In order to waive the attorney-client privilege by disclosure, it is axiomatic that there must be a privileged communication. The Debtor contends that the Disclosed E–Mail is not a privileged document and as such, its production could not have waived any attorney-client privilege. In this circuit, our Court of Appeals relies on the often quoted test of attorney-client privilege enunciated in United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358–59 (D.Mass.1950):
In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir.1979).
Applying that test to the Disclosed E–Mail, I concur with the Debtor that it does not appear to have the indicia of a privileged communication. First, while there appears to be no dispute that the Debtor and SFIA were clients of Mr. Cabrera and that he is a member of the bar of a court,
it has not been established that Mr. Cabrera is acting as an attorney in that communication, a requirement of subsection (b) of the second element. Notably the lease contract that he indicates he reviewed was sent to him by Trento in Spanish. His “comments” either recite terms of the Lease (e.g.,
“a lease term of three years and three months for building # 4, starting on June 1, 2001, and ending on August 31, 2004;” “both terms (i.e.,
for both buildings) are subject to renewal of 3 years”) or observations regarding facts of which the recipient was aware (e.g.,
“As you know, the current lease ends on the last day of August of 2001; the inclusion of that certain building (“building # 4”) which was intended to have been included in the current lease, but never was as it did not become available on time, remember?). The rest of the comments are similar, i.e.,
descriptions of clauses in the Lease Modification. It does not appear that Mr. Cabrera is expressing a legal opinion on the Lease Modification, but rather is simply relaying the salient terms of the Lease Modification that was sent to him by Trento. Given that the Lease Modification is written in Spanish, Exhibit 3, Mr. Cabrera may simply have been acting as a translator. Indeed he concludes by querying the client as to what its instructions and requests are, foreclosing the inference that he is already acting on an implicit request for advice.