*1 In part for the reasons expressed in open court, the Court ORDERS as follows:

Plaintiff's Motion for an Order Directing the Return of Documents Subject to a Claim of Privilege (Docket No. 84): ALLOWED IN PART

Plaintiffs are incorrect that they are entitled to the return of these documents under Rule 26(b)(5)(B) or the Protective Order in this case because these documents were not inadvertently produced in discovery, but rather left at Polyvinyl (“Company”) after Plaintiffs were ousted from their positions there. However, Plaintiffs have demonstrated that these communications are privileged and that the privilege was not waived by using the Polyvinyl email systems or by leaving the emails with the Company after their ouster. The crux of the dispute on this point is whether, by using Company email systems, Plaintiffs had an expectation of privacy. In deciding this issue, “[i]n general, a court should consider four factors: (1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employees computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?” In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005). Application of these factors supports the Plaintiffs' position.

Defendants are correct that the Polyvinyl employee handbook in effect at the time warned employees that their emails were not private and were subject to surveillance by the Company, but those provisions did not apply to the Baldwins, senior managers of the Company who would be conducting or leading any surveillance, and not be the subjects of it. Indeed, at his deposition, John J. Connor agreed with this logic. No monitoring was actually conducted of the Baldwins, either, confirming that this interpretation of the handbook is correct. An email from Michael Duffy on May 10, 2018 instructing the Baldwins to use private email does not detract from this conclusion, as it was not accompanied by any analysis of the privacy issues raised by the parties in the current filings.

The Court does not find that the Baldwins waived the privilege under these facts. While the documents were not inadvertently produced such that the “clawback” provisions of Rule 26(b)(5)(B) apply directly, the logic of that rule, and the law supporting it, shows that the “disclosure” of these emails was inadvertent.

Relying on the Joint Supplement (Docket No. 92), the Court concludes that the documents in Categories 1 and 2 are partially privileged, and ORDERS Plaintiff to propose redactions of them within 21 days of this order. The Court anticipates no further disputes on these issues, but if there are any, the parties SHALL engage in a full and complete Rule 9C conference, and not incomplete conferences that have characterized this case. Any failure to comply fully with Rule 9C shall result in the immediate denial of any motion.

*2 The documents contained in Category 3 are not subject to work product protection. Plaintiffs' argument that they were preparing for litigation at the time they were seeking to buy out the Connors is overbroad and unsupported. Indeed, the affidavit from Michael Sweeney does not contend that litigation was anticipated in October 2018. See Att'y Gen. v. Facebook, Inc., 487 Mass. 109, 127 (2021) (citations omitted) (“A document is prepared in anticipation of litigation if, 'in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared because of the prospect of litigation' ... a document that would have been prepared 'irrespective of the prospect of litigation' is not covered by the work product doctrine”).

The document contained in Category 4 is not privileged, either. Even though Robert Baldwin was communicating with his personal lawyer, he did so in his corporate capacity as an officer of Indusol to address a matter of corporate, not personal, concern. The privilege, if any, thus belongs to the Indusol, not Robert Baldwin personally.

Plaintiffs' Motion to Compel Production of Documents by Defendant Nicholas Kourtis: NO ACTION TAKEN PENDING FURTHER RULE 9C CONFERENCE AND FILINGS.

Defendant Nicholas Kourtis' Cross Motion to Compel Plaintiffs to Produce Non-Privileged Documents: ALLOWED.

Any request for sanctions or costs from any party is DENIED WITHOUT PREJUDICE.

SO ORDERED.