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Basso v. New York University

United States District Court, S.D. New York

July 27, 2018

ANNA BASSO, AMY HARTMAN, AND JAIME VILLA RUIZ, Plaintiffs,
v.
NEW YORK UNIVERSITY, Defendant.

          MEMORANDUM AND ORDER

          KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE.

         Attorney-Client Privilege Challenge

         Before the Court is the plaintiffs' letter, dated June 22, 2018, challenging the defendant's assertion of the attorney-client privilege with respect to "three documents withheld from production" by the defendant. See Docket Entry No. 84. The plaintiffs contend that, upon review or the defendant's privilege log, they believe "that the documents, or portions thereof, are not privileged."

         The defendant submitted an ex parte letter accompanied by Exhibits A, B and C, dated July 3, 2018, for the Court's in camera review of the disputed documents, which contain e-mail messages: (1) an e-mail message from Mary Schmidt Campbell, "Dean of Tisch School of the Arts," to "lgm2@nyu.edu," dated "3/13/2012," copied to the defendant's high level administrators and Terrance J. Nolan, the defendant's "Deputy General Counsel," with "Email Subject: Re: TischAsia Timeline" (Exhibit A); (2) an e-mail message from John H. Beckman, "Vice President," to Mary Schmidt Campbell and Joseph P. Juliano, "Vice Provost," dated "2/7/2013," copied to Linda Mills, "Vice Chancellor," Terrance J. Nolan, "Shonna R. Keogan," "Director" and "Tan, Delicia' <Delicia.Tan@edelman.com>," "a public relations consultant," with "Email Subject: Re: proposed quote in response to Tisch Asia letter to trustees" (Exhibit B); and (3) an e-mail message from Jim Y. Kim, "Chief Financial Officer, Tisch Asia," to Ken Tabachnick, dated "1/28/2014," copied to Kerri J. Tricarico, "Vice President, University Controller," with "Subject: Re: Tisch Asia LOR" (Exhibit C). The defendant's privilege log describes the: (i) March 13, 2012 e-mail message, Exhibit A, as an "[e]mail discussion with counsel regarding Tisch Asia presentation to trustees"; (ii) February 7, 2013 e-mail message, Exhibit B, as an "[e]mail discussion with counsel requesting advice regarding closure and addressing student concerns"; and (iii) January 28, 2014 e-mail message, Exhibit C, as an "[e]mail forwarding notes from counsel with comments and input on draft letter" with "[a]ttachment to email from counsel providing comments and input on draft letter". The defendant asserts that the attorney-client privilege protects these e-mail messages from disclosure because: (a) in the e-mail message dated March 13, 2012, Exhibit A, the defendant's "high level administrators sought advice from the Deputy General Counsel"; (b) in the e-mail message dated February 7, 2013, Exhibit B, the defendant's "Office of Public Affairs sought advice from the Deputy General Counsel and high level administrators"; and (c) in the e-mail message dated January 28, 2014, Exhibit C, the defendant's "high level administrators sought advice from AGC [Associate General Counsel Daniel] Magida ... and Magida provided comments on same, which were further discussed between the high level administrators." With respect to Exhibit C, the defendant asserts that "[p]arties to the email" include "Kin King and Ethan Koh" who "worked for PricewaterhouseCoopers LLP, which served as the firm responsible for Tisch Asia's annual corporate financial audit." The defendant did not provide the Court the "[a]ttachment to email from counsel providing comments and input on draft letter," indicated in the privilege log as being relevant to the "1/28/2012" e-mail message, Exhibit C.

         Legal Standard

         "The attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance." Brennan Ctr. For Justice v. Dep't of Justice. 697 F.3d 184, 207 (2d Cir. 2012) (quoting United States v. Mejia. 655 F.3d 126, 132 (2d Cir. 2011)).

The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney: "[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney."

Upjohn Co. v. United States. 449 U.S. 383, 395-96, 101 S.Ct. 677, 685-86 (1981) (citation omitted).

Under certain circumstances, however, the privilege for communication with attorneys can extend to shield communications to others when the purpose of the communication is to assist the attorney in rendering advice to the client.... "Hence the presence of an accountant... while the client is relating a complicated tax story to the lawyer, ought not destroy the privilege . . . ." "What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service ... or if the advice sought is the accountant's rather than the lawyer's, no privilege exists." ... The party claiming the benefit of the attorney-client privilege has the burden of establishing all the essential elements.

United States v. Adlman, 68 F.3d 1495, 1499-1500 (2d Cir. 1995).

         "[I]n the context of communications to and from corporate in-house lawyers who also serve as business executives," the issue of attorney-client privilege "usually arises" requiring the court to determine "whether the communication was generated for the purpose of obtaining or providing legal advice as opposed to business advice." In re County of Erie. 473 F.3d 413, 419 (2d Cir. 2007). "Fundamentally, legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct. It requires a lawyer to rely on legal education and experience to inform judgment." Id. (internal citation omitted). A determination respecting whether material at issue is privileged is a matter within the court's discretion. See Adlman, 68F.3dat 1499.

         "A party that shares otherwise privileged communications with an outsider is deemed to waive the privilege by disabling itself from claiming that the communications were intended to be confidential. Moreover, the purpose of the communications must be solely for the obtaining or providing of legal advice." Schaeffler v. United States. 806 F.3d 34, 40 (2d Cir. 2015). "[T]he privilege is triggered only by a client's request for legal, as contrasted with business, advice." In re Grand Jury Subpoena Duces Tecum. 731 F.2d 1032, 1037 (2d Cir. 1984).

         Application of Legal Standard

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In its July 3, 2018 ex parte letter, the defendant failed to make citation to any evidence or legal authority in support of its assertion of the attorney-client privilege respecting the e-mail messages contained in Exhibits A, B and C. The defendant&#39;s privilege log neither identifies the positions of the individuals listed there as senders and recipients of the e-mail messages at issue nor where those persons are employed, although the defendants indicate the positions of the listed individuals in their July 3, 2018 ex parte letter, without any supporting evidence. For the purpose of assessing the attorney-client privilege, the Court will assume that the individuals, named in the ...


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