United States District Court, S.D. New York
MEMORANDUM AND ORDER
NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE.
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
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 "email@example.com," 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.
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
United States v. Adlman, 68 F.3d 1495, 1499-1500 (2d
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.
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).
of Legal Standard
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'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