In October 2004 defendant moved for sanctions against the plaintiff based on the contention that plaintiff's principals Steven Mass and Keith Chutjian had systematically deleted relevant e-mails over an extended period of time. As an interim measure the court directed that Messrs. Maass and Chutjian consent to the release of such of their e-mails as remained in the possession of Yahoo or Microsoft, that these e-mails be delivered to plaintiff's counsel to review for privilege, and that the balance of the e-mails be produced to defendant. (Memorandum & Order dated Nov. 18, 2004). That has now been done, and defendant has moved to compel production of some of the e-mails withheld as privileged.
Defendant's first contention is that because plaintiff did not serve its privilege log with respect to the Microsoft e-mails within the time specified by the court's scheduling order, the privilege claims pertinent to those documents should be deemed waived. Although plaintiff had not provided the log by the time that defendant served its initial motion papers on December 17, 2004-one day after the due date for the logs-it did provide such a log on December 21, during the course of briefing the current motion. Given the expedited nature of the process, the apparently inadvertent reason for the delay (see
Certification of Lauren C. Bisordi, Esq., at 10-12), the absence of any prejudice to defendant and plaintiff's timeliness in providing all of the documents deemed not privileged as well as the Yahoo privilege log, we see no basis for imposing the harsh remedy of an across-the-board waiver. If defendant, having received the log more than two weeks ago, has any quarrel with claims on that log, it may pursue a motion to compel, which is to be filed by no later than January 14, 2005.
As for the documents concerning which there is a dispute, we address each in turn. In assessing plaintiff's privilege claims, we bear in mind that the party invoking the privilege bears the burden of proving each element of the factual basis for that privilege claim and must do so by competent evidence. See, e.g.,
United States v. Adlman, 68 F.3d 1495, 1500 (2d Cir.1995) (citing von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied,
481 U.S. 1015 (1987)).
Five listed documents are described as including Susan Dauber, Esq. as a recipient of a copy. Since Ms. Dauber was counsel to Lava Trading Inc., plaintiff has conceded that the privilege cannot be invoked for those e-mails. (Pltff's Memorandum at 6). According to plaintiff, it has now produced three of the e-mails in their entirety and one in redacted form. (Id.
). Since, however, it offers no evidence (or indeed any information) explaining the basis for the redaction of that one document, it has failed to meet its burden and must produce the fourth document in unedited form. The fifth e-mail was apparently incorrectly described in the log, and, as characterized in a corrected log, is no longer in dispute. (See id.
*2 A number of e-mails were listed as written by or addressed to or copied to a Ms. Sook Seo. According to defendant, Ms. Seo is not employed by Streamline, and hence the privilege cannot apply to these communications. Plaintiff, on the other hand, contends that Ms. Seo was acting as an agent for Streamline.
The only evidence proffered by Streamline is a brief snippet of deposition testimony by Ms. Seo, in which she reports that she attempted to have her salary paid by “Assent”-an entity nowhere identified in the record-and that because “They didn't want to do the bookkeeping”, she received “some” of her money from Mr. Maass “via Streamline Capital.” (Bisordi Certif., Ex. C-Seo Dep. at 78-81). This somewhat cryptic testimony does not demonstrate that Ms. Seo was acting as an agent for Streamline in authoring or receiving the e-mails in question. Indeed, it seems, if anything, to undercut the contention that Ms. Seo was acting as an agent for Streamline.
The gist of the testimony seems to be that Ms. Seo was working for Assent and expected to be paid by it. The fact that some of her salary was instead paid by Mr. Maass through Streamline appears to have been merely an accommodation to Assent, to save it the trouble of “do[ing] the bookkeeping”. (Seo Dep. at 80).
In any event, this showing misses the point. The key question is whether Ms. Seo was acting on behalf of Streamline in authoring or receiving the e-mails in question. On this key question, plaintiff has failed to offer any evidence whatsoever. In short, it has failed to meet its burden of proof. Accordingly, these e-mails must be produced.
The remaining e-mails in question were authored by a Ms. Waldina Dominguez. She is not identified in the privilege log or the evidentiary submission of the plaintiff, although plaintiff states in its memorandum of law that she is “the legal assistant to Stewart Levy, Esq.” (Pltff's Memo at 7). Defendant's current argument is that a statement in a memorandum of law is not competent evidence, although defendant does state that it “has no reason to doubt” plaintiff's assertion about Ms. Dominguez. (Deft's Reply Memo at 5).
Strictly speaking, defendant is correct, although there is apparently no dispute as to the status of Ms. Dominguez. To avoid exalting form over substance, we decline to order the production of these e-mails at this point and instead direct plaintiff to supply to defendant by no later than January 14, 2005 a declaration or affidavit attesting to Ms. Dominguez's role. If, based on that submission, defendant wishes to pursue these documents, it may do so by written application by no later than January 18, 2005.