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Paul D. Ceglia v. Mark Elliot Zuckerberg

April 19, 2012

PAUL D. CEGLIA, PLAINTIFF,
v.
MARK ELLIOT ZUCKERBERG, AND FACEBOOK, INC., DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

ORDER and DECISION

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on May 27, 2011 for pretrial matters. The action is presently before the court on Defendants' Fifth Motion to Compel (Doc. No. 294), filed February 21, 2012.

BACKGROUND and FACTS*fn1

The parties to this action dispute the authenticity of a contract ("the contract")*fn2 allegedly executed between Plaintiff Paul D. Ceglia ("Plaintiff") and Defendant Mark Elliot Zuckerberg ("Zuckerberg"), on April 28, 2003, pursuant to which Plaintiff and Zuckerberg, then a student at Harvard University ("Harvard"), established a partnership for the development and commercialization of two separate internet business ventures, including StreetFax.com ("StreetFax"), an on-line database developed by Plaintiff, and "The Face Book," the social-networking website created and maintained by Zuckerberg, and now known as Defendant Facebook, Inc. ("Facebook"). The putative contract provides that Plaintiff would hire Zuckerberg to perform web programming for StreetFax, and Plaintiff would help fund the development of Facebook in exchange for a one-half interest in Facebook.

On February 21, 2012, Defendants filed Defendants' Fifth Motion to Compel (Doc. No. 294) ("Defendants' motion"), supported by a memorandum of law (Doc. No. 295) ("Defendants' Memorandum"), and the Declaration of Alexander H. Southwell, Esq. (Doc. No. 296) ("Southwell Declaration") with attached exhibits ("Defendants' Exh(s). __"). In their motion, Defendants seek an order directing, inter alia, Plaintiff to produce for in camera inspection 11 documents as to which Plaintiff asserts either the attorney-client privilege or work product doctrine, as well as an order finding none of the documents are privileged and directing their production. On March 12, 2012, Plaintiff filed his Response in Opposition to Defendants' Fifth Motion to Compel (Doc. No. 310) ("Plaintiff's Response"), in which Plaintiff agreed to produce one of the documents previously withheld, but attaching as Exhibit H "Privilege Designations" in which Plaintiff asserts that the other 10 documents, including Privilege Log*fn3 Items Nos. 334, 348, 360, 373, 379, 400, 401, 402, 403, and 405, are shielded from disclosure pursuant to the attorney-client privilege, asserts the work product doctrine with regard to Privilege Log items Nos. 360 and 379, and also consented to in camera review of the 10 documents. Plaintiff also filed on March 12, 2012, the Declaration of Paul Argentieri, Esq. (Doc. No. 311) ("Argentieri Declaration"), and the Declaration of Edward Flaitz (Doc. No. 312) ("Flaitz Declaration"). On March 19, 2012, Defendants filed a Reply Memorandum in further support of their motion to compel (Doc. No. 313) ("Defendants' Reply"), the Declaration of Matthew J. Benjamin (Doc. No. 314) ("Benjamin Declaration"), and the Declaration of Bryan J. Rose (Doc. No. 315) ("Rose Declaration"). On March 26, 2012, Plaintiff submitted the 10 withheld documents to the undersigned for in camera review.

DISCUSSION

Plaintiff asserts the attorney-client privilege as to all 10 documents submitted for in camera review.*fn4 Plaintiff also maintains an email, dated March 6, 2011, was inadvertently disclosed to Defendants, and requests Defendants return or destroy all copies of the email. Defendants contend that Plaintiff's assertions of attorney-client privilege with regard to the 10 withheld privilege log items should be rejected and all ten documents produced. With regard to the March 6, 2011 email, Defendants argue Plaintiff has failed to meet his burden under Fed.R.Evid. 502(b), governing whether an inadvertent disclosure waives an otherwise validly asserted privilege.

1. Privilege

It is basic that privileged documents are exempt from disclosure. United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (citing United States v. Morton Salt Co., 338 U.S. 632, 639 (1950)). The burden is on the party asserting the privilege to establish the essential elements of the privilege. Id. (citing United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995); and In re von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied, 481 U.S. 1015 (1987)). A party invoking the attorney-client privilege must demonstrate three elements, including (1) a communication between a client and counsel, (2) intended to be and kept confidential, and (3) made for the purpose of obtaining or providing legal advice or services. Construction Products Research, Inc., 73 F.3d at 473 (citing Fisher v. United States, 425 U.S. 391, 403 (1976), Adlman, 68 F.3d at 1499, and United States v. Abrahams, 905 F.2d 1276, 1283 (9th Cir. 1990)). The burden of establishing each element of the privilege, including the absence of any waiver, is upon the party asserting the privilege. United States v. Int'l. Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997) (citing United States v. Schwimmer, 892 F.2d 237, 234 (2d Cir. 1989)); see also In re Keeper of the Records (XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) ("the party who invokes the privilege bears the burden of establishing that . . . it has not been waived"). Because the attorney client privilege limits the admissibility of relevant evidence in judicial and other proceedings, it is strictly construed. Id. (citing In re Horowitz, 482 F.2d 72, 81 (2d Cir.) (citing 8 Wigmore, EVIDENCE §§ 2192 at 70, 554 (1961)), cert. denied, 414 U.S. 867 (1973)).

When information that is otherwise protected by the attorney-client privilege is disclosed to third parties, the element of confidentiality is destroyed, and the privilege is waived. In re Horowitz, 482 at 81 ("We deem it clear that subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege." (citing McCormick, Evidence § 93, at 197 (Cleary ed., 1972), and cases there cited)). Further, communications between a client and attorney intended for publication or communication to third-parties are not intended to be confidential when made to obtain legal assistance and, thus, are not within the attorney-client privilege. Robbins & Meyers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 83-84 (W.D.N.Y. 2011) (citing cases); 5 MCCORMICK ON EVIDENCE § 91 at 408 (Kenneth S. Broun, 6th ed. 2006) ("Whenever the matters communicated to the attorney are intended by the client to be made public or revealed to third persons, . . . the element of confidentiality is wanting."). Even the dissemination of confidential and privileged information to persons within an organization "not shown to have a need to know such information" waives the attorney client privilege. Id. at 93-94 (citing cases).

Here, in camera review of each of the 10 documents establishes that the attorney-client privilege protects from disclosure Privilege Log Item 334 in part, and Privilege Log Items 373, 400, 401, 402, 403 and 405 in their entirety, but does not protect Privilege Log Items 348, 360, and 379.

Privilege Log Item 334 ("Item 334"). Defendants maintain Plaintiff has failed to establish that Item 334, described in Plaintiff's privilege log as an email from Argentieri to Ceglia "discussing, among other things, a hushmail account," Privilege Log Item 334, "does not appear to involve the provision of legal advice." Defendants' Memorandum at 10. Plaintiff asserts Item 334 is protected by the attorney-client privilege because it is a communication between Plaintiff and his attorney, was not disclosed to any third party, and involves the provision of legal advice by discussing case strategy concerning the filing of an amended complaint, securing communications regarding the action, and the retention of counsel. Plaintiff's Memorandum at 6. In opposition, Defendants argue Plaintiff has failed to submit any evidence establishing Item 334 was sent for the purpose of obtaining legal advice. Defendants' Reply at 4.

In camera review establishes Item 334 is a series of eight emails dated December 1 to December 4, 2010, and exchanged between Plaintiff and his counsel, Paul A. Argentieri. With the exception of some discussion of Plaintiff's concerns about legal representation and the filing of an amended complaint, the remainder of the emails neither contain nor seek legal advice, but discuss the District Judge assigned to the case, personal finances, and the condition of the accommodations in which Plaintiff was then staying in Costa Rica. Accordingly, Item ...


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