Opinion
08 Civ. 6398 (CM) (KNF).
January 8, 2010
MEMORANDUM AND ORDER
In this action, JM Vidal, Inc. ("JM Vidal" or "the plaintiff"), an entity operating an "MNG franchise," alleges Texdis, USA, Inc., a franchisor of the "MNG franchise system," and Distex, Inc., "an affiliate of the franchisor," (collectively, "the defendants") engaged in "unlawful and predatory conduct," for which the plaintiff seeks monetary damages and a rescission of its franchise agreement.
Through a letter, dated December 8, 2009, the defendants sought court assistance, pursuant to Local Civil Rule 37.2, in settling a dispute between the parties based upon the plaintiff's withholding a document from disclosure, on the basis of attorney-client privilege. On January 7, 2010, a telephonic conference was held with the parties to address the matter.
The document at issue is an e-mail communication sent from Noralyn Danielle ("Danielle"), a "Preston Gates paralegal," to Peter Rose ("Rose") and Jean Vidal, the latter of whom was a "cc" recipient of the communication. According to the defendants' December 8, 2009 letter, Jean Vidal is the president of JM Vidal, and Rose is the "Chief Executive Officer and Chairman of Expeditors International of Washington, Inc." According to the defendant, Rose is a "passive, third-party investor in the Plaintiff corporation, JM Vidal. Inc," who was deposed in connection with the instant litigation, at which time Rose agreed to produce documents to the parties. At Rose's deposition, the plaintiff requested that Rose produce any documents to the plaintiff first, so that a determination could be made whether any documents are privileged. During his deposition, Rose described a document-which was withheld from disclosure by the plaintiff on the ground of attorney-client privilege-that "relates to Mr. Rose's signing of some type of form-Form 2553." The defendants assert that, based upon Rose's description of the document, and his status as a third-party investor in JM Vidal, "it does not appear possible that the withheld document is subject to protection by the attorney-client privilege." Attached to the defendants' December 8, 2009 letter is a copy of the plaintiff's privilege log; the last entry on this log identifies a document dated December 20, 2005, authored by Danielle, which was sent to Rose and "Jean Marie Vidal," and is described as "Confidential communications re JM Vidal, Inc. corporate infrastructure."
The document submitted to the Court, for in camera review, is a "forwarded" e-mail communication. The original e-mail communication, between Danielle and Rose, is dated December 19, 2005. This original communication was forwarded, by Rose, to "Julie Higgins" on December 20, 2005.
By a memorandum endorsement, dated December 22, 2009, the Court ordered the plaintiff to submit to the Court, for in camera review, the document withheld from disclosure. The plaintiff has submitted a copy of the document, and has not contested the facts provided to the Court by the defendants, in their December 8, 2009 letter. The Court has reviewed the submissions of both parties.
"The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Swidler Berlin v. United States, 524 U.S. 399, 403, 118 S. Ct. 2081, 2084 (1998). It protects from disclosure, unless waived, communications, between a client and his attorney, made in confidence, for the purpose of obtaining legal advice. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677 (1981); see also In re Richard Roe Inc., 68 F.3d 38, 39-40 (2d Cir. 1995).
In the case at bar, the e-mail communication between a paralegal working on behalf of JM Vidal, and Rose, in which the paralegal asks that Rose and Rose's wife sign an Internal Revenue Service form, does not constitute a communication protected by the attorney-client privilege. Rose, who has been identified as an "investor" in JM Vidal, does not fall within the attorney-client privilege existing between JM Vidal and its attorneys. See Stirum v. Whalen, 811 F. Supp. 78, 82 (N.D.N.Y. 1993) (finding that the attorney-client privilege did not apply to communications between the defendant's attorneys "and investors in the [defendant-entity]"); see also Cohen v. Acorn Int'l Ltd., 921 F. Supp. 1062, 1064 (S.D.N.Y. 1995) ("a law firm does not represent the shareholder of a corporation, even a close corporation, simply by virtue of its representation of the corporation itself"). In addition, the communication does not appear to be one made, in confidence, for the purpose of obtaining legal advice. See Upjohn, 449 U.S. 383, 101 S. Ct. 677.
CONCLUSION
For the reasons set forth above, the defendants' application, for an order directing the plaintiff to disclose the e-mail message submitted to the Court for in camera review, is granted. The plaintiff shall disclose the previously withheld document expeditiously.SO ORDERED: