each of which is assumed. The following factual summary and procedural history are undisputed and are drawn from the Magistrate Judge's April 22, 2008 Order.

In brief, the parties were formerly in a contractual relationship whereby the plaintiff sold the defendant's services to third parties. In 2004, the defendant decided to terminate the contract. On March 18, 2004, James Glackin, a regional manager for the defendant, sent an email to representatives of the plaintiff disclosing a brief summary of certain conclusions drawn by the defendant's corporate counsel with respect to the contractual relationship. On March 27, 2004, Mr. Glackin sent a second email to the plaintiff incorporating the March 18 email and containing an additional conclusion by corporate counsel. In the March 27 email, Mr. Glackin purported to add corporate counsel for the defendant to the email and instructed the plaintiff to direct all further communication to corporate counsel.

In 2006, the plaintiff brought suit against the defendant alleging breach of contract and unjust enrichment. In the course of discovery, the plaintiff requested that certain documents on the defendant's privilege log be made available to it. The defendant invoked the attorney-client privilege as to the contents of discussions that Mr. Glackin had had with the plaintiff about the advice that he had received from the defendant's corporate counsel. In a Memorandum and Order dated August 21, 2007, the Magistrate Judge ordered the defendant to produce documents reflecting the attorney analyses referred to in the March 18 and March 27 emails, and "the communications alluded to during deposition directing or recommending the termination of the contract" between the parties. (August 21, 2007 Order at 10-11.) The Magistrate Judge reasoned that the attorney-client privilege had been waived by the defendant as a consequence of Mr. Glackin's disclosure to the plaintiff of a substantial part of the substance of the attorney's communications.

By Memorandum Opinion and Order of November 2, 2007, this Court vacated the portion of the Magistrate Judge's Order that found a waiver of the attorney-client privilege. The Court remanded the case to the Magistrate Judge for the purpose of determining whether Mr. Glackin had had authority to waive the attorney-client privilege.

On April 22, 2008, the Magistrate Judge issued a second Memorandum and Order. The Magistrate Judge held that while Mr. Glackin had not had actual or apparent authority to waive the attorney-client privilege, the privilege had nonetheless been waived because the defendant had ratified Mr. Glackin's disclosure to the plaintiff of the advice of the defendant's corporate counsel. The Magistrate Judge held in the alternative that even if the disclosure were involuntary and inadvertent, the circumstances were such that it triggered a limited waiver of the attorney-client privilege. The Magistrate Judge once again ordered the defendant to produce documents reflecting the attorney analyses referred to in the March 18 and March 27 emails from Mr. Glackin and "the communications alluded to during deposition directing or recommending the termination of the contract." (Order at 28.)

The defendant objects to the Magistrate Judge's findings of waiver and the resulting order to produce documents.

B.

The standard of review for a decision by the Magistrate Judge on a discovery issue is whether the ruling is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); Collens v. City of New York, 222 F.R.D. 249, 251 (S.D.N.Y. 2004); In re Buspirone Patent Litig., 210 F.R.D. 43, 52 (S.D.N.Y. 2002). An order is "clearly erroneous" when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Surles v. Air France, No. 00 Civ. 5004, 2001 WL 1142231, at *1 (S.D.N.Y. Sept. 27, 2001) (internal quotation omitted). An order is "contrary to law" when it "fails to apply or misapplies relevant statutes, case law or rules of procedure." Id. (internal quotation omitted).

II.

...


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