ORDER
Before the court is eTreppid Technologies, LLC’s (“eTreppid”) points and authorities in support of its assertion of the attorney-client privilege against Dennis Montgomery (# 427). Also before the court is Dennis Montgomery (“Montgomery”) and the Montgomery Family Trust’s (“the Trust”) (collectively the “Montgomery Parties”) memorandum of points and authorities showing that eTreppid’s attorney-client privilege objections should be *1177 overruled in their entirety (# 428 and #429). Both eTreppid and Montgomery filed replies (#438 and #439). eTreppid additionally filed a supplement and errata to their supplement (# S443-445). The court has thoroughly reviewed the record and the parties’ submissions and concludes that eTreppid may withhold attorney-client privileged communications from Montgomery.
I. HISTORY & PROCEDURAL BACKGROUND
Plaintiffs in this action are Dennis Montgomery and the Montgomery Family Trust, members of eTreppid (# 7). Defendants and counter-claimants are eTreppid Technologies, LLC, a limited liability company registered in the State of Nevada, and Warren Trepp, a member of eTreppid. Id. eTreppid is “in the business of developing and marketing software for various applications” (# 393). 1
The Montgomery Parties’ main claim is that eTreppid unlawfully used and sub-licensed certain software that Montgomery invented and developed, and for which the Trust owns copyrights (# 7). eTreppid’s primary counter-claim is that between December 2005 and January 2006, Montgomery knowingly destroyed and/or deleted software from eTreppid’s computers and servers, and also stole a complete copy of the software for his personal use and benefit (# 393). eTreppid claims that by stealing the software, Montgomery misappropriated eTreppid’s trade secrets. Id.
This dispute involves the Montgomery Parties’ discovery requests, which eTrep-pid asserts implicate the attorney-client privilege. Montgomery claims that as a member and former manager of eTreppid, he is a “joint client” with eTreppid for the purposes of the attorney-client privilege; as such, eTreppid may not assert the attorney-client privilege against him with respect to privileged communications created during the time he was a manager and member of eTreppid (#428). eTreppid’s position is that it is the sole client for the purposes of the attorney-client privilege, that the ability to assert or waive the privilege belongs to current management, and that Montgomery is no longer current management as he is adverse to eTreppid and has been since 2006 (#427). As the parties were unable to resolve this issue, the court ordered that the parties file simultaneous briefs setting out their respective views (# 419).
II. DISCUSSION
A. Attorney-Client Privilege
“The attorney-client privilege is one of the oldest recognized privileges for confidential communications.”
Swidler & Berlin v. U.S.,
Only the holder of the attorney-client privilege may waive it.
Tennenbaum v. Deloitte & Touche,
B. Analysis
The essential issue here is whether, over the objections of eTreppid, Montgomery has the right to access attorney-client privileged communications for the time period during which Montgomery served as a manager and active member of eTreppid. The issue turns this question: who is the client for purposes of the attorney-client privilege?
The parties generally agree that the attorney-client privilege belongs to the “client,” and that only the “client” may assert or waive the privilege. However, the parties disagree as to who the client is. eTreppid takes the “entity is the client” position, arguing that eTreppid, as a limited liability company (“LLC”), is the sole client. Montgomery contends that the “joint client exception” applies here — he agrees that eTreppid is a “client,” but argues that as an individual member and former manager of eTreppid, he is also a “client” such that eTreppid may not assert the privilege against him.
1. Preliminary Issues
Before delving into the principle issue, the court must address two preliminary matters. First, the parties disagree as to whether there exists federal common law sufficient to resolve the relevant issues. Second, the parties differ as to whether an LLC should be treated as a corporation or a partnership for the purposes of the attorney-client privilege. 2
*1179 a. Jurisdiction and Applicable Law
Both parties agree that the federal law of privilege applies (# 428, p. 3; # 438, p. 6). However, Montgomery asserts that there is no applicable federal common law addressing the joint client exception to the attorney client privilege; therefore, the court should look to Nevada or California law (#428, p. 3). eTreppid contends that there exists federal law sufficient to resolve the issues presented (# 427).
This case is before the court on the basis of federal question jurisdiction. In cases involving a federal question and pendant state law claims, the federal law of privilege applies.
Agster v. Maricopa County,
b. Is a Limited Liability Company more analogous to a Corporation or a Partnership?
The second issue is whether eTreppid, as an LLC, should be treated as a corporation or a partnership for the purposes of the attorney client privilege. There is no case law, state or federal, that is directly on point; thus, this is an issue of first impression. eTreppid argues that federal courts have routinely treated LLCs as corporations; as such, the court should apply corporations law (# 427). Montgomery contends that, particularly on the facts of this case, an LLC is more like a partnership because co-members of an LLC owe each other fiduciary duties just as partners in a partnership owe each other fiduciary duties; therefore, the court should apply partnership law (# 428).
An LLC is a relatively new hybrid business entity that has the characteristics of both a corporation and a partnership, but is not characterized as either.
*1180
Lattanzio v. COMTA,
In support of his position, Montgomery cites
Wortham & Van Liew v. Superior Court,
The court is aware of only two cases, neither of which is factually on point, that have addressed how an LLC is treated with respect to the attorney-client privilege.
See Moore v. Commissioner of Internal Revenue,
T.C. Memo.2004-259,
In
In re Giampietro,
A number of states have also applied corporate law to LLCs. In
PacLink Communications v. Superior Court,
Montgomery argues that an LLC is more closely analogous to a partnership because, like partners in a partnership, members of an LLC owe each other fiduciary duties (#428, p. 4). Montgomery cites a New York District Court case for the proposition that “co-members of an LLC owe fiduciary duties to each other.”
Id.
(citing
At the Airport v. ISATA, LLC,
eTreppid contends that even if the court found that eTreppid operates like a partnership, under federal common law, partnerships and limited partnerships are treated as corporations for purposes of the attorney-client privilege. The court agrees.
See Hopper v. Frank,
In addition to case law, the court also conducted an extensive review of eTrep-pid’s 1998,1999 and 2001 Operating Agreements (“OA”) (# 429, Exhibits A-C). 5 The OA reveals that eTreppid elected to be classified as a partnership for federal tax purposes. Id., Exhibits A-B, sec. 10.6.1; Exhibit C, sec. 9.6.1. However, as to the management of eTreppid, the OA states that eTreppid is managed by, and all company powers are vested in, a management committee. Id., Exhibits A-C, sec. 6.1 and 6.2. The management committee has “the general powers and duties of the management typically vested in the board of directors and the office of the chief executive officer of a corporation.” Id. The LLC’s manager conducts the day-to-day operations at the direction and under the oversight of the management committee. Id., sec. 6.1. The manager has “the general powers and duties of management typically vested in the office of a chief operating officer of a corporation.” Id., sec. 6.3. In January 1999, the manager was also given the title of “President” of eTreppid. Id., Exhibits B-C, sec. 6.3. The OA contains specific limitations on the powers of the management committee and the manager, requiring member action for certain important duties. Id., Exhibits A-C, sec. 6.4.
In the original 1998 OA, Montgomery was designated as eTreppid’s manager. Id., Exhibit A sec. 6.1.1. However, from January 1999 on, Douglas Frye was designated as eTreppid’s manager, and Montgomery was designated as eTreppid’s chief technology officer. Id., Exhibit B, sec. 6.1.1 and 6.1.3. As of January 1999, the management committee consisted of Douglas Frye, Warren Trepp and Dennis Montgomery. Id., Exhibits B-C, sec. 6.1.4. From inception, Warren Trepp acted as the chair of the management committee. Id., Exhibits A-C, sec. 6.1.5.
The Operating Agreement indicates that eTreppid conducts business more like a corporation than a partnership. eTreppid’s organization is based on a corporate structure, with the Management Committee being compared to a corporate board of directors and a chief executive officer, and the manager being compared to a president and chief operating officer. The management committee acts by vote and makes policies and procedures, similar to a corporate board of directors. The committee then oversees eTreppid’s manager in carrying out those policies and procedures, just as a board of directors oversees corporate officers. Members, like corporate shareholders, have no personal liability. eTreppid also has a resident agent similar to a corporation, had to file articles of organization with the Nevada Secretary of State like a corporation files articles of incorporation, and has an Operating Agreement akin to corporate bylaws. The *1183 only comparison to a partnership is eTrep-pid’s tax treatment.
Further, while none of the cases the court reviewed is exactly on point, taken together with eTreppid’s Operating Agreement, they are instructive. Federal and state courts have consistently applied the law of corporations to LLCs, including for the purposes of piercing the corporate veil, the “alter ego” doctrine, determining standing, the “business judgment rule,” and derivative actions. Federal courts have also treated partnerships and limited partnerships as corporations for the purposes of determining the attorney-client privilege. Montgomery has not called to the court’s attention any cases applying partnership law to an LLC. Therefore, the court concludes that eTreppid should be treated as a corporation pursuant to federal common law.
2. Main Issue
a. Corporations and the Attorney-Client Privilege
It is well established that the attorney-client privilege attaches to both individuals and corporations.
Upjohn Co. v. United States,
As an inanimate entity, a corporation must act through its agents. A corporation cannot speak directly to its lawyers. Similarly, it cannot directly waive the privilege when disclosure is in its best interest. Each of these actions must necessarily be undertaken by individuals empowered to act on behalf of the corporation. ...
... [f]or solvent corporations, the power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors. The managers, of course, must exercise the privilege in a manner consistent with their fiduciary duty to act in the best interests of the corporation and not of themselves as individuals.
The parties also agree that when control of a corporation passes to new management, the authority to assert and waive the corporation’s attorney-client privilege passes as well. New managers ... may waive the attorney-client privilege with respect to communications made by former officers and directors. Displaced managers may not assert the privilege over the wishes of current managers, even as to statements that the former might have made to counsel concerning matters within the scope of their corporate duties.
Id.
at 348-49,
b. The Joint Client Exception
Joint clients are clients who are represented by the same attorney on a matter of common legal interest. Paul R. Rice,
Attorney-Client Privilege in the United States
§ 4:23 (2008). With respect to corporations, the joint client exception theory is that there is one collective corporate client which includes the corporation and each individual member of the board of directors rather than just the corporation alone.
Id.
The theory is that because directors are collectively responsible for the management of a corporation and a corporation is an inanimate entity that cannot act without humans, it is consistent with a director’s role and duties that the director be treated as a joint client when legal advice is rendered to the corporation
*1184
through one of its directors.
Milroy v. Hanson,
c. Divergent Positions
(1) The “Entity is the Client”
Some courts have held that the sole client is the corporate entity or organization. In
Milroy v. Hanson,
make a fundamental error by assuming that for a corporation there exists a “collective corporate ‘client’ ” which may take a position adverse to “management” for purposes of the attorney-client privilege. There is but one client, and that client is the corporation. Weintraub,471 U.S. at 348 ,105 S.Ct. at 1990 . This is true despite the fact that a corporation can only act through human beings. As the Supreme Court has stated, “for solvent corporations” the “authority to assert and waive the corporation’s attorney-client privilege” rests with “management.” Weintraub,471 U.S. at 348-49 ,105 S.Ct. at 1991 (emphasis added). A dissident director is by definition not “management” and, accordingly, has no authority to pierce or otherwise frustrate the attorney-client privilege when such action conflicts with the will of “management.”
Id. at 649. The Milroy court found that the fact that the plaintiff former director had not filed suit in his fiduciary role as a corporate director to benefit the company, but rather in his individual role to benefit himself, made it even less likely that the plaintiff was entitled to the company’s privileged documents. Id. at 650.
In
Dexia Credit Local v. Rogan,
Other courts have taken the same position.
Bushnell v. Vis Corp.,
(2) The Collective Corporate Client
A second line of cases has embraced the joint client exception for corporations. In
Gottlieb v. Wiles,
Other courts have come to the same conclusions as the
Gottlieb
court.
Kirby v. Kirby,
d. Which Position is Most Persuasive?
The Ninth Circuit has not spoken on this subject. Indeed, none of the Cir
*1186
cuit Courts of Appeals appear to have directly addressed the joint client exception under the facts of this case. However, in the context of a criminal case, the Ninth Circuit held that the defendant, a former director of a corporation, had hired the law firm to represent the corporate entity and not the director in his individual capacity as a director.
United States v. Plache,
The court acknowledges that Piache is a criminal, not a civil, case. Moreover, the Piache facts are the inverse of the present case: in Piache, the former director claimed he was a joint client in order to assert the attorney-client privilege on behalf of the corporation. In the present case, Montgomery does not seek to assert the attorney-client privilege on behalf of the corporation — instead, he seeks to prevent eTreppid from asserting the privilege against him. Despite the fact that Piache is the opposite of the present situation, the court finds the conclusion that the corporation is the client instructive. This court concludes that, given the opportunity, the Ninth Circuit would likely reject the premise that directors are joint clients with the corporation.
The court also finds
Moore v. Commissioner of Internal Revenue,
Additionally, while
Milroy
may not be the “majority” position, as eTreppid asserts, the court notes that many more courts have rejected the reasoning in
Gott-lieb
than in
Milroy.
The court further notes that in
Kirby,
the seminal case supporting the joint client exception line of cases, the court relied on absolutely no authority at all.
Kirby v. Kirby,
In
In re Tri-River Trading, LLC,
*1187
The court in
Tri-River
cited neither
Milroy
nor
Gottlieb.
Further, the
TriRiver
court relied on a First Circuit case in holding that individual member and the LLC were joint clients — yet, this court’s review of the First Circuit case reveals that it did not touch upon the issues pertinent to this case, namely, whether a former director could access attorney-client privileged documents from the corporation.
Id.
at 269 (citing
FDIC v. Ogden Corp.,
Based on all of these considerations, the court concludes that the Milroy line of cases are more persuasive. It makes sense that the corporation is the sole client. While the corporation can only communicate with its attorneys through human representatives, those representatives are communicating on behalf of the corporation, not on behalf of themselves as corporate managers or directors. Moreover, the court finds very convincing the language in Weintrcmb, which states that the privilege belongs to the corporation, can be asserted or waived only by management, and that this power transfers when control of the corporation is transferred to new management.
Also important to the court’s decision is the fact that Montgomery, like the former director in Milroy, is not suing on behalf of eTreppid or in his capacity as a former manager or officer. Rather, Montgomery is suing to benefit himself individually — a perfectly acceptable position, but not one which should entitle him to eTreppid’s attorney-client privileged communications. Like the “dissident” director in Milroy, Montgomery is now adverse to eTreppid and may not obtain privileged documents over the objection of current management. Moreover, even though Montgomery would have had access to such documents during his time at eTreppid, he still would have been duty-bound to keep such information confidential.
The court concludes that eTreppid is the sole client; therefore, eTreppid holds the attorney-client privilege. Only current management may assert or waive such privilege. Although he is still a member of eTreppid, Montgomery is not part of eTreppid’s current management (# s443-445). As such, Montgomery may not access eTreppid’s attorney-client privileged communications.
III. CONCLUSION
The court concludes as follows:
1. The federal law of privilege applies, although the court may look to state law if instructive;
*1188 2. Limited liability companies, and particularly eTreppid under the facts of this case, are most analogous to corporations; therefore, the law of corporations applies for purposes of the attorney-client privilege;
3. Montgomery is not a joint client with eTreppid. eTreppid is the sole client for purposes of the attorney-client privilege; and
4. eTreppid holds the attorney-client privilege and may assert or waive the privilege against Montgomery.
Based on the foregoing and for good cause appearing:
IT IS ORDERED that eTreppid may assert the attorney-client privilege in response to Montgomery’s discovery requests;
IT IS FURTHER ORDERED that eTreppid produce a privilege log that includes all documents and communications for which it intends to assert the attorney-client privilege. In doing so, eTreppid must carefully consider Douglas Frye’s role as eTreppid’s full-time manager and part-time in-house counsel;
IT IS FURTHER ORDERED that after conferring, should the parties disagree that certain documents and/or communications are attorney-client privileged, the parties may submit these documents and/or communications to the court, in camera, with arguments supporting their respective positions.
IT IS SO ORDERED.
Notes
. This case has a very involved history, much of which is irrelevant to the current issues before the court. Therefore, the court does not here list all the claims and/or parties involved in this action and sets out only the facts necessary to the immediate issues.
. A third preliminary issue involves how to treat each specific communication, particularly those related to Douglas Frye, who, in addition to being an eTreppid member, is eTreppid’s manager and in-house counsel. Montgomery claims that before the court may rule on the issue of privilege, eTreppid must meet its burden of proving that each particular document/communication is protected by the attorney-client privilege. Montgomery argues that because eTreppid failed to produce a privilege log setting out which communications it claims are privileged, eTreppid has failed to meet its burden; therefore, eTreppid has waived its privilege.
The court is aware that eTreppid has not produced a privilege log. However, the current briefs are not before the court upon a motion to compel discovery. Instead, the court ordered simultaneous briefing on this narrow issue: whether’ eTreppid may assert the attorney-client privilege against Montgomery — who, while still technically a member of eTreppid, has not been active in its management since he adversely parted ways with eTreppid over two years ago — to prevent him from obtaining certain communications during discovery. To the extent that the parties address issues pertaining to particular documents and attorneys, the court finds these arguments premature.
The court concludes below that eTreppid may assert the attorney-client privilege against Montgomery. After eTreppid produces a privilege log and the parties confer, should the parties still disagree as to which communication are privileged, they may bring the particular communications to the court's attention for
in camera
review.
See Gottlieb
v.
Wiles,
. As set out in further detail below, the court undertook an in-depth review of the case law cited by each of the parties, and further conducted its own independent research. While the court acknowledges that neither the Supreme Court nor any of the Circuit Courts of Appeals have specifically addressed the joint client exception to the attorney-client privilege, especially with respect to the particular circumstances presented in this case, a number of federal district courts have addressed very similar issues. The court finds that for the most part, it has adequate federal law at its disposal to make determinations in this case. However, as noted, the court's determinations may be guided by referencing state law as well.
. The court will discuss both of these cases in further detail below.
. eTreppid’s original Operating Agreement is dated September 28, 1998 (#429, Exhibit A). The Operating Agreement was amended and restated on January 1, 1999 (# 429, Exhibit B), and again on November 1, 2001 (# 429, Exhibit C). The court here sets out only provisions relevant to the issues at hand.
. The court notes that both parties cited numerous cases to support their respective positions. In this order, the court does not list all of these cases but assures the parties that it has reviewed each of these holdings.
. Montgomery also makes the argument that Nevada law recognizes the joint client exception to the attorney-client privilege. See NRS 49.115(5) ("There is no privilege ... as to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.”). Before this clause applies, however, one must qualify as a “client” in the first instance, which, obviously, is the primaiy issue involved. Nevada’s definition of "client” is “a person, including a public officer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.” NRS 49.045. Although it appears that either an individual or an entity such as an LLC may be a client, this definition does not assist the court in determining whether Montgomery is a "client” in conjunction with eTreppid. The court's research reveals no Nevada case law on this topic. Montgomery requests that the court turn to Wortham because it discusses California’s joint client exception which is similar to Nevada’s. However, as noted, WoHham involves a partnership rather than a corporation, and the court does not view Wortham as applicable.