I. BACKGROUND

This Order follows the Court's October 2, 2020 Order [199] ruling on the parties' assertions of attorney-client privilege over certain emails sought in discovery. Defendants sought the production of emails containing communications between Plaintiff and two individuals with whom she alleges to have had an attorney-client relationship: Veronica Hoffler and AJ Lakraj. In the October 2 Order, the Court largely overruled Plaintiff's assertions of privilege over these emails. However, the Court withheld ruling on the existence of privilege over select emails between Plaintiff and Hoffler pending Plaintiff's submission of additional evidence of an attorney-client relationship between the two. See Order [199] at 9–10. Following the Court's instructions, Plaintiff submitted, ex parte, the sworn declarations of herself and of Hoffler describing their alleged attorney-client relationship. Shahar argues, however, that even if the communications at issue are privileged, Hoffler's existence as a fact witness in this case waives any such privilege.

Plaintiff herself sought emails containing communications between the City's counsel and employees of the City, arguing that no attorney-client privilege existed over these emails because they primarily contained non-legal, managerial advice from counsel. The Court sustained the City's initial claim of privilege over these documents. Plaintiff takes exception to that general ruling as to one email in the City's production: a February 23, 2017 message from Shahar's (and, at the time, the City's) counsel, David Gevertz, to City employees Kimberly Patrick and Tai White and then-City Attorney Cathy Hampton. Plaintiff argues that any attorney-client privilege over this email is waived as a result of its production in discovery and its unopposed use during several depositions.

Separately, Plaintiff seeks the imposition of sanctions against Defendants and Shahar's counsel's law firm, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (“Baker Donelson”).[1] During a status conference with the Court, Baker Donelson moved for leave to file a sur-reply brief in response to Plaintiff's motion, seeking an opportunity to respond to what it contends are newly-raised arguments and evidence contained in Plaintiff's reply brief in support of her motion.

II. DISCUSSION

A. The Parties' Claims of Privilege

*2 As explained in the October 2 Order, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b). “ ‘The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.’ ” In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir. 1990) (quoting In re Grand Jury Subpoena of Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982)). Recognition of the attorney-client privilege is intended to encourage frank communication with an attorney. See Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998).

The party claiming the privilege bears the burden of proving the existence of the privilege. See, e.g., In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1225 (11th Cir. 1987). The party claiming the privilege must generally establish the following elements: (1) the holder of privilege is a client; (2) the person to whom communication was made is a member of the bar and that person is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which attorney was informed by the client without the presence of strangers for the purpose of securing legal advice; and (4) the privilege is claimed and not waived by the client. See In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d at 1042.

A communication is not necessarily privileged simply because a lawyer is copied. Rather, the proponent of the attorney-client privilege must show, irrespective of whether one or more lawyers sent or received the communication, that the communication was confidential and that the primary purpose of the communication was to relay, request, or transmit legal advice. See, e.g., U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., 6:09-cv-1002-Orl-31TBS, 2012 WL 5415108, at *4 (M.D. Fla. Nov. 6, 2012). “Where one consults an attorney not as a lawyer but as a friend or as a business adviser or banker, or negotiator ... the consultation is not professional nor the statement privileged.” In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (internal quotation omitted). In other words, “[w]here a lawyer provides non-legal [ ] advice, the communication is not privileged.” Wachtel v. Health Net, Inc., 482 F.3d 225, 231 (3d Cir. 2007). Further, because the privilege only applies to communications made in confidence, a communication loses its protection if made in the presence of third parties, see id., or disseminated beyond the group of corporate employees “who have a need to know in the scope of their corporate responsibilities,” In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 796 (E.D. La. 2007).

The attorney-client privilege may be waived: (1) when a client testifies concerning portions of the attorney-client communication; (2) when a client places the attorney-client relationship directly in issue; and (3) when a client asserts reliance on attorney advice as an element of a defense. See Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1418 (11th Cir. 1994). The burden is on the proponent of the privilege to establish that no waiver has occurred. See United States v. Noriega, 917 F.2d 1543, 1550 (11th Cir. 1990).

Additionally, the disclosure of otherwise privileged information to third parties operates as a waiver of the privilege. See United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987); Brown v. NCL (Bahamas), Ltd., 155 F. Supp. 3d 1335, 1338 (S.D. Fla. 2015). In cases where such disclosures may be inadvertent, Rule 502 of the Federal Rules of Evidence provides that:

Fed. R. Evid. 502(b). Rule 502 “applies in all federal proceedings and provides uniformity in evaluating whether an inadvertent disclosure constitutes a waiver.” Westgate Fin. Corp. v. Cotsworld Indus., Inc., 1:09-cv-2627-WSD, 2010 WL 11601471, at *2 (N.D. Ga. May 19, 2010). The disclosing party bears the burden of establishing the elements of Rule 502(b). See Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV-COHN/SELTZER, 2010 WL 11505149, at *2 (S.D. Fla. June 15, 2010).

Defendants seek the production of certain email correspondence between Plaintiff and Veronica Hoffler sent between March and June 2017. For portions of that period, Plaintiff was employed as an attorney in the City's Legal Department, as was Hoffler. Plaintiff claims that attorney-client privilege shields these communications from production, explaining that the emails contain communications relating to her seeking, and Hoffler's imparting, of legal advice pertaining to the facts underlying this case.

Defendants counter that Hoffler is simply a friend and colleague of Plaintiff's and that she was not acting as Plaintiff's attorney such that her communications with Plaintiff could be privileged. The Court was mindful of this argument in its previous review of the emails and was unable to determine, from the content of the messages alone, whether Plaintiff's correspondence with Hoffler was acting as her attorney and whether their correspondence was primarily for the purpose of seeking and/or providing legal services. The Court thus ordered Plaintiff to produce affidavits illuminating the context of her relationship with Hoffler at the time of the emails, which were marked in Plaintiff's production as TB PRIV 19, 27, 43, 45, and 49–56. Having reviewed Plaintiff's and Hoffler's declarations on the matter, the Court is satisfied that Hoffler provided Plaintiff legal services related to issues arising out of her employment between December 2016 and June 2017, the period in which the emails at issue were sent. The emails are exclusively between Plaintiff and Hoffler and pertain only to legal issues arising out of Plaintiff's employment. Thus, absent waiver, the Court finds that the emails are privileged.

Shahar argues that Plaintiff has both intentionally and inadvertently waived any privilege by relying on Hoffler as a supporting witness in this case and by producing other email correspondence with Hoffler dating to the period in which Plaintiff claims Hoffler was acting as her attorney. Neither of these arguments are convincing. The portion of Hoffler's deposition testimony which Shahar contends waives privilege pertains to Hoffler's recounting of harassing acts and communications directed toward Plaintiff. The emails at issue, however, do not pertain or even refer to any of those acts or communications. Hoffler's role as a fact witness in this case about other subjects, where Shahar has not shown that she testified as to otherwise privileged matters in her correspondence with Plaintiff, does not intentionally or implicitly vitiate the existence of privilege over the emails. See Dovin v. Nair & Co., Inc., No. 2:08-cv-104-FtM-29SPC, 2009 WL 10670058, at *2 (M.D. Fla. Aug. 7, 2009) (“Former counsel can testify as a fact witness ... without violating the attorney-client privilege.”); Cutis v. Alcoa, Inc., No. 3:06-CV-448, 2009 WL 838232, at *11 (E.D. Tenn. Mar. 27, 2009) (“Stated simply, a party cannot waive the attorney client privilege by producing non-privileged documents.”).

*4 As for inadvertent waiver, Shahar contends that Plaintiff's production of a privileged email between herself and Hoffler in response to a subpoena waives Plaintiff's claim of privilege over the emails at issue. However, even if the email Plaintiff inadvertently produced pertains to the contents of the emails at issue, Plaintiff has shown that any inadvertent production should not operate as a waiver of privilege under Rule 502 of the Federal Rules of Evidence. As Plaintiff argues, and as Shahar states, the produced email was only one email in of hundreds of pages of emails and messages produced by Plaintiff. And as Shahar admits, Plaintiff immediately objected to the use of the produced email when she was notified of its production during a deposition. At that point, Defendants' counsel agreed not to make use of the privileged email and to return his copies of the email. Given that agreement, it was not incumbent on Plaintiff to take any further protective action to avail herself of the protection of Rule 502.

Accordingly, the Court SUSTAINS Plaintiff's assertion of privilege over the emails marked in her production as TB PRIV 19, 27, 43, 45, and 49–56.

In the privilege log accompanying its email production to the Court, the City notes that it seeks a ruling that its privilege over an email from its then-counsel, David Gevertz, to three City employees stands notwithstanding the City's inadvertent transmission of the unredacted email to a witness and full production otherwise. See [183-1] at 8.

The City's claim of privilege over Gevertz's email fails. At the outset, the City offers no information establishing that the individuals to whom the email was addressed were necessarily within the scope of the City's privilege. Moreover, as Plaintiff asserts, the City disclosed the email to Dr. Ifetayo Ojelade, a third-party witness, and did not object to the email's entry as an exhibit in four separate depositions, including that of Dr. Ojelade. The City does not explain what steps it took to prevent the disclosure of the email to third parties—indeed, the City appears to have intentionally disclosed the email to Dr. Ojelade. Further, the Court is unaware of any attempt the City made to assert privilege over the email until September 2020, several months after Plaintiff first entered the email as an exhibit during Dr. Ojelade's deposition, at which point it should have been aware of the disclosure of the email, if it was not already. The City has thus failed to carry its burden of establishing safe harbor under Rule 502.

Accordingly, the Court OVERRULES Defendants' claim of privilege over the emails marked Ojelade 80–82.

B. Request to File Sur-reply

Finally, Shahar and Baker Donelson seek leave to file a ten-page sur-reply brief in response to Plaintiff's reply briefs in support of her Motion for Sanctions [179]. They argue that Plaintiff's reply briefs raise three arguments which were never raised in her initial brief accompanying her motion: arguments (1) that Baker Donelson's attorneys intentionally misled counsel for a medical provider to coerce them into engaging in impermissible ex parte communications; (2) that Baker Donelson's attorneys misrepresented the content of certain documents to the same medical provider; and (3) that even if Baker Donelson is not an entity covered by the Health Insurance Portability and Accountability Act (“HIPAA”), 29 U.S.C. §§ 1320d, et seq., it is nonetheless subject to sanctions for its alleged conduct under Rule 37 of the Federal Rules of Civil Procedure. Shahar and Baker Donelson additionally point out that Plaintiff's reply brief is accompanied by a declaration by Plaintiff's counsel, which they contend is new evidence to which they will not have an opportunity to respond without leave to file a sur-reply. Plaintiff argues that her reply briefs do not present any new arguments. She contends, rather, that the arguments and declaration that Shahar and Baker Donelson take issue with are simply responses to arguments raised in their response brief.

*5 The Local Rules of this Court generally do not permit a sur-reply in response to a movant's reply in support of their motion. See LR 7.1, NDGa. This default rule exists so that the Court is not “in the position of refereeing an endless volley of briefs.” Garrison v. Ne. Ga. Med. Ctr., Inc., 66 F. Supp. 2d 1336, 1340 (N.D. Ga. 1999). “[T]he Court may in its discretion permit the filing of a sur[-]reply,” however, “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005). The presentation of new facts and evidence in a reply brief is grounds to grant an opposing party's request to file a sur-reply brief. See Atlanta Fiberglass USA, LLC v. KPI, Co., Ltd., 911 F. Supp. 2d 1247, 1262 (N.D. Ga. 2012).

Whether or not Plaintiff's arguments in her reply brief as to the alleged impropriety and bad faith of Baker Donelson's conduct can be considered “new,” it is undisputed that these arguments, as presented in the reply brief, rely on a newly filed declaration. See Reply [205] at 3–4; Decl. [205-1]. Shahar and Baker Donelson deserve an opportunity to respond to those arguments as supported by Plaintiff's new declaration. As for Plaintiff's argument that, notwithstanding any lack of coverage under HIPAA, Baker Donelson is subject to sanctions under Rule 37 of the Federal Rules of Civil Procedure, the Court benefits from responsive briefing on the threshold matter of whether Baker Donelson's alleged conduct is even sanctionable under the rule.

Accordingly, Shahar and Baker Donelson's oral motion for leave to file a 10-page sur-reply brief is GRANTED.

III. CONCLUSION

For the reasons stated above, the Court SUSTAINS Plaintiff's assertion of attorney-client privilege over the emails marked in her email production as TB PRIV 19, 27, 43, 45, and 49–56, and rejects Shahar's argument that Plaintiff has waived such privilege. The Court OVERRULES the City's claim of privilege over the email marked in their production as Ojelade 80–82. Finally, the Court GRANTS Shahar and Baker Donelson's oral motion to file a sur-reply brief in response to Plaintiff's Motion for Sanctions [179]. Shahar and Baker Donelson may file a sur-reply brief in response to Plaintiff's motion within fourteen (14) days of the date of this Order.

The Court has already directed the sealed filing of the parties' email productions. The Court now DIRECTS the Clerk to file Plaintiff's sworn declarations as to her alleged attorney-client relationship with Veronica Hoffler UNDER SEAL in an ex parte fashion, accessible only by the Court, its personnel, Plaintiff, and her counsel.

IT IS SO ORDERED this 19th day of February, 2021.

Throughout most of this litigation, Baker Donelson represented both the City and Shahar. Shortly after the filing of Plaintiff's sanctions motion, Baker Donelson ceased its representation of the City.