JTR Enterprises, LLC v. An Unknown Quantity of Colombian Emeralds, Amethysts & Quartz Crystals
297 F.R.D. 522
S.D. Fla.2013Background
- Motivation, Inc. moved to compel production of documents from nonparties and for testimony despite claims of attorney-client and work-product privileges under the crime-fraud exception.
- The subpoenas at issue were issued to Young Conaway Stargatt & Taylor, LLP, Bruce Silverstein, and to Horan (JTR’s former counsel); the YCST/Silverstein subpoenas are in a different district than this court’s; jurisdiction to enforce those subpoenas is lacking here.
- Horan produced privilege logs; Motivation alleges the documents relate to ongoing alleged fraud and seeks to apply the crime-fraud exception to override privileges.
- The court ordered in camera review to decide whether the crime-fraud exception applies to the documents listed on Horan’s privilege logs.
- JTR moved to compel responses to RFPs—RFP 4 sought communications between Holloway and Motivation representatives; RFP 5 sought communications with federal agents; court held RFP 4 failed under common-interest doctrine; RFP 5 no law-enforcement privilege barrier and granted in full.
- Motivation sought unsealing of sealed Delaware pleadings (D.E. 13, D.E. 14) and to unseal related Delaware records; the court granted unsealing of D.E. 13 and 14 but denied the request to seek unsealing in Delaware Chancery Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Crime-fraud exception applies to Horan documents? | Motivation contends crime-fraud exception overrides privilege for Horan documents. | JTR argues privileged communications should be protected unless crime-fraud proven. | Prima facie showing found; in camera review ordered to determine relevance. |
| Common-interest doctrine applies to RFP 4? | Motivation asserts common-interest/common defense doctrine shields disclosure. | Record shows nonparties Barr/Ash and others share interest but no formal joint defense; doctrine not satisfied. | Common-interest doctrine does not apply; RFP 4 granted; produce documents within 10 days. |
| Law-enforcement privilege protects RFP 5? | Documents involve ongoing criminal investigation; privilege may apply. | No governmental agency asserted privilege; applying privilege requires government authority. | Law-enforcement privilege does not apply; RFP 5 granted; produce documents within 10 days. |
| Court unseals D.E. 13/14 and seeks Delaware Chancery unsealing? | Sealed records should be unsealed in interest of justice. | No opposition; Delaware Chancery unsealing not properly supported by authority. | Unseal D.E. 13 and 14 granted; request to unseal in Delaware denied. |
| Lisa Martorano statement production (work product) required? | Motivation intends to keep statement confidential under work-product, seeks order for non-production. | JTR asserts waiver through public disclosure and completeness requires production. | Statement production compelled; entire sworn statement and Exhibit 1 to be produced within 10 days. |
Key Cases Cited
- In re Grand Jury Investigation (Schroeder), 842 F.2d 1223 (11th Cir.1987) (two-part crime-fraud test for waiver of privilege)
- United States v. Zolin, 491 U.S. 554 (Supreme Court 1989) (in camera review allowed with factual basis to support crime-fraud claim)
- In re Polypropylene Carpet Antitrust Litig., 181 F.R.D. 680 (N.D. Ga. 1998) (law enforcement privilege balancing test)
- Sterling Merchandising, Inc. v. Nestle, S.A., 470 F. Supp. 2d 77 (D.P.R. 2006) (law enforcement investigatory privilege scope and government authority requirement)
- Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (Supreme Court 1988) (completeness and selective disclosure concerns in sharing statements)
- Wilson v. Am. Motors Corp., 759 F.2d 1568 (11th Cir.1985) (sealings and third-party records; applicability of external authority to unsealing)
- In re Ginn-LA St. Lucie Ltd., LLLP, 439 B.R. 801 (Bankr.S.D.Fla.2010) (common-interest doctrine in bankruptcy contexts)