The Court received and reviewed the subject documents in camera, held a lengthy hearing on the motion on Wednesday, June 17, 2020, and thereafter took the matter under advisement. Having considered the record, the oral and written arguments of counsel, and the applicable law, IT IS ORDERED that plaintiff's motion to compel is GRANTED IN PART AND DENIED IN PART as follows.

I. BACKGROUND

This case arises from an intra-family dispute between the two daughters of now-deceased Edmond Tonti, a real estate developer who owned (through various entities) apartment complexes in Louisiana and Colorado. Plaintiff Tonti Management Co., Inc. (“TMCI”) and APMT, LLC (“APMT”) are Louisiana entities through which Mr. Tonti developed and managed his properties. R. Doc. 1, ¶¶ 12–14. Defendant Michele Tonti lives in Colorado and helped manage the Colorado properties, and non-party Suzanne Tonti lives in Louisiana and helped manage the Louisiana properties. R. Doc. 33, at 1. Non-party Suzanne Tonti is the manager of APMT and President of TMCI. R. Doc. 1, ¶¶ 13–14. Plaintiffs allege that, until recently, Defendant Michele Tonti was an employee, officer, and director of TMCI. R. Doc. 1, ¶ 4.

Plaintiffs TMCI and APMT have used the name “Tonti” in connection with the real estate business for decades (R. Doc. 1, ¶¶ 16), and in 1996, TMCI acquired the domain name Tonti.com. Id. ¶¶ 17–19. They contend that Defendant Tonti improperly caused TMCI's domain name to be transferred from TMCI to Defendant Soggy Doggie, LLC (“Soggy Doggie”), and she redirected web traffic from Tonti.com to a domain name that she recently registered (Wedgewoodlodge.com). R. Doc. 1, ¶¶ 24, 27. Plaintiffs filed suit alleging violations of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), invoking the court's federal question jurisdiction under 15 U.S.C. § 1221 and 28 U.S.C. § 1331, with supplemental jurisdiction under 28 U.S.C. § 1367 supporting Plaintiffs’ pendent state law claims. R. Doc. 1, ¶ 9. The Complaint does not invoke the court's diversity jurisdiction. Id.

Plaintiffs served a subpoena duces tecum on third-party IT services provider SeaGrizzly, L.L.C., seeking information that it held on behalf of its customer, Plaintiff TMCI. R. Doc. 14-4. Defendant Tonti filed a motion for protective order, arguing that the responsive information “would likely contain privileged emails, including communications between Michele and attorneys representing Michele personally and representing ECT CO.” R. Doc. 14, at 2. Magistrate Judge Wilkinson granted in part and denied in part that motion, directing the parties to submit a stipulated order setting forth an appropriate protocol to enable Ms. Tonti's counsel to review the subpoenaed materials, to release the non-privileged information, and to log all items subject to privilege. R. Doc. 21; see also R. Docs. 25, 27.

*2 Defense counsel then delivered a 99-page privilege log, listing 1,590 withheld items. Although the parties have resolved many of the disputes regarding the logged documents, they continue to dispute Defendant's invocation of privilege over documents falling into three document categories: (1) the attorney-client privilege over communications in which no attorney is involved; (2) emails with UBS Financial Services; and (3) emails and documents sent to or from Laura Wilson, CPA. R. Doc. 30, at 2; R. Doc. 33, at 6.[1] They also dispute the propriety of classifying a spreadsheet prepared by Defendant Tonti as work product. R. Doc. 30, at 10–11; R. Doc. 33, at 24–25; R. Doc. 37, at 12–13.

II. LAW AND ANALYSIS

Neither party disputes, for the purposes of this motion, that the emails at issue are relevant to a party's claim or defense and proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). The only issue is whether the documents at issue were properly withheld on the basis of the attorney-client privilege, common interest privilege, accountant-client privilege, and/or the work product doctrine. R. Doc. 30-3. By asserting privilege and/or work product protection, Defendant Tonti bears the burden of providing proof sufficient to substantiate her claims.[2]

A. Determination of the Applicable Law Governing the Privilege Issues

Before addressing whether any particular document falls within a recognized privilege or is protected from discovery as work product, this Court must first determine what law applies to the privilege issue.

Evidentiary privileges asserted in federal court are governed by Rule 501 of the Federal Rules of Evidence:

Fed. R. Evid. 501. This rule is easily applied when the case presents only federal claims premised on federal question jurisdiction or state law claims premised on diversity jurisdiction.[3] When, however, the case involves both federal and state law claims in the same action, the rule itself does not specifically address the situation.[4]

Although the Fifth Circuit has not addressed this issue, most other circuit courts have held that federal law of privilege governs determination of all privilege issues raised in a federal question case involving pendent state law claims, even where the evidence sought is relevant to a pendent state law claim to which a contrary state privilege law would otherwise apply.[5] These courts generally reason that “applying two separate disclosure rules with respect to different claims tried to the same jury would be unworkable,” with a preference for the federal rule that favors the admissibility of evidence rather than a state rule that would preclude admission.[6] This conclusion is consistent with the general rule that privileges, as exceptions to the demand for relevant evidence and derogations from the search for the truth, are strictly construed.[7] The vast majority of district courts to address the issue and leading commentators are in accord.[8] That conclusion is also supported by the legislative history and advisory comments to Rule 501.[9] Thus, “the weight of authority among courts that have confronted this issue in the context of discovery is that the federal law of privilege governs even where the evidence sought might be relevant to pendent state law claims.”[10]

*3 Although a few courts have applied state privilege law when the evidence at issue is entirely irrelevant to the federal claim and solely relevant to the state law claim,[11] that is not the case here. Although Defendants contend that the evidence at issue is “far more relevant” to the pendent state law claim (R. Doc. 33, at 9), Plaintiffs contend that the evidence is also relevant to the animus element of their federal cybersquatting claim. R. Doc. 37, at 10. Given that the evidence would be relevant to elements of both the federal and state claims, the weight of authority counsels in favor of application of federal privilege law.[12]

For the foregoing reasons, the assertion of privilege in this matter must be governed by federal law, not state law. Therefore, the Court need not engage in a conflicts analysis to assess the relative merit of applying Louisiana versus Colorado privilege law.

B. The Attorney-Client Privilege

The attorney-client privilege is the oldest of the privileges for confidential communications.[13] The purpose of the attorney-client privilege is well-established: to encourage candid communications between client and counsel.[14] The applicability of the attorney-client privilege “is a question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents.”[15]

Not all communications between a client and his or her attorney are protected by the attorney-client privilege.[16] While the attorney-client privilege extends to all situations in which counsel is sought on a legal matter, it protects “only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.”[17] The attorney-client privilege therefore does not attach to every communication between a client and counsel, as the privilege “does not embrace everything that arises out of the existence of an attorney-client relationship.”[18]

“What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.”[19] A party invoking the attorney-client privilege bears the burden of demonstrating its applicability and must show: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.”[20]

*4 Disclosure of privileged communications to a third party generally eliminates the confidentiality of the attorney-client privilege and serves to waive the privilege.[21] This waiver rule, however, is subject to certain exceptions at issue here.

“[T]he common legal interest is not itself a privilege, but merely extends a recognized privilege, often the attorney-client privilege, to communications with parties with a common legal interest.”[22] Thus, when an attorney-client privileged communication is shared “with a third person who has a common legal interest with respect to the subject matter of the communication,” the privilege is not waived.[23] Because the common legal interest privilege is an obstacle to truth-seeking, courts narrowly construe the doctrine to effectuate necessary consultation between legal advisers and clients.[24]

The Fifth Circuit has explained that two types of communications are protected under the common legal interest privilege: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel.[25] Courts have not extended the common legal interest privilege to generalized shared business interests.[26] For instance, a shared business interests or sharing information in an effort to avoid litigation do not suffice for the common legal interest privilege.[27] Rather, the rule is limited to parties with a common legal interest in litigation.[28]

The attorney-client privilege is likewise not waived by disclosure of confidential communications to third parties if those third parties are “agents” or “representatives” of the client who made or received a confidential communication for the purpose of effecting legal representation for the client, while acting in the course and scope of employment for the client.[29]

*5 Disclosure of an attorney-client communication to an agent is privileged only “if the disclosure was to an agent ‘whose services are necessary for effective [legal] representation of the client's interests.’ ”[30] This means that the agent must “evaluate the information and in a sense ‘translate’ it into understandable terms for the non-expert attorney.”[31]

This concept has developed in the case law and has included investigators, interviewers, technical experts, accountants, physicians, patent agents and other scientific specialists.[33]

Mere classification as an “agent” of the attorney or client, however, is not sufficient, in and of itself, to sustain the attorney-client privilege.[34] The party who claims that a third party is its agent for purposes of the privilege

The critical inquiry is whether the representative “furthers the provision of legal services to the client.”[36] “If what is sought is not legal advice but only accounting service ... or if the advice sought is the accountant's rather than the lawyer's, no privilege exists.”[37] Likewise, a lawyer's consultation with an investment advisor to better advise his client is insufficient to give rise to the privilege.[38] The key is whether the third party was necessary for the rendering of legal advice or was instead providing business advice.[39]

*6 Agents of an entity are likewise entitled to discuss legal advice rendered to them as agents for that entity. Thus, even communications between non-attorney employees that reflect the advice of counsel do not lose their privileged status when shared among corporate employees with responsibility for the subject matter of the communication.[40] The attorney-client privilege thus protects communications between non-attorney employees in two circumstances: (1) when a corporate client shares information with non-attorney employees to relay information requested by attorneys; and (2) communications between non-attorney corporate employees seeking legal advice or sharing legal advice they received from counsel.[41]

C. The Work Product Doctrine

Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure of documents prepared in anticipation of litigation and provides:

Fed. R. Civ. P. 26(b)(3). Rule 26(b)(3) does not require that the document be prepared by the attorney, but rather, also protects from discovery documents prepared by a party or party's agent as long as they are prepared in anticipation of litigation.[42]

The work-product doctrine shields from discovery the materials prepared by or for an attorney in preparation for litigation.[43] It is not, however, “an umbrella that shades all materials prepared by a lawyer ....”[44] It focuses only on materials assembled and brought into being in anticipation of litigation.[45] Excluded from the work product doctrine are materials assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation.[46] If the document would have been created regardless of whether the litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.[47] Likewise, the work product doctrine does not protect underlying facts relevant to litigation.[48]

*7 The Fifth Circuit has described the standard for determining whether a document has been prepared in anticipation of litigation as follows:

Thus, in making the fact-specific inquiry as to whether a particular document is work product, “courts consider the primary motivating purpose behind the creation of the document, more so than the timing of production of that document.”[50] This requires a determination, based upon evidence and not mere argument, that the principal factor motivating the creation of the document was anticipation of litigation or preparation for trial, as opposed to ordinary business practice.

Unlike the attorney-client privilege, the disclosure of work product to a third party does not automatically result in waiver. “The work product doctrine does not exist to protect a confidential relationship but to promote the adversary system by “ ‘safeguarding the fruits of an attorney's trial preparations from the discovery attempts of an opponent.’ ”[51] For this reason, the mere voluntary disclosure to a third person is insufficient in itself to waive work product protection.[52]

*8 To carry its burden to establish work product protection, Ms. Tonti

Paul R. Rice, Attorney-Client Privilege in the United States § 11:10 at 977–80 (Lawyers Coop. 1993) (emphasis added).

When the party resisting discovery carries its evidentiary burden of establishing work product protection from discovery, the burden then shifts back to the party seeking discovery to establish that the materials are nevertheless discoverable, for example, by proving waiver of work product protection, proving both substantial need for and undue hardship in obtaining materials protected by the work product doctrine, or otherwise.[53] If the movant makes a particularized showing that a witness cannot recall the event in question or is unavailable, this may constitute undue hardship.[54]

D. The Accountant-Client Privilege

Federal law does not recognize an accountant-client privilege. Couch v. United States, 409 U.S. 322 (1973); United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982).

E. The Categories in Dispute

The parties initially identified a spreadsheet prepared by Defendant Tonti and four categories of documents in dispute: (1) the attorney-client privilege over communications in which no attorney is involved; (2) emails with UBS Financial Services; (3) an invoice and email with a TMCI attorney; and (4) emails and documents sent to or from Laura Wilson, CPA. R. Doc. 30, at 2, 10–11; R. Doc. 33, at 6, 24–25; R. Doc. 37, at 12–13. The parties resolved their disputes regarding the category three documents (R. Doc. 33, at 6; R. Doc. 37, at 8), leaving for resolution the disputes regarding category one, two and four documents. Further, if any privilege is potentially applicable, each document within the category must be assessed on a document-by-document basis to determine the propriety of the privilege application because a blanket assertion of privilege over categories of documents is improper.[55]

*9 Because the attorney-client privilege does not apply to every communication involving counsel, this Court must conduct a document-by-document assessment to determine whether each document reflects communications made in confidence between a client and his lawyer for the purpose of obtaining legal advice.

The substance of the redacted information does not reflect a communication made in confidence between a client and his lawyer for the purpose of obtaining legal advice. Although Defendants contend that these items reflect information and advice received from counsel concerning the management of M. Tonti and MMT Woodlake, LLC, contrary to that description, the redacted portion of the emails do not reflect the substance of any communication with counsel. Rather, they reflect the writer's perception of events based on certain facts. Accordingly, items 15, 16 and 17 do not fall within the protections of the attorney-client privilege.

The redacted portions of these documents do not reflect confidential communications made in confidence between a client and his lawyer for the purpose of obtaining legal advice. Although the “they” references a meeting requested by counsel, the subject of the email appears to reflect a request to meet with Gary Bordes (Plaintiff's accountant) and questions that Annette had for Mr. Bordes regarding his handling of certain accounts. Further, documents 103 and 106 redacted a paragraph that was not redacted in 92, 101 and 102. Accordingly, items 92, 101, 102, 103, 106, 125 and 127 are not protected by the attorney-client privilege.

Although items 185 and 189 do not appear to reflect confidential communications with counsel, Defendants state that the missing metadata would reflect this document as an email sent to Stone Pigman attorney Erin Kriksciun by Annette Tonti (later shared with Michele Tonti) informing counsel of a conversation between Annette Tonti and Gary Bordes (Plaintiff's accountant). R. Doc. 33, at 14. The substance of the communication does not appear to seek, or reflect, legal advice. Rather, it simply advises counsel of an event and shares Annette's opinion without seeking advice from counsel.

Item 203 is an email chain. The first email (6/19/2019 at 9:48 a.m.) is an email from Annette to Gary Bordes (Plaintiff's accountant) and thus is not subject to any potential privilege.

The next email (6/19/2019 10:53 a.m.) reflects Michele Tonti's summary of her conversation with Mr. Bordes, which she sent to her Stone Pigman attorneys (with a copy to Annette Tonti). There is no request for advice relating to this communication but simply advised counsel regarding the conversation between Michele Tonti and Mr. Bordes.

The next email (6/19/2019 at 10:20 a.m.) is from Stone Pigman attorney Erin Kriksciun, but the recipients of the document are not identified. This email reflects legal advice that would appear to fall within the attorney-client privilege.

The next email (6/19/2019 at 3:16 p.m.) does not reflect an attorney-client communication for purposes of obtaining legal advice. Thus, it would not fall within the attorney-client privilege.

The next three emails (6/19/2019 at 3:07 p.m.; 6/19/2019 at 6:02 p.m.; 6/20/2019 at 8:12 a.m.) involves communications among counsel, Michele Tonti and Annette Tonti, but the substance does not reflect information shared for purposes of obtaining legal advice. Rather, the substance entails technological logistics and thus would not fall within the attorney-client privilege.

*10 The final email in this chain (6/20/2019 9:18 a.m.) reflects a communication between Annette Tonti and Michele Tonti only, and does not include or reference any legal advice. Rather, it simply shares Michele Tonti's opinion. Thus, this email would not fall within the attorney-client privilege.

This document reflects Michele Tonti's status, without disclosure of any confidential communication to counsel or advice from counsel. As such, it would not be protected by the attorney-client privilege. Further, the substance of the email is essentially disclosed by the description.[56]

The three emails contained in these items do not entail confidential communication with counsel, but rather reflect a conversation between Michele Tonti and Annette Tonti regarding their own opinions. As such, these emails would not fall within the attorney-client privilege. Further, to the extent the emails address Ed Bukaty's former service as manager in 2017, communications with an attorney performing business, rather than legal, functions would not fall within the attorney-client privilege.

This item contains four emails beginning with an email dated 8/6/2019 9:22 a.m. This email reflects communications from Michele Tonti to her attorneys seeking legal advice. This document would fall within the attorney-client privilege.

The next email (8/6/2019 at 6:13 p.m.) is attorney Erin Kriksciun's response to Michele Tonti's questions and reflects legal advice. As such, this email would be covered by the attorney-client privilege.[57]

The next email is dated 8/6/2019 at 8:29 p.m. and is from Michele Tonti to her attorney Erin Kriksciun regarding the advice provided in the prior email. This reflects attorney-client communication relating to legal advice and would fall within the attorney-client privilege. This email, however, lacks metadata indicating to whom the email was sent, which is necessary to determine whether there has been a waiver of the privilege.

The next email (8/6/2019 at 9:25 p.m.) is from Annette Tonti to Michele Tonti and does not reflect any attorney-client communication, but rather, her views on advice received. This communication would not be protected by the attorney-client privilege.

These documents contain three paragraphs that have been redacted, which are duplicated in many of the emails. The redaction of the penultimate paragraph and last phrase of the last paragraph (email dated 9/6/2019 at 9:34 p.m.) do not reflect communications made to counsel for purposes of obtaining legal advice. Although the paragraph includes a reference to something Michele Tonti said to her attorney, the statement does not appear to constitute a confidential communication made for purposes of seeking legal advice. Accordingly, the redactions on MT-SEA-GRIZZLY 00030373 are not protected by the attorney-client privilege.

The next redaction (email dated 9/7/2019 7:42 a.m.) is from Annette Tonti to Michele Tonti and asks whether counsel provided certain advice and shares her opinion regarding same. The substance of this communication from Annette Tonti to Michele Tonti does not reflect a communication made in confidence for purposes of obtaining legal advice. Accordingly, it would not fall within the attorney-client privilege. The subsequent redactions are duplicative of the first redaction discussed in the preceding paragraph.

*11 Item 1320 is a duplicate of 1319 with only duplicative redactions.

Item 1322 contains a new redaction in the first paragraph, with the subsequent redactions being duplicative of Item 1319. The new redaction does not reflect confidential communication for purposes of obtaining legal advice or the legal advice obtained from counsel. Rather, it discusses only facts and the author's opinion regarding same. This paragraph on MT-SEA-GRIZZLY 00030384 does not fall within the attorney-client privilege.

Item 1323 is duplicative of 1319 with only duplicative redactions.

The redacted portions of these emails are duplicative. The first portion of the first redacted sentence reflects a communication from Annette Tonti to Michele Tonti regarding an inquiry she made with her counsel Erin Kriksciun. The remaining redacted portion is simply sharing factual information from Annette Tonti to Michele Tonti and does not reflect either legal advice or any confidential communication made for purposes of obtaining legal advice. At most, the first portion of the first sentence (ending before the hyphen) would be protected by the attorney-client privilege.

These emails reflect a collaborative effort by Michele Tonti and Annette Tonti to summarize notes from a telephone meeting they had with Gary Bordes, TMCI's Chief Accountant. Although Defendants contend that this summary was prepared to be sent to counsel,[58] there is no indication that this communication was sent for purposes of obtaining legal advice rather than to update counsel on recent events. At no point in the summary, including the parentheticals, does either Michele Tonti or Annette Tonti indicate any questions for counsel or otherwise indicate an intent to seek legal advice as to any matter identified in the summary. Accordingly, this document would not fall within the attorney-client privilege.

Based on a document-by-document assessment, only category one items 203, 712, 1514 and 1543, or portions thereof as described above, would fall within the protection of the attorney-client privilege. Whether that privilege was waived, however, by including a third party (e.g., Annette) as a recipient on those attorney-client communications must be addressed. Unless the third-party recipient shares a “common legal interest” under the federal common law or served as the “agent” for purposes of obtaining legal advice, disclosure of the privileged communication results in a waiver of the privilege.

Defendant Michele Tonti and her cousin Annette Tonti manage separate legal entities, and neither has an employment or formal relationship with any entity managed by the other. Defendant Michele Tonti served as an officer and former employee of Plaintiff TMCI and formed Soggy Doggie in August 2020.[59] Non-party Annette Tonti is the trustee of the CDOT Irrevocable Trust,[60] which has as its primary assets real estate or membership interests in two entities, M. Tonti, LLC and MMT Woodlake, LLC. Annette Tonti (not Michele Tonti) manages both M. Tonti, LLC and MMT Woodlake,[61] and Annette has no identified role with Soggy Doggie. Defendant Michele Tonti was the settlor of the CDOT Irrevocable Trust, and its beneficiaries are her adult children.[62] However, neither Michele Tonti nor Annette Tonti's declaration provides any evidence that Michele Tonti had a role, or continuing interest, in the trust. At most, Annette Tonti “often conferred” with Michele Tonti on matters relating to CDOT's real estate holdings.[63]

*12 Although both Michele Tonti and Annette Tonti (and the entities that they manage) appear to have disputes with Michele Tonti's sister Suzanne Tonti and the entities she manages,[64] and Michele Tonti and Annette Tonti each engaged Stone Pigman for their legal needs,[65] neither Michele Tonti nor Annette Tonti is employed by, or share responsibilities for, any single entity. And while they no doubt share a common business interest in the real estate industry and in their disagreements with Suzanne Tonti and/or her entities, neither Michele Tonti nor Annette Tonti (or any entity controlled by either of them) is a co-party to any litigation. Much like the offshore drilling companies in Santa Fe Int'l, the shared business interests between Annette and Michele are insufficient to establish a “common legal interest” for purposes of the federal attorney-client privilege.

Likewise, Defendant Michele Tonti provides no evidence from which the Court can conclude that Annette Tonti served as her “agent” for purposes of obtaining legal advice. Nor is there any evidence that Michele Tonti served as Annette's “agent” for purposes of Annette Tonti's obtaining legal advice. Nothing indicates that Annette Tonti (or Michele Tonti) worked at the direction of the other's attorneys, performed tasks relevant to obtaining legal advice, or served some specialized purpose in facilitating the attorney-client communications between the client and her attorneys.[66] At most, Annette Tonti states that she consulted with Michele Tonti on matters related to the CDOT's real estate holdings because of Michele Tonti's real estate experience. Even accepting Michele Tonti's real estate experience, nothing indicates she served a specialized purpose to assist with obtaining legal advice rather than providing real estate business advice. Further, unlike co-management level employees with shared responsibility for a matter at issue such as in Nalco, Michele Tonti and Annette Tonti are not employed by a single entity and did not share responsibility for an entity for which they needed to engage in joint discussions with counsel.

Accordingly, Michele Tonti and Annette Tonti do not have a “common legal interest” within the parameters of that doctrine as necessary to extend the attorney-client privilege, nor can they be characterized as one another's agent for purposes of the attorney-client privilege. Accordingly, any privilege that attached to the category one documents discussed in subsection 1(a) above was waived by the inclusion of Annette Tonti in those communications.

Defendants have produced all of these items.[67]

The only portions of these documents that are redacted is the call-in number and conference code for Ms. Kriksciun's phone line. This information has no relevance to any claim or defense in this matter, and therefore, need not be produced.

As to the remaining items listed above, Defendants contend that Louisiana law applies, and that, even if federal law applies, the documents are privileged because they reflect communications between counsel or the client and an agent engaged for the primary purpose of providing or obtaining legal advice.[68] Defendants incorrectly suggest, however, that engaging an advisor “to help carry out a specific legal strategy” identified by counsel suffices to characterize that third party as an agent for purposes of the attorney-client privilege.[69] If what is sought is not legal advice but financial/real estate advice or if the advice sought is the consultant's financial/real estate advice rather than the lawyer's advice, no privilege exists.”[70] Indeed, even a lawyer's consultation with an expert to better advise his client is insufficient to give rise to privilege.[71] The key is whether the third party was necessary for the rendering of legal advice or was instead providing business or some other expertise.[72] In other words, Defendants must establish that UBS served some specialized purpose in facilitating the attorney-client communication such as evaluating information and in a sense “translating” it into understandable terms for the non-expert attorney.

*13 Items 11283, 1285, 1288, 1289, 1305, 1413, 1421, 1426, 1435, 1438, 1441, 1442, 1445, 1446, 1449, 1451, 1459, 1461, 1463, 1466 and 1513 are largely duplicative iterations of an email string. There are essentially five paragraphs that are repeatedly redacted throughout these documents. As the privilege assertion must be assessed on a document-by-document basis, each of the five redacted paragraphs are addressed.

Item 1283 relates to UBS’ ability to provide financial/real estate advice, not an explanation of same in order to allow counsel to provide legal advice. Accordingly, it would not fall within the protections as an agent in relation to the attorney-client privilege.

The new email in item 1285 reflects a question from counsel regarding financial/real estate requirements, reflecting her consultation with UBS for a specialized purpose to enable the provision of legal advice. This substance of this document (other than the first sentence) would fall within the attorney-client privilege as UBS appears to be acting as agent to provide specialized advice in this communication.

The new email in item 1288 relates to UBS’ ability to provide financial/real estate advice, not an explanation of same in order to allow counsel to provide legal advice. Accordingly, it would not fall within the protections as an agent in relation to the attorney-client privilege.

The new emails in item 1289 and 1305 reflect an exchange where UBS provides specialized information to counsel to enable her to advise her clients and counsel discusses same with UBS. These emails would fall within the attorney-client privilege as UBS appears to be acting as agent for a specialized purpose to enable counsel to provide legal advice.

The redactions in the remaining items (1413, 1421, 1426, 1435, 1438, 1441, 1442, 1445, 1446, 1449, 1451, 1459, 1461, 1463, 1466 and 1513) are duplicative of the redactions addressed in items 1283, 1285, 1288, 1289 and 1305.

Based on a document-by-document assessment, category two items 1285, 1289 and 1305, or portions thereof as described above, would fall within the protection of the attorney-client privilege as UBS appears to be serving a specialized purpose as agent for counsel incident to the provision of legal advice. However, for the same reasons as set forth in Section II(E)(1)(b), the privilege was lost when the communications were shared with a third party.

As defense counsel conceded at oral argument, given my determination that federal, not state, privilege law applies in this federal question case with pendent state law claims and the absence of any recognized federal accountant-client privilege, the category four documents must be produced, regardless of whether Ms. Wilson served in a dual role as Plaintiff's accountant and Defendant's account with only one engagement letter to Plaintiffs. Further, to the extent that any of the documents include communications from counsel, the delivery of same to Ms. Wilson effected a waiver of any attorney-client privilege that could have protected such documents. There is no indication that Ms. Wilson was engaged to provide specialized services or “translate” any information to enable communications between Defendants and their lawyers. Rather, Ms. Wilson appears to have been engaged as an accountant to render accounting services.

*14 Items 651, 658, 778, 793, and 781 were previously produced, and items 893, 894, 895, 896, 897, 973, 974, were recently produced. Thus, these items are no longer at issue.[73] The remaining category four documents (383, 414, 581, 590, 592, 593, 594, 663, 664, 668, 692, 709, 729, 730, 731, 732, 747, 770, 772, 779, 1002, 1003 and 1041) must be produced.

After Defendant Tonti obtained bank statements from Plaintiffs, she prepared a spreadsheet identifying numerous transactions that she felt warranted scrutiny in connection with the pending litigation. R. Doc. 33-4, at 6. This document was inadvertently produced, and Defendants demanded the return of same. R. Doc. 33, at 5–6. Plaintiffs have properly sequestered it pursuant to Fed. R. Civ. P. 26(b)(5) pending resolution of the claim of privilege and work product.

Defendant Tonti has carried her burden to establish that this spreadsheet constitutes a selective compilation of facts from information in Plaintiffs’ possession that was prepared primarily for litigation and not some other business purpose. Therefore, this spreadsheet falls within the work product protections of Rule 26(b)(3). Further, as this work product summary of information comes from bank statements currently in Plaintiff's possession, Plaintiffs cannot satisfy their burden to establish substantial need for the information because they already have the underlying information (i.e., the bank statements). Further, Plaintiffs may learn Defendant Tonti's contentions regarding improper banking transactions via a contention interrogatory pursuant to Fed. R. Civ. P. 33. Accordingly, Plaintiffs cannot establish substantial need for the spreadsheet.

In addition, Defendant Tonti prepared and forwarded this summary spreadsheet to counsel in connection with her efforts to obtain legal advice regarding the propriety of the identified transactions. R. Doc. 33-4, at 6. As such, the document also falls within the attorney-client privilege.

While it is true that neither the attorney-client privilege nor the work product doctrine protects facts from discovery, this spreadsheet is more than simply a list of facts. It is a selective compilation of transactions that Defendant Tonti sought to discuss with her counsel, prepared to enable her to obtain legal advice in anticipation of litigation. Plaintiffs already have possession of the underlying facts. Accordingly, the document is not subject to discovery based on both the attorney-client privilege and the work product doctrine. Plaintiffs must return or destroy the spreadsheet in accordance with Fed. R. Civ. P. 26(b)(5).

F. Rule 37 Request for Fees and Costs

Plaintiffs request that the Court order Defendants to pay fees and costs incurred in filing this Motion to Compel. Rule 37(a)(5) provides:

This Court has granted in part and denied in part Plaintiffs’ Motion to Compel. Given the complexity of the issues and unsettled nature of the applicable privilege law to this matter involving both federal and state claims, Defendants’ invocation of privilege was substantially justified. The Court thus declines to award either side fees and costs incurred in connection with this motion.

III. CONCLUSION

Accordingly, for the foregoing reasons, after hearing the oral argument of counsel, considering the parties’ Memoranda, and reviewing the binders of documents submitted for in camera inspection, based on the applicable law, Plaintiffs’ Motion to Compel (R. Doc. 30) is GRANTED IN PART AND DENIED IN PART as set forth herein.

New Orleans, Louisiana, this 25th day of June, 2020.

Plaintiffs initially identified a fourth category (an invoice and email with an attorney that represented TMCI), but Defendants have produced that document. R. Doc. 33, at 6.

United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002); In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001); Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 721 (5th Cir. 1985)).

See Porter v. Dauthier, 2014 WL 6674468, *2–*3 (M.D. La. Nov. 25, 2014); see also Guzman v. Memorial Hermann Hosp. Sys., 2009 WL 427268, *3 (S.D. Tex. Feb. 20, 2009).

See Fed. R. Evid. 501 advisory committee notes (noting the rule's ambiguity and stating: “The committee has, therefore, adopted what we believe will be a clearer and more practical guideline for determining when courts should respect State rules of privilege.... It is also intended that the Federal law or privileges should be applied with respect to pendent State law claims when they arise in a Federal question case.”); see also Robertson v. Neuromedical Center, 169 F.R.D. 80, 82 (M.D. La. 1996) (applying federal privilege law to ADA claim with pendent state law claims); In re Combustion, Inc., 161 F.R.D. 51, 53 (W.D. La. 1995) (applying federal law to CERCLA claim with pendent state law claims).

See In re Sealed Case (Med. Records), 381 F.3d 1205, 1212–13 (D.C. Cir. 2004); Virmani v. Novant Health Inc., 259 F.3d 284, 287 n.3 (4th Cir. 2001); Pearson v. Miller, 211 F.3d 57, 61 (3d Cir. 2000); Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 n.10 (9th Cir. 1992); Hancock v. Hobbs, 967 F.2d 462 (11th Cir. 1992); Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992); von Bulow v. von Bulow, 811 F.2d 136, 140 (2d Cir. 1987); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982); Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 n. 3 (7th Cir. 1981).

Thompson, 671 F.2d at 104; Porter, 2014 WL 6674468, at *3; see also Fed. R. Evid. 501 advisory committee notes (“[T]he rule favoring reception of the evidence should be applied.”); Guzman, 2009 WL 427268, at *4 (citations omitted).

Whitfield v. Riley, 2009 WL 10679761, *4 (E.D. La. Oct. 6, 2009) (citations omitted).

See, e.g., Rdzanek v. Hospital Service Dist. No. 3, 2003 WL 22466232, *2 (E.D. La. Oct. 29, 2003) (Vance, J.); see also Shields v. Boys Town Louisiana, Inc., 2016 WL 1298986, *3 (E.D. La. Apr. 4, 2015) (“Federal common law applies to assertions of attorney-client privilege in this federal question case with a pendent state law claim.”) (citations omitted); In re Pabst Licensing GmbH Patent Litigation, 2001 WL 797315, *26 (E.D. La. 2001) (same); King v. University Healthcare Systems, L.C. 2009 WL 10679780, *2 (E.D. La. 2009) (same); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal evidence § 501.02[3][b] (Matthew Bender 2d ed. 1997) (“in federal question cases where pendent state claims are raised the federal common law or privilege should govern all claims of privilege raised in the litigation.”) (citation omitted); 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5434 at 862 (1980) (requiring federal courts to look to state law of privileges in certain circumstances is the exception to the general rule that federal privilege law applies in federal courts, so “courts should always follow the federal rule when the same evidence is relevant to both a state and federal claim.”).

Cary v. Soileau, 125 F.R.D. 432 (W.D. La. 1989) (citing S. Rep. No. 93–1277, reprinted in 1974 U.S. Code Cong. & Admin. News 7051, 7059 n. 16; Fed. R. Evid. 501 advisory committee notes (“It is also intended that the Federal law of privileges should be applied with respect to pendent State law claims when they arise in a Federal question case.”)).

Robertson, 169 F.R.D. at 82–83 (citations omitted).

Guzman, 2009 WL 427268, at *5–*6.

Benson v. Rosenthal, 2016 WL 3001129 (E.D. La. May 25, 2016), is inapposite. In that case, “[a] separate subject matter jurisdictional basis, diversity of citizenship, support[ed] adjudication of the state law claims in this case.” Id.; see also King, 2009 WL 10679780, at *2 (correcting defendant's contention that jurisdiction was based on diversity and noting that the case invoked federal question and supplemental jurisdiction before agreeing with the weight of authority that federal law of privilege applies in a federal question case involving pendent state law claims). Here, the basis for this Court's jurisdiction is federal question and supplemental jurisdiction under 28 U.S.C. §§ 1331 and 1367. Plaintiffs did not invoke diversity jurisdiction as a basis for their claims. R. Doc. 1, at ¶ 9. Applying two sets of privileges to the same evidence in a single case depending on whether the evidence would be “more relevant” to the state claim rather than the federal claim is not only unworkable and inadvisable, but it would require the court to make preliminary merit-based assessments of each claim early in the proceeding in order to determine discovery matters.

Hodges, 768 F.2d at 720.

Upjohn Co. v. United States, 449 U.S. 383, 390–91 (1981).

Hodges, 768 F.2d at721.

United States v. Pipkins, 528 F.2d 559, 562–63 (5th Cir. 1976) (stating that the attorney-client privilege “is not a broad rule of law which interposes a blanket ban on the testimony of an attorney.”).

Fisher v. United States, 425 U.S. 391, 403 (1976) (citations omitted).

Pipkins, 528 F.2d at 563.

United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982) (internal quotations and citation omitted); see also Hodges, 768 F.2d at 720.

United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original).

Hodges, 768 F.2d at 721.

Power-One, Inc. v. Artesyn Tech., Inc., 2007 WL 1170733, at *2 n.2 (E.D. Tex. Apr. 18, 2007).

Id.; see also In re Santa Fe, 272 F.3d at 710–13.

Santa Fe, 272 F.3d at 710.

BCR Safeguard Holding, L.L.C. v. Morgan Stanley Real Estate Advisor, Inc., 614 F. App'x 690, 704 (5th Cir. 2015) (citing In re Santa Fe, 272 F.3d at 710 (internal citations and quotation marks omitted); see also United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002) (quoting same)). The common legal interest privilege only applies when there is a “palpable threat of litigation at the time of communication.” In re Santa Fe, 272 F.3d at 711 (citations omitted). Whether this privilege can apply to co-plaintiffs, rather than only co-defendants, is still an open question in the Fifth Circuit. BCR Safeguard, 614 F. App.’x at 703 (citations omitted).

Cf. Crosby v. Blue Cross Blue Shield of Louisiana, 2012 WL 5450040, *4 (E.D. La. Nov. 7, 2012 (no common legal interest privilege between plaintiff and her doctors even though both wanted insurance coverage for the claim).

In re Santa Fe, 272 F.3d at 713 (Parties’ circulation of attorney-client communication to further common business interest of ensuring compliance with antitrust laws and minimizing potential risk associated with exchange of wage information insufficient to establish “common legal interest.”).

King v. University Healthcare Sys., L.C., 2009 WL 10679780, at *4 (noting “this rule is limited to parties to litigation.”); see also BCR Safeguard Holdings, 614 F. App'x at 703–04 (citing United States v. Under Seal, 902 F.2d 244, 249 (4th Cir. 1990)).

Firefighters’ Ret. Sys. v. Citco Grp. Ltd., 2018 WL 2323424, *4 (M.D. La. May 22, 2018) (citations omitted); Action Ink, Inc. v. Anheuser-Busch, Inc., 2012 WL 12990577, *2 (E.D. La. Dec. 19, 2012).

Louisiana Mun. Police Employees Retirement Sys. v. Sealed Air Corp., 253 F.R.D. 300, 311 (D.N.J. 2008) (quoting Cellco P'ship, 2006 WL 1320067, at *2) (emphasis added).

Id. at 312 (citations omitted).

Id. (citations omitted).

Id. at 311 (citing Paul Rice, Attorney-Client Privilege in the United States § 3:3 (2007); 1 Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine 219 (5th ed. 2007)).

King v. University Healthcare Sys., L.C., 2009 WL 10679780, *3 (citations omitted); see also Cavallaro v. United States, 284 F.3d 236, 247 (1st Cir. 2002); Ferko, 218 F.R.D. at 135 (citing El Paso, 682 F.2d at 541; United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961)).

Louisiana Mun. Police, 253 F.R.D. at 311 (citing Cellco P'ship v. Certain Underwriters at Lloyd's, 2006 WL 1320067, at *2 (D.N.J. May 12, 2006) (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 503(a)(3) [01] at 503–31 to 38 (1993))).

24 Wright & Miller, §§ 5482, 5483 (1986); see also BCR Safeguard Holdings, 614 F. App'x at 704 n.22 (citing United States v. Pipkins, 528 F.2d 559, 562 (5th Cir. 1976)).

United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961).

United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999) (Kovel protects communications between client or lawyer and accountant when the accountant's role is to clarify communications between attorney and client, not communications that prove important to an attorney's legal advice to a client); Urban Box Office v. Interfase Managers, L.P., 2006 WL 1004472, at *4 (S.D.N.Y. Apr. 17, 2006) (“[S]imply because financial consultants are employed to assist a company in a restructuring transaction does not mean that their communications with the company's attorneys are privileged.”).

Firefighters, 2018 WL 2323424, at *6; see also Benson v. Rosenthal, 2016 WL 11678622, *2 (E.D. La. May 12, 2016) (to retain attorney-client privilege over communications with valuation consultant, plaintiff must prove he “was his attorneys’ representative retained for the sole and express purpose of rendering legal advice, as opposed to account advice only”) (citations omitted).

See Nalco Co. v. Baker Hughes, Inc., 2017 WL 3033997, at *2 (S.D. Tex. July 18, 2017) (citations omitted).

Id. at *2–*3 (citations omitted).

Naquin v. Unocal Corp., 2002 WL 1837838, at *7 (E.D. La. Aug. 12, 2002).

Hickman v. Taylor, 329 U.S. 495 (1947); Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992).

El Paso, 682 F.2d at 542; see also Piatkowski v. Abdon Callais Offshore, L.L.C., 2000 WL 1145825 at *2 (E.D. La. Aug. 11, 2000).

Piatkowski, 2000 WL 1145825 at *2.

El Paso, 682 F.2d at 542; Guzzino, 174 F.R.D. at 62 (quoting El Paso, 682 F.3d at 542 (citing Fed. R. Civ. P. 26(b)(3) advisory committee notes)); accord 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2024, at 503 (3d ed. 2010); see also Hill Tower, Inc., 718 F. Supp. at 565 (“The mere fact this report deals with facts, opinions, and recommendations that later may be the focus of litigation does not establish that there was the expectation of litigation when this document was drafted.”) (citation omitted).

Global Oil Tools, 2013 WL 1344622, at *6 (citing S. Scrap Mat'l Co. v. Fleming, 2003 WL 21474516, at *6 (E.D. La. June 18, 2003); Piatkowski v. Abdon Callais Offshore, L.L.C., 2000 WL 1145825, at *1 (E.D. La. Aug, 11, 2000)).

See generally Upjohn, 449 U.S. at 385-96.

United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. Unit A), cert. denied, 454 U.S. 862 (1981) (citations omitted) (emphasis added); accord In re Kaiser Alum. & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000), cert. denied, 532 U.S. 919 (2001).

Houston Cas. Co. v. Supreme Towing Co., 2012 WL 13055045, at *3 (E.D. La. Sept. 17, 2012). Mere proximity in time–while a factor to be considered–is not alone determinative. On one hand, the work product “privilege can apply where litigation is not imminent, as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.” Udoewa v. Plus4 Credit Union, 457 F. App'x 391, 393 (5th Cir. 2012) (citing In re Kaiser Alum. & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000)) (internal quotation omitted). On the other hand, “[t]he mere fact that a document is prepared when litigation is foreseeable does not mean the document was prepared in anticipation of litigation ....” Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., 19 F.3d 1432, 1994 WL 58999, at *3 (6th Cir. 1994) (citing Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)). Even “[e]stablishing that a document was prepared after litigation was commenced is insufficient to prove that the document was prepared in anticipation of litigation.... What is crucial is that ‘the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” Robinson v. Tex. Auto. Dealers Ass'n, 214 F.R.D. 432, 449 (E.D. Tex. 2003) (quoting In re Kaiser Alum., 214 F.3d at 593) (emphasis added), rev'd on other grounds, 2003 WL 21911333 (5th Cir. July 25, 2003); accord Global Oil Tools, Inc. v. Barnhill, 2013 WL 1344622, at *6 (E.D. La. Apr. 3, 2013); Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997).

Blockbuster, 145 F.R.D. at 403 (quoting Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989)).

Benson v. Rosenthal, 2016 WL 3001129, at *9 (citing In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994); Shields, 864 F.2d at 382 (internal quotations omitted)); see also Crosby v. Blue Cross Blue Shield of Louisiana, 2012 WL 5450040, at *8 (work product protection held by both attorney and client, and waiver by one does not deprive the other of privilege).

Fed. R. Civ. P. 26(b)(3); Hodges, 768 F.2d at 721; In re Int'l Sys. & Controls Corp. Secs. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982)); In re Blessey Enters., Inc., 2009 WL 5915367 (M.D. La. Dec. 7, 2009), aff'd, 2010 WL 610669 (M.D. La. Feb. 19, 2010).

In re Int'l Sys., 693 F.2d at 1240 (citation omitted).

El Paso, 682 F.2d at 539, 541.

R. Doc. 33, at 14.

This email lacks metadata indicating to whom the email was sent. As discussed in subsection 2(b) below, if this attorney-client privileged communication was shared with a third party, the document would no longer be protected by the attorney-client privilege.

R. Doc. 33, at 17.

R. Doc. 33-4, ¶¶ 5 & 15.

R. Doc. 33-6, ¶ 4.

Id. ¶ 5.

R. Doc. 33-6, ¶ 13.

Id; R. Doc. 33-4, ¶ 9.

R. Doc. 33-4, ¶12; R. Doc. 33-6, ¶ 8.

R. Doc. 33-4, ¶¶ 10 & 11; R. Doc. 33-6, ¶ 7.

King, 2009 WL 10679780, at *3 (citations omitted).

R. Doc. 33, at 17.

R. Doc. 33, at 17–18. Defendants do not contend that the communications with UBS are protected by Rule 26’s work product doctrine, only that UBS served as “agent” and thus communications with UBS and its employees fall within the attorney-client privilege.

Id. at 18–19.

Kovel, 296 F.2d at 922.

Ackert, 169 F.3d at 139 (Kovel protects communications between client or lawyer and accountant when the accountant's role is to clarify communications between attorney and client, not communications that prove important to an attorney's legal advice to a client); Urban Box Office v. Interfase Managers, L.P., 2006 WL 1004472, at *4 (“[S]imply because financial consultants are employed to assist a company in a restructuring transaction does not mean that their communications with the company's attorneys are privileged.”).

Firefighters, 2018 WL 2323424, at *6; see also Benson v. Rosenthal, 2016 WL 11678622, *2 (to retain attorney-client privilege over communications with valuation consultant, plaintiff must prove he “was his attorneys’ representative retained for the sole and express purpose of rendering legal advice, as opposed to account advice only”) (citations omitted).

R. Doc. 33, 22–23; R. Doc. 39, 2.