1:22-cv-09085
S.D.N.Y.Aug 22, 2024Background
- Plaintiff Jaime Piccolo withheld certain communications from discovery, claiming the common-interest privilege applied, relating to text and email exchanges with Brieanna Skarbo, a non-party Equinox employee.
- Both Piccolo and Skarbo were represented by the same law firm (Wigdor LLP) at the time of these communications and were each pursuing claims against Equinox, though Skarbo ultimately did not file suit.
- Defendants challenged Piccolo's assertion of privilege, leading to an in camera review of the disputed documents by the Magistrate Judge.
- The main question was whether the communications were protected by the common-interest doctrine as an extension of attorney-client or work product privilege.
- The court reviewed the communications and sorted them by entry numbers for clarity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common-interest doctrine applies to text/email messages between Plaintiff and non-party Skarbo | Piccolo argued that sharing privileged communications with Skarbo was protected by their common legal interest in litigating against Equinox | Equinox argued there was no shared legal strategy, only status updates on separate actions, so no common-interest privilege | Court held the common-interest doctrine does NOT apply; the communications must be produced |
| Whether communications lacking an attorney or legal advice are privileged | Piccolo implied some messages were privileged under the doctrine | Equinox argued messages without attorney involvement or legal advice can't be privileged | Court agreed with Equinox; such messages are not privileged and must be disclosed |
| Whether attorney-client privilege survives waiver if common-interest doctrine doesn't apply | Piccolo claimed communications with Skarbo—even if privileged—were not waived due to common-interest | Equinox argued that sharing privileged communications with a non-party waives privilege | Court sided with Equinox; attorney-client privilege was waived by sharing with Skarbo |
| Whether any privileged redactions in Entry No. 11 remain valid | No specific argument | No specific argument | No privilege redactions found; full document to be produced |
Key Cases Cited
- United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) (establishes common-interest doctrine as an extension of attorney-client/work product privilege)
- United States v. Constr. Products Research, Inc., 73 F.3d 464 (2d Cir. 1996) (party asserting privilege bears burden of establishing its application)
- Bank Brussels Lambert v. Credit Lyonnais, 160 F.R.D. 437 (S.D.N.Y. 1995) (discusses requirements for common-interest privilege)