In re SPRING FORD INDUSTRIES, INC., a.k.a. Spring Ford Knitting Company, Inc., Debtor No. 02–15015DWS United States Bankruptcy Court, E.D. Pennsylvania May 20, 2004 Counsel Camille Spinale, Frank S. Marinas, Paul Brinton Maschmeyer, Ciardi Maschmeyer & Karalis, PC, Philadelphia, PA, J. Larry Stine, Atlanta, GA, for Debtor. Dave P. Adams, USDOJ, Philadelphia, PA, for Trustee. Sigmund, Diane W., United States Bankruptcy Judge MEMORANDUM OPINION *1 Before the Court is the Debtor's Motion in Limine to Preclude Claimant from Introducing Evidence of or Reference to Certain Privileged Documents ... and Request for Disqualification of Counsel (the “Motion”).[1] Specifically before the Court, at this time, is the issue of whether the Debtor has waived any claim of attorney-client privilege as to certain allegedly privileged documents by virtue of a previously disclosed document. For the reasons stated below, I find that the Debtor has not waived the privilege on these grounds. BACKGROUND The Motion arises out of Proof of Claim No. 178, amended by Proof of Claim No. 191 (the “Claim”), asserted by claimant Immobiliaria Trento S.A. de C.V. (“Trento”). The Claim is for rent on commercial properties in Mexico leased by the Debtor's Mexican affiliate, Springford Industries de America (“SFIA”). The Debtor has filed an Objection to the Claim (the “Objection”) averring that a modification which extended the lease governing the commercial properties and is essential to Trento's claim (the “Lease Modification”) is null and void because it was signed only by Thomas Bevington, SFIA's general manager. Debtor's position is that an SFIA shareholders' resolution, recorded in the Public Registry of Commerce in Obregon, Mexico, made it clear to Trento that the additional signature of either the Debtor's Chief Executive Officer Jeffrey T. Bevington or Chief Financial Officer Mark E. Smith was required to bind SFIA to the Lease Modification. In the course of conducting discovery on the Claim and Objection, the Debtor produced a copy of an e-mail from Joaquin Cabrera, Esquire, counsel for SFIA, to Mark Smith (the “Disclosed E–Mail”). Exhibit 3A to Trento's Response to Debtor's Motion in Limine (“Trento's Response”). The Disclosed E–Mail states in relevant part: I have reviewed the draft amendment-to-lease contract sent by Trento to me, and my comments are as follows: 1. As you know, the current lease ends on the last day of August 2001; 2. the amendment provides for: 2.1 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? 2.2 the inclusion of building # 4 as a leased building to SFIA as of June 1, 2001 with the obligation of SFIA to pay the rent as of said date (did SFIA take possession of # 4 on June 1, 2001?); 2.3 a lease term of three years for building # 6 (the one that was indeed lease [sic ] from the beginning), starting on September 1, 2001, and ending on August 31, 2004; 2.4 a lease term of three years and three months for building # 4, starting on June 1, 2001, and ending on August 31, 2004; 2.4 [sic ] both terms (i.e., for both buildings) are subject to one renewal of 3 years 2.5. the rent remains unchanged. 3. the above are the only changes to the original lease, whose unchanged terms would remain in effect during this extension. *2 Please let me know what your instructions and/or request are. The amendment is a 4–page document, drafted in Spanish. Id. There is no historical context to the Disclosed E–Mail, nor was any evidence presented as to the circumstances under which Mr. Cabrera sent it. The Disclosed E–Mail takes on importance beyond its substance because, at the pretrial hearing on the Objection, Trento's counsel revealed that it was in possession of other e-mails (the “Subsequent E–Mails”), generated by the Debtor's computer system but not produced by the Debtor in this contested matter, and is contending that the voluntary disclosure of Exhibit 3A affected a waiver of the attorney-client privilege with respect to the Subsequent E–Mails. Apparently, the Subsequent E-mails were provided to Trento by a terminated employee of SFIA, Jo Ann Gallardo. The circumstance by which Ms. Gallardo came into possession of these e-mails is unexplained, but the Debtor asserts that neither it nor SFIA authorized Ms. Gallardo to access or disclose the Subsequent E–Mails to Trento. Affidavit of Jeffrey T. Bevington (“Bevington Aff.”) (Doc. No. 1082).[2] At the hearing, Trento expressed the possibility that the Subsequent E–Mails might be the subject of a claim of attorney-client privilege by the Debtor. The Court therefore instructed Trento to produce the Subsequent E–Mails to the Debtor so that the Debtor could review them and make any motion that it felt warranted. After reviewing the Subsequent E–Mails, the Debtor now asserts that thirty-three of the forty-six transmissions are attorney-client communications between Mr. Cabrera and the Debtor's officers, Jeffrey and Thomas Bevington that are protected from disclosure in this contested matter. Trento, however, asserts that the Debtor has waived any attorney-client privilege by virtue of having produced the Disclosed E–Mail. At the hearing, the parties agreed that the Court should address the waiver issue as a preliminary matter.[3] DISCUSSION It is well established that the attorney-client privilege constricts the truth-finding process and is therefore to be construed narrowly. Westinghouse Electric Corp. v. Republic of the Phillippines, 951 F.2d 1414, 1423 (3d Cir.1991). As such, voluntary disclosure of a privileged communication to a third party waives the privilege as to that communication as well as the privilege which would otherwise protect other communications on the same subject. Katz v. AT & T Corp., 191 F.R.D. 433, 439 (E.D.Pa.2000).[4] Thus, my inquiry here is as follows: (A) is the Disclosed E–Mail a privileged attorney-client communication; (B) if so, would its voluntary disclosure affect a waiver of privilege claimed by the Debtor as to the Subsequent E–Mails? 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): *3 The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (I) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir.1979).[5] 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,[6] 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. The fact that an attorney is providing information to his client does not lead to the inexorable conclusion that the information is privileged. “When he acts as an advisor, the attorney must give predominantly legal advice to retain his client's privilege of non-disclosure, ...” American Cyanamid Co. v. Hercules Powder Co., 211 F.Supp. 85, 88–89 (D.Del.1962) (attorney's analysis of patents, the claims therein and the products manufactured thereunder resulting from public information not protected by attorney-client privilege). There is no evidence that the document was created in the course of rendering legal advice or for the purpose of facilitating the provision of legal advice.[7] From the face of the document, I find no discussion of the legal implications of any of the document terms outlined by Cabrera. At best, the Disclosed E–Mail is educational in nature. See Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 674 (D.Kan.2001). See also United States v. Wilson, 789 F.2d 509, 512 (1st Cir.1986) (where lawyer acknowledged his role as an informant, i.e., messenger, he had not acted as an attorney in connection with the document); Dawson v. New York Life Insurance Co., 901 F.Supp. 1362, 1367 (N.D.Ill.1995) (applying Illinois law) (as attorneys were acting more as “couriers of factual information” than “legal advisers,” communications were not subject to the privilege). In short, a fair assessment of this document negates the conclusion that Cabrera was providing legal advice. Concluding that the Disclosed E–Mail is not a document protected by the attorney-client privilege, it follows that its disclosure by the Debtor does not waive the attorney-client privilege as to other documents. *4 However, assuming arguendo that the Disclosed E–Mail was in fact a privileged document,[8] it does not necessarily follow that any privilege that attaches to the Subsequent E–Mails would have been waived. The Debtor correctly notes that waiver limits disclosure to the same subject matter. See, e.g., Katz, 191 F.R.D. at 439. The authorities relied upon by Trento are in agreement. See, e.g., In re United Mine Workers of America Employee Benefits Plan Litigation, 159 F.R.D. 307, 309 (D.D.C.1994) (subject matter waiver extends to “all other communications relating to the same subject matter”); B.F. Goodrich Co. v. Howard Indus. (In re Howard Indus.), 67 B.R. 291, 293 (Bankr.D.N.J.1986) (voluntary disclosure of one aspect of the communication waived privilege as to all other communications on the same subject). The question therefore becomes, how broadly is “subject matter” waiver construed? Trento asserts that the privilege is waived “with respect to all issues related to the Lease Agreement and Lease Modification ...” Trento's Response ¶ 71 at 22. However, the cases it cites do not support such a broad application of the subject matter rule.[9] In Murray v. Gemplus International, S.A., 217 F.R.D. 362, 367 (E.D.Pa.2003), Judge Berle Schiller noted that subject matter waiver is based on notions of fairness and should be required when a party is essentially utilizing the privilege offensively as a weapon, i.e., selectively disclosing only privileged communications which are helpful to its case. Gemplus had selectively disclosed only the attorney-client communications pertaining to its intellectual property right negotiations with plaintiff's employer that put its motivations in the most positive light. Given that the case against Gemplus was one for misappropriation of property rights, Judge Schiller held that fairness required Gemplus to disclose all communications on the subject of the negotiations. Id. Thus in determining the scope of subject matter waiver, the touchstone is fairness. As noted above, the Disclosed E–Mail is only a summation of the terms of the Lease Modification. The terms of the Lease Modification are not at issue in this contested matter. As such, the Debtor is clearly not using the Disclosed E–Mail offensively to portray itself in a positive light with regard to the Objection. Nor is Trento contending that it requires the use of the Subsequent E–Mails to fully explain any issues introduced by the Disclosed E–Mail. Rather it wishes to use these documents for impeachment purposes. Given that the Disclosed E–Mail is not related to the issue in dispute, i.e., the authority of Thomas Bevington to bind SFIA to the Lease Modification, if the Disclosed E–Mail was a privileged document I would not construe the subject matter of any resulting waiver broadly as to all issues pertaining to the Lease and Lease Modification so as to draw in all communications on this subject. Rather, I would limit the scope of the waiver to the specific subject matter of the Disclosed E–Mail, i.e., communications which pertain to the terms of the Lease Modification. *5 Because I have not examined the Subsequent E–Mails at this juncture, it remains to be seen whether they have the indicia of privilege but if they do, that privilege has not been waived by the Disclosed E–Mail because it is not a privileged document. However even if it were privileged, its subject matter would limit the scope of any waiver and would not expose “all documents relating to the Lease Agreement and Lease Modification” as Trento contends. CONCLUSION Given my finding herein, there are still numerous privilege issues which now have to be addressed, including: (1) the applicability of the privilege to the Subsequent E–Mails, including whether electronic internet communication is protected generally and specifically here; (2) the applicability of the crime-fraud exception to the invocation of the privilege;[10] (3) the waiver of the privilege by Ms. Gallardo's disclosure to Trento of the Subsequent E–Mails; and (4) whether the circumstances of Trento's receipt of the Subsequent E–Mails has tainted other evidence. Again in the interests of judicial economy, I will next determine whether the privilege applies to the Subsequent E–Mails. To facilitate that determination, the Debtor shall prepare a privilege log identifying the Subsequent E–Mails and for each, the basis of the privilege claimed and submit same to Chambers with a copy of the document at issue. If I conclude that any of the Subsequent E–Mails are privileged, I will schedule an evidentiary hearing to allow the parties to develop a record as they see fit on the remaining issues. An Order consistent with this Memorandum Opinion shall be entered. ORDER AND NOW, this 20th day of May 2004, upon consideration of the Debtor's Motion in Limine to Preclude Claimant from Introducing Evidence of or Reference to Certain Privileged Documents ... and Request for Disqualification of Counsel (the “Motion”), after notice and hearing, and the Court finding for the reasons stated in the accompanying Memorandum Opinion that Debtor has not waived the attorney-client privilege by reason of its voluntary disclosure of Exhibit 3A; It is hereby ORDERED that: 1. Debtor shall prepare a privilege log identifying those of the Subsequent E–Mails (as defined in the Memorandum Opinion) for which it claims an evidentiary privilege and stating for each, the basis of the privilege claimed. On or before June 4, 2004, the log shall be submitted to Chambers with a copy of the document at issue. A copy of the log shall also be provided to Trento's counsel. 2. If after review of the documents, I conclude that any document is privileged, I will schedule an evidentiary hearing to address the other remaining issues that could preclude the availability of protection from Trento's use of such otherwise privileged document in this contested matter. Footnotes [1] The Motion also asks for exclusion of an expert report and disqualification of Trento's counsel. At the hearing on the Motion, the Debtor withdrew the Motion as to the expert report. The parties agreed to defer the disqualification motion pending resolution of the waiver issue. [2] The Debtor believes that Ms. Gallardo must have stolen a password and accessed the Subsequent E–Mails from an off-site computer because she had no authorized access to SFIA's computers and had been terminated and denied a grievance request. See Bevington Aff. ¶¶ 15–16, 23. There is no testimony or affidavit by Ms. Gallardo in this record. Rather Trento proffers the statements of its Managing Director, Marcel E. Alvarez, purportedly conveying what Ms. Gallardo told him. Affidavit of Marcel E. Alvarez, Exhibit 24 to Trento's Response; Supplemental Affidavit of Marcel E. Alvarez. As I do not address the parties' divergent views as to the consequence of disclosure of the Subsequent E–Mails at this juncture, I make no further comment on this record. [3] It was the belief of the parties that I could determine the waiver issue without actually examining, at least for now, the Subsequent E–Mails. A finding that the Debtor's disclosure of Exhibit 3A has waived any attorney-client privilege attendant to the Subsequent E–Mails would obviate deciding whether the Subsequent E–Mails in and of themselves are privileged and perhaps whether the manner in which Trento obtained the documents warrants any sanction. As I have concluded that there has been no waiver arising from the Disclosed E–Mail, the outstanding issues are ripe for resolution. See infra conclusion. [4] Debtor has not asserted that its production of the Disclosed E–Mail was inadvertent. Therefore, I do not address those cases dealing with inadvertent disclosure. See, e.g., United States v. Keyston Sanitation Co., 885 F.Supp. 672, 676 (M.D.Pa.1994) (discussing five factor test often used to determine whether a document has lost its privilege through inadvertent disclosure). [5] The Debtor expressly and Trento implicitly (by its citation to federal cases) assume that the federal common law of attorney-client privilege applies to this contested matter. However, Federal. Rule of Evidence 501 informs that “in civil actions or proceedings, with respect to an element of a claim or defense at to which State law supplies the rule of decision, the privilege of a witness, person ... shall be determined in accordance with State law.” At issue in this contested matter is the enforceability of a lease of property located in Mexico by a Mexican affiliate of the Debtor from a Mexican company. One might think under these facts that Mexican law would supply the governing rule of decision rather than any state or federal common law. Under Fed. R. Bankr.P. 9017, which incorporates, inter alia, Fed.R.Civ.P. 44.1., the parties generally carry both the burden of raising the issue that foreign law may apply in an action, and the burden of adequately proving foreign law to enable the court to apply it in a particular case. See Whirlpool Fin. Corp. v. Sevaux, 96 F.3d 216, 221 (7th Cir.1996) (holding that party waived conflicts of law issue because it failed to fulfill its obligation under Rule 44.1 “to provide the district court with ‘reasonable notice’ of his intention to raise an issue of foreign law.”); Restatement (Second) Conflict of Laws § 136 cmt. f (1971) (“[T]he party who claims that the foreign law is different from the local law of the forum has the burden of establishing the content of the foreign law.”). Neither party has raised the applicability of foreign law in this contested matter. Where parties fail to satisfy either burden the court will ordinarily apply the forum's law. See Bel–Ray Co., Inc. v. Chemrite (Pty.) Ltd., 181 F.3d 435, 440–41 (3d Cir.1999); Walter v. Netherlands Mead N.V., 514 F.2d 1130, 1137 n. 14 (3d Cir.1975). See also Banco de Credito Indus. v. Tesoreria General, 990 F.2d 827, 837 (5th Cir.1993) (“When the parties have failed to conclusively establish foreign law, a court is entitled to look to its own forum's law in order to fill any gaps.”); Carey v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir.1988) (applying forum's law where parties fail to raise issue of foreign law's applicability); Commercial Ins. Co. of Newark, N.J. v. Pacific–Peru Constr. Corp., 558 F.2d 948, 952 (9th Cir.1977) (applying forum law where parties failed to raise issue of foreign law's applicability); Restatement (Second) Conflict of Laws § 136 cmt. h (1971) (“[W]here either no information, or else insufficient information, has been obtained about the foreign law, the forum will usually decide the case in accordance with its own law, except when to do so would not meet the needs of the case or would not be in the interests of justice.” In this case because the parties have not claimed Mexican law applies but rather look to federal common law, I will likewise refer to the federal common law of attorney-client privilege. Utilizing the law selected by the parties could not contravene the interests of justice or not meet the needs of the case. Carey, 864 F.2d at 206 (trial court justified in deferring to the litigants' desire to have United States law govern the litigation of their dispute even though injury occurred in Mexican territorial waters on a vessel owned by a foreign corporation). [6] Both parties are clearly operating on this assumption, although no evidence was presented. [7] In so noting, I recognize that the positions taken by the parties are reversed with the proponent of the document arguing that it is not privileged. [8] The only remotely legal advice is Cabrera's comment that the unchanged terms of the original lease would remain in effect. However, as the privilege only protects documents that give predominantly legal advice, this statement would not be sufficient to cloak the document with the attorney-client privilege. [9] Indeed United Mine Workers,supra, suggests just the opposite interpretation. There the district court upheld the decision of a magistrate judge to limit further disclosure to the “specific” subject matter of the disclosed document rather than the broad categories of documents espoused by the party opposing the privilege: documents relating to “evergeen clause,” “withdrawal liability,” and “nonconforming agreements.” Id. at 309. [10] At the hearing Trento argued that the Court could examine the crime-fraud exception based upon the proffered affidavit of Marcel E. Alvarez. There is little to be served in doing so at this juncture. To invoke the crime-fraud exception, Trento must make a prima facie showing that (1) Debtor was committing or intended to commit a fraud or crime and (2) that the attorney-client communications were in furtherance of that alleged crime or fraud. In re Grand Jury Subpoena, 223 F.3d 213 (3d Cir.2000). I cannot make a determination as to the second element without actually examining the Subsequent E–Mails. Indeed, it is difficult to see any connection at this point between the alleged fraud, the fraudulent conveyance of an asset of SFIA to the Debtor, and the Subsequent E–Mails, which are presumably related to the Lease Modification.