EFTA01734187.pdf

Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 1 of 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X VIRGINIA L. GUIFFRE, Plaintiff, 15 Civ. 7433 (RWS) - against - OPINION GHISLAINE MAXWELL, Defendant. X APpEARANCE S: Counsel for Plaintiffs BOEIS, SCHILLER & FLEXNER LLP 401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301 By: Sigrid S. McCawley, Esq. Meredith L. Schultz, Esq. Counsel for Defendants HADDON, MORGAN AND FOREMAN, P.C. 150 East Tenth Avenue Denver, CO 80203 By: Laura A. Henninger, Esq. Jeffrey S. Pagliuca, Esq. USDC SDNY DOCUMENT ELECTRONICAL:Y .FILED DOC #: DATE FILED: ) (,) 1 EFTA R1 00011977 EFTA01734187  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 2 of 37 Sweet, D.J. Plaintiff Virginia Giuffre ("Giuffre" or "Plaintiff") has moved to compel Defendant Ghislaine Maxwell ("Maxwell" or "Defendant") to produce documents withheld on the grounds of privilege.- !lased on the conclusions set forth below, the motion is granted in part and denied in part. I. Prior Proceedings Plaintiff filed a complaint in this Court on September 21, 2015, alleging a single defamation claim. See Compl. As set forth in the Court's February 26, 2016 Opinion denying Defendant's motion to dismiss, this case concerns Defendant's statements denying Plaintiff's allegations concerning Defendant's role in Plaintiff's sexual abuse as a minor. On February 26, 2016, Plaintiff filed the instant motion to compel Defendant to respond to interrogatories to which Defendant has claimed the protection of the attorney-client, attorney-client-agent, and common interest. privileges. Oral argument was held on March 17, 2016. During argument, the Court held that in camera review was warranted for purposes of 2 EFTA_R1_00011978 EFTA01734188  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 3 of 37 determining whether privilege applied to the documents in question, and Defendant was directed to file any further submissions necessary to establish her privilege claim. On March 31, 2016, Defendant submitted a declaration and exhibits in opposition to Plaintiff's motion, at which point the matter was deemed fully submitted. II. The Privilege Claims at Issue Defendant has withheld 99 pages of emails with communications involving various combinations of Brett Jaffe, Esq. ("Jaffe"), Mark Cohen, Esq. ("Cohen"), Philip Barden ("Barden"), Ross Gow ("Gown), Brian Basham ("Basham"), and The facts that follow summarize Defendant's assertions regarding her relationship to each of these individuals. Defendant hired Jaffe, then of Cohen s Gresser LLP, to represent her in connection with legal matters in the United States at some indeterminate point in 2009. Def.'s Decl. of L.A. Menninger in Supp. Def.'s Resp. to Pl.'s Mot. to Compel Production of Does. Subject to Improper Privilege, ECF. No. 47, 3 EFTA_R1_00011979 EFTA01734189 (Time 1 :15 cv 0712,3.RWS Document 135 i^JiH:n /02116 Page 4 of 3/ • Ex. E, 9 9 ("Maxwell Decl."). Defendant does not set forth an end date to Jaffe's representation, but swears that when Jaffe left Cohen 6 Gresser, Mark Cohen continued as her counsel. Id. 1 11. Defendant hired Barden of Devonshire Solicitors on March 4, 2011 to represent her in connection with legal matters in England and Wales. Id. 9 1. Defendant hired Gow, her "media agent," on the same date. Id. 1 6. Defendant communicated with pursuant to a common interest agreement between them and their respective counsel. Id. 1 16. Defendant understood to be acting as counsel for in 2015. Id. 9 14. Defendant likewise understood for some unidentified period of time. Id. 1 15. Defendant has not established the nature of her relationship with Basham. 4 EFTA_R1_00011980 EFTA01734190  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 5 of 37 Defendant's withheld emails can be organized as follows': 1. Communications with Jaffe on March 15, 2011, #1000-19.2 2. Communications with Gow on January 2, 2011, #1020-26. 3. Communications with Gow and Basham on January 2, 2015, #1027- 1028. 4. Communications with Barden a. On January 10, 2015, 11045-51 S. Communications with Barden and Gow a. On January 10, 2015, 11044 b. On January 9 and 10, 2015, #1052-55 c. On January 11, 2015, #1055-58 d. On January 21, 2015 #1088-90 6. Communications wit a. On January 6, 2 105 #1029 b. On January 11, 2015, #1055-58 c. Between January 11 and 17, 2015, #1059-83, including forwarded email between Barden #1069-73, #1076-79, and including forwarded email between Barden, Defendant, and Cohen, #1068-69, 1074-76. d. Between January 21 and 27, 2015, *1084-1098, #1099. 7. Communications with on January 6, 2015, #1030-43. Some emails were forwarded or carbon copied ("CC'd") later in the chain, leading to some overlap and duplication. Whether one party or another was a direct recipient or a CC'd recipient of an email is not significant for purposes of the privilege analysis, as the waiver issue is determined by the purpose of the third-party's inclusion in the communications, not necessarily whether the communication was directed toward them by copy or direct email. See e.g., Martian v. New York State i This organization is derived from Defendant's privilege log. Issues with respect to characterizations in the log will be addressed infra S V. 2 All references preceded by # refer to the Bates stamp number of Defendant's in camera submissions. 5 EFTA_R1_00011981 EFTA01734191 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 6 of 37 • Dep't of Envtl. Conservation, 9 A.D.3d 586, 588, 779 N.Y.S.2d 643, 645 (2004) (privilege lost when documents were carbon copied to a third.party); see also infra SIV. Defendant claims the attorney-client privilege applies to groups 1 and 5, the attorney-client-agent,. privilege applies to groups 2 through 4, and the common interest privilege applies to groups 6 and 7. See Def.'s In Camera Submissions, Ex. A ("Privilege—Log").. III. Choice of Law Defendant has invoked the protection of privilege for communications with New York counsel Jaffe and London solicitor Barden. Defendant doeS not dispute that the communications with Jaffe are governed by the privilege law of New York State. Def.'s Supp. Mem. of Law. in.Resp. to P1.'s Mot. to Compel Production of Documents Subject to Improper Claim of Privilege, ECF No. 46, at 3 ("Def.'s Supp. Opp."); see also Fed. R. Civ. P. 501; Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 102 (S.D.N.Y. 2007) ("Because this Court's subject matter jurisdiction is based upon diversity . . state law provides the rule of decision concerning the claim of attorney-client 6 EFTA_R1_00011982 EFTA01734192  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 7 of 37 privilege."). However, Defendant submits that a choice of law issue arises with respect to her communications with Barden. Id. at 3-5. Defendant has not specified whether she seeks to withhold documents containing communications with Barden subject to the British legal-advice or litigation privileges. Rather, Defendant's privilege log lists the "attorney-client privilege" with respect to the Barden communications and broadly asserts that all privileges asserted are "pursuant to British law, Colorado law and NY law." Privilege Log at 1. Defendant argues "Ms. Maxwell's communications with Mr. Barden should be construed pursuant to British law." Def.'s Supp. Opp. at 4. It is only in Defendant's in camera filing that Defendant has provided any legal argument supporting an assertion of protection under British privilege law.3 Defendant's claim is based on two suppositions: first, that ":tlhe UK litigation privilege protects communications to and 3 Defendant argued in supplemental opposition that "Ms. Maxwell has not had sufficient time to secure appropriate affidavits, documents and legal opinions concerning British law's attorney- client privileges," seeking additional time to submit these materials. Def.'s Supp. Opp. at 4. EFTA_R1_00011983 EFTA01734193  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 8 of 37 from a client and her attorney and to a third party(.]" Decl. of L.A. Henninger in Supp. Def.'s In Camera Submissions ("Henninger Decl.") 1 24 (emphasis in original). Second, that the scope of privilege is wider than explicit legal advice provided in the context of litigation, encompassing communications related to "actual or contemplated -litigation." Id. (emphasis in original).. Defendant supports these arguments with citation to Relabel v. Air-India.41988) Cka17,:LOrd.Taylor and its progeny Three Rivers DC voi,BanK:of ;England (Disclosure):.(No. 4), (2005) 1 R.C. 610 and (No. 10) (20041 UKHL 48. Lord Taylor's opinion in 8elabel explicitly addresses "whether (the legai professional] privilege extends only to communications seeking or conveying legal advice, or to all that passes between solicitor and client on matters within the ordinary business of a solicitor." Balabel, Ch. 317, 321-332. Lord Taylor discusses at length whether communications between a solicitor and client are privileged if they do not contain explicit legal advice,, ultimately deciding the scope of the privilege is wider. Id. at 330 ("the test is whether the communication or other document was made confidentially for the purpose of legal advice."). However, Defendant's citation does not support the statement for which it is directly cited: that waiver does not apply to communications including a third-party 8 EFTA_R1_00011984 EFTA01734194  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 9 of 37 if for the purpose of contemplated litigation. Plaintiff, with the aid of British counsel and without having seen Defendant's British law argument, submits an interpretation of British law directly contradicting Defendant's.4 This precarious support provides an insufficient foundation for the Court to apply foreign law to Defendant's claims. See Tansey v. Cochlear Ltd., No. 13-CV-4628 SJF SIL, 2014 WL 4676588, at •4 (E.D.N.Y. Sept. 18, 2014) ("the party relying on foreign law has the burden of showing such law bars production of documents." (quoting BrightEdge Techs., Inc. v. Searchmetrics, GmbH, 14-cv-1009-WHO, 2014 WL 3965062 *2 (N.D.Cal. Aug.13, 2014) (internal quotation marks omitted)). Moreover, at least one New York court has found that British privilege law is "apparently similar" to New York's. Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd's London, 4 "Where there is no attorney involved in the communication ..., there can be no `legal advice' privilege under English Law"; "(i)n absence of any express obligation of confidentiality, (Plaintiff) submits that privilege does not attach to communications involving Ross Gow and the lawyer."; "Under English Law, communications between client and lawyer through an agent will be protected by legal advice privilege, but this will only apply in situations where the agent functions as no more than a mere conduit." Pl.'s Reply in Response to Def.'s Supp. Mem. of L. in Resp. to Pl.'s Mot. to Compel the Production of Documents Subject to Improper Claim of Priv. at 4-6 (emphasis removed) ("Pl.'s Reply"). 9 EFTA_R1_00011985 EFTA01734195 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 10 of 37 176 Misc. 2d 605, 609, 676 N.Y.S.2d 727 (Sup. Ct. 1998) (citing Waugh v British Rys. Bd., 1980 AC 521 [N.L.)), aff'd sub nom. Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd's, 263 A.D.2d 367, 692 N.Y.S.2d 384 (1999). That court found that both doctrines "require that legal advice be a predominate purpose of the, communication."s Id. The privilege analysis under UK law parallels the analysis under New York law, requiring (i) a communication between an attorney and client, (ii) made in the course of the representation, (iii) for the purpose of providing legal advice. Compare Three Rivers ;DC (Disclosure) (No.4), [2005) 1 A.C. 610 with People v. Mitchell, 58 N.Y.2d 368, 373, 448 N.E.2d 121 (1983). The policy purposes of privilege in both jurisdictions also mirror one another. Coliper° Balabel at 324 ("(T)he basic principle justifying legal professional privilege arises from the public interest requiring full and frank exchange of confidence between solicitor and client to enable the latter to receive necessary legal advice.") with People v. Mitchell, 58 N.Y.2d 368, 373, 448 N.E.2d 121 (1983) ("(C.P.L.R. 5 4503's) purpose is to ensure that one seeking legal advice will be able As reasoned infra, the predominate purpose of the communications is the primary issue with respect to Defendant's claim that privilege applies to the communications with Barden. 10 EFTA_R1_00011986 EFTA01734196 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 11 of 37 to confide fully and freely in his attorney, secure in the knowledge that his confidence will not later be revealed to the public to his detriment or his embarrassment"). Even the purposes for which Defendant cites British law —to assert that the scope of privilege can (1) encompass communications to non- attorneys, (ii) made outside of the context of pending litigation—are directly addressed by elements of New York law. Respectively, (i) New York's agency and common interest privileges extend the umbrella of attorney-client communications to third parties, and (ii) the analysis regarding the predominance of legal advice in the communications at issue and Ambac Assur. Corp. v. Countrywide Home Loans, Inc.6 both expand the scope of privilege to protect certain content unrelated to ongoing litigation. See infra S IV. Indeed, Defendant refers to New York law citations to support her argument about the protection provided "(p)ursuant to British legal authority." Henninger Decl. 1 25 ("citing NY law for same principle."). A choice of law analysis need not be reached where the law applied is not outcome determinative. On Time Aviation, Inc. v. Bombardier Capital, Inc., 354 F. App'x 448, 450 n.1 (2d Cir. 2009). 6 124 A.D.3d 129, 998 N.Y.S.2d 329 (2014) (holding litigation Is not per se necessary for application of the common interest privilege). 11 EFTA_R1_00011987 EFTA01734197 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 12 of 37 Finally, applying the choice of law test results in application of.New'YorkIlaw, As,has een held in this district; (w)here, as here? alleged:privileged communications took plebe in a foreign country or involved foreign attorneys or proceedings, this court defers to the law of the country that has the "predominant" or "the most direct and compelling,interest" an whether those communications should remain confidential, unless that foreign law is contrary to the public.policy of this forum. Astra Aktiebolag v. Andrx Pharm., Inc., 208 F.R.D. 92, 98 (S.D.N.Y. 2002) (quoting Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 522 (S.D.N.Y. 1992); Bayer AG & Miles, Inc. ,U v. Barr Labs., Inc., No. 92 CIV. 0381 (1:10, 1994 WL 705331, at *4 (S.D.N.Y. Dec. 16, 1994)). - The Court has previously held that New York has the r predominate interest in this case. Giuffre v. Maxwell, No. 15 trir CIV. 7433 (RWS), 2016 WL 831949, at *2 n.2 (S.D.N.Y. Feb. 29, 14 2016) ("Because New York has the most significant interest, New York law applies."). The potential litigation for which Defendant sought Barden's advice never came to frOition and no • pending issues in or relating to Britain have been pled. Thus, any consequence resulting from a ruling on the confidentiality of the Barden communications will sound only in New York, the situs of this case and the location of the allegedly defamatory statements at issue. New York therefore has the predominate 12 EFTA_R1_00011988 EFTA01734198  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 13 of 37 interest in whether these communications remain confidential. The similarity between New York and British attorney-client privilege demonstrates that no public policy conflict exists. Consequently, New York law applies to all of Plaintiff's privilege claims. IV. Applicable Standard The purpose of the attorney-client privilege is to facilitate and safeguard the provision of legal advice; "to ensure that one seeking legal advice will be able to confide fully and freely in his attorney." Mitchell, 58 N.Y.2d at 373. New York law provides: Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action(.) N.Y.C.P.L.R. S 4503(a)(1). The privilege only applies to attorney-client communications "primarily or predominately of a legal character." Rossi v. Blue Cross & Blue Shield of Greater N.Y., 13 EFTA_R1_00011989 EFTA01734199 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 14 of 37 73 N.Y.2d 588, 594, 542 N.Y.S.2d 508, 540 N.E.2d 703 (1989)) (internal quotation marks.omitted). However, reference to non- legal matters in communications primarily of a legal character are protected. Id. "The critical inquiry is whether, viewing the lawyer's communication in its full content and context, -it was made in order to render legal advice or services to the client." Id. (quoting Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d kr 371, 379, 575 N.Y.S.2d 809, 581 N.E.2d 1055 (1991)). The presence of a third party during communication or disclosure of otherwise confidential attorney-client communications to a third party waives the privilege absent an . . . exception. People v. Osorio, 75 N.Y.2d 80, 84, 549 N.E.2d 1183, 1185 (1989). There exists an exception, referred to as the agency privilege, when the third party facilitates the rendering of legal advice, such as communications made by the client to the attorney's employees, through an interpreter, or to "one serving as an agent ofeither the attorney or client." Id. Similarly, the common interest privilege extends the attorney-client privilege to "protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective 14 EFTA_R1_00011990 EFTA01734200 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 15 of 37 counsel." United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). To show the common interest privilege applies, the party claiming its protection must show the communication was made in the course of the ongoing common enterprise with the intention of furthering that enterprise. Id. A limited common purpose necessitating distlosure is sufficient, and "a total identity of interest among the participants is not required under New York law."GUS Consulting GMBH v. Chadbourne & Parke LLP, 20 Misc. 3d 539, 542, B58 N.Y.S.2d 591, 593 (Sup. Ct. 2006). Despite their shorthand names, neither the agency privilege nor the common-interest privilege operate independently; both may only exist to pardon the presumptive waiver that would result from disclosure of otherwise privileged attorney-client communications to a third party when that third-party is included under the umbrella of the agency or common-interest doctrines. See U.S. Bank Nat. Ass'n v. APP Int'l Fin. Co., 33 A.D.3d 430, 431, 823 N.Y.S.2d 361, 363 (2006) ("Before a communication can be protected under the common interest rule, the communication must satisfy the requirements of the attorney- client privilege."); Don v. Singer, 19 Misc. 3d 1139(A), 866 N.Y.S.2d 91 (Sup. Ct. 2008)("The attorney-client privilege may extend to the agent of a client where the communications are 35 EFTA_R1_00011991 EFTA01734201 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 16 of 37 intended to facilitate the provision of legal services to the client." (citations and internal quotation marks omitted)). The party asserting protection bears the burden of proving each element of privilege and a lack of waiver. Osorio, 75 N.Y.2d at 84, 549 N.E.,2d at 1185 (citations omitted); Egiazaryan v. Zalmayev, 290.F.R.D„-421, 428 (S.D.N.Y. 2013). "Such showings must be based on. competent.evidence, usually through affidavits, deposition testimony, or other admissible evidence." Id. (citing von Bulow by Auersperq v. von Bulow, 811 F.2d 136, 147 (2d Cir.), cert,-denied, .01..U.S. 1015, 107 -S.Ct. 1891., 95 L.Ed.2d 498 (1987); Bowne of N.Y„C.,. Inc. v. AmBase Corp., 150 F.R.D. 465, 472 (S.D.N.Y. 1993))• v. Plaintiff's Motion to Compel is Granted in Part and Denied in Part Consistent with the aforementioned standards, to survive the instant motion to compel, Defendant must establish (1) an attorney-client relationship existed, (2) the withheld documents contain a communication made within the context of that relationship, (3) for the purpose of obtaining legal advice, and (4) the intended confidentiality of that communication, and (5) 16 EFTA_R1_00011992 EFTA01734202  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 17 of 37 maintenance of confidentiality via a lack of waiver or an exception to waiver such as extension via the common interest privilege or the agency privilege. See e.g., Safeco Ins. Co. of Am. v. M.E.S., Inc., 269 F.R.D. 41, 46 (E.D.N.Y. 2011) (applying New York law) (citing Abu Dhabi Commercial Bank v. Morgan Stanley, 08 CV 7508 (SAS), 2011 WL 4716334, at *2 (S.D.N.Y. Oct. 3, 2011)). 1. Communications with Jaffe Are Privileged "An attorney-client relationship is established where there is an explicit undertaking to perform a specific task." Pellegrino v. Oppenheimer a Co., 49 A.D.3d 94, 99, 851 N.Y.S.2d 19 (2008). Defendant has sworn that she hired Jaffe in 2009 to represent her in connection with a deposition. Maxwell Decl. 1 9. Though Defendant has failed to specify the end-date of Jaffe's representation, the in camera submissions demonstrate that these communications were made within the context of an ongoing attorney-client relationship for the purpose of providing legal advice related to the specific task for which Defendant hired Jaffe. Defendant intended that the communications remain confidential. Maxwell Decl. 1 12-13. The communications themselves were solely between attorney and 17 EFTA_R1_00011993 EFTA01734203  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 18 of 37 client, demonstrating lack of waiver. Accordingly, Defendant's submissions 81000-19 are privileged. 2. CoMmunications with Gow Alone Must Be Produced v. •t Thikempil communications in this group, 41020-26, are• solely between Gow and Defendant regarding release of a public relations statement in response to inquiries from journalists (contained es lormakded messages.). No'-counsel-is'inolUded,4 and Defendant provides no argument relevant to the application of privilege to emails devoid of any attorney-client communitatiOn: The only mention of content of a. legal character refers to awaiting content from Barden, indicating that any communication. with Baiden:ras for the•'purpose of facilitating Gow's public retationS efforts. Regardless, without an attorney-client communiaation,to facilitate, it cannot be said that Gow's presence and-input was necessary to somehow clarify or improve comprehension of Defendant communications with counsel, as the standard requires. See Eqiazaryan, 290 F.R.D. at 431. 1 As such, 7 Defendant argues Egiazaryan does not apply. Def.'s Supp. Opp. at 9. Defendant distinguishes that case as involving a public relations firm, where this case involves a public relations "agent." Id. As reasoned infra §V(5), the Court does not rely on Egiazaryan for the principle that a public relations firm (or agent or specialist) cannot he deemed an agent for purposes of privilege protection. 18 EFTA_R1_00011994 EFTA01734204  Case 1:15-cv-0743342V7S Document 135 Piled 05/02/16 Page 19 of 37 • • Defendant has not met her burden of demonstrating that the communications fall beneath the umbrella of attorney-client privilege and cannot be rehabilitated by the extension provided by the agency privilege. Defendant must produce the emails in #1020-26. 3. Communications with Gow and Basham Must Be Produced These emails, documents #1027-28, are between Defendant and Gow, with Basham CC'd. Basham was therefore a third-party privy to these communications between Defendant and Gow. Defendant has not identified Basham. Therefore, Defendant has failed to establish an attorney-client relationship, an attorney-client communication of a predominately legal character, and lack of waiver. Accordingly, documents #1027-28 are not privileged and Defendant must produce these emails. 4. Communications with Barden Alone Are Privileged Defendant submits in her supplemental reply and in camera submissions that these communications, 01045-51, are non- responsive as they contain only communications between Defendant and Barden and "(n)o other party participated in this email 19 EFTA R1 00011995 EFTA01734205 Case 1:15-cv-07433-RWS Document 125 Mled O5/02i16 Page 20 of 31 correspondence." Menninger Decl. 1 117 Supp. Reply at 5 n.2, Documents .11045-46 contain communications between Defendant and Barden; however, documents 81047-51 -include Gow (and contain forwards from others)... Documents 11047-51 will be addressed. infra, § V(5), as these documents are responsive to Plaintiff's Document Request No. 17. 0 Defendant's representations of this batch of communications being unclear, the Court addresses their statms.i. I **dg M3**01.4 9-.0* • vot .0040040ntlbessubMiltted. that aardemlias beer' her "DX:' attorney for many years in connection with potential';. defamation lawsuits against the UKApress.:".Menninge*Deolecnin-:- Supp. Def.(s.In CamerarSUbmissions.11 9-10, maxwelijpecl,.11 1- 5. Defendantallegessbeihired Barden to represent her regarding these matters and,Barden-.continues- to represent her, Maxwell- . Deol. Tel.0.Defendant submits that Barden issued -a cease and 0 "Plaintiff's Document Request No. 17: All documents relating to communications with [Defendant) and Ross Gow from 2005-Present." McCawley,Decl, in Supp„,,Consoiidated Reply in Supp. Hot. to Compel Production of Docs. Subject to Improper Objections and Improper Claim of Priv., ECF No. 44, Ex. 2, at 9. 9 Defendant has not provided a contract or representation agreement to substantiate the dates of the relationship, though she alleges one exists.Menninger Decl. A 17. Likewise, no material substantiates Barden's role other than a largely blank print-out from the Devonshires Solicitors website. Maxwell Decl., Ex. D. This print-out does not contain Barden's legal education, professional accreditation, or any other explicit indication that he was qualified counsel at the time of the communications other than the implicit logical assumption that 20 EFTA_R1_00011996 EFTA01734206  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 21 of 37 • desist to British press, though no litigation ever materialized. Maxwell Decl. 1 5. Defendant's sworn affidavit, coupled with the content of the communications (including a comment by Barden referring to having been retained by Defendant) are sufficient to establish Barden undertook the specific task for which Defendant has alleged she hired him in sworn affidavit. See Pellegrino, 49 A.D.3d at 99. It is similarly established by these materials that these communications were made in the context of that relationship. Defendant's affidavit swears the communications were intended to be confidential. Maxwell Decl. 4. Defendant has sworn that all of her communications with Barden were for the purpose of seeking legal advice. However, the content of the communications addresses matters not legal on their face (specifically, a press statement). See id. Not all communications between an attorney and client are privileged, and "one who seeks out an attorney for business or personal advice may not assert a privilege as to those communications." Matter of Bekins Record Storage Co., Inc., 62 N.Y.2d 324, 329, 465 N.E.2d 345 (1984). Moreover, even if inherently related to ongoing litigation, "(c)ase law makes clear that a media having been called a "hard nosed litigator," he must have been qualified to practice law at some point in time. 21 EFTA_R1_00011997 EFTA01734207 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 22 of 37 campaign is not a litigation strategy." Egiazaryan, 290 F.R.D. at 431' (Citation omitted). Notwithstanding, the'Court must consider the communications in their fall context. .Roiai, 73 N.Y.2d at 594. Alone, it would be difficult to deem'COmmUniCations that pradominately'addreaSa presi statementea legal adViCe. Nevertheless, Defendant's assertion that a press statement"ii a necessary preaUrsor to litigation -"under the fair comment laws of the UK" changes the context.: See kenniager Deel. 1 20. Considering the'legal necessity of a pills statement In the context of the legal issue for which Defendant sought Barden's advice, the communication with BArden'it'predeminitely for the purposes of providing legal services. Defendant haa therefore met her burden of establishing Documenti N1045-46 are Privileged. 5. Communications with Barden and Gow Must Be Produced Defendant claims the protection of the attorney-client and agency privileges apply to communications with Barden and Gow. See Privilege Log. These communications include documents 11044, 1047-51 (as set forth above), 1052-58, 20 and 1080-90. Defendant's I* Two chains in this series N1052-55 and 1055-5, appear tc be forwarded in their entirety The messages to 22 EFTA_R1_00011998 EFTA01734208 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 23 of 37 privilege log does not list 41063-64 as a communication between Defendant, Barden, and Gow, but the chain nonetheless does include a message between this group, and it is analyzed accordingly. Defendant argues "Gow is the agent for Ms. Maxwell," thus taking'adVantage of the principle that attorney-client privilege may apply to communications between an agent and'the client's counsel. .Def.'s Supp. Opp. at 8: The test dividing agency (and thus privilege protection) and lack thereof (and thus waiver) is the necessity of the third-party in facilitating the confidential communications between counsel and Cliental,. Mileski v. Locker, 14 Misc. 2d 252, 256, 178 N.Y.S.2d 911, 916 (Sup.ltt. 1958); accord Don, 866 N.Y.S.2d 91; Eqiazaryan, 290 F.R.D. at 431. Defendant's citations with respect to this issue are inapposite, referring to agents who more explicitly facilitated attorney-client communication.'2 Defendant's most relevant will be addressed infra §V(6). The messages contained between Defendant, Barden, and Gow are addressed in this section. n The title "agent" is not determinative of whether Defendant's privilege assertion survives the applicable test. 12 For example, Hendrick v. Avis Rent A Car Sys., Inc.. involved a quadriplegic plaintiff who has been involved in a "catastrophic" car accident rendering him unable to seek legal 23 EFTA_R1_00011999 EFTA01734209 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 24 of 37 Oitefloni,it.tegInpre Grand-Jury Subpoenas, -265 F.. Supp,,,2d 321 (S.D4N4.4003ra—which;directkyAddressed the roler,efpublie.., relations-fiensultants:Itheb.court found that: (1) confidential communications (2) between lawyer*:endP. public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purpose of giving or receiving achitce 15) Airected-at,handling the ellent's-Itigal.15roblems are protected by the attorney-client privilege. Id. at 331, Pt tavnat,bssn,allsgsd that,Bardsft,hirad Gow. znk fact, Defendant: swears. that she?hitedGowcies*,-Berden simultaneously.-Maxwell Decl; - 1 -6.“These fagts atessigniflicaftb notlAs:they_relate to-Gow's relationship to Defendant,: but: 41:: bed-mise they swagests that, Gow's necessity in'the proviSion of ,legal'advice was:not:material to whether he waslcincluded:in communications, with‘Barden.g, ,) 4 Ji.‘ :?e:. counsel both physically and emotionally. 944 F. Supp. 187, 189 (W.D.N.Y. 1996). Mileski v. Locker involved interpretation to surmount a language barrier. 14 Misc. 2d at 2554.178 N.Y.S.2d at 915-6. In First Am. Commercial Bancorp, Inc. v. Saatchi 6 Saatchi Rowland1 Inc., unlike in.the,instant,case,..an exclusive agency agreement between the Defendant company and third party was provided to the court and upon which the,court relied. Stroh v. General Motors Corp. involved a tragic underlying car accident wherein the 76-year old Plaintiff had lost control of her vehicle driven into a park. Stroh v. Gen. Motors Corp., 213 A.Dce2d(267, 623.N.Y.S.2d 873 (1995). That.court, "presented with an aged woman required to recall, and perhaps.relive; lohat, was) probably the most traumatic experience of her life," held the presence.of Plaintiff's daughter, who had selected Plaintiff's counsel and driven her to .the law office, was necessary to • , facilitate Plaintiff's communications with counsel. Id. at 874- 5. 24 EFTA_R1_00012000 EFTA01734210 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 25 of 37 Defendant has failed to positively establish that Gow was necessary to implementing Barden's legal advice. Defendant repeatedly refers to Gow as an agent and references that Gow provided information to Barden at Defendant's requests "so as to further Mr. Barden's ability to give appropriate legal advice." Defendant, as cited above, relies on fair-comment law to prove Gow's necessity in the relationship with Barden. Def.'s Supp. Opp. at 9. However, at best, this establishes only that Gow's input and presence potentially added value to Barden's legal advice. "(T)he necessity element means more than just useful and convenient but requires the involvement be indispensable or serve some specialized purpose in facilitating attorney client communications." Don, 866 N.Y.S.2d 91 (citing Nat'l Educ. Training Grp., Inc. v. Skillsoft Corp., 1999 WL 378337, •4 (S.D.N.Y. 1999)). The structure of fair comment law may require counsel to engage in public relations matters by providing a comment to press, but it does not follow that counsel is unable to communicate with his client on that issue without a public relations specialist. Advice on the legal implications of issuing a statement or its content is not predicated on public relations implications. Likewise, it has not been established that the Defendant was incapable of understanding counsel's 2S EFTA_R1_00012001 EFTA01734211 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 26 of 37 advice on that subject without the intervention of a "media agent" or that Gow was translating information between Barden and Defendant in the literal or-figurative sense. That Gow issued the -statement drafted by Barden or signed a contract with Defendant speaks: to his intimate involvement, but not to -his necessity. IWIbere,the third party's presence is merely useful but:not necesaarytheprivilegetis lost." Allied Irish--Banks, 2407FI.RID.,at 104 . (citation and internal•quotation marks omitted).-Defendant.hasAnot met-herburden to.-establish-hatGow way.necessary:.to faoilitate:the relationship-with Barden, as the standard requires. Similarlye,Aefendant has-failed -to establish that the predominate:purpose.of_thecommunications in question was the- - ultimate provision of legal advice. Throughout the communications, Gow is involved for public relations matters. Like several other exchanges involving Gow, this line of emails was prompted by an inquiry from .a reporter. 26 EFTA_R1_00012002 EFTA01734212  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 27 of 37 These are not the necessary elements or evidence of facilitating legal advice between client and counsel. To be sure, some legal advice is included in the communications between Barden, Defendant, and Gow. However, as the quotes above demonstrate, both Barden and Gow provide Defendant with what amounts to public relations, not legal, advice. It is something between business and personal advice, neither of which are privileged even when coming from counsel. Matter of Bekins, 62 N.Y.2d 324. Furthermore, the protection of privilege is presumptively narrow, not broad. In re Shargel, 742 F.2d 61, 62 (2d Cir. 1984) ("Since the privilege prevents disclosure of relevant evidence and thus impedes the quest for truth, ... it must be strictly confined within the narrowest possible limits consistent with the logic of its principle." (citation and internal quotation marks omitted)). Accordingly, where Gow's necessity has not been established, Defendant cannot include the entire field of public relations matters into the realm of legal advice by virtue of a law that implicates press coverage. It has not been established that Gow's input on public relations matters was necessary for Barden to communicate with 27 EFTA_R1_00012003 EFTA01734213  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 28 of 37 Defendant or provide legal advice, or that the primary purpose of these communications was the provision of legal advice. Consequently, Defendant has failed to demonstrate the elements necessary to sustain the protection of privilege with respect to the communiCatitnt-4withA3arden%and.-Gow in documents #1044, 1047- 51-A(as74setclorthCabove)./.1052458, 1063-64, and -1088-90: Defendant -must-produce these emails: • 42" ' 6:- Communications with ; •"cep • le'W 7P,11.0 .0: Defendant claims the' protection of the common interest privilege applies toAcorninunications with specifically • encompashingy -doountents; #Y029'; 'l065-58, and 1059-83.. These communicational with- include' communications wittt othesSf and thus= else)) •batch will ,be addressed separately. a.Dootusents.#1O55-58, #1063-64, and #1088-90 Must Be Produced The communications in each of these chains include messages between Defendant, Barden, and Gow that were ultimately forwarded to-As reasoned above, attorney-client privilege does not apply to the underlying emails between Defendant, Barden, and Gow. Accordingly, they cannot be 28 EFTA_R1_00012004 EFTA01734214  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 29 of 37 • rehabilitated by the common interest privilege. Thus, this field of documents and the common interest claim with is narrowed to the communications with found on #1055, #1063, and 01088, as the remainder of the documents in question have already failed to qualify as protected under the attorney- client and agency privileges. To assert the common interest privilege, the party claiming its protection must establish (i) the documents in question are attorney-client communications subject to the attorney-client privilege, (ii),the parties involved share a common legal interest;-and (iii) "the statements for which protectiOn is sought were designed to further that interest." Chevron Corp. v. Donziger, 296 F.R.D. 168, 203 (S.D.N.Y. 2013) (citations omitted).13 To merit any analysis regarding the presence of the attorney-client privilege, either the underlying forwarded messages must include communications protected by the attorney- client privilege, or the messages Lc (excluding the forwarded materials) must themselves show some attorney-client communication. 13 "New York courts applying the common interest rule to civil proceedings have often looked to federal case law for guidance." Egiazaryan v. Zalmayev, 290 F.R.O. 421, 433 (S.D.N.Y. 2013) (collecting cases). 29 EFTA_R1_00012005 EFTA01734215 Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 30 of 37 As set forth above, the underlying communications that were sent to in this batch all fail to qualify as protected under the attorney-client privileges, because Defendant has failed to meet the predominance requirement and failed to demonstrate that Gow's inclusion did not constitute waiver pursuant to the agency privilege. The emails between Defendant anoillillillijexcluding the forwarded communications that include Barden anelGow) do not themselves include counsel or even legal advice, and thus cannot themselves qualify as attorney-client communications, Jet alone privileged communications. Accordingly,,these .emails fail to meet the first element of the common interest privilege. Documents #1055-58, #1063-64, and #1088-90 must be produced in their entirety. b. Document #1059 is Privileged Document #1059 includes messages between and . Unlike the emails including messages between Defendant, Barden, and Gow, the messages between merit an inquiry regarding the presence of a privileged attorney-client communication. 30 EFTA_R1_00012006 EFTA01734216  Case 1:15-cv-07433-RWS Document 135 Filed 05/02/16 Page 31 of 37 Defendant swears represented 'span(ing] several years, including 2015," when the email in question was sent. Maxwell Decl. 1 14. Defendant has not produced an affidavit from attesting to this fact or any representation agreement. However, the communications contained in Defendant's in camera submissions themselves demonstrate an attorney-client relationship existed.