449 B.R. 709
Bankr. S.D. Tex.2011Background
- Chapter 7 debtor Royce Homes, LP was served with an involuntary petition on April 7, 2009 and relief was granted April 30, 2009, with Rodney Tow appointed trustee.
- Trustee investigated prepetition transactions and subpoenaed John Speer for documents, seeking communications between Speer and his attorneys.
- Speer produced some documents but withheld others claiming attorney-client privilege, logging about 1,000 entries with minimal description.
- Speer’s privilege logs were amended but remained sparse, with most entries described as emails and assertedly privileged without specific subject-matter detail.
- Trustee moved to compel production of documents claimed privileged by Speer on December 31, 2010; hearing held January 19, 2011; Speer did not appear in court.
- Court must decide whether the attorney-client privilege attaches to Speer’s emails, and whether the privilege was waived by Speer’s conduct and the Debtor’s electronic communications policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal common law governs privilege here | Trustee contends federal common law controls; state law only applies where it governs a claim element. | Speer argues Texas privilege law should apply. | Federal law governs privilege in this context. |
| Whether Speer’s emails were confidential communications for legal advice | Trustee argues communications lacked required confidentiality and/or primary legal purpose. | Speer asserts emails were confidential to obtain legal advice. | Speer failed to prove all elements; emails not privileged. |
| Whether Speer waived privilege by use of Debtor’s systems and disclosure to third parties | Waiver argued due to use of company server and disclosure to Boothe and Gresham; policy allowed access. | Speer contends confidentiality remained despite policy. | Speer waived privilege; disclosures to Boothe and Gresham, plus use of Debtor’s system, caused waiver. |
| Whether the Trustee may disclose prepetition communications held by the Debtor’s privilege | Trustee seeks to assert privilege on behalf of Debtor estate and may disclose. | Speer preserves privilege; Debtor holds it. | Trustee holds privilege to prepetition communications; Speer’s privilege discharged. |
Key Cases Cited
- United States v. Robinson, 121 F.3d 971 (5th Cir. 1997) (defining elements of attorney-client privilege)
- Pipkins v. United States, 528 F.2d 559 (5th Cir. 1976) (limits of privilege; not all communications are privileged)
- In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005) ( Asia Global four-factor waiver test for workplace communications)
- Santa Fe Int'l Corp. v. Green, 272 F.3d 705 (5th Cir. 2001) (burden on privilege claimant; need for specific evidence)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (principle that privilege encourages full and frank legal advice)