Summary
In Pownell, the party claiming privilege had added counsel as a carbon copy recipient of an email because the client purportedly "wanted [counsel]'s advice regarding the issues raised in the email."
Summary of this case from Luv N' Care, Ltd. v. Williams Intellectual Prop.Opinion
Civil Action No. 09-cv-01540-WYD-KLM.
March 17, 2011
ORDER
This matter is before the Court on Plaintiff's Oral Motion for Sanctions (the "Motion") made during the discovery hearing held on February 28, 2011. See Courtroom Minutes/Minute Order [Docket No. 154]. At the hearing, the Court partially granted and partially denied the Motion. Id. Only two issues remain for the Court's resolution: (1) whether Defendant CREDO Petroleum Corporation ("CREDO") should be compelled to produce to Plaintiff an unredacted copy of the minutes of the February 13, 2009 meeting of its board of directors; and (2) whether CREDO should be compelled to produce to Plaintiff an unredacted copy of an email exchange, Defendants' Document Production [Docket No. 124-1] at 38-45, between John Rigas and James Huffman that occurred on January 25-27, 2009. CREDO has provided Plaintiff with redacted copies of both documents. Pursuant to the Court's Orders [#154 164], CREDO has also provided both documents to the Court for in camera review. In addition to an order compelling CREDO to produce unredacted copies of both documents, Plaintiff also seeks an order sanctioning CREDO for failing produce the documents initially. CREDO contends that the redacted portions of the email exchange and the board meeting minutes are protected from disclosure to Plaintiff by the attorney-client privilege.
"[I]n diversity jurisdiction cases such as this one, state law controls the issues of privilege raised by the parties." Elvig v. Nintendo, No. 08-cv-02616-MSK-MEH, 2009 WL 3048445, at *2 (D. Colo. Sept. 22, 2009) (unreported decision) (citing Fed.R.Evid. 501; Trammel v. United States, 445 U.S. 40, 47 n. 8 (1980)); Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (10th Cir. 1998) (stating that "state law supplies the rule of decision on privilege in diversity cases"). The Court of Appeals for the Tenth Circuit "has not specifically identified which state law applies." Elvig, 2009 WL 3048445, at *2. In Frontier Refining, the Court of Appeals concluded, without discussion, that the law of Wyoming applied to privilege issues in a case adjudicated in the District Court for the District of Wyoming. 136 F.3d at 699. It is unclear whether Wyoming law applied because the District Court was located in Wyoming or because "Wyoming law was applied at trial to resolve the claims of product liability, misrepresentation, and negligence." Elvig, 2009 WL 3048445, at *2; see Dawe v. Corrections USA, 263 F.R.D. 613, 620 n. 11 (E.D. Cal. 2009) ("Federal courts sitting in diversity look to the law of the forum state in making a choice of law determination, including privileges for which state law supplies an element of a claim or defense." (citations omitted)). "Colorado courts interpreting Fed.R.Evid. 501 imply that the state law to apply is that which will likely supply the rule by which the case will be resolved." Id. (citing Shriver v. Baskin-Robbins Ice Cream Co., Inc., 145 F.R.D. 112, 114 n. 1 (D. Colo. 1992)).
In this case, Colorado law governs Plaintiff's claims. See Complaint [Docket No. 1] (alleging only violations of Colorado law); Employment Agreement [Docket No. 1-2] at 7, ¶ 8 ("This Agreement and the legal relations hereby created between the parties hereto shall be governed by and construed under and in accordance with the internal laws of the State of Colorado[.]"). As the Court is located in Colorado, there is no choice of law issue. Colorado law governs the question of whether the email exchange and board meeting minutes at issue here are protected from disclosure by the attorney-client privilege.
Colo. Rev. Stat. § 13-90-107(1)(b) provides that an "attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment[.]" "It is well-settled in Colorado that the attorney-client privilege is `established by the act of a client seeking professional advice from a lawyer and [it] extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations.'" Wingerter v. Gerber, No. 09-cv-02000-PAB-MEH, 2010 WL 5464734 at *2 (Dec. 29, 2010) (unreported decision) (quoting People v. Tucker, 232 P.3d 194, 198 (Colo. App. 2009)). Importantly, the "privilege applies only to communications under circumstances giving rise to a reasonable expectation that the communications will be treated as confidential." Id. (citing Tucker, 232 P.3d at 198); see also Wildearth Guardians v. U.S. Forest Service, 713 F. Supp. 2d 1243, 1265 (D. Colo. 2010) ("Only confidential information is protected by the privilege; if the information has been or is later shared with third parties, the privilege does not apply." (citations omitted)). The privilege must be strictly construed because it obstructs "`the rightful search for truth.'" W. Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 574 (Colo. App. 2006) (quoting Petro-Lewis Corp. v. Dist. Court, 727 P.2d 41, 43 (Colo. 1986)).
These principles of Colorado law regarding the attorney-client privilege provide the basis for the Court's analysis. However, Colorado case law does not provide comprehensive guidance on whether the attorney-client privilege protects documents like those at issue here. Thus, the Court must look to persuasive case law from other jurisdictions for guidance.
"Because the privilege promotes the `dissemination of sound legal advice,' it applies only where the advice is legal in nature, and not where the lawyer provides non-legal business advice." Faloney v. Wachovia Bank, N.A., 254 F.R.D. 204, 209 (E.D. Pa. 2008) (quoting Wachtel v. Health Net, Inc., 482 F.3d 225, 231 (3d Cir. 2007)); Kramer v. Raymond Corp., Civ. No. 90-5026, 1992 WL 122856, at *1 (E.D. Pa. May 29, 1992) (unreported decision) ("Business communications are not protected merely because they are directed to an attorney, and communications at meetings attended or directed by attorneys are not automatically privileged as a result of the attorney's presence."). Thus, when a corporation seeks to invoke the attorney-client privilege to protect a document from disclosure, it "must clearly demonstrate that the communication in question was made for the express purpose of securing legal not business advice." Aamco Transmissions, Inc. v. Marino, Civ A. Nos. 88-5522, 88-6197, 1991 WL 193502, at *3 (E.D. Pa. Sept. 24, 1991) (unreported decision). Just as the attorney-client privilege does not protect communications related to business advice, it also does not protect from disclosure the "background facts" underlying communications between an attorney and his client. Stoeffels v. SBC Comm'cns, Inc., 263 F.R.D. 406, 414 (W.D. Tex. 2009); see Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981).
A. Board Meeting Minutes
Defendants contend that the board meeting minutes are protected by the attorney-client privilege because CREDO's "company legal counsel," Mr. Les Woodward, attended the meeting in order to provide advice regarding Securities and Exchange Commission regulations governing proxy statement disclosures.
"[T]he mere fact that an attorney attended a meeting does not render everything said or done at that meeting privileged." Miner v. Kendall, No. 96-1126-MLB, 1997 WL 695587, at *1 (D. Kan. Sept. 17, 1997) (unreported decision); Hinsdale v. City of Liberal, Kan., 961 F. Supp. 1490, 1494 (D. Kan. 1997) ("The mere fact that clients were at a meeting with counsel in which legal advice was being requested and/or received does not mean that everything said at the meeting is privileged."). "For communications at [a meeting] to be privileged, they must have related to the acquisition or rendition of professional legal services." Hinsdale, 961 F. Supp. at 1494.
In this case, the Court has previously ruled that Defendants must provide to Plaintiff only those portions of the board meeting minutes "which refer to discussions about Plaintiff." Order [Docket No. 99] at 5. After reviewing the minutes, the Court finds that only six small portions of the minutes relate "to the acquisition or rendition of professional legal services" and are thus protected from disclosure by the attorney-client privilege. Hinsdale, 961 F. Supp. at 1494. The remainder of the minutes must be disclosed. Accordingly,
IT IS HEREBY ORDERED that a copy of the minutes of CREDO's February 13, 2009 board meeting is provided to Plaintiff in the form attached hereto as Exhibit 1.
The Court finds that Defendants' failure to initially produce an appropriately redacted copy of the board meeting minutes was the result of inadvertence or a good faith belief that the entire document was privileged. See Jaramillo v. Adams County Sch. Dist. 14, No. 09-cv-02243-RPM-MEH, 2010 WL 1839329, at *2 (D. Colo. May 6, 2010) (unreported decision) ("any designation of confidentiality must be made in good faith; if a party abuses her or its obligation to do so in good faith, such abuse may be subject to sanctions"). Accordingly,
IT IS FURTHER ORDERED that Plaintiff's Motion is DENIED to the extent that it seeks sanctions against Defendants for failing to initially produce an appropriately redacted copy of the board meeting minutes.
B. Email Exchange
Defendants contend that the email exchange between John Rigas and James Huffman is protected by the attorney-client privilege because CREDO's counsel, John Elofson, was a carbon copy recipient of every email in the exchange. The first email in the exchange was sent by John Rigas on January 25, 2009 at 2:42 p.m. Defendants' Document Production [#124-1] at 38. Defendants argue that Mr. Rigas added Mr. Elofson as a carbon copy recipient of this email because he wanted Mr. Elofson's advice regarding the issues raised in the email. Thus, Defendants argue, the act of adding Mr. Elofson as a carbon copy recipient was a solicitation "of advice or direction with respect to [CREDO]'s rights and obligations." Tucker, 232 P.3d at 198. At the February 28 hearing, Defendants offered to provide an affidavit from Mr. Rigas in which he would state that he added Mr. Elofson as a carbon copy recipient of his email because he wanted Mr. Elofson's advice and direction. See Zelaya v. UNICCO Serv. Co., 682 F. Supp. 2d 28, 38 (D.D.C. 2010) (stating that a claim of attorney-client privilege protection can be supported with "sworn statements testifying to fulfillment of the elements required for the privilege" to attach).
The Court disagrees with Defendants, and finds that they have not carried their burden of establishing that the email exchange is protected by the attorney-client privilege. After reviewing the email exchange in camera, the Court finds that the email messages were not "made for the express purpose of securing legal" advice. Aamco, 1991 WL 193502, at *3 (emphasis added). Accordingly, an affidavit stating Mr. Rigas's intent would be insufficient to establish attorney-client privilege protection. The content of the initial email, which was sent from Mr. Rigas to Mr. Huffman on Sunday, January 25, 2009 at 2:42 p.m., was expressly directed at Mr. Huffman. Mr. Rigas made requests of Mr. Huffman and discussed Plaintiff's credentials. It is clear from the face of this message that it is primarily a business communication between corporate directors and not a solicitation of legal advice. See Stoffels, 263 F.R.D. at 416 ("While these emails pertain to [the issues in the case], they are not, for the most part, directed to legal counsel."). Although Mr. Rigas added Mr. Elofson as a carbon copy recipient of the email, the Court finds that this action merely communicated to Mr. Elofson "background facts," which are not protected by the attorney-client privilege. The email does not expressly or implicitly request counsel, advice, or direction from Mr. Elofson with respect to CREDO's legal rights or obligations. See id. at 414; but see Chevron U.S.A., Inc. v. United States, 83 Fed. Cl. 195, 204 (2008). ("[S]ince [the email] was copied to [the corporation's attorney], it could be construed to request legal advice and is subject to the attorney-client privilege[.]"); United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002) ("Materials, transmitted between nonlawyers, that reflect matters about which the client intends to seek legal advice are comparable to notes a client would make to prepare for a meeting with her lawyer — notes which could serve as an agenda or set of reminders about things to ask or tell counsel. It would undermine the purpose of the attorney-client privilege not to extend protection to such notes. Therefore, internal communications that reflect matters about which the client intends to seek legal advice are protected.").
Moreover, the attorney-client privilege applies "only where necessary to achieve its purpose," i.e., "it protects only those [communications] . . . which might not have been made absent the privilege." Fisher v. United States, 425 U.S. 391, 403 (1976). In this case, nothing about the initial email sent from Mr. Rigas to Mr. Huffman indicates that it would not have been sent if Mr. Rigas knew it was not protected by the attorney-client privilege. Thus, the Court concludes that those portions of the email exchange that are both relevant and not protected by the attorney-client privilege must be disclosed. Accordingly,
IT IS FURTHER ORDERED that a copy of the email exchange is provided to Plaintiff in the form attached hereto as Exhibit 2.
Again the Court finds that Defendants' failure to initially produce an appropriately redacted copy of the email exchange was the result of inadvertence or a good faith belief that the entire exchange was privileged. See Jaramillo, 2010 WL 1839329, at *2. Accordingly,
IT IS FURTHER ORDERED that Plaintiff's Motion is DENIED to the extent that it seeks sanctions against Defendants for failing to produce an appropriately redacted copy of the email exchange.
C. Conclusion
As set forth above, Plaintiff's Oral Motion for Sanctions is GRANTED in part and DENIED in part.
EXHIBIT 1 RECORD OF PROCEEDINGS MINUTES OF THE SPECIAL MEETING OF THE BOARD OF DIRECTORS OF CREDO PETROLEUM CORPORATION
A Special Meeting of the Board of Directors of CREDO Petroleum Corporation was held by telephone conference on February 13, 2009. Oakley Hall, James T. Huffman, Clarence Brown, William F. Skewes, Richard B. Stevens, W. Mark Meyer, and John A. Rigas participated in the meeting. H. Leigh Severance was not present. Mr. Huffman was Chairman of the meeting. Mr. Skewes was Secretary of the meeting.Mr. Huffman noted that the purpose of the meeting is to consider Proxy Statement disclosures related to (i) disagreements by the Board members and (ii) Messrs. Rigas and Meyer voting against Mr. Huffman to stand for re-election to the Board. Mr. Huffman provided a brief history of the issue to be considered and attempts to resolve it. He then reminded the members that two disclosure options were transmitted to the Board members on February 11, 2009. The email is attached to these minutes.
The first order of business was to consider whether to request that Mr. Les Woodward, Davis Graham and Stubbs company legal counsel, participate in the meeting. Mr. Skewes favored including Mr. Woodward for advice because of the SEC regulations governing Proxy Statement disclosures. Upon motion duly made, seconded and unanimously voted, it was
RESOLVED, that Mr. Les Woodward be invited to join the meeting.
Mr. Woodward joined the meeting. Mr. Huffman said that the members need to discuss and decide between the two proposed Proxy Statement disclosures transmitted to the members on February 11, 2009. He said that the Rigas\Meyer proposed disclosure was provided by Mr. Rigas and that the Skewes\Huffman proposed disclosure was provided by Messrs. Skewes and Huffman. Mr. Skewes made the following motion:
RESOLVED, that the Skewes\Huffman proposed disclosure as shown in the email from Mr. Huffman to the Board members dated February 11, 2009 at about 5.00 pm be included in the company's Proxy Statement for the 2009 Annual Meeting of Shareholders.
Mr. Huffman seconded. Discussion of the motion followed.
Mr. Woodward said (i) that if a director opposes a matter to be voted on by the shareholders, that fact should be disclosed and (ii) that any disclosure in an SEC document must be accurate.
Mr. Hall requested time to re-read and consider the two proposed disclosures.
Mr. Huffman asked Mr. Woodard if any disclosure is required if Messrs. Meyer and Rigas were to abstain from voting on Mr. Huffman for re-election versus voting against Mr. Huffman. Mr. Woodward said that only votes against need to be disclosed.
Mr. Rigas then argued in favor of the Rigas\Meyer disclosure saying that the Skewes\Huffman disclosure contains factual misrepresentations. Mr. Rigas said that his and Mr. Meyer's opposition is only to Mr. Huffman, and not to anyone else. He, therefore, wanted the disclosure to state that the disagreement is only with Mr. Huffman. He said that there is no disagreement with other Board members. He also said that he and Mr. Meyer know the reasons they voted against Mr. Huffman and that the Rigas\Meyer disclosure accurately states those reasons.
Mr. Skewes boiled the two disclosure alternatives down primarily to the following; (i) a proposal by Rigas\Meyer to disclose that Messrs. Meyer and Rigas voted against Mr. Huffman for re-election to the Board and a summary of the reasons why they did so or (ii) a proposal by Messrs. Skewes and Huffman to disclose the broader issue of a pattern of disagreement between Board members related to management leadership and strategic direction of the company together with a factual statement that Messrs. Rigas and Meyer voted against Mr. Huffman for re-election to the Board and that the other members voted for Mr. Huffman and support Mr. Huffman. Mr. Skewes said he believes that disclosure of the broader issue of a pattern of disagreements about strategic direction and management leadership between Mr. Rigas and Meyer and a majority of the other Board members, as opposed to just Mr. Huffman, will be more significantly meaningful to the shareholders.
Mr. Skewes noted that all of the other directors support Mr. Huffman but that they are not proposing to disclose the reasons why they support Mr. Huffman. Thus, disclosure of reasons why Messrs. Rigas and Meyer do not support Mr. Huffman is inconsistent. Mr. Rigas argued in favor of both disclosures in a major section to be added to the Proxy Statement.
Mr. Skewes believes that the most relevant disclosure is that there is disagreement among Board members regarding company leadership and strategic direction. He believes such decisions are routine and that disagreement among directors about such matters is not unusual and that such disagreement can create a healthy process. However, Mr. Skewes does not believe that it is a matter that should be argued before the shareholders in the absence of a separate proxy solicitation.
REDACTED
Mr. Rigas reiterated that his and Mr. Meyer's dispute is only with Mr. Huffman and that the Skewes\Huffman proposed disclosure is, therefore, not factual. As evidence he said there are only four Board votes he can recall where he and Mr. Meyer were in a small minority. He said that all of those votes relate to disagreements with Mr. Huffman. The four votes cited by Mr. Rigas were (i) his and Mr. Meyer's proposal that Tim Pownell's be immediately elected as CEO which would have required that Mr. Huffman either step down or be removed as CEO, (ii) election of Leigh Severance to the Board, (iii) Mr. Huffman's 2008 bonus compensation, and (iv) the Winterhawk wind turbine deal proposal. Mr. Huffman said he had not reviewed the data to determine exactly how many votes indicated disagreement by Messrs. Rigas and Meyer. However, Mr. Huffman noted that Mr. Rigas did not include the vote on the order of business for the January 29, 2009 meeting where he and Mr. Meyer were the only negative votes. Mr. Rigas disagreed, saying there was no resolution or vote. Mr. Huffman also noted that Messrs. Rigas and Meyer voted against the settlement terms approved by the Board for Mr. Pownell at the same meeting. Mr. Huffman also noted that on all of the above votes, Messrs. Rigas and Meyer disagreed not only with Mr. Huffman but with a large majority of other directors, and that the six cited votes indicate a pattern of such disagreements with members of the Board other than Mr. Huffman. Mr. Huffman said that, in his opinion, the RCH proposed disclosure is not accurate and is misleading because it suggests that there is only disagreement on the Board is between Mr. Huffman and Messrs. Meyer and Rigas.
Mr. Huffman stated that, although there has been disagreement between Messrs. Meyer and Rigas on a number of highly significant matters, Messrs. Meyer and Rigas have specifically targeted Mr. Huffman, beginning with their proposal in August 2008 to immediately remove Mr. Huffman as CEO and replace him with Tim Pownell, because in their opinion, as Chairman and CEO and founder of Credo, Mr. Huffman represents the foremost obstacle to Messrs. Meyer and Rigas' desire to gain control and influence over the company that is disproportionate to RCH's ownership and their representation on the Board.
Mr. Rigas countered again that his and Mr. Meyer's dispute is solely with Mr. Huffman as evidenced by the fact that they did not vote against Mr. Brown to stand for re-election to the Board. He again argued for the Rigas\Meyer proposed disclosure as being factually correct and the best disclosure.
Mr. Huffman then noted that there had been almost 45 minutes of discussion and that Mr. Rigas had made his point several times. Accordingly, he called the motion to question.
REDACTED
Mr. Skewes then withdrew his prior motion and made the following motion:
RESOLVED, that the Skewes\Huffman proposed disclosure as shown in the email from Mr. Huffman to the Board members dated February 11, 2009 at about 5.00 pm after deleting the words "As a result of these disagreements" in the fourth sentence be included in the company's Proxy Statement for the 2009 Annual Meeting of Shareholders.
Mr. Huffman seconded the motion. The motion was voted by role call with Messrs. Skewes, Huffman, Hall, Stevens and Brown voting for the motion and with Messrs. Rigas and Meyer voting against the motion.
Mr. Rigas then asked that the record of the meeting show that he ". . . does not believe that approved disclosure accurately reflects the disagreement, and that corporate governance is the real issue". Mr. Skewes noted that Messrs. Rigas and Meyer had not previously made corporate governance part of their disclosure issue. Mr. Huffman said that he was not aware of them ever doing so and that the final Rigas\Meyer proposed disclosure transmitted by Mr. Rigas to Mr. Huffman as shown in the attached email do not mention corporate governance.
REDACTED
He stated that a copy of the email will be attached to the minutes of this meeting. Mr. Huffman pointed out that the Rigas\Meyer proposed disclosure does not mention corporate governance, which according to Mr. Rigas is the "real issue".
Mr. Rigas then total the members that he wanted the record of the meeting to show that he would consult with his legal counsel regarding the matter and possible further action on the matter.
Mr. Skewes then said that the type of arguing and debating that occurred in this meeting is "not what the Board should be about". He said that it is not constructive and that it is significantly interfering with the ongoing productivity of management and the Board. He said it is clear the Messrs. Rigas and Meyer want Mr. Huffman out as a director and as CEO, but that the other directors do not agree. Mr. Skewes said that after rigorous and fair consideration of significantly different options, the Board has made its decision in favor of Mr. Huffman and the business strategy he supports, and that continued wrangling by the dissenting members is not productive or responsible. He said that the dissenting members have a duty to unify behind the majority decision and to support management and the strategic direction of the company. He said that failure to do so is very disruptive and not in the best interest of the company, its management or its shareholders.
REDACTED
The being no further business to come before the meeting, it was adjourned.
Respectfully Submitted, William F. Skewes Secretary of the MeetingAttachment to February 13, 2009 Minutes of Meeting of the Board of Directors of Credo Petroleum Corporation
From: James T HuffmanSent: Wednesday, February 11, 2009 4:36 PM
To: chberb@aol.com; H. Leigh Severance (hisq88@msn.com); Mark Meyer (mmeyer@rchenergy.com); oak.hall@kingwoodcable.com; Richard B. Stevens (stevens.credo@gmall.com); Rigas John (jrigas@rchenergy.com); William F. Skewes (skewes@wispertel.net)
Cc: `Elofson, John'; `Woodward, Les'
Subject: FW: Proxy Disclosure Re Disagreement on the Board — Very Important; Time Critical — Credo
Gentlemen:
I am sorry to bring this matter to the Board for a decision.
REDACTED
Oak Hall and I have also worked without success with the RCH directors to reach a compromise
In summary, the RCH directors want a disclosure that that targets specifically me (Huffman) as the source of the board disagreements and that specifically states that the disagreement is between me and the RCH directors. I do not agree and I know that Bill Skewes and Oak do not agree. Based on Clarence's vehement disagreement with John Rigas' comment about fair consideration of Tim Pownell at the January board meeting. I assume that Clarence also will not agree. There is significant disagreement on the Board about business strategy and management leadership. Such disagreement is OK and probably healthy to a point. However, I believe that for RCH to single me (Huffman) out saying that the disagreements are strictly between me and them is absolutely not accurate. In addition, the comment that RCH disagrees with ". . . certain actions taken by Mr. Huffman . . ." is completely open ended and negatively suggestive.
REDACTED
The two language proposals are included below for your consideration. I have highlighted the most significant differences.
Time is of the essence as the Proxy Statement must be printed on Monday in order to meet the mailing deadline. Accordingly "Notice" is hereby given that a special meeting of the Board of Directors of Credo Petroleum Corporation will be held on Friday, February 13, 2009 at 10.00 am MST to consider the matter described in this email. With your permission, Mr. Woodward is willing to join the meeting to answer any questions.
RCH Proposed Disclosure
Bill Skewes\Jim Huffman Proposed Disclosure
Pursuant to an equity sale transaction entered into in July, 2008, RCH Energy Opportunity Fund II LP and RCH Energy Opportunity Fund III LP acquired approximately 17.5% of the Company's common stock and received the contractual right to appoint two directors. As a result, Mr. John A. Rigas and Mr. W. Mark Meyer, nominated by RCH, became directors of the Company. Subsequently, significant disagreements have arisen between Messrs. Rigas and Meyer and other board members about a number of issues, primarily involving the strategic direction of the Company and the senior management of the Company. As a result of these disagreements, Mr. Meyer and Mr. Rigas voted against the nomination of Mr. Huffman to continue as a director of the Company. The remainder of the Board members voted in favor of Mr. Huffman being nominated for reelection as a director of the Company. A significant majority of directors support Mr. Huffman and the current strategic direction of the Company.
James T. Huffman, Chairman of the Board of Directors
James T. Huffman
Chairman and Chief Executive Officer
CREDO Petroleum Corporation
1801 Broadway, Suite 900
Denver, Colorado 80202
Phone: 303-297-2200
www.credopetroleum.com
EXHIBIT 2
Painter, Brett From: Sent: To: Cc: Subject: Attachments: John Rigas [jrigas@rchenergy.com] Sunday, January 25, 2009 2:42 PM `James T Huffman'; `Oak Hall'; `hlsq88@msn.com'; `chberb@aol.com'; `skewes@wispertel.net'; Mark Meyer; `stevens.credo@gmail.com' Elofson, John Tim Pownell zzzzzzq-Press Release (Tim Pownell-President COO) 8-26-08.doc Jim,Before addressing your opinion of Tim, I would like to clarify a few things for you and the Board. You continually mischaracterize succession planning as a personal attack on you. Let me remind you that none of this came up until you indicated that you wanted to step down. You subsequently and repeatedly told me and several others you were "done", indicating frustration and exhaustion with the tedium and burden associated with running a small public company on a daily basis in an industry that has "passed us by" in a competitive and regulatory/reporting context. Then, you discussed stepping aside as CEO with others. You pushed for succession planning and so indicated in the attached press release. We are all working toward increasing shareholder value and a seamless succession. It does not help matters when you continually mischaracterize our actions or apply your own perceived understanding of our intentions. Additionally, it has come to my attention that you apparently left Mark and me out of pertinent Board communications. In the future, please include us on all Board communications. We are all Board members, and should be entitled to the exact same communication.
Regarding Tim, please elaborate on his bad decisions and poor performance, which are extraordinarily conclusive judgments after barely four months of employment (not six, as you indicated). I am incredulous that you, after going on record in the press release dated August 26, 2008 (attached) as "extremely pleased" to have the opportunity to hire someone of Tim's caliber, has so quickly reversed the course of your judgment. Most small companies don't even have a shot at attracting someone of Tim's sterling academic credentials, impressive industry pedigree and demonstrated leadership and people development skills. In light of the massive weight of the body of industry and career evidence that is contrary to your current opinion of Tim, I think specific examples of his poor performance and a detailed list of his bad decisions would be not only helpful in evaluating him, but absolutely necessary and required given your recent revelations that amount to a complete one-eighty. Also, please provide some examples and detail supporting your belief that Tim is not an entrepreneurial leader. Based on the presentation he gave and his transformation plan, I would have described him exactly as that . . . an entrepreneurial, visionary leader with an ability to objectively and dispassionately consider and analyze facts and data, evaluate risks and opportunities and develop a cogent, rational strategic and tactical plan that maximizes value (both kinds of value — shareholder and enterprise).
Frankly, the personal attack you launched on Tim during your "presentation" at the last board meeting (and after barely two months experience with Tim), coupled with your transparent campaign to cut him out of operations, hurts the credibility of your case against him, which is all the more reason we (the Board) need to see specific and detailed accounts of Tim's alleged transgressions. We are disappointed at your inability to reach out, as CEO and mentor, and work with Tim, as mandated by the Board, to develop a short term budget and a long term vision and plan for the future of the company. Also disappointing is the fact that this mandate was not adhered to as to the timing (December 15, 2008). Consequently, we are at the end of the first month of 2009 and we do not have a 2009 capital budget, a 2009 production budget, let alone a long term vision for the company. I also want to point out that it is the Board's decision to pick the next CEO, not yours unilaterally. Therefore, if we are to judge Tim, I fully expect to see hard evidence and an objective analysis of FACTS supporting your conclusions, not personal attacks.
REDACTED
Regards,John Rigas
jrigas@rchenergy.comoffice — 281.296.3188
cell — 281.610.5994 James T Huffman From: Sent: To: Subject: James T Huffman Tuesday, January 27, 2009 1:13 PM Oak Hall FW: Tim Pownell — Credo FYIJames T. Huffman
Chairman and Chief Executive Officer
CREDO Petroleum Corporation
1801 Broadway, Suite 900
Denver, Colorado 80202
Phone: 303-297-2200
www.credopetroleum.com From: James T Huffman
Sent: Tuesday, January 27, 2009 11:31 AM
To: `John Rigas'
Subject: RE: Tim Pownell — Credo
REDACTED
James T. Huffman
Chairman and Chief Executive Officer
CREDO Petroleum Corporation
1801 Broadway, Suite 900
Denver, Colorado 80202
Phone: 303-297-2200
www.credopetroleum.com From: John Rigas [mailto:jrigas@rchenergy.com]
Sent: Tuesday, January 27, 2009 11:02 AM
To: James T Huffman
Subject: RE: Tim Pownell — Credo
REDACTED
Regards,
John Rigas
jrigas@rchenergy.com
office — 281.296.3188
cell — 281.610.5994
From: James T Huffman [mailto:JTHuffman@credopetroleum.com]
Sent: Tuesday, January 27, 2009 11:51 AM
To: John Rigas
Subject: RE: Tim Pownell — Credo
REDACTED
James T. Huffman
Chairman and Chief Executive Officer
CREDO Petroleum Corporation
1801 Broadway, Suite 900
Denver, Colorado 80202
Phone: 303-297-2200
www.credopetroleum.com From: John Rigas [mailto:jrigas@rchenergy.com]
Sent: Tuesday, January 27, 2009 10:49 AM
To: James T Huffman; Oak Hall; hlsq88@msn.com; chberb@aol.com; skewes@wispertel.net; Mark Meyer; stevens.credo@gmail.com
Cc: Elofson, John
Subject: RE: Tim Pownell — Credo
Jim,
We just received that package referenced in the email below
REDACTED
Thanks.
Regards,
John Rigas
jrigas@rchenergy.com
office — 281.296.3188
cell — 281.610.5994
From: James T Huffman [mailto:JTHuffman@credopetroleum.com]
Sent: Monday, January 26, 2009 4:08 PM
To: John Rigas; Oak Hall; hlsq88@msn.com; chberb@aol.com; skewes@wispertel.net; Mark Meyer; stevens.credo@gmail.com Cc: Elofson, John
Subject: RE: Tim Pownell — Credo
John:
In response to your below email request. I will Fed-X the file documentation to all Board members for delivery first thing in the morning.
Jim
James T. Huffman
Chairman and Chief Executive Officer
CREDO Petroleum Corporation
1801 Broadway, Suite 900
Denver, Colorado 80202
Phone: 303-297-2200
www.credopetroleum.com From: John Rigas [mailto:jrigas@rchenergy.com]
Sent: Sunday, January 25, 2009 2:42 PM
To: James T Huffman; Oak Hall; hlsq88@msn.com; chberb@aol.com; skewes@wispertel.net; Mark Meyer; stevens.credo@gmail.com
Cc: Elofson, John
Subject: Tim Pownell
Jim,
Before addressing your opinion of Tim, I would like to clarify a few things for you and the Board. You continually mischaracterize succession planning as a personal attack on you. Let me remind you that none of this came up until you indicated that you wanted to step down. You subsequently and repeatedly told me and several others you were "done", indicating frustration and exhaustion with the tedium and burden associated with running a small public company on a daily basis in an industry that has "passed us by" in a competitive and regulatory/reporting context. Then, you discussed stepping aside as CEO with others. You pushed for succession planning and so indicated in the attached press release. We are all working toward increasing shareholder value and a seamless succession. It does not help matters when you continually mischaracterize our actions or apply your own perceived understanding of our intentions. Additionally, it has come to my attention that you apparently left Mark and me out of pertinent Board communications. In the future, please include us on all Board communications. We are all Board members, and should be entitled to the exact same communication.
Regarding Tim, please elaborate on his bad decisions and poor performance, which are extraordinarily conclusive judgments after barely four months of employment (not six, as you indicated). I am incredulous that you, after going on record in the press release dated August 26, 2008 (attached) as "extremely pleased" to have the opportunity to hire someone of Tim's caliber, has so quickly reversed the course of your judgment. Most small companies don't even have a shot at attracting someone of Tim's sterling academic credentials, impressive industry pedigree and demonstrated leadership and people development skills. In light of the massive weight of the body of industry and career evidence that is contrary to your current opinion of Tim, I think specific examples of his poor performance and a detailed list of his bad decisions would be not only helpful in evaluating him, but absolutely necessary and required given your recent revelations that amount to a complete one-eighty. Also, please provide some examples and detail supporting your belief that Tim is not an entrepreneurial leader. Based on the presentation he gave and his transformation plan, I would have described him exactly as that . . . an entrepreneurial, visionary leader with an ability to objectively and dispassionately consider and analyze facts and data, evaluate risks and opportunities and develop a cogent, rational strategic and tactical plan that maximizes value (both kinds of value — shareholder and enterprise).
Frankly, the personal attack you launched on Tim during your "presentation" at the last board meeting (and after barely two months experience with Tim), coupled with your transparent campaign to cut him out of operations, hurts the credibility of your case against him, which is all the more reason we (the Board) need to see specific and detailed accounts of Tim's alleged transgressions. We are disappointed at your inability to reach out, as CEO and mentor, and work with Tim, as mandated by the Board, to develop a short term budget and a long term vision and plan for the future of the company. Also disappointing is the fact that this mandate was not adhered to as to the timing (December 15, 2008). Consequently, we are at the end of the first month of 2009 and we do not have a 2009 capital budget, a 2009 production budget, let alone a long term vision for the company. I also want to point out that it is the Board's decision to pick the next CEO, not yours unilaterally. Therefore, if we are to judge Tim, I fully expect to see hard evidence and an objective analysis of FACTS supporting your conclusions, not personal attacks.
REDACTED
Regards,
John Rigas
jrigas@rchenergy.com
office — 281.296.3188
cell — 281.610.5994 James T Huffman From: Sent: To: Subject: Attachments:
1-25-09 James T Huffman Sunday, January 25, 2009 3:21 PM stevens.credo@gmail.com FW: Tim Pownell — Credo zzzzzzq-Press Release (Tim Pownell-President COO) 8-26-08.doc Dick, see below.James T. Huffman
Chairman and Chief Executive Officer
CREDO Petroleum Corporation
1801 Broadway, Suite 900
Denver, Colorado 80202
Phone: 303-297-2200
www.credopetroleum.com From: John Rigas [mailto:jrigas@rchenergy.com]
Sent: Sunday, January 25, 2009 2:42 PM
To: James T Huffman; Oak Hall; hlsq88@msn.com; chberb@aol.com; skewes@wispertel.net; Mark Meyer; stevens.credo@gmail.com
Cc: Elofson, John
Subject: Tim Pownell
Jim,
Before addressing your opinion of Tim, I would like to clarify a few things for you and the Board. You continually mischaracterize succession planning as a personal attack on you. Let me remind you that none of this came up until you indicated that you wanted to step down. You subsequently and repeatedly told me and several others you were "done", indicating frustration and exhaustion with the tedium and burden associated with running a small public company on a daily basis in an industry that has "passed us by" in a competitive and regulatory/reporting context. Then, you discussed stepping aside as CEO with others. You pushed for succession planning and so indicated in the attached press release. We are all working toward increasing shareholder value and a seamless succession. It does not help matters when you continually mischaracterize our actions or apply your own perceived understanding of our intentions. Additionally, it has come to my attention that you apparently left Mark and me out of pertinent Board communications. In the future, please include us on all Board communications. We are all Board members, and should be entitled to the exact same communication.
Regarding Tim, please elaborate on his bad decisions and poor performance, which are extraordinarily conclusive judgments after barely four months of employment (not six, as you indicated). I am incredulous that you, after going on record in the press release dated August 26, 2008 (attached) as "extremely pleased" to have the opportunity to hire someone of Tim's caliber, has so quickly reversed the course of your judgment. Most small companies don't even have a shot at attracting someone of Tim's sterling academic credentials, impressive industry pedigree and demonstrated leadership and people development skills. In light of the massive weight of the body of industry and career evidence that is contrary to your current opinion of Tim, I think specific examples of his poor performance and a detailed list of his bad decisions would be not only helpful in evaluating him, but absolutely necessary and required given your recent revelations that amount to a complete one-eighty. Also, please provide some examples and detail supporting your belief that Tim is not an entrepreneurial leader. Based on the presentation he gave and his transformation plan, I would have described him exactly as that . . . an entrepreneurial, visionary leader with an ability to objectively and dispassionately consider and analyze facts and data, evaluate risks and opportunities and develop a cogent, rational strategic and tactical plan that maximizes value (both kinds of value — shareholder and enterprise).
Frankly, the personal attack you launched on Tim during your "presentation" at the last board meeting (and after barely two months experience with Tim), coupled with your transparent campaign to cut him out of operations, hurts the credibility of your case against him, which is all the more reason we (the Board) need to see specific and detailed accounts of Tim's alleged transgressions. We are disappointed at your inability to reach out, as CEO and mentor, and work with Tim, as mandated by the Board, to develop a short term budget and a long term vision and plan for the future of the company. Also disappointing is the fact that this mandate was not adhered to as to the timing (December 15, 2008). Consequently, we are at the end of the first month of 2009 and we do not have a 2009 capital budget, a 2009 production budget, let alone a long term vision for the company. I also want to point out that it is the Board's decision to pick the next CEO, not yours unilaterally. Therefore, if we are to judge Tim, I fully expect to see hard evidence and an objective analysis of FACTS supporting your conclusions, not personal attacks.
REDACTED
Regards,
John Rigas
jrigas@rchenergy.com
office — 281.296.3188
cell — 281.610.5994