Egiazaryan v. Zalmayev
290 F.R.D. 421
S.D.N.Y.2013Background
- Egiazaryan sues Zalmayev for defamation; Zalmayev counterclaims anti-SLAPP; only anti-SLAPP counterclaim remains.
- Zalmayev moves to compel production of 50 BGR emails withheld as privileged/work product.
- BGR, hired by Egiazaryan’s London counsel, assisted with global media strategy and communications.
- BGR communications with FZWZ were for subpoenas; formal retainer with FZWZ dated Sept. 6, 2011.
- Court ordered in camera review and prepared privilege logs; factual history of privilege disputes laid out.
- Court grants in part and denies in part; specific BGR emails must be produced or withheld per ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorney-client privilege from FZWZ's representation | BGR’s privileged status attached to post- Aug 20, 2011 communications. | No attorney-client relation prior to Sept. 6, 2011; many emails not privileged. | Precludes privilege for many pre-Sept. 2011 emails; some post- Sept. 2011 emails privileged. |
| Agency exception to privilege with BGR as agent | BGR acted as Egiazaryan’s agent to obtain legal advice. | BGR’s role not nearly indispensable for legal advice; waiver occurs. | Agency exception fails; privilege waived where BGR’s involvement not necessary. |
| Common interest doctrine applicability | Egiazaryan and BGR share a common legal interest. | No true common legal interest; not a joint defense scenario. | Common interest doctrine inapplicable; disclosure waived privilege. |
| Work product protection for BGR materials | Emails contain FZWZ’s legal strategy and impressions. | Many emails concern public relations, not litigation strategy. | Emails 2,4,14-16,30,41-42 are work product protected; others not; no substantial need shown. |
| Overall production order | All relevant BGR emails should be produced if privileged | Many emails properly privileged or non-protected; not all should be produced. | Motion granted in part; production of specific listed emails; remainder protected. |
Key Cases Cited
- Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588 (N.Y. 1989) (communications must be primarily legal in character)
- Priest v. Hennessy, 51 N.Y.2d 62 (N.Y. 1980) (attorney-client privilege requires confidential communications)
- Pellegrino v. Oppenheimer & Co., 49 A.D.3d 94 (N.Y. App. Div. 1st Dept. 2008) (pre-retainer communications may establish attorney-client relationship)
- United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) (common law privilege principles applied to communications)
- United States v. Ackert, 169 F.3d 136 (2d Cir. 1999) (need for attorney-client communications in context of privilege)