Koumoulis v. Independent Financial Marketing Group, Inc.
29 F. Supp. 3d 142
E.D.N.Y2014Background
- Defendants object under FRCP 72(a) to Magistrate Judge Scanlon's November 1, 2013 order on privilege, deposition, and privilege logs.
- Order held the Submitted Documents mostly non-privileged business advice; required production with redactions and deposition of outside counsel Ann Bradley; allowed amended privilege logs or declarations.
- Defendants contended the Order misapplied privilege, waived privilege via Faragher/Ellerth defense, and sought to modify or set aside the Order.
- Court afforded highly deferential review under 28 U.S.C. § 636(b)(1)(A), reviewing for clear error or abuse of discretion in a discovery ruling.
- Court affirmed the Order: (i) most communications were business rather than legal advice; (ii) waiver applied; (iii) work-product and privilege stood only for isolated portions; (iv) declaration permitted for privilege logging; (v) supplemental new evidence not considered.
- Court declined to consider new evidence proffered by Defendants as outside the record before Judge Scanlon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorney-client privilege applicability | Koumoulis dispute seeks communications primarily legal. | Bradley provided largely legal advice; privilege applies. | Not clearly erroneous; majority of documents were business, not legal, advice; privilege not upheld. |
| Work-product protection scope | Documents prepared for litigation anticipated by Defendants. | Advice related to internal investigation; may be work product. | Not clearly erroneous; materials were for HR investigation, not litigation; no broad work-product protection. |
| Waiver under Faragher/Ellerth defense | Defendants’ defensive justification did not waive privilege for related materials. | Defense and remedial context waives privilege. | Waiver found; defense waives privilege for documents related to reasonableness of remedial efforts. |
| Privilege log vs declaration | Declaration satisfies FRCP 26(b)(5)(A) requirements. | Should have a formal privilege log. | affirmed; declaration format allowed under FRCP 26(b)(5)(A). |
| Consideration of supplemental evidence | New affidavits/depositions should be evaluated. | Opportunity to submit additional evidence existed. | Denied; new evidence not to be considered; record limited to material before Judge Scanlon. |
Key Cases Cited
- In re Cnty. of Erie, 473 F.3d 413 (2d Cir. 2007) (only legal advice is privileged; business advice not privileged when not legal in nature)
- P&B Marina Ltd. P’ship v. Logrando, 136 F.R.D. 50 (E.D.N.Y. 1991) ( blanket assertion of work-product not sufficient; must show anticipation of litigation)
- State of Maine v. U.S. Dep’t of the Interior, 298 F.3d 60 (1st Cir. 2002) (agency documents may lose privilege if not prepared in anticipation of litigation)