The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM ORDER OF COURT
Presently pending before the Court is the MOTION FOR JUDICIAL DETERMINATION OF PRIVILEGE AND TO COMPEL PRODUCTION, with brief in support, filed by CM Shareholder Holdings, Inc. ("CM") (Document No. 101 and Sealed Document No. 104), the Declarations of Thomas J. Peistrup in support of the motion (Document No. 102 and Sealed Document No. 103), the MEMORANDUM OF LAW IN OPPOSITION filed by ClubCom, LLC (Document No. 109), and the REPLY BRIEF filed by CM (Document No. 114).
A. Motion For Judicial Determination Of Privilege
On March 10, 2009, ClubCom produced three boxes of documents to CM.
See Nardi Dec., Ex. A. On April 13, 2009, CM informed ClubCom that there appeared to be approximately 4,000 missing documents, as there was an apparent gap in the numbering of the ClubCom documents. Accordingly, on April 14, 2009, via Federal Express, ClubCom forwarded to CM another box of documents which contained the "missing 4,000 documents."*fn1
On April 30, 2009, in the course of preparing for the deposition of Joseph Plastino, which was scheduled for the following week on May 5, 2009, ClubCom discovered that a small number of privileged documents, including the four documents that are at issue in this motion, had been inadvertently produced. ClubCom immediately notified CM of the inadvertent disclosure and requested the immediate return of the privileged documents.*fn2
Counsel for CM then located all copies of the "privileged" documents and informed counsel for ClubCom that he would comply with Federal Rule of Civil Procedure 26(b)(5)(B) and agreed to proceed with Mr. Plastino's deposition as scheduled, without introducing any of the allegedly privileged documents. CM also reserved the right to resume the deposition of Mr. Plastino pending a determination of privilege by the Court.
In the instant motion, CM seeks a determination of privilege of four (4) documents, to wit:
a. Exhibit 361, a February 14, 2006 (8:07 a.m.) email from Thomas Lapcevic of ClubCom to Paul Byrnes of Precor (CC8941-CC8942);
b. Exhibit 362, a February 14, 2006 (8:46 a.m.) from Thomas Lapcevic of ClubCom to Paul Byrne of Precor (CC8939-CC8940);
c. Exhibit 363, a July 17-18, 2007 email exchange between Joseph Plastino of Precor and Raymond Berens of Amer Sports North America (CC11315); and
d. Exhibit 365, an August 1, 2007, email exchange between Joseph Plastino of Precor and Raymond Berens of Amer Sports North America (CC11340).
CM argues that the documents are not privileged because they are emails forwarded among individuals who are not attorneys. However, in making this argument, as ClubCom correctly notes, CM has ignored the fact that Exhibits 361, 362, and 363 are email chains which each begin with an email from Raymond Berens, General Counsel to Precor and ClubCom. These emails contain discussions initiated by Raymond Berens which relate to the negotiation and wording of legal contracts, as opposed to mere business or factual information. Moreover, Exhibit 365 is an email exchange directly between Joseph Plastino and Raymond Berens.
Paul Bryne was corporate president in charge of oversight and strategic direction of ClubCom, as well as President of Precor, the former corporate affiliate of ClubCom. Thomas Lapcevic was the operational president for day-to-day matters of ClubCom. Joseph Plastino was the former Senior Vice President of Precor, Inc., who according to ClubCom, was a Precor officer with responsibility for acting as liaison to ClubCom. Courts have found that where an in-house attorney provides the corporation's officers with legal advice, the attorney-client privilege protects both the initial communication from the attorney and subsequent communications among the corporation's officers discussing the ...