Harris Management, Inc. v. Paul Coulombe, 151 A.3d 7

Background

Harris Management and JJR sued Paul Coulombe and two LLCs alleging Coulombe misled Harris in early 2013 about hiring Harris to manage Boothbay Country Club while secretly planning otherwise, causing Harris to sell property and begin work to its detriment.
Coulombe communicated with counsel (Hawley Strait and John Carpenter) during the relevant period; some communications also included business associate John Suczynski.
Harris sought discovery of those communications, arguing the crime-fraud exception applied and that communications including Suczynski were not privileged because he was not a client “representative.”
The trial court ordered disclosure of communications that included Suczynski pre-March 14, 2013 (finding he lacked authority as a client representative then) and conducted in camera review of other Coulombe–counsel communications.
After in camera review the court ordered disclosure of specified privileged communications, concluding Harris met the preponderance standard for the crime-fraud exception (Coulombe planned or engaged in fraudulent activity and used counsel to facilitate/conceal it).
The Maine Supreme Judicial Court affirmed, except remanding one email exchange (pages 15626–15633) for reconsideration as possibly unrelated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether communications that included Suczynski remained privileged because he was a client "representative"	Suczynski was a trusted advisor/employee authorized to obtain legal advice and act on it, so communications were privileged	Suczynski was not an authorized representative or in the LLCs’ control group before his March 14, 2013 hire, so inclusion destroyed privilege	Court: privilege requires "representative of the client" (control-group authority); Coulombe failed to prove Suczynski was such a representative pre-3/14/2013, so those communications are not privileged
Whether the crime-fraud exception requires proof of all elements of completed fraud (including justifiable reliance)	Coulombe: Harris must prove every element of fraud (including justifiable reliance) before exception applies	Harris: only must show, by preponderance, that client was engaged in or planning fraudulent activity and used counsel to facilitate/conceal it; not full tort proof	Court: full tort elements not required; plaintiff must show client’s intent and expectation that the victim would rely on the misrepresentations, but proof of actual justifiable reliance is not required at this discovery stage
Whether the in camera–reviewed communications satisfied the crime-fraud exception (nexus and intent)	Harris: documents corroborate that Coulombe intended to deceive Harris and used counsel to plan/conceal that deception	Coulombe: evidence insufficient to show intent to defraud or to use counsel to facilitate concealment	Court: factual findings supported; by preponderance court did not err to order disclosure of specified communications under crime-fraud exception
Scope/remedy for potentially unrelated material included in disclosure order	Harris: disclosure appropriate for documents the court identified	Coulombe: one email thread appears unrelated and was improperly ordered disclosed	Court: affirmed disclosure generally but remanded for trial court to reconsider whether pages 15626–15633 were mistakenly included

Key Cases Cited

In re Motion to Quash Bar Counsel Subpoena, 982 A.2d 330 (Me. 2009) (sets Maine standard for crime-fraud exception and burden of proof)
Barr v. Dyke, 49 A.3d 1280 (Me. 2012) (discusses standards for fraud elements in Maine)
Bd. of Overseers of the Bar v. Warren, 34 A.3d 1103 (Me. 2011) (abuse-of-discretion review for crime-fraud exception determinations)
Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (federal treatment of privilege for corporate employees; discussed regarding control-group test)
In re Sealed Case, 754 F.2d 395 (D.C. Cir. 1985) (prima facie standard for overcoming privilege when communications further crime or fraud)
Cent. Constr. Co. v. Home Indem. Co., 794 P.2d 595 (Alaska 1990) (broad interpretation of crime-fraud exception; attorney services sought in aid of misconduct not privileged)
Pierce v. Grove Mfg. Co., 576 A.2d 196 (Me. 1990) (party asserting privilege bears initial burden to establish it)