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American Agip Co., Inc. v. Junell Corp.

November 13, 1998

AMERICAN AGIP CO., INC.,
PLAINTIFF,
V.
JUNELL CORP., PROLUBE INC., GARY T. JULIAN, GREGG BABCOCK, STEPHEN CISEK, WILLIAM HILLMAN, JOHN MILBY, JOHN O'BEIRNE, ROBERT POWERS, WILLIAM SWIFT, AND ANNA WHITLOCK,
DEFENDANTS.



The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge

CAMDEN VICINAGE

HONORABLE JEROME B. SIMANDLE

AMENDED OPINION

Presently before the Court is the application by Michael O. Adelman, Esquire, attorney for Plaintiff American Agip Co., Inc. ("Agip"), for an order compelling discovery regarding certain communications identified on Defendants' privilege log. The Court having considered the moving papers and the opposition thereto and for the reasons discussed below, Plaintiff's motion is DENIED.

Background

The case arose when several Agip employees left that company and formed a new company, Defendant Prolube, Inc. ("Prolube"), which immediately began competing with Agip in the industrial lubricant market. See Complaint at ¶¶ 15-44. The complaint alleges, among other things, that Defendants breached their employment contract with Agip, Complaint at ¶¶ 50-52, breached their fiduciary duty to Agip, Complaint at ¶¶ 53-55, defamed Agip, Complaint at ¶¶ 56-58, engaged in tortious interference with contractual relations, Complaint at ¶¶ 59-64, and engaged in tortious interference with Agip's economic advantage, Complaint at ¶¶ 65-69. All causes of action allege violations of state law.

On or about March 25, 1998, Plaintiff served its First Request for Production of Documents and its First Set of Interrogatories on Defendants. Defendants served their responses to the discovery requests on or about May 29, 1998 and Defendants served their privilege log on September 25, 1998.

On August 24, 1998 the Court convened a telephone conference to resolve several discovery disputes. During that conference, I ordered the parties to submit letters outlining the disputed discovery together with their respective arguments. The Court convened an in-person conference on September 29, 1998 and the parties were heard on the record. On September 30, 1998 I issued an order i) compelling Defendant Junell Corp. ("Junell") and Plaintiff Agip to exchange customer lists; ii) compelling defendants to answer Interrogatory Numbers 2, 4, 5 and 6; and iii) asking the parties to submit briefs regarding the defendants' assertion of the attorney-client privilege as to certain conversations between defendants and their attorneys in and around April, May and June, 1997.

Defendants claim that the six communications between Defendants and their counsel listed on the amended privilege log are protected by the attorney-client privilege and that two are also protected by the work product doctrine. Plaintiff argues that the crime-fraud exception to the attorney-client privilege strips the communications of their privileged status and, therefore, Plaintiff should be permitted to seek discovery as to those communications.

After reviewing the parties' submissions, I concluded that I could not make a decision on the applicability of the attorney-client privilege, the work product doctrine or the crime-fraud exception based on the limited information provided on Defendants' privilege log. By letter dated October 16, 1998, I requested that Defendants provide the Court with an amended privilege log that complied with the requirements of Fed. R. Civ. P. 26(b) and Local Civil Rules 33.1(c) and 34.1. Counsel for Defendants provided the requested amended log to the Court on October 26, 1998.

According to Defendants' log, six privileged communications occurred between Defendants and their attorneys between April and June, 1997. On April 10, 1997, Defendants Gregg Babcock, Gary Julian and Robert Powers attended a "[m]eeting for initial advice regarding [the] enforceability of employment agreements and viability of engaging in competitive activities." Defendants claim that this communication is protected by both the attorney-client privilege and work product doctrine. On May 27, 1997 Defendants Gregg Babcock and Robert Powers attended a "[m]eeting to discuss [the] strategy and timing of engaging in competitive activity." Defendants assert the attorney-client privilege and work product doctrine as to this conversation as well. On June 12, 1997 Gregg Babcock participated in a "[t]telephone conversation to discuss [the] manner in which competitive activities could be pursued consistent with legal obligations." Defendants claim that this conversation is protected by the attorney-client privilege. On June 19, 1997 Gregg Babcock and Robert Powers participated in a telephone conversation and either received or wrote a memorandum discussing "the manner in which competitive activities could be pursued consistent with legal obligations." Defendants claim that the conversation and memorandum are protected by the attorney-client privilege. On June 24, 1997 Gregg Babcock and Robert Powers participated in a "[t]telephone conversation to discuss [the] manner in which competitive activities could be pursued consistent with legal obligations." Defendants claim that this conversation is protected by the attorney-client privilege. Finally, on June 25, 1997 Gregg Babcock and Robert Powers participated in a "[t]telephone conversation to discuss [the] manner in which competitive activities could be pursued consistent with legal obligations." Defendants claim that this conversation is protected by the attorney-client privilege.

Discussion

Under the Federal Rules of Civil Procedure, all non-privileged relevant information is discoverable. Fed. R. Civ. P. 26(b)(1). "When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Fed. R. Civ. P. 26(b)(5). Similarly, the Local Civil Rules for this District require a party withholding information to assert the applicable privilege with specificity. See Local Civil Rules 33.1(c), 34.1 and 36.1(b). "The Third Circuit has rejected 'broadside invocation[s] of privilege' which fail to designate with particularity the specific documents or file to which the claim of privilege applie[s].'" Torres v. Kuzniasz, 936 F. Supp. 1201, 1208-09 (D.N.J. 1996) (quoting United States v. O'Neill, 619 F.2d 222, 225 (3d Cir. 1980)). Defendants, therefore, are required to make express assertions of privilege, describe the privileged material in such a way as to enable the Court and their adversary to determine the validity of the asserted privilege and identify specific documents or information as to which they are asserting a privilege.

The burden of establishing the existence of a privilege falls on the party asserting the privilege. See In re Bevill, Bresler & Shulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986); Torres, 936 F. Supp. at 1208. Here the burden is on Defendants to assert an applicable privilege.

Because privileges obstruct the search for truth by shielding from discovery otherwise relevant information, privileges are disfavored in the law. See Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 538, 691 A.2d 321, 328 (1997) (citations omitted); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997) (citations omitted). The Court will analyze Defendants' claims of privilege with this consideration in mind.

Plaintiff claims that the six conversations described above are discoverable under the crime-fraud exception to the attorney-client privilege. Before turning to this issue, the Court must first address whether any of these communications are privileged or subject to the work product doctrine under the applicable law in this case. Applicable Law

Rule 501 of the Federal Rules of Evidence provides, in pertinent part:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness . . . shall be determined in accordance with State law. Fed. R. Evid. 501.

Plaintiff alleges in its complaint that Defendants committed various violations of state law. Therefore, state law will provide the rule of decision for all of plaintiff's claims. See In re Ford Motor Co., 110 F.3d 954, 965 (3d Cir. 1997) (applying Pennsylvania law to determine privilege issues in a diversity case); Rhone-Poulenc, 32 F.3d at 861-62 & n. 1. This Court's jurisdiction is based upon diversity of citizenship, 28 U.S.C. § 1332. See Complaint at ¶ 1. It appears from the complaint that some combination of New Jersey, Pennsylvania and/or New York law will govern the rights and obligations of the parties in this case. Both Plaintiff and Defendants appear to agree that New Jersey law should govern the applicability of privileges and exceptions to those privileges here. ...


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