Kevin THOMPSON, Plaintiff, v. BUHRS AMERICAS, INC., Defendant Civil No. 07-2746 (JNE/JJG) United States District Court, D. Minnesota Signed June 23, 2009 Counsel Stacey R. Everson, Stephen W. Cooper, The Cooper Law Firm Chartered, Mpls, MN, for Plaintiff. Norah E. Olson Bluvshtein, Richard A. Ross, Sten-Erik Hoidal, Krista A. P. Hatcher, Fredrikson & Byron, PA, Mpls, MN, for Defendant Ericksen, Joan N., United States District Judge ORDER *1 This case is before the Court on the objections of Buhrs Americas, Inc. (Buhrs), to an Order issued by the Honorable Jeanne J. Graham, United States Magistrate Judge, on May 18, 2009. For the reasons set forth below, the Court sustains Buhrs’s objections. Background Kevin Thompson, Buhrs’s former president, asserts claims of age discrimination in employment and reprisal against Buhrs. Buhrs asserts counterclaims for breach of fiduciary duty and breach of the duty of loyalty. On August 28, 2008, Thompson moved to compel the production of documents that Buhrs claimed were protected by the attorney-client privilege. A hearing on Thompson’s motion took place before the magistrate judge on November 4, 2008. At the hearing, the parties agreed to submit the documents at issue to a special master for an in camera review. The Court appointed a special master on January 21, 2009. Buhrs presented two privilege logs for the special master’s review: the “Kappa Log,” which consisted of e-mail communications relating to a dispute between Buhrs and another company, and the “Thompson Log,” which consisted of communications related to Thompson’s lawsuit. Within each log, the special master assigned numbers to each document. Buhrs also produced twenty-one documents that were not listed in the Kappa Log or the Thompson Log for in camera review. The special master listed those documents on a “Miscellaneous Log” and marked them “A” through “U.” On March 19, 2009, the special master issued a report recommending the production of certain documents that she determined were non-privileged under the federal common-law test for attorney-client privilege applicable to corporations and their employees set forth in In re Bieter Co., 16 F.3d 929, 935-36 (8th Cir. 1994). The May 18 Order modified the special master’s report by identifying a number of documents that Buhrs was not required to disclose. The May 18 Order also rejected Buhrs’s arguments with respect to certain documents in the Thompson Log and the Miscellaneous Log. Finally, the May 18 Order observed that the special master was faced with a “disorganized and largely irrelevant record.” Such a submission doubtless made the job of the special master and magistrate judge unnecessarily time-consuming and difficult. Buhrs now objects to the May 18 Order insofar as it orders Buhrs to disclose documents 346, 347, and 348 in the Thompson Log and documents O and P in the Miscellaneous Log. Standard of Review A court must modify or set aside the portions of a magistrate judge’s order that are “clearly erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A) (2006); Fed. R. Civ. P. 72(a); D. Minn. LR 72.2(a). A finding is “clearly erroneous” when the reviewing court is left with the definite and firm conviction that a mistake has been committed. Chakales v. Comm’r, 79 F.3d 726, 728 (8th Cir. 1996). “A decision is ‘contrary to law’ when it ‘fails to apply or misapplies relevant statutes, case law or rules of procedure.’ ” Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins. Co., 592 F. Supp. 2d 1087, 1093 (N.D. Iowa 2008)). Analysis *2 Generally, a client has a privilege to refrain from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between himself and his lawyer. See In re Beiter, 16 F.3d at 935. The Court first considers documents O and P in the Miscellaneous Log. Document O is a string of three e-mails, the third of which is an e-mail sent at 9:25 a.m. on January 15, 2007, from Ad Linssen to Robert Boisvert. Linssen is the chief financial officer of Buhrs’s parent company, and Boisvert is outside counsel for Buhrs. Document P is an e-mail string consisting of document O and a fourth e-mail responding to the 9:25 a.m. e-mail. The magistrate judge ordered documents O and P produced on the ground that the 9:25 a.m. e-mail did not solicit or disseminate legal advice. Buhrs contends that documents O and P are privileged because the last paragraph of the 9:25 a.m. e-mail discusses legal advice. Buhrs asks the Court to permit Buhrs to redact that paragraph. The Court’s review of the 9:25 a.m. e-mail indicates that the last paragraph relates to legal advice given by counsel to Buhrs. Accordingly, this paragraph is privileged. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977) (“[W]here legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relevant to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal advisor except the protection be waived.”). Buhrs shall disclose documents O and P, but may redact the last paragraph of the 9:25 e-mail from both documents. The Court turns to documents 346, 347, and 348 in the Thompson Log. Document 346 is an e-mail sent by counsel for Buhrs to Linssen and Michael Aumann, the president of Buhrs. The e-mail relates to a draft letter prepared by counsel. Document 347 is an e-mail sent by Aumann responding to and including document 346. Document 348 is an e-mail sent by Linssen responding to and including document 347. In addition to sending document 348 to Aumann and Ross, Linssen copied Sandra Kraak and Marlies Stortenbeker on his response. Stortenbeker is Linssen’s confidential secretary. Kraak is the confidential secretary to Adrian van der Klooster, the president of Buhrs’s parent company. The magistrate judge concluded that Buhrs had waived its privilege by disseminating the e-mails to Kraak and Stortenbeker because Buhrs had not described their duties or why they had any need to know about the e-mails. Buhrs contends that the receipt of document 348 by Kraak and Stortenbeker did not destroy the privileged nature of documents 346, 347, and 348 because Kraak and Stortenbeker, as confidential secretaries, “needed to stay informed about matters relevant to the company in order to assist van der Klooster and Linssen.” An affidavit submitted by Linssen states that Kraak and Stortenbeker were responsible for filing and that he and van der Klooster copied Kraak and Stortenbeker on confidential e-mail correspondence to facilitate filing. Buhrs contends that the provision of confidential e-mails to Kraak and Stortenbeker for filing no more destroys privilege than an attorney’s provision of a confidential e-mail to a confidential secretary for filing. *3 Generally, the presence of a third party during a communication destroys the attorney-client privilege. See United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 503.15[3] (Joseph M. McLaughlin ed., 2d ed. 2009) (“Ordinarily, the presence of a third person indicates a lack of intent that the communication be confidential and, thus, the privilege does not apply.”). Confidentiality is not destroyed, however, “if the third person is needed to support or facilitate communications between the client and the attorney.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 503.15[3]; SeeWestinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir. 1991) (“The traditional waiver doctrine provides that disclosure to third parties waives the attorney-client privilege unless the disclosure serves the purpose of enabling clients to obtain informed legal advice.”). “Secretaries, clerks, and interpreters clearly fall within this category,” and “the privilege is sufficiently broad to cover not only consultations at which a necessary third person is present but also disclosure by other means such as copies of letters.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 503.15[3]; See Bowen v. Parking Auth. of the City of Camden, Civ. No. 00-5765, 2002 WL 1754493, at *5 (D.N.J. July 30, 2002) (“One who merely files or transmits the confidential communication for the client is not the type of third-party who lies beyond the privileged zone, since this sort of record keeping merely facilitates the purpose of obtaining informed legal advice.”). Requiring corporate executives to personally file each confidential communication to preserve the attorney-client privilege would impose an unnecessary burden on clients. See 8 John Henry Wigmore, Evidence § 2317 (McNaughton rev. 1961) (“The client’s freedom of communication requires a liberty of employing other means than his own personal action. The privilege of confidence would be a vain one unless its exercise could be thus delegated.”). The Court discerns no meaningful distinction between providing a copy of a letter to a confidential secretary for filing and carbon-copying a confidential secretary on a confidential e-mail to facilitate filing. The trend within the federal courts is to treat “electronically stored information” in the same manner as information recorded on paper for purposes of discovery and attorney-client privilege. Cf. Fed. R. Civ. P. 34 advisory committee’s note on 2006 Amendments (“Rule 34(a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents.”); Jacob P. Hart & Anna Marie Plum, ALI-ABA Course of Study, Litigating the Production of Electronic Media: “Disk-covery” Issues for the 21st Century, SF13 A.L.I.-A.B.A. 675, 678 (2000) (“It is, by now, black letter law that electronic documents are subject to the same rules of discovery and production as paper documents.”). In short, sending copies of privileged electronic communications to a confidential assistant to facilitate filing does not waive the attorney-client privilege any more than providing a copy of a privileged letter to a confidential assistant for filing waives the privilege. See, e.g., Pritchard v. County of Erie, Civ. No. 04-534, 2007 WL 1703832, at *5 (W.D.N.Y. June 12, 2007) (holding that sending a copy of a privileged e-mail communication to the confidential administrative assistant to the client did not waive privilege because “[i]t is well recognized that this type of ‘disclosure’ does not constitute waiver of the privilege”); In re Adelphia Commc’ns Corp., Civ. Nos. 02-41729, 04-2192, 2005 WL 425498, at *8 (S.D.N.Y. Feb. 16, 2005) (receipt of privileged e-mail by secretary for purpose of passing it to intended recipient did not waive privilege). Buhrs need not disclose documents 346, 347, and 348. III. CONCLUSION Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT: 1. Buhrs’s Objections to the Magistrate Judge’s Order [Docket No. 148] are SUSTAINED. 2. Buhrs shall disclose documents O and P in the Miscellaneous Log, but may redact the last paragraph of the e-mail sent from Linssen to Boisvert at 9:25 a.m. on January 15, 2007, from documents O and P. 3. Buhrs need not disclose documents 346, 347, and 348 in the Thompson Log.