Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Attorneys, P.A.
Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Attorneys, P.A.
2021 WL 4482913 (S.D. Fla. 2021)
September 14, 2021
Reinhart, Bruce E., United States Magistrate Judge
Summary
The court found that the account notes were protected by the attorney-client privilege and the work product privilege. The court conducted an in camera review of the account notes to determine if they were privileged and found that they were. The court also held a separate evidentiary hearing to determine whether DC Capital waived the privilege when they disclosed the Eight Account Notes to Diamond without redaction.
Additional Decisions
DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC, et al., Plaintiffs,
v.
US CONSUMER ATTORNEYS, P.A., et al., Defendants
v.
US CONSUMER ATTORNEYS, P.A., et al., Defendants
CASE NO. 18-CV-80311-BER
United States District Court, S.D. Florida
Signed September 14, 2021
Counsel
Brandon Thomas Crossland, Lindy Kathryn Keown, Julie Singer Brady, James Vincent Etscorn, Christian Tiblier, Baker & Hostetler LLP, Orlando, FL, Catherine E. Woltering, Pro Hac Vice, Baker & Hostetler LLP, Columbus, OH, Ryan Benjamin Witte, Boies, Schiller & Flexner, LLP, Miami, FL, for Plaintiff Diamond Resorts International, Inc.Brandon Thomas Crossland, Lindy Kathryn Keown, Julie Singer Brady, James Vincent Etscorn, Christian Tiblier, Baker & Hostetler LLP, Orlando, FL, Catherine E. Woltering, Pro Hac Vice, Baker & Hostetler LLP, Columbus, OH, for Plaintiffs Diamond Resorts Corporation, Diamond Resorts Management, Inc.
Brandon Thomas Crossland, Lindy Kathryn Keown, Julie Singer Brady, James Vincent Etscorn, Christian Tiblier, Joshua Robert Jacobson, Kristen Hawes Luck, Baker & Hostetler LLP, Orlando, FL, Catherine E. Woltering, Pro Hac Vice, Baker & Hostetler LLP, Columbus, OH, for Plaintiff Diamond Resorts U.S. Collection Development, LLC.
Henry Neil Portner, Lake Worth, FL, Brian Thomas Giles, The Law Offices of Brian T. Giles, LLC, Cincinnati, OH, Javier Asis Lopez, Kozyak Tropin & Throckmorton PA, Coral Gables, FL, for Defendant US Consumers Attorneys, P.A.
Brian Thomas Giles, The Law Offices of Brian T. Giles, LLC, Cincinnati, OH, Henry Neil Portner, Lake Worth, FL, for Defendant Henry Neil Portner.
Dwayne Antonio Robinson, Kozyak Tropin & Throckmorton LLP, Miami, FL, Javier Asis Lopez, Kozyak Tropin & Throckmorton PA, Coral Gables, FL, S. Jonathan Vine, Lizza Carola Constantine, Sheena Danielle Smith, Jeremy Franklin Goldstein, Cole Scott & Kissane, West Palm Beach, FL, Jeffrey Wittenberg, Pro Hac Vice, Wittenberg Law APC, Santa Monica, CA, for Defendants Newton Group Transfers, LLC, The Newton Group, ESA LLC, Interval Broker Direct, LLC, Newton Group Exit, LLC.
S. Jonathan Vine, Lizza Carola Constantine, Sheena Danielle Smith, Cole Scott & Kissane, West Palm Beach, FL, for Defendant DC Capital Law Firm, LLP.
John Joseph Bennett, Michael Anthony Nardella, Nardella & Nardella PLLC, Richard Rathbun Phelps, Dutton Law Group, Orlando, FL, Mitchell Reed Sussman, Pro Hac Vice, Mitchell Reed Sussman & Associates, Palm Springs, CA, for Defendant Conrad Sussman.
Pluto Marketing Inc., Las Vegas, NV, Pro Se.
Reinhart, Bruce E., United States Magistrate Judge
ORDER DENYING DIAMOND'S MOTION TO COMPEL [ECF No. 635]
*1 Plaintiffs, Diamond Resorts International, Inc., Diamond Resorts Corporation, Diamond Resorts U.S. Collection Development, LLC, and Diamond Resorts Management, Inc. (collectively “Diamond”) operate timeshare properties. They have sued multiple defendants for (1) unfair competition, false advertising, and trademark dilution under the Lanham Act, and (2) unfair competition and tortious interference under Florida law. ECF No. 272. One of those defendants is DC Capital Law Firm, LLP (“DC Capital”); others are Newton Group Transfers, LLC, Newton Group Exit, LLC, and Interval Brokers Direct, LLC, and Newton Group ESA, LLC (collectively “the Newton Defendants”).[1] The defendants all assist consumers who are trying to get out of timeshare contracts.
In response to request No. 5 of Diamond's First Request for Production, DC Capital asserts the attorney-client and work product privileges over certain documents that it has identified in its Fifth Amended Privilege Log (“FAPL”). ECF No. 635-1. Most notably, Diamond seeks to compel the production of “account notes,” which is information related to DC Capital's interaction with its clients saved in a computerized database (“the CRM”). Diamond filed a Motion to Compel the allegedly privileged documents. ECF No. 635. DC Capital filed its Response to the Motion to Compel and requested this Court hold an evidentiary hearing on the privilege issue and conduct an in camera review of the allegedly privileged documents. ECF No. 652. Diamond did not object to the Court reviewing the documents in camera. ECF No. 667.
Separately, the parties brought to my attention several discovery disputes that needed Court intervention. ECF No. 654. One of those disputes was over DC Capital's attempt to claw back eight account notes (the “Eight Account Notes”) that it claims to have inadvertently disclosed to Diamond. Id. at 3. I heard limited argument from the parties as to the Eight Account Notes, reviewed them in camera, and took the matter under advisement. ECF No. 657 at 2. On August 26, 2021, I held an evidentiary hearing regarding Diamond's Motion to Compel and DC Capital's attempt to claw back the Eight Account Notes. ECF No. 682.
In addition to the evidence introduced at the hearing, I have reviewed Diamond's Motion to Compel (ECF No. 635), DC Capital's Response (ECF No. 652), the parties’ respective arguments in the Joint Discovery Memo (ECF No. 654), and the relevant caselaw and supplemental authorities. I am fully advised and this matter is now ripe for decision. For the reasons stated herein, Diamond's Motion to Compel the production of the account notes identified in the FAPL is DENIED.
I. BACKGROUND
Newton NGT/NGE is a timeshare exit company that provides advice and assistance to timeshare owners who wish to exit their timeshare contracts. Newton NGT/NGE hired DC Capital to assist its clients with legal representation. ECF No. 652 at 2–3. As permitted by District of Columbia Rule of Professional Conduct 5.4(b), DC Capital has non-lawyer partners who are also executives of Newton NGT/NGE and Newton ESA. See D.C. Bar Appx. A, Rule 5.4(b). The partners relevant to this discussion are Theodoros Panopoulos, Gordon Newton, Charles Anderson, and Todd Johnson (“Non-Lawyer Partners”). ECF No. 652 at 9.
*2 Newton ESA is a “business solutions company” that was hired by DC Capital to provide the law firm with “administrative and back-office services including but not limited to the use of Newton ESA's CRM software, administrative staff ... human resources ... [and] IT.” Id. at 3. Newton ESA also has an agreement with Newton NGT/NGE to provide them with similar services, including use of the CRM software. Id. Attorneys at DC Capital use the CRM software to upload notes and document communications with their clients. Hr'g Tr. 13:25–14:14, Aug. 26, 2021. Other DC Capital employees acting as valid agents for the attorneys such as paralegals, “Legal Operations Specialists and Managers” (see ECF No. 535 at 30 n. 9), and “Customer Experience Specialists” (see ECF No. 535 at 40) have access to the CRM Notes and documents generated by DC Capital and Newton ESA employees on behalf of Newton NGT/NGE. ECF No. 652 at 3. The Non-Lawyer Partners also have access to the notes in the CRM, including those generated by the attorneys for DC Capital, however, DC Capital asserts that the Non-Lawyer Partners “do not access the Notes for DC Capital.” Id. at 9.[2] Newton ESA employees have access to the CRM, but only to those notes generated by other Newton ESA employees on behalf of Newton NGT/NGE; they do not have access to CRM notes generated by DC Capital employees or lawyers. Id. at 3.
Diamond's argument is three-fold. First, Diamond argues that the account notes are not protected by the attorney-client privilege because they are not communications between client and lawyer. ECF No. 635 at 8. Second, Diamond argues that any existing attorney-client privilege protection was waived when DC Capital uploaded the notes to the CRM accessible to the Non-Lawyer Partners because that demonstrates that the notes were not “intended to remain confidential.” Id. at 8–9. Diamond also argues that the account notes are not work product because they were not prepared for the primary purpose of anticipated litigation. Id. at 10–11. Diamond contends that although some of the descriptions in the FAPL contain general references to “litigation,” that is insufficient to carry DC Capital's burden of proof. Id. at 12.
DC Capital maintains that the attorney-client privilege applies to the account notes because they are memorializations of attorney-client communications. DC Capital cites three out-of-district cases to support this argument. ECF No. 652 at 6–8 (citing Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 538 (N.D. Ill. 2000); In re Ford Motor Co., 110 F.3d 954, 966 (3d Cir. 1997); and McCook Metals, L.L.C. v. Alcoa Inc., 192 F.R.D. 242, 254 (N.D. Ill. 2000)). DC Capital argues that these cases establish the legal principle that account notes are privileged because to disclose them would “necessarily reveal the legal advice given during those communications [between attorney and client].” ECF No. 652 at 7. DC Capital points out that many of the account notes even contain direct copies of emails exchanged between the Diamond owner clients and their DC Capital attorneys. Id.
*3 Regarding Diamond's second argument—that Non-Lawyer Partners’ Access to the CRM constitutes a waiver—DC Capital stresses that although it is true the Non-Lawyer Partners could access the account notes in the CRM, they do not actually access or review the account notes and thus, the account notes are still “intended to remain confidential.” Id. at 9. DC Capital also reiterates that other Newton ESA employees do not have access to the DC Capital account notes in the CRM and thus their level of access does not jeopardize confidentiality. Id. at 10.
Regarding its work-product privilege assertion, DC Capital argues that the designated account notes constitute “opinion work product” and were prepared in anticipation of litigation. Id. at 11–16. As evidence of the either ongoing or imminent litigation referred to in the account notes, DC Capital provided a declaration from DC Capital attorney and Partner, Nadine Chabrier (“Chabrier Declaration”). ECF No. 653-1. Attached to the Chabrier Declaration are many exhibits demonstrating the timeframe and subject matter of the various lawsuits DC Capital was either contemplating or in which they were already involved. ECF No. 653-1 at 56–128 (arbitration demands), 236–369 (Complaint and Demand for Jury Trial in Bennett litigation).
DC Capital also argues that the Non-Lawyer Partners’ access to the account notes does not waive the work-product privilege because 1) the Non-Lawyer Partners do not access the account notes in the CRM and 2) even if they did review the account notes, the Non-Lawyer Partners are not litigation adversaries. ECF No. 652 at 18.
II. LEGAL STANDARDS
As was thoroughly detailed in the Court's Order Regarding Attorney-client and Work Product Privilege (the “First Privilege Order”) (ECF No. 535), in order to claim attorney-client privilege, the proponent of the privilege must prove that what is sought to be protected is (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client. In re Grand Jury Matter No. 91-01386, 969 F.2d at 997. See also MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 582–83 (S.D. Fla. 2013) (J. Hoeveler). “ ‘Privileged persons’ include the client, the attorney(s), and any of their agents that help facilitate attorney-client communications or the legal representation.” In re Teleglobe, 493 F.3d at 359 (quoting Restatement (Third) of the Law Governing Lawyers § 70 (2000)).
The burden to sustain a claim of privilege is a heavy one. Wyndham Vacation Ownership, Inc. et al., v. Reed Hein & Assocs., LLC, et al., No. 6:18-cv-2171-Orl-31DCI, 2019 WL 9091666, at *7 (M.D. Fla. Dec. 9, 2019) (citing Nixon, 418 U.S. at 710). It is well established that “the party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.” United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991); MapleWood Partners, 295 F.R.D. at 583 (“The proponent must establish the existence of the privilege by a preponderance of the evidence.”) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 593 (1993)); Ralls v. United States, 52 F.3d 223, 225 (9th Cir. 1995) (“A party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communication.”) (emphasis added).
The party invoking the attorney-client privilege has the burden of proving by a preponderance of the evidence that each essential element of the privilege is present with respect to each communication or document. MapleWood Partners, 295 F.R.D. at 583. See also Purdee v. Pilot Travel Ctrs., LLC, No. CV407-028, 2008 WL 11350099, at *1 (S.D. Ga. Feb. 21, 2008). “A failure of proof as to any element causes the claim of privilege to fail.” Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (J. McAliley) (quoting N. Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 515 (M.D.N.C. 1986)). “That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.” In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965). “The Court should not have to guess or speculate about the applicability of the privilege, for the party asserting it has the affirmative duty to demonstrate that it applies to each document or communication sought to be disclosed.” Purdee, 2008 WL 11350099, at *1 (citing United States v. Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir. 1981)).
*4 To carry this burden the proponent of the privilege must provide a privilege log that can also be accompanied by other evidence such as affidavits that provide the court with underlying facts necessary to demonstrate the existence of the privilege. Reed Hein, 2019 WL 9091666, at *7. Additionally, the proponent may request that the Court conduct an in camera review of the allegedly privileged documents. But, in camera review “is not to be used as a substitute for a party's obligation to justify its withholding of documents.” CSX Transp. Inc. v. Admiral Ins. Co., No. 93-132-CIV-J-10, 1995 WL 855421, at *5 (M.D. Fla. July 20, 1995) (citing Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 700 (D. Nev. 1994)).
1. The Agency Exception and “Intention to remain confidential”
Since confidentiality is a requirement of the attorney-client privilege, no privilege attaches to a communication made in the presence of a third party, nor to an already-privileged communication that is subsequently disclosed to a third party. MapleWood Partners, 295 F.R.D. at 584. As explained in the First Privilege Order, these are distinct concepts. In one scenario, the communication is never privileged because it was not confidential when made. In the other, a privileged communication loses that status because it is disclosed to a third party. Only the latter involves a waiver. In the former, the attorney-client privilege never applied to that communication at all and thus it cannot be “waived.” As noted above, the party asserting the privilege bears the burden of proving a privileged communication came into existence; the asserting party also must prove that it has not waived the privilege. United States v. Noriega, 917 F.2d 1543, 1550 (11th Cir. 1990); see also Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981).
A privileged communications retains its protected status even if it is disclosed to (or made in the presence of) a third-party, so long as that third-party meets the qualifications of a valid agent. United States v. Kovel, 296 F.2d 918, 921–922 (2d Cir. 1961). This situation is known as the agency-exception. The party seeking the benefit of the privilege bears the burden to prove—by a preponderance of the evidence—that the involvement of the third-party was “reasonably necessary for the effective representation of the client.” In re Int'l Oil Trading Co., LLC, 548 B.R. 825, 833–34 (Bankr. S.D. Fla. 2016) (J. Kimball).[4]
*5 Federal Rule of Civil Procedure 26(b)(3) codifies the work product privilege. It states in pertinent part:
Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).
Fed. R. Civ. P. 26(b)(3)(A) (emphasis added). “The work product doctrine protects from disclosure documents and tangible things prepared in anticipation of litigation by or for a party or by or for that party's attorney acting for his client.” Atriums of Palm Beach Condo. Assn., Inc. v. QBE Ins., Co., No. 08-80543-CIV, 2009 WL 10667478, at *3 (S.D. Fla. June 17, 2009) (J. Johnson) (emphasis added). As with the attorney-client privilege, the proponent of the work product privilege bears the burden of establishing by a preponderance of the evidence that at the time each document was prepared, its “primary motivating purpose” was to aid in the anticipated litigation. See Reed Hein, 2019 WL 9091666, at *15. See also MapleWood Partners, 295 F.R.D. at 584; Fed. R. Evid. 104(a). The proponent can submit affidavits and other evidence to demonstrate the underlying facts necessary to establish the primary purpose. Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (J. McAliley).
There are two kinds of work product: (1) fact work product and (2) opinion work product. Atriums of Palm Beach Condo. Assn., Inc., 2009 WL 10667478 at *4 (“Once work product protection attaches, the doctrine is divided into two categories enjoying different degrees of protection.”). “[F]act work product may encompass factual material including the result of a factual investigation.” Burrow v. Forjas Taurus S.A., 334 F. Supp. 3d 1222, 1229 (S.D. Fla. 2018) (J. Simonton) (quoting In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007)). Fact work product is discoverable upon a showing of substantial need. “A non-exhaustive list of factors are assessed in determining substantial need including: (1) the importance of the materials to the party seeking them for case preparation, (2) the difficulty the party will have obtaining them by other means, and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks.” Id.
Opinion work product is material that reflects an attorney's “mental impressions, conclusions, opinions, or legal theories.” MapleWood Partners, L.P. 295 F.R.D. at 620–21. “The Eleventh Circuit has held that while the disclosure of fact work-product can be compelled upon a requisite showing, opinion work-product ‘enjoys a nearly absolute immunity’ and cannot be discovered merely upon a showing of substantial need and an inability to secure the materials by alternate means without undue hardship, i.e., the test under Rule 26(b)(3)(A)(ii), but rather is only discoverable in ‘very rare and extraordinary circumstances.’ ” Id. at 620 (quoting Cox v. Admin. U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994), modified on other grounds by 30 F.3d 1347 (11th Cir. 1994)).
*6 The work product privilege differs from the attorney-client privilege in that disclosure to a third party does not necessarily destroy the privilege. The proper analysis is whether the putative work product is created and maintained in a way that is reasonably designed to conceal it from the opposing party, not whether it was intended to be kept confidential from all third parties. Raymond James Fin. Servs., Inc. v. Arijos, No. 19-81692-CIV, 2020 WL 1492993, at *3 (S.D. Fla. Mar. 27, 2020) (J. Reinhart).
III. ANALYSIS
The proponent of the privilege must prove that what is sought to be protected is (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client. In re Grand Jury Matter No. 91-01386, 969 F.2d at 997.
As a preliminary matter, I find that DC Capital has presented sufficient evidence to support the existence of an attorney-client relationship between the Diamond Owners at issue in the FAPL and DC Capital attorneys. DC Capital submitted as evidence the signed Power of Attorney (“POA”) and Letter of Engagement for each of the Diamond owners at issue in the FAPL. See ECF Nos. 678-1 (Exhibit “8-A”), 678-2 (Exhibit “10-A”). For the reasons stated in the First Privilege Order, I find the POAs and Letters of Engagement together are sufficient to establish the existence of a valid attorney-client relationship between DC Capital and each Diamond owner at issue in the FAPL. See ECF No. 535 at 18–20.
Memorialization of confidential conversations between client and attorney does not destroy the privilege.
Diamond argues that since the account notes are not the actual communications between an attorney and client, that they cannot be covered by the attorney-client privilege. Rather, Diamond asserts that the account note is merely the attorney's unprivileged memorialization of the privileged communication.
Diamond cites the First Privilege Order to support their argument. In that Order, I made fact-specific findings that DC Capital had not met its burden of proving that the subset of account notes at issue were privileged because DC Capital had not proven that the account notes were direct copies or memorializations of confidential attorney-client communications made in furtherance of providing legal advice. DC Capital submitted an unclear privilege log and insufficient evidence that failed to uphold its burden. ECF No. 535 at 60 n. 19 (quoting Purdee, 2009 WL 11350099 at *1 (“The Court should not have to guess or speculate about the applicability of the privilege, for the party asserting it has the affirmative duty to demonstrate that it applies to each document or communication sought to be disclosed.”)). I did not hold that the memorialization of a privileged conversation was, in all cases, not privileged. Diamond is incorrect to extrapolate from this fact-based ruling that account notes memorializing an otherwise-privileged communication are categorically not privileged.
Neither party cited, and this Court did not find during its own research, any cases from this District or the Eleventh Circuit addressing whether memorializing a privileged communication destroys the privilege. DC Capital cites one case from the Third Circuit and two cases from the Northern District of Illinois to support their argument that a memorialization of an attorney-client communications should be afforded the same protections as the communication itself.
*7 In Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 538 (N.D. Ill. 2000), the Court held that minutes of meetings, many of which were authored by attorneys, where counsel was present to provide legal advice likely contained confidential communications, and thus were protected by the attorney-client privilege.
In McCook Metals v. Alcoa Inc., 192 F.R.D. 242, 254 (N.D. Ill. 2000), a case involving a patent dispute, the Court held that attorney's notes “memorializing his confidential discussions with his client, necessarily summarizing the confidential legal advice given and information received in order to render that legal advice” were privileged “just as the actual communications themselves would be privileged.” Id. at 254.
In In re Ford Motor Co., 110 F.3d 954, 966 (3d Cir. 1997), the Third Circuit found minutes from a meeting were protected by attorney-client privilege. The Court first noted, however, that if the meeting minutes had “disclose[d] only factual material, contain[ed] no legal discussion ... and contain[ed] no communication to counsel which was intended to be kept confidential” then the minutes would not be privileged. Id. Instead, after reviewing the minutes in camera, the Court held that the decisions that were reached at the meeting were done so after securing legal advice from the attorneys present at the meeting, and to disclose the minutes would mean revealing legal advice. Id.
Other out of district cases are also instructive on this issue. In Great Plains Mutual Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 197 (D. Kan. 1993), the Court denied the defendant's request for production of the minutes of a corporate board meeting when it found that the information sought by the plaintiff directly related “to legal advice rendered by its attorney in his capacity as legal advisor.” The court recognized that the presence of an attorney at a board meeting would not shield the entire meeting from disclosure, but noted that it was “clear from the minutes of the board meetings that the purpose of the conversations during the board meetings was to render legal advice.” Id.
Similarly, in Weeks v. Samsung Heavy Ind. Co., Ltd., 1996 WL 341537, at *3 (N.D. Ill. June 20, 1996), an executive employee summarized legal advice given by counsel regarding legal obligations and potential litigation risks regarding the suit at hand and relayed the information to his superior. The summary memo was held to be protected from discovery under the attorney-client privilege. Id. at *4.
Finally, in Adamowicz v. I.R.S., 672 F. Supp. 2d 454, 471 (S.D.N.Y. 2009), the Court evaluated whether certain documents withheld by the Government were properly protected by various privileges, including attorney-client. One subset of documents withheld were the IRS attorney's notes reflecting communications with her “client,” the IRS, and the legal strategy they were developing in response to a FOIA request. Id. at 470. Ultimately, the Court concluded that each of the withheld documents were properly subject to the attorney-client privilege because the declarations submitted were sufficient to establish that “(1) they contain either communications between an attorney and a client or, in the case of [attorney] Leboff's notes, the client's memorialization of such communications; (2) the communications were for the purpose of providing legal advice; and (3) all the communications were made with the expectation of confidentiality.” Id. at 471 (emphasis added).
*8 In keeping with the findings and reasoning of these cases, it follows that if the documents in question memorialize 1) communications, 2) made between privileged persons (client and attorney, or client and a valid agent of attorney), 3) made in confidence, and 4) for the purpose of securing legal advice, then the memorializations fall within the attorney-client privilege. I therefore reject Diamond's argument that no privilege attaches to a memorialization of an otherwise-privileged communication.
Having concluded that merely memorializing a privileged communication does not destroy the privilege, I now turn to whether the underlying communications logged in the FAPL are privileged. During the hearing, DC Capital pointed to two particular entries as examples of account notes authored by attorneys to memorialize an attorney-client communication. Hr'g Tr. 26:2–6, 27:20–21, Aug. 26, 2021. Entry No. 129 is a “case note” authored by DC Capital attorney Michelle Cumberland regarding Diamond owner and DC Capital client Milton Rebbert. ECF No. 635-1 at 21. The case note is described as “attorney notation of communication with client concerning Diamond – 1099C and exit documents concerning other timeshare interest owned by other developer in furtherance of obtaining legal advice and strategy to exit time share interest.” Id. After a review of this entry in camera, I find the latter to be the case. To disclose the account note would mean revealing legal advice, which is precisely what the attorney-client privilege aims to protect. In re Ford Motor Co., 110 F.3d at 966.
Similarly, Entry No. 170 is a “case note” authored by DC Capital attorney Jessica Brown regarding Diamond owner and DC Capital client Constance Van Metre. ECF No. 635-1 at 28. The case note is described as “attorney notation following call with client discussing 1099-C and implications of the same and legal advice from attorney to client to address the same.” Id. Again, an in camera inspection of this account note revealed the contents of the conversation Ms. Brown had with her client. There is no evidence to suggest that the client and Ms. Brown did not intend for this conversation to be kept in confidence, as it was just the two of them on the phone, and it very clearly was made for the purpose of Ms. Brown relaying legal advice to Ms. Van Metre. Thus, I find that it is protected by the attorney-client privilege.
I conducted a random sampling of the account notes with similar descriptions in the FAPL and reviewed them in camera. For example, Entry No. 166 is a “case note” authored by DC Capital attorney Roya Graziano regarding Diamond owner and DC Capital clients Barry and Joy Dean. ECF No. 635-1 at 28. The case note is described as “attorney notation of communication with client concerning implications of stopping payment in furtherance of obtaining legal advice and strategy to obtain an exit.” Id. To find this account note discoverable would be to reveal the contents of Ms. Graziano's legal advice confidentially relayed to his clients. Therefore, for the same reasons discussed above, I find that it is privileged.
Similarly, Entry No. 7 is a “case note” authored by DC Capital paralegal Robin Shockley. Id. at 2. The case note is described as “summary of paralegal communications with client about offer to settle and client's decision regarding same in furtherance of obtaining legal advice and settlement offer rejection to another timeshare developer.” Id. Again, having reviewed this specific entry in camera, I find that it constitutes a memorialization of a communication that is protected by the attorney-client privilege unless subsequently waived.
*9 Entry No. 51 is a “case note” authored by DC Capital attorney Robert Heieck regarding a conversation he had with his clients, James and Carol Howard, via e-mail. Id. at 8. The case note is described as “detailing content of email from client regarding credit in furtherance of rendering legal advice regarding unwanted timeshare.” Id. An in camera review reveals that Ms. Howard sent an e-mail to Mr. Heieck seeking his legal assistance regarding a recent update on a credit issue related to her Diamond ownership. Mr. Heieck then summarized that email in an account note. To reiterate, the account note is a summarization of a communication (the e-mail), made between privileged persons (client and her attorney), in confidence (no indication that anyone other than these two individuals were included in the e-mail), for the purpose of obtaining or providing legal assistance for the client. Thus, I find that it is privileged just as the e-mail itself or a phone call memorialization would be. In re Grand Jury Matter No. 91-01386, 969 F.2d at 997.
In conclusion, I find the following entries in the FAPL protected from disclosure by the attorney-client privilege unless that privilege was later waived: Entry Nos. 1, 4, 6–10, 12, 13, 15, 18, 20, 23, 25–32, 34–48, 51, 54, 59, 60, 62, 66, 69–74, 77–81, 85, 88–96, 98–103, 105–112, 115, 129, 138–141, 145–147, 151, 153, 154, 159–161, 163, 165, 166, 168, 170–182, 189, 191, 192.[5]
Account notes with correspondence attached or “copy-pasted”
There are other entries in the FAPL that present a slightly different factual scenario. In these entries, there is an email communication between a Diamond owner/DC Capital client and a DC Capital attorney or attorney-agent. The text of the e-mail is copy-pasted into an account note in the CRM. Entries exhibiting this scenario can be found at Entry Nos. 16, 21, 22, 49, 50, 52, 53, 55–58, 63–65, 67, 68, 76, 82, 83, 104, 113, 116, 119, 120, 123, 125, 143, 144, 185–188, 190.[6]
Again, I conducted a random sampling of these types of account notes and find that they meet the requirements for protection under the attorney-client privilege. For example, each of the account notes described in Entry Nos. 49, 50, 52, 53, and 55–58 are copy-pasted emails that were sent back and forth between DC Capital attorney Robert Heieck and his clients James and Carol Howard. ECF No. 635-1 at 8–9. For instance, on June 14, 2019, Mr. Heieck sent an email to the Howards (and copied fellow DC Capital attorney, Jennifer Dorsey) explaining to the Howards that he was leaving DC Capital, summarizing case updates, and relaying a few final words of legal advice. Id. at 8. He then copy-pasted that email into an account note and uploaded it into the CRM. Again, although the account note is not the original e-mail, it is a direct copy of the original e-mail reflecting (1) a communication (the e-mail itself), (2) made between privileged persons (clients and their two attorneys), (3) in confidence (no one else was included in the e-mail) (4) for the purpose of obtaining or providing legal assistance for the client. Therefore, I find that account notes reflecting copy-pasted e-mail communications between the attorneys (or attorney-agents) and their respective clients to be protected by the attorney-client privilege. To hold otherwise would be to reveal the contents of the legal advice sought or given and thus in direct conflict with the purpose of the attorney-client privilege.
*10 I find the following entries in the FAPL are, subject to subsequent waiver, protected from disclosure by the attorney-client privilege: Entry Nos. 16, 21, 22, 49, 50, 52, 53, 55–58, 63–65, 67, 68, 76, 82, 83, 104, 113, 116, 119, 120, 123, 125, 143, 144, 185–188, 190.
In sum, unless the privilege is otherwise waived (as is discussed more thoroughly below), I find that all of the entries in the FAPL marked as account notes fall within the protections of the attorney-client privilege because they reflect memorializations of otherwise confidential conversations between Diamond owners and their attorneys (or proper agents) made for the purpose of securing legal advice. The evidence submitted by DC Capital along with my own in camera inspection of the account notes supports this finding. I now turn to the issue of waiver.
Diamond argues that by uploading materials to the CRM, DC Capital has waived any existing attorney-client privilege because the CRM is accessible to the Non-Lawyer Partners who are not valid agents of DC Capital. Diamond contends that putting the otherwise-privileged information into a CRM that affords access to the Non-Lawyer Partners demonstrates that DC Capital never intended for the notes to remain confidential, especially considering how involved the Non-Lawyer Partners are in the legal operations of DC Capital. ECF No. 635 at 8–9.
As evidence of the Non-Lawyer Partners’ involvement in legal operations of DC Capital, Diamond points to, among other things, multiple e-mails that were sent to and from the Non-Lawyer Partners. ECF Nos. 677-9, 677-11, 677-23. These e-mails cover a range of topics from updates on general legal strategies DC Capital is undertaking (such as obtaining declarations from all Wyndham and Diamond owner clients (ECF No. 677-11)), to more specific information regarding client-lawyer interactions (ECF Nos. 677-9, 677-23).
At the Evidentiary Hearing, Diamond cited to Bingham v. Baycare Health System, No. 8:14-cv-73-T-23JSS, 2016 WL 3917513 (M.D. Fla. July 20, 2016). In that case, the plaintiff and his attorneys exchanged emails that contained legal discussions about the case as well as a link to a cloud storage account where the attorneys uploaded documents for the plaintiff to review. Id. at *2. The plaintiff forwarded these e-mails from his personal e-mail account to his work e-mail account so that he could access the link to the cloud from work. Id. The employer's workplace policy “reserved the right to access, read, and disclose any electronic communication sent or received over its communication systems.” Id. at *5. Plaintiff was aware of the employer's policy. Id.
The defendant argued that by sending or receiving the e-mails over his employer's communications system, the plaintiff no longer intended for the communications to remain confidential. Id. The court ultimately held that e-mails were not privileged because the plaintiff did not have a “reasonable expectation of confidentiality” in his workplace e-mails due to the employee's policy. The court found no attorney-client privilege applied because it “[was] clear that Plaintiff was aware that [his employer] could access and monitor employee e-mails and that [his employer] did in fact access and monitor employee accounts for at least some purpose. Id. at *6.
*11 Here, Diamond offered evidence to show that DC Capital's policy is to allow its Non-Lawyer Partners access to the account notes in the CRM. However, there are two critical differences between this case and Bingham. First, DC Capital presented evidence that the Non-Lawyer Partners do not monitor the account notes even though the policy gives them authority to do so. Second, there is no evidence that Ms. Chabrier or any of the other DC Capital lawyers or their agents knew or should have known at the time they uploaded the account notes into the CRM that the Non-Lawyer Partners had access to the CRM account notes. Diamond's evidence that the Non-Lawyer Partners were more involved with day-to-day legal operations of DC Capital does not convince me that the DC Capital lawyers and their agents must then have been aware that anything they put into the CRM would be accessible to the Non-Lawyer Partners.
For the items listed in the FAPL, I find that the DC Capital lawyers and their agents reasonably believed that the information uploaded to the CRM would remain confidential. DC Capital submitted particularized and non-conclusory declarations. Specifically, DC Capital submitted declarations from Ms. Chabrier (ECF No. 653-1), Mr. Panopoulos (ECF No. 653-3), Mr. Newton, (ECF No. 653-4), Mr. Anderson (ECF No. 653-5), and Mr. Johnson (ECF No. 653-6). Ms. Chabrier's declaration states in relevant part that “the Non-Lawyer Partners have not accessed the Notes for the Clients.” ECF No. 653-1 ¶ 20. Further corroborating Ms. Chabrier's understanding that Non-Lawyer Partners do not access the account notes in the CRM are the declarations from Mr. Panopoulos, Mr. Newton, and Mr. Anderson. All three Non-Lawyer Partners unequivocally state in their respective declarations that they do not access client files within the CRM as part of their day-to-day roles at Newton ESA, NGT, or NGE, and they have not accessed nor reviewed the CRM for the DC Capital clients at issue here. ECF Nos. 635-3 ¶¶ 15–16, 653-4 ¶¶ 4–5, and 653-5 ¶¶ 4–5.[7]
Diamond argues that the account notes are not work product because they were not prepared for the primary purpose of anticipated litigation. ECF No. 635 at 10–11. Diamond contends that although some of the descriptions in the FAPL contain general references to “litigation,” that is insufficient to carry DC Capital's burden of proof. Id. at 12. DC Capital counters that the designated account notes constitute “opinion work product,” which enjoys nearly absolute protection and need not be made in furtherance of current or anticipated litigation, but any potential or “impending” litigation. ECF No. 652 at 11–16; Hr'g Tr. 29:16–24; 30:24–31:4, Aug. 26, 2021.
*12 The five Diamond owners/DC Capital clients at issue in the remaining FAPL entries are the Woods, Velanda Levy, the Pitts, the Horrells, and Horacio Gonzalez. See ECF No. 635-1 at 3–5, 26–27. I find that each of the remaining account notes is protected by the work product privilege and thus barred from disclosure.[9]
As evidence of the either ongoing or imminent litigation referred to in the account notes, Diamond submitted arbitration demands for ten Diamond owners/ DC Capital clients. ECF Nos. 653-1 at 56–128; 676-11. DC Capital also submitted Ms. Chabrier's declaration, which states in relevant part that in 2020, DC Capital was researching “potential claims against Plaintiffs for among other things, failure to give notice required under the [UCC] in connection with Plaintiffs’ repossession of the points and issuance of 1099-C to DC Capital's clients ... DC Capital partnered with e law firm of Methvin, Terrell, Yancey, Stephens, & Miller, P.C., to research the issue and bring arbitrations demands against Plaintiffs....” ECF No. 653-1 ¶¶ 25–26. Diamond argued at the hearing that although Ms. Chabrier testified that DC Capital was considering arbitration as early as 2020, they did not file any of the demands for arbitration until at least March 2021. ECF No. 677-1 at 11–12 (“Confidential Plaintiffs’ Exhibit 1”). Thus, the notes at issue could not have been reasonably made with the primary purpose of aiding in anticipated litigation because that litigation was not yet anticipated. Hr'g Tr.83:16–84:12; 84:21–25, Aug. 26, 2021.
1. Entry No. 19
Entry No. 19 is an account note entered on August 24, 2020 by DC Capital attorney Michelle Cumberland regarding the Pitts and is described as her “evaluation of client's candidacy for a deposition in ongoing litigation.” ECF No. 635-1 at 4. Ms. Chabrier's declaration clarifies that the “ongoing litigation” referred to in the FAPL is the present litigation. ECF No. 653-1 ¶ 31 (“entry no. 19 refers to attorney Michelle Cumberland's internal analysis and mental impressions on whether the client, Paul and Marilyn Pitts should be deposed in the instant litigation”). I find this account note is properly withheld based on work product privilege.
Regardless of whether the account note at issue is fact or opinion work product, its “primary motivating purpose” must be to aid in the anticipated litigation. See Reed Hein, 2019 WL 9091666, at *15; Atriums of Palm Beach Condo. Assn., Inc., 2009 WL 10667478 at *4 (“Once work product protection attaches, the doctrine is divided into two categories enjoying different degrees of protection.”). I find that DC Capital has established that Ms. Cumberland's account notes were made with the primary motivating purpose of assisting in not only anticipated litigation, but the ongoing litigation in this case that began in 2018. Thus, I find that the work product protection attaches.
Entry No. 11
*13 Entry No. 11 is an account note generated by Ms. Cumberland on July 2, 2020, regarding the Woods and is described as a “summary of conversation with client discussing case status and research of prior attorney on case.” ECF No. 635-1 at 3. This account note is with regard to the ongoing litigation in this case. It contains a recitation of Ms. Cumberland's conversation with the Woods related to this litigation. I find that it is fact work product, not opinion work product, as argued by DC Capital at the evidentiary hearing. Regardless, Diamond has not made an adequate showing of a substantial need that is necessary to obtain fact work product. Cox, 17 F.3d at 1422. Burrow, 334 F. Supp. 3d at 1229. Thus, I find Entry No. 11 has been properly withheld because DC Capital has met its burden to establish that the account note was prepared with “primary motivating purpose” of aiding in the anticipated litigation. See Reed Hein, 2019 WL 9091666, at *15.
Entry No. 24
Entry No. 24 is an account note entered on March 12, 2020, by DC Capital attorney Richard Tallini regarding the Horrells and is described as “an assess[ment of] candidacy of the clients’ case for potential inclusion in global litigation.” ECF No. 635-1 at 5. Of the five Diamond owners relevant to this work product discussion, DC Capital only filed an arbitration demand on behalf of the Horrells. ECF No. 676-11 at 27–29. In her declaration, Ms. Chabrier states that in 2020, DC Capital began to investigate and research potential claims against Diamond in connection with Diamond's repossession of points and their pattern of issuing 1099Cs to many of DC Capital's clients. ECF No. 653-1 ¶ 25. About one year later, DC Capital did ultimately file the arbitrate demands on behalf of some of their clients, including the Horrells. Id. ¶ 26 Ms. Chabrier states in her declaration that the purpose of Entry No. 24 “was to communicate with the client and conduct an DC Capital's investigation [sic] the factual background of the clients’ timeshare interest, efforts to exit, and then Plaintiff[’]s issuance of a 1099c, which led to the filings of the arbitrations.” ECF No. 653-1 ¶ 29.
I find Ms. Chabrier's declaration coupled with the arbitration demand itself to be sufficient to satisfy DC Capital's burden to show that this account note was generated for the primary purpose of assisting in anticipated litigation. It is very reasonable to this Court that DC Capital was investigating potential claims it could bring against Diamond on behalf of its clients. To assess whether those claims were viable, they had to thoroughly research and investigate, which involved speaking with the clients themselves and could reasonably take over a year to do. Some of that investigation led to actual litigation, as was the case with the Horrells. This particular account note supports DC Capital's argument that the account note was generated in anticipation of litigation, not just litigation that might be slightly possible in the distant future, but litigation that was potentially much more imminent. Thus, I find it is sufficient to justify protection under the work product privilege.
Entry Nos. 155–158
Entry Nos. 155–158 are case notes generated by Ms. Cumberland from September 22 to September 29, 2020, regarding Mr. Gonzalez's case. ECF No. 635-1 at 26–27. The privilege log itself reveals that they were created with the primary purpose of assisting in both the ongoing litigation in this case (it was during this time that Diamond identified Mr. Gonzalez as a Diamond owner whom they wanted to depose) and potential future litigation concerning a class action lawsuit related to the 1099Cs that Diamond was issuing. Ms. Chabrier states in her declaration that DC Capital had “discussed potential causes of action with the Clients and evaluated their cases as well as discussed this litigation with clients” and that these entries were made “with the primary purpose of possibly bringing litigation against Plaintiffs or for use in this litigation.” ECF No 653-1 ¶ 30. That statement is further supported by the fact that DC Capital actually did pursue litigation, around the same time, against Diamond on behalf of other clients. That is sufficient to satisfy DC Capital's burden to show that the account notes were not created merely with an “eye towards litigation.” Reed Hein, 2019 WL 9091666, at *14–15. They were created to investigate litigation that was much more than a faint and distant possibility. Thus, I find that the evidence submitted by DC Capital in conjunction with my in camera review of these particular account notes to be sufficient to establish that the work product privilege applies to Entry Nos. 155–158.
Entry No. 14
*14 Entry No. 14 is an account note generated by Ms. Cumberland on June 17, 2020, regarding Ms. Levy's case and is described in the FAPL as “mental impression about Diamond's interest after client received 1099C.” ECF No. 635-1 at 3. For the reasons stated above with regard to Entry Nos. 155–158, I find DC Capital has submitted sufficient evidence to satisfy their burden to show that this account note was created in anticipation of litigation. Additionally, this account note is a combination of both fact and opinion work product. It contains both factual material regarding potential litigation with Diamond related to this specific client, as well as Ms. Cumberland's mental impressions and opinions regarding that anticipated litigation. Burrow, 334 F. Supp. 3d at 1229; MapleWood Partners, L.P. 295 F.R.D. at 620–21. Thus, I find Entry No. 14 to be protected by the work product privilege.
D. Clawback
Diamond argues that the Eight Account Notes are not privileged for the same reasons that the other account notes identified in the FAPL are not privileged. Those Eight Account Notes were submitted for in camera review prior to the Discovery Hearing on August 2, 2021. ECF Nos. 654-5, 654-6 (“Confidential Exhibits 5 and 6”). I have reviewed those submissions and, applying the same reasoning discussed above, find that they are, absent the potential subsequent waiver, protected by the attorney-client privilege.
Diamond argues that even if the Eight Account Notes were once privileged, DC Capital waived that privilege when counsel for DC Capital specifically reviewed the Eight Account Notes and chose to disclose them to Diamond without redaction. ECF No. 654 at 3. Thus, Diamond argues that clawback is improper because DC Capital's disclosure of the unredacted Eight Account Notes was not inadvertent. Id. As discussed at the Evidentiary Hearing, the Court will hold a separate evidentiary hearing to determine whether DC Capital's disclosure was inadvertent. That hearing will be set by separate Order.
DC Capital argues that they should not be compelled to produce the documents in FAPL Entry Nos. 2, 3, 5, 128, 130, 132–34, and 142 because they are irrelevant. DC Capital states the information contained in those documents is not relevant to this case because they pertain to DC Capital clients who do not own a timeshare interest with either of the Diamond entities involved in this litigation. Id. at 19. Thus, DC Capital argues that “the requested information is disproportionate based on the relative importance of the issues to the litigation and the importance of this information in resolving DC Capital's liability. Id. At the Evidentiary Hearing, Diamond agreed that if the account notes at issue do not involve any owners of the Diamond Plaintiff properties, then they are not relevant and thus Diamond is not moving to compel them. Hr'g Tr. 11:13–19, Aug. 26, 2021. I have reviewed said entries and find that they are not relevant to this litigation because they concern discussions with owners of non-Diamond entity timeshares. Therefore, in light of Diamond's acknowledgement at the Hearing and my own review of the documents at issue, Diamond's Motion to Compel is DENIED with regard to Entry Nos. 2, 3, 5, 128, 130–35, and 142.
IV. CONCLUSION
For the foregoing reasons, Diamond's Motion to Compel (ECF No. 635) is DENIED.
DONE and ORDERED in Chambers this 14th day of September, 2021, at West Palm Beach in the Southern District of Florida.
Footnotes
The term “Newton NGT/NGE” will be used throughout this Order to collectively refer to Newton Group Transfers, LLC, Newton Group Exit, LLC, and Interval Brokers Direct, LLC. Newton Group ESA, LLC will be referred to as “Newton ESA.”
The one exception is Non-Lawyer Partner, Todd Johnson, whose Declaration states that because part of his role is to provide technology assistance and services to DC Capital, “[t]he only time I access DC Capital's file notes in the CRM is for troubleshooting or software issues in the performance of my duties under the [Administrative Services Agreement].” ECF No. 635-6 ¶ 4–5.
Diamond clarified at the hearing that they are not objecting to DC Capital's assertion of privilege over entries in the FAPL that are described as emails, letters, or facsimiles, to the extent that those documents are direct communications between a lawyer and the client for the purposes of securing legal advice. Hr'g Tr.8:24–9:11, Aug. 26, 2021. For example, Entry No. 86 is an email communication from Diamond Owner Gail Kelly to her DC Capital attorney Lauren Sharon. ECF No. 635-1 at 14. The purpose of the email is described in the FAPL as “Email communication from client to attorney concerning credit issues and credit reporting by resort developer in furtherance of obtaining legal advice.” Id. I have reviewed this document and the other non-account note entries in camera and find that each constitutes (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining legal advice. In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992). Accordingly, going forward in this Order, I will only evaluate the entries in the FAPL labeled “Case Note”. DC Capital will not be compelled to turn over FAPL Entry Nos. 17, 61, 75, 86, 87, 97 114, 117, 118, 121, 122, 124, 126, 127, 136, 137, 148–50, 152, 162, 169, 176, 183, and 184 because these entries are not account notes.
In the First Privilege Order, I held that the Non-Lawyer Partners are not “reasonably necessary for the effective representation of [DC Capital] clients” and therefore, do not qualify as valid agents of DC Capital lawyers. Their involvement in communications demonstrates a lack of intention to keep those communications confidential, and thus eviscerates the attorney-client privilege. ECF No. 535 at 22–30. Conversely, I held that many of the Newton ESA and DC Capital non-lawyer employees are valid agents of DC Capital attorneys because their respective services are reasonably necessary for the effective representation of the clients. For example, I found Oxana Wright, Legal Operations Manager, to be a valid agent and thus her involvement in client communications did not waive the privilege. Id. at 30–31 n. 9. Those findings from the First Privilege Order apply here as well. Ms. Wright and other employees labeled in the FAPL as “Legal Operations Managers” constitute valid agents of the attorneys at DC Capital. Similarly, for the reasons thoroughly addressed in the First Privilege Order, “Customer Experience Specialists” are valid agents of the DC Capital attorneys. Id. at 40.
DC Capital acknowledged mistaken redaction of Entry Nos. 33 and 84 and has indicated that they will be turning over unredacted copies of these account notes to Diamond. As a result, I did not review them to determine whether any privilege applies.
At the Evidentiary Hearing, Diamond conceded that an otherwise privileged e-mail between an attorney and client is still privileged even if it has been copy-pasted into an internal notes system. Hr'g Tr. 52:1–10, Aug. 26, 2021. Regardless of Diamond's concession, however, my independent analysis of the entries in the FAPL leads to the same conclusion -- that the entries in question are privileged.
As previously noted, Mr. Johnson's declaration states that because part of his role is to provide technology assistance and services to DC Capital, “[t]he only time I access DC Capital's file notes in the CRM is for troubleshooting or software issues in the performance of my duties under the [Administrative Services Agreement].” ECF No. 635-6 ¶ 4–5. I do not find that his access of the CRM for technology and software related issues is sufficient to establish that the attorneys and their agents therefore did not intend for their account notes to remain confidential when uploaded into the CRM. Thus, I do not find that Mr. Johnson's limited access of the CRM constitutes a waiver of the attorney-client privilege.
DC Capital claims that both the attorney-client privilege and the work product privilege apply to most of the entries in the FAPL. Because I have already found many of those entries are protected from disclosure by the attorney-client privilege, I need not address whether they are also protected by the work privilege. Thus, I will only review those non-attorney-client privileged FAPL entries to determine whether they constitute as work product that should be withheld. Those FAPL entries are Entry Nos. 11, 14, 19, 24, and 155–158.
Diamond did not argue that, assuming the entries in question are work product, there is a substantial need (necessary to obtain fact work product) or the existence of a “very rare and extraordinary circumstance” necessary to override the “nearly absolute” protections given to opinion work product. Cox, 17 F.3d at 1422.
Similarly, Diamond has not argued that DC Capital failed to create these account notes in a way that was reasonably designed to conceal it from the opposing party. Diamond's arguments regarding waiver relate to DC Capital's potential disclosure of the account notes to individuals within the Newton NGT/NGE/ESA sphere (namely, the Non-Lawyer Partners). Those individuals are not an “opposing party.” Thus, disclosing the account notes to them would not waive the work-product privilege. See Raymond James Fin. Servs., 2020 WL 1492993, at *3.