*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636 and upon the parties’ joint request for the Court to conduct an in-camera review of certain documents which Defendant Pace has withheld from production on the basis of various asserted privileges. (Joint Letter [Docket No. 192]).

I. Background

Plaintiff initiated the present case in the First Judicial District, County of Dakota, State of Minnesota. (Notice of Removal [Docket No. 1]). Defendant Pace removed the present case to this Federal Court on July 23, 2019. (Id.).

On December 20, 2019, Plaintiff, after being given leave of Court to do so, filed its Amended Complaint. (Amended Compl. [Docket No. 80]). Plaintiff's Amended Complaint names as Defendants Daniele Pace, Plaintiff's former employee, and Henry Schein, Inc., Defendant Pace's new employer and one of Plaintiff's direct competitors. (Id.).

According to the factual assertions in its operative Amended Complaint, Plaintiff distributes dental supplies, equipment, and software to dental professionals across the United States. (Amended Compl., [Docket No. 80], at 1). In June 2013, Plaintiff hired Defendant Pace as a “CAD/CAM” or “CEREC” Specialist responsible for “working directly with territory sales representative to provide specialized counseling and services to CAD/CAM customers.” (Id. at 1–3). Defendant Pace “worked out of Patterson's Denver location and she had responsibilities throughout Colorado and portions of Wyoming.” (Id. at 3).

On February 9, 2018, during her employment with Plaintiff, Defendant Pace signed an Employment Agreement in which, Plaintiff alleges, Defendant Pace agreed to “keep in confidence and trust” all confidential and proprietary information. (Id. at 4). The Employment Agreement contained a provision that required Defendant Pace, at the time her employment was terminated, to provide her employer with all her personally owned electronic devices which “contain[ ] or could contain any Company Property,” including confidential information. (Id. at 5).[1]

On March 18, 2019, Defendant Pace terminated her employment with Plaintiff. (Amended Compl., [Docket No. 80], at 9). According to Plaintiff, Defendant Pace “immediately thereafter took a job with Henry Schein as Regional Sales Manager in the Denver market.” (Id. at 9).

Plaintiff alleges that Defendant Pace breached her Employment Agreement in a number of ways, including breaching the confidentiality provisions, failing to return Plaintiff's property, breaching the non-solicitation provision, misappropriating Plaintiff's trade secrets, retaining trade secret information without authorization, and disclosing trade secret information in order to solicit Patterson customers. (Id. at 8–21). As relevant to the present Motions, Plaintiff alleges that Defendant Pace, during the course of her employment with Plaintiff, sent to her personal email a number of documents which Plaintiff alleges contained confidential information and trade secrets. (Id.). Plaintiff further avers that Defendant Pace, after the termination of her employment with Plaintiff, retained certain “Company Property,” including several documents that contained Plaintiff's confidential information and trade secrets, and she “refused” to return certain “Company Property” after Plaintiff requested she do so. (Id.).

*2 On March 19, 2019, Plaintiff caused a letter to be sent to Defendant Pace which Plaintiff asserts “remind[ed] her of the obligations contained in the Employee Agreement and that such obligations continued after her employment at Patterson ended.” (Id. at 10). On March 19, 2019, Plaintiff also sent a letter to Defendant Henry Schein informing it of Defendant Pace's Employment Agreement and the provisions contained therein. (Id.). The March 19, 2019, letter to Defendant Henry Schein noted that “failure to abide by the Agreement w[ould] cause Patterson Dental to take appropriate legal action to protect its interest.” (March 19, 2019, Letter [Docket No. 88-3]).

On May 17, 2019, Plaintiff's counsel sent another letter to Defendant Pace. (Letter [Docket No. 9-4]). The May 17, 2019, letter alleged that Defendant Pace was violating her Employment Agreement, and the letter asserted that Defendant Pace's actions “seem[ed] clearly to have been in anticipation of leaving Patterson to join Henry Schein, with the intent of using such confidential information and trade secrets in [her] employment with Henry Schein.” (Id.). The letter warned that Defendant Pace “must immediately cease any further wrongful conduct” because she was “at risk of substantial legal liability ....” (Id.). Plaintiff's counsel opined that if Defendant Pace “immediately cease[d] any further wrongful conduct, t[ook] appropriate steps to correct and remedy prior wrongful conduct, and ensure[d] no future wrongdoing, then a solution to th[e] situation may be possible.” (Id.). Plaintiff's counsel asserted that “[a]t a minimum, Patterson requires that [Defendant Pace] sign and return the enclosed Certification, indicating that [she] will abide with [her] obligation under [her] Employment Agreement,” and that her “refusal to do so w[ould] be viewed as an indication that [she] intend[s] to violate [her] obligation to Patterson.” (Id.). The letter also instructed Defendant Pace that she was “required to preserve any and all electronic and paper documents and records that may be relevant to this situation ....” (Id.).

On May 17, 2019, Plaintiff's counsel also sent a similar letter to Defendant Henry Schein. (Letter [Docket No. 9-5]). The letter warned Defendant Henry Schein that it and Defendant Pace were “at risk of substantial legal liability.” (Id.). The letter also instructed Defendant Henry Schein that it was “required to preserve any and all electronic and paper documents and records that may be relevant to this situation ....” (Id.).

On May 27, 2019, Plaintiff's counsel sent another letter to Defendant Henry Schein asserting that Plaintiff had not received any response to its previous letters. (Letter [Docket No. 104-2]). The letter asserted that Defendant Henry Schein “had been on full notice” of Defendant Pace's alleged wrongful conduct, and that “[a]ny reasonable person would conclude that Henry Schein is intentionally benefiting from and a willing participant in [Defendant] Pace's wrongful conduct, exposing itself to substantial liability for misappropriation of trade secrets, conversion, and tortious interference with contract, among other possible claims.” (Id.). Plaintiff's counsel again sought assurances that Defendant Henry Schein would engage in no further wrongful conduct. (Id.).

On May 30, 2019, Marjorie Han, Vice President and Senior Counsel for Defendant Henry Schein, responded to Plaintiff's counsel's letters. (Letter [Docket No. 104-3]). The letter asserted that it was in response to Plaintiff's counsel's various letters to Defendant Henry Schein and also written “on behalf of [Defendant] Pace ....” (Id.). The letter also instructs Plaintiff's counsel to “direct all further correspondence regarding [Defendant] Pace to” Ms. Han. (Id.). The letter denied any wrongful conduct on behalf of Defendant Henry Schein and Defendant Pace. (Id.).

*3 Plaintiff's counsel sent a reply letter on June 5, 2019. (Letter [Docket No. 104-4]). Plaintiff's June 5, 2019, letter sought clarification on whether or not Ms. Han has been retained as Defendant Pace's counsel and if so, whether or not she could accept service on behalf of Defendant Pace. (Id.). Plaintiff's counsel's letter also asserted that Plaintiff assumed Defendant Henry Schein had “determined that its own interest and [Defendant] Pace's are in alignment, there [was] no conflict of interest between its interest and those of [Defendant] Pace, and that it [was] acting jointly with [Defendant] Pace.” (Id.).

On June 7, 2019, Ms. Han responded to Plaintiff's counsel's June 5, 2019, letter. (Letter [Docket No. 104-5]). Ms. Han's letter asserts that she represents Defendant Henry Schein “and its employees in their capacity as employees of the Company,” but that she was “not authorized to accept service on [Defendant] Pace's behalf.” (Id.). The letter further asserted that Ms. Han did not represent Defendant Pace “in her individual capacity.” (Id.).

Based on the allegations in its Amended Complaint, Plaintiff raises eight causes of action. (Amended Compl., [Docket No. 80], at 13–21). Specifically, Plaintiff asserts the following causes of action: Breach of Contract (Count I) against Defendant Pace; Misappropriation of Trade Secrets (Count II) against Defendants Pace and Henry Schein; Conversion (Count III) against Defendant Pace; Tortious Interference with Contractual Relationships (Count IV) against Defendants Pace and Henry Schein; Tortious Interference with Prospective Economic Advantage (Count V) against Defendants Pace and Henry Schein; Breach of Fiduciary Duty and Duty of Loyalty (Count VI) against Defendant Pace; Inducing, Aiding, and Abetting Breaches (Count VII) against Defendant Henry Schein; and Conspiracy (Count VIII) against Defendants Pace and Henry Schein. (Id.).

On June 15, 2020, Plaintiff and Defendant Pace filed a joint letter notifying the Court that a dispute had arisen regarding certain documents on Defendant Pace's privilege log. (Joint Letter [Docket No. 192]). Specifically, the parties proffered that a dispute had “arisen regarding certain documents Patterson has identified on Pace's privilege log, which Pace has asserted attorney client privilege, spousal/marital privilege, or work product, and withheld from production on that basis.” (Id.). The parties proffered that the best way to resolve the issue would be to submit the disputed documents to the Court for in-camera review. (Id.).

On June 12, 2020, the undersigned issued an Order, [Docket No. 193], granting the parties’ request for in camera review of certain documents. The Court ordered Plaintiff to file a brief letter identifying “each of the documents at issue,” and the Court further ordered Defendant Pace to provide the Court with copies of the documents at issue. (Order [Docket No. 193]). The Court also permitted the parties to submit briefing on the issue of whether or not the documents at issue, as specified by Plaintiff, should be produced. (Id.). The documents at issue have now been provided to the Court, and the parties have completed the permitted supplemental briefing.

II. The Present Dispute

In its June 15, 2020, letter to the Court, Plaintiff identified the following documents as the documents at issue: REV00226569, REV00228459, REV00234672, #6404.1, #77.1, #6376.1, #2943.1, #4964.1, #5309.1, #506.1, #4836.1, #284325.1, #2368.1, #257.1, #6515.1, #4960.1, #6103.1, #7596.1, #246.1, #285673.1, #6452.1, #140.1, #4897.1, and #5375.1. (Plf.’s Letter [Docket No. 194]).[2] These are the only documents now at issue before the Court.[3] These at issue documents can be organized into nine discrete groupings.

*4 In general, Defendants argue that each of the documents now at issue “reflect and relay attorney-client communications pertaining to Patterson's threatened legal action that were made for the purpose of seeking or obtaining legal advice,” and therefore, the documents are protected by the attorney-client privilege. (See, Def. Pace's Letter Brief, [Docket No. 199], at 1) (footnote omitted).[4] Defendants also argue that the documents at issue are protected under the work product doctrine. (See, Id.). Defendants do not proffer individual arguments as to any specific document at issue; instead, Defendants merely argue broadly that the documents at issue, as a collective, fall into Defendants’ general arguments. (See, Id.).

Plaintiff argues that Defendants have failed to establish that any of the documents at issue are properly withheld pursuant to either the attorney-client communication privilege or the work product doctrine. (See, Plf.’s Letter Brief [Docket No. 200]). Specifically, Plaintiff argues that Defendants have failed to articulate how communications with Mr. Hughes, a non-lawyer, fall into any asserted privilege, and that Defendants have failed to demonstrate that Ms. Han was working in her legal capacity such that any communication in the documents at issue warrant protection under any asserted privilege. (See, Id.).[5]

A. Applicable Law

*5 This Court has jurisdiction over the case presently before it under 28 U.S.C. § 1332. Federal Rule of Evidence 501 states that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Because this is a diversity case, the determination of whether attorney-client privilege applies is governed by state law. See, Union Cty. Ia. v. Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008). “Rule 501 does not, however, specify which state's privilege rules control. Under the Erie[6] doctrine, a federal court must apply the forum's conflict of laws rules.” Pritchard-Keang Nam Corp. v. Jaworski, 751 F.2d 277, 281 n.4 (8th Cir. 1984) (citations omitted).[7]

Under Minnesota law, the first inquiry is whether an actual conflict of laws exists. Nodak Mut. Ins. Co. v. Am. Family Mut. Ins., 604 N.W.2d 91, 93–94 (Minn. 2000). A conflict exists if application of the law of either state would be outcome determinative. Id. at 94.

Attorney-client privilege in Minnesota and Colorado is governed by statue. See, Minn. Stat. § 595.02, subd. 1(b); Colo. Rev. Stat. § 13-90-107 (1)(b). Minnesota law provides that “[a]n attorney cannot, without consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client's consent.” Minn. Stat. § 595.02, subd. 1(b). Similarly, Colorado law provides that “[a]n attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice thereon in the course of professional employment; nor shall an attorney's” staff “be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.” Colo. Rev. Stat. § 13-90-107 (1)(b). While the statutes differ slightly in their form, the parties have not identified, and this Court does not find, any conflict in the substance of the statutes or their applications by the Courts of Minnesota and Colorado, respectively. Cf. Minn. Stat. § 595.02, subd. 1(b) and Colo. Rev. Stat. § 13-90-107 (1)(b).

Additionally, the Courts of both Minnesota and Colorado have recognized that the attorney-client communication privilege extends to corporations and the employer and employee dynamic. See, e.g., Leer v. Chicago, M., St. P. & P. Ry. Co., 308 N.W. 2d 305, 308–09 (Minn. 1981); Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002); Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1047 (Colo. 1986). While the Courts of Colorado and Minnesota use somewhat differing language to apply the attorney-client privilege to the corporate setting, the parties have not identified, and here again, this Court does not find, any conflict in the application of this law by the Courts of Minnesota or Colorado. Cf. Leer v. Chicago, M., St. P. & P. Ry. Co., 308 N.W. 2d 305, 308–09 (Minn. 1981) (citing favorable to the factors articulated in Diversified Indus. Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977)) and Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002) (citing favorable to Diversified Indus. Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977), as cited in Upjohn Co. v. United States, 449 U.S. 383 (1981), in its discussion of the applicable factors).

*6 Therefore, the Court will apply the law of both states, but it will cite to Colorado law for ease of analysis. See, gen., Bartholomew v. Avalon Capital Grp., Inc., 278 F.R.D. 441, 448 (D. Minn. 2011).

B. Colorado Law

In Colorado, “the attorney-client privilege,” as codified in Colorado statute, “protects communications between attorney and client relating to legal advice” unless the privilege is waived. Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002). As the Supreme Court of Colorado has explained, “[i]n order to provide effective legal advice, an attorney must have a full understanding of the facts underlying his [or her] representation” and “protecting confidential communications between attorney and client ‘facilitates the full development of facts essential to proper representation of a client.’ ” Id. (quoting Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000); Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1047 (Colo. 1986)).

To effectuate this goal, “the privilege protects not only information and advice communicated from the attorney to the client, but also communication to the attorney to enable him [or her] to give sound and informed legal advice.” Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002) (collecting cases). “The privilege extends to confidential communications by or to the client in the course of gaining counsel, advice, or directions with respect to the client's rights or obligations.” Mountain States Tel. & Tel. Co, DiFede, 780 P.2d 533, 541 (Colo. 1989).

The attorney-client privilege is also available to corporations. See, Alliance Const. Sols., Inc., 54 P.3d at 864. In the corporate setting, communications are protected only to the extent they are not disseminated beyond those persons with a need to know of its contents because of the corporate structure. See, Id. at 869–70.

Regarding the application of the attorney-client privilege in the corporate setting when a corporation's attorney investigates a situation in his or her endeavor to provide legal advice, the Supreme Court of Colorado has adopted the reasoning and relevant factors articulated by the United States Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981). See, e.g., Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864–66 (Colo. 2002). As the Supreme Court of Colorado explained, the Upjohn Court, “in determining that the attorney-client privilege applied to bar discovery of the information, relied on” four factors:

Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court for City & Cty. of Denver, 718 P.2d 1044, 1049 (Colo. 1986) (citing Upjohn Co. v. United States, 449 U.S. 383, 394–95 (1981)). The Supreme Court of Colorado has noted that this reasoning “emphasizes the importance of applying the privilege to protect the ability of attorneys to garner needed information to provide sound legal advice.” Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 866 (Colo. 2002).

*7 The party asserting the attorney-client privilege has the burden of demonstrating the privilege applies. See, gen., Id.

Materials can also be protected from discover under the work product doctrine. “The work product doctrine provides that materials ‘prepared in anticipation of litigation or for trial’ are discoverable ‘only upon a showing that the party seeking discovery has substantial need of the materials ... and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ ” Cardenas v. Jerath, 180 P.3d 415, 421 (Colo. 2008) (ellipses in original) (quoting C.R.C.P 26(b)(3)). The doctrine further provides that “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation.” Id. “The purpose of the work product doctrine is to give ‘qualified immunity from discovery’ to materials prepared in anticipation of litigation or for trial. As such, the work product doctrine does not shield from discovery materials prepared in the ordinary course of business.” Id. (citation omitted).

C. Analysis

The documents that remain at issue fall into two discrete groups. The Court discusses the documents at issue in these discrete groups.

The first subgroup of documents in this group is identified as REV00226569, REV00228459, and REV00234672.

The Court has conducted a thorough in camera review of the documents identified as REV00226569, REV00228459, and REV00234672. These three documents are a text message communication[8] from Adam Hughes, a Regional Manager for Defendant Henry Schein, to Defendant Pace, after she had initiated her employment with Defendant Henry Schein. In the text message, Mr. Hughes provides Defendant Pace with certain information regarding the viability of the present action.

The Court's review of the documents finds that Defendants have failed to meet their burden of establishing that the documents described as REV00226569, REV00228459, and REV00234672 are protected from disclosure by the attorney-client communication privilege.

As noted above, the attorney-client privilege protects only communications between an attorney and a client relating to legal advice. On its face, the communication from Mr. Hughes to Defendant Pace is not a communication between an attorney and a client. Rather, it is merely a message from a manager to his employee providing an update on a certain situation. There is no indication that the communication was an effort to seek or administer legal advice.

Defendants appear to argue that the communication between Mr. Hughes and Defendant Pace should be construed as communications between an attorney and a client because Mr. Hughes was providing information to Defendant Pace which Mr. Hughes had received from Defendant Henry Schein's inside counsel, Ms. Han. Therefore, according to Defendants, it is of no consequence to this Court's analysis that the information was provided to Defendant Pace from Ms. Han through Mr. Hughes because Mr. Hughes was an employee of Defendant Henry Schein involved in the preparation for litigation. This assertion, however, is not supported by the record now before the Court.

*8 Mr. Hughes does state in the brief message that he had just spoken to Ms. Han, and he provides Defendant Pace with his recounting of Ms. Han's thoughts. However, there is no indication in the record that Ms. Han directed Mr. Hughes to provide this information to Defendant Pace, that Defendant Pace needed to know this information in her capacity as an employee of Defendant Henry Schein, or that Ms. Han was even aware this information was being provided to Defendant Pace. In fact, other than Mr. Hughes's assertion that he had recently been on the phone with Ms. Han, there is no indication in the record that this information was actually received from Ms. Han. Instead, it appears to be Mr. Hughes's interpretation of the information provided to him by Ms. Han.

As noted above, Defendants also argue that all of the documents now at issue should be protected from disclosure under the work product doctrine. Defendants do not offer any specific argument as to how the documents identified as REV00226569, REV00228459, and REV00234672 are shield from disclosure by the work product doctrine.

The Court's review of the documents finds that Defendants have failed to meet their burden of establishing that the documents described as REV00226569, REV00228459, and REV00234672 are protected from discovery by the work product doctrine.

As discussed above, the work product doctrine can protect from disclosure materials demonstrating an attorney's thought process that were prepared in anticipation of litigation, and those materials may only be discoverable if the party seeking discovery has substantial need of the materials and demonstrates that it is unable to obtain the materials from other means without undue hardship. On the face of the documents labeled as REV00226569, REV00228459, and REV00234672, there is no indication that these documents were prepared in anticipation of litigation. Rather, as discussed above, the message from Mr. Hughes to Defendant Pace is merely the type of message in which a manager provides one of his employees with an update on a certain circumstance. There is no indication that Ms. Han instructed Mr. Hughes to provide this information to Defendant Pace, no indication that Ms. Han knew that this information was being provided to Defendant Pace, and nothing in Mr. Hughes's text describes Ms. Han's attorney or litigation strategy thought process.

Thus, the Court finds that Defendants have failed to satisfy their burden of demonstrating that the documents labelled as REV00226569, REV00228459, and REV00234672 are protected from discovery by either the attorney-client privilege or the work product doctrine. Therefore, to the extent Plaintiff seeks an Order of this Court compelling Defendants to produce the documents labeled as REV00226569, REV00228459, and REV00234672, Plaintiff's request is GRANTED. Defendants must produce said documents to Plaintiff as soon as practicable, and in any event by no later than October 6, 2020.

The second subgroup of documents in the group of documents described as communications from Mr. Hughes to Defendant Pace are three email communications from Adam Hughes, Regional Manager for Defendant Henry Schein and Defendant Pace's supervisor, to Defendant Pace, after Defendant Pace had initiated her employment with Defendant Henry Schein. These documents are labelled as #285673.1, #6452.1, and #4897.1. Here again, other than their generalized arguments applicable to the documents as a whole, Defendants do not assert any specific argument as to why documents #285673.1, #6452.1, and #4897.1 are protected under either the attorney client communication privilege or the work product doctrine.

The Court has conducted a thorough in camera review of the documents identified as #285673.1, #6452.1, and #4897.1. The Court's review of the documents finds that Defendants have failed to meet their burden of establishing that the documents labelled as #285673.1, #6452.1, and #4897.1 are protected from disclosure by the attorney-client communication privilege.

*9 As noted above, the attorney-client privilege protects only communications between an attorney and a client relating to legal advice. On their face, the email communications from Mr. Hughes to Defendant Pace are not a communication between an attorney and a client. Rather, the documents identified as #285673.1, #6452.1, and #4897.1 are merely email messages from a supervisor to an employee under his supervision providing said employee with certain information.

Like the text messages discussed above, there is no indication that the communications contained in the documents labelled as #285673.1, #6452.1, and #4897.1 were an effort to seek or administer legal advice. Thus, the documents labelled as #285673.1, #6452.1, and #4897.1 fall outside the purview of the attorney-client privilege.

Document #285673.1 appears to be among the documents which Defendants generally argue should be construed as a communication between an attorney and a client because Mr. Hughes was providing information to Defendant Pace which Mr. Hughes had received from Defendant Henry Schein's in-house counsel, Ms. Han.[9] Therefore, according to Defendants, it is of no consequence to this Court's analysis that the information was allegedly provided to Defendant Pace from Ms. Han through Mr. Hughes because Mr. Hughes was an employee of Defendant Henry Schein involved in the preparation for litigation. This assertion, however, is not supported by the record now before the Court.

Document #285673.1 is an email Mr. Hughes forwarded to Defendant Pace. The original email, which Mr. Hughes forwarded to Defendant Pace, was a July 19, 2019, email from Ms. Han to certain employees of Defendant Henry Schein regarding Defendant Pace and the developing situation with Plaintiff. Defendant Pace was not included as a recipient of Ms. Han's email. Although Mr. Hughes is forwarding to Defendant Pace an email originally from Ms. Han, there is no indication in the record that Ms. Han directed Mr. Hughes to provide this information to Defendant Pace, that Defendant Pace needed to know this information in her capacity as an employee of Defendant Henry Schein, or that Ms. Han was even aware that this information was being provided to Defendant Pace. In fact, on the face of the original email, it appears that Ms. Han deliberately chose to not include Defendant Pace as a recipient of the email.[10]

Therefore, the Court's review of the documents finds that Defendants have failed to satisfy their burden of demonstrating that the documents labelled as #285673.1, #6452.1, and #4897.1 are protected from discovery by the attorney-client privilege.[11] Therefore, to the extent Plaintiff seeks an Order of this Court compelling Defendants to produce the documents labeled as #285673.1, #6452.1, and #4897.1, Plaintiff's request is GRANTED. Defendants must produce said documents to Plaintiff as soon as practicable, and in any event by no later than October 6, 2020.

*10 The documents labelled as #6404.1, #77.1, #6376.1, #2943.1, #4964.1, #5309.1, #506.1, #4836.1, #284325.1, #2368.1, #257.1, #6515.1, #4960.1, #6103.1, #7596.1, #246.1, #140.1, and #5375.1 are all emails between Ms. Han, in-house counsel for Defendant Henry Schein, and Defendant Pace, after Defendant Pace had initiated her employment with Defendant Henry Schein. The emails span from May 21, 2019, through May 30, 2019. Other than their overarching arguments applicable to the documents at issue as a whole, Defendants do not assert any specific argument as to why any specific document ought to be protected under either the attorney-client communication privilege or the work product doctrine.

The Court has conducted a thorough in-camera review of these documents. The documents labelled as #6404.1, #77.1, #6376.1, #2943.1, #4964.1, #5309.1, #506.1, #4836.1, #284325.1, #2368.1, #257.1, #6515.1, #4960.1, #6103.1, #7596.1, #246.1, #140.1, and #5375.1 are protected from disclosure by the attorney-client communication privilege.

With the exception of the document labelled #506.1 and #140.1, the emails from Defendant Pace, as an employee of Defendant Henry Schein, to Defendant Henry Schein's in-house counsel, Ms. Han, specifically sought legal advice or direction. With the exception of #4964.1, #5309.1, #4836.1, #284325.1, #7596.1, and #6103.1, Ms. Han's emails to Defendant Pace were to provide legal advice. Therefore, the documents identified as #6404.1, #77.1, #6376.1, #2943.1, #2368.1, #257.1, #6515.1, #4960.1, #246.1, and #5375.1 are emails between attorney and client which specifically seeks or give legal advice, and thus, they are protected by the attorney-client privilege.

The documents labelled #506.1, #4964.1, #5309.1, #4836.1, #284325.1, #6103.1, #7596.1, and #140.1 are emails between Defendant Pace, during her employment with Defendant Henry Schein, and Ms. Han, through which Ms. Han gathered information in order to provide legal advice to Defendant Henry Schein.

As discussed above, the first and second factors Defendants must demonstrate to show that Ms. Han's investigatory communications with Defendant Pace are protected under the attorney-client communication privilege is that the communications were provided by Defendant Pace to Ms. Han, in the latter's capacity as corporate counsel, for the purpose of providing legal advice to the corporation. On the record now before the Court and on the face of the documents at issue, it is evident that the information was provided by Defendant Pace to Ms. Han in Ms. Han's role of providing legal advice to Defendant Henry Schein and its employees.

Defendants must also demonstrate that Defendant Pace was made aware that she was providing information to an attorney so that the corporation could secure legal advice, and Defendant Pace was informed the communications were highly confidential. The Court's review of the documents now at issue demonstrates that Defendant Pace was aware that she was providing information to Ms. Han so that Ms. Han could formulate legal advice, and Defendant Pace was aware that the information was highly confidential.

While the documents labelled as #6515.1, #4960.1, #6103.1, #7596.1, and #246.1, are, as previously discussed, email communication between Defendant Pace and Ms. Han, these emails also have the following recipients: Adam Hughes, Defendant Pace's supervisor; George Khoury, Defendant Pace's supervisor above Mr. Hughes; and Dave Steck, Defendant Henry Schein's Vice President and General Manager. The documents labelled as #140.1 and #5375.1 do not include Mr. Steck as a recipient, but Mr. Hughes and Mr. Khoury are included as recipients on the documents labelled #140.1 and #5375.1. Plaintiff argues that the inclusion of Mr. Hughes, Mr. Khoury, and Mr. Steck on these emails destroys the attorney client privilege. The Court finds this argument to be unpersuasive.[12]

*11 As noted above, in the corporate setting, the attorney-client communication privilege is only maintained to the extent the communication is treated as confidential, and it is not disseminated beyond those persons who need to know of its contents due to the corporate structure. Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 869–70 (Colo. 2002); Bonanno v. The Quizno's Franchise Co., LLC, No. 06-cv-02358 (WYD/KLM), 2008 WL 1801173, at *5 (D. Colo. Apr. 18, 2008) (applying Colorado law). The record now before the Court, including the documents presently at issue, demonstrates that although Mr. Hughes, Mr. Khoury, and Mr. Steck were included as recipients on the emails contained in the documents labelled as #6515.1, #4960.1, #6103.1, #7596.1, #246.1, #140.1, and #5375.1 they were persons who needed to know the contents of those particular communications due to the corporate structure of Defendant Henry Schein. Mr. Hughes, Mr. Khoury, and Mr. Steck are Defendant Pace's direct line of supervisors, and each of these individuals appears to have been involved in hiring or interviewing Defendant Pace, part of the conduct which gave rise to the present action.

Thus, the Court finds that Defendants have satisfied their burden of demonstrating that the documents labelled as #6404.1, #77.1, #6376.1, #2943.1, #4964.1, #5309.1, #506.1, #4836.1, #284325.1, #2368.1, #257.1, #6515.1, #4960.1, #6103.1, #7596.1, #246.1, #140.1, and #5375.1 are protected from discovery by the attorney-client communication privilege. Therefore, to the extent Plaintiff seeks an Order of this Court compelling Defendants to produce the documents labelled #6404.1, #77.1, #6376.1, #2943.1, #4964.1, #5309.1, #506.1, #4836.1, #284325.1, #2368.1, #257.1, #6515.1, #4960.1, #6103.1, #7596.1, #246.1, #140.1, and #5375.1, Plaintiff's request is DENIED.

III. Conclusion

Therefore, for the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

A copy of the Employee Agreement is attached to Plaintiff's Complaint and to Plaintiff's Amended Complaint.,

Plaintiff also identified document #5360.1 and document #2434.1, however, Defendant Pace, in her response to Plaintiff's identification of these documents, asserted that she would not maintain her assertion of privilege over documents #5360.1 or #2434.1. (Def.’sLetter Brief, [Docket No. 199], at 1 n.1). Defendant Pace asserts that these documents will be produced.

In their letter briefs, the parties reference several documents which they refer to as “attachments” to the documents identified in Plaintiff's June 15, 2020, letter. The “attachments” are not now properly at issue before the Court. Plaintiff was specifically directed to identify all documents at issue, (Order [Docket No. 193]), and Plaintiff's identification of the documents at issue did not contain any reference to the “attachments.” (See, Plf.’s Letter Brief [Docket No. 194]). Each of the “attachments” is itself its own discrete entry on Defendant Pace's privilege log, and Plaintiff has failed to provide any explanation as to why the “attachments” should be considered when they were not identified on Plaintiff's identification of the documents at issue. Nevertheless, the Court has reviewed these “attachments,” and it finds that while each of the attachments is related to the document at issue to which it is attached, the consideration of the “attachments” does not change the undersigned's conclusion regarding any of the respective documents at issue. Moreover, it appears that the overwhelming majority of the attachments are either document which have already been produced in the discovery process in the present case, documents which have been publicly filed on this Court's docket, or copies of other publicly filed court documents. Because they are not properly at issue before the Court, the undersigned will not further discuss these “attachments” or production of said “attachments.”

Although the documents now at issue are sought from Defendant Pace and Defendant Pace responded to the present dispute, the record makes clear that it is Defendant Henry Schein which is asserting the disputed privilege and it is Defendant Henry Schein which is in possession of the documents now at issue. (See, e.g., Id. at 1 n.1 (providing that “Defendants determined that they would not maintain privilege claims with respect to” two documents and noting that Defendant “Henry Schein will produce those documents from its servers”); Id. at 1 (providing that Defendant “Henry Schein has (and continued to have) an attorney-client privilege with respect to its attorneys’ communication with Pace”)). Although there may be some lack of clarity as to whether or not Defendant Pace, as an employee of Defendant Henry Schein, may assert Defendant Henry Schein's attorney-client privilege in the absence of an affirmative assertion of that privilege by Defendant Henry Schein, the Court for several reasons, will not here address or decide that issue. First, the parties in the briefing on the present dispute, and indeed throughout the course of this litigation, have ostensibly operated under the parameters that, in response to a discovery request from Plaintiff, Defendant Pace would produce responsive documents that were in the possession of Defendant Henry Schein, even if those documents were not in the possession of Defendant Pace herself. Indeed, the documents sought from Defendant Pace in the present discovery dispute appear to be in the possession of Defendant Henry Schein, not in the possession of Defendant Pace, even though it is Defendant Pace responding to the discovery request and providing the privilege log. Second, Defendant Pace and Defendant Henry Schein share the same local counsel, and in signing the letter brief, [Docket No. 199], said local counsel does not specify the Defendant on behalf of whom he signed the documents. Therefore, it could be argued that Defendants’ counsel's reference to “Defendants” in the brief could serve as Defendant Henry Schein asserting its attorney-client privilege and work product doctrine privilege through its employee, Defendant Pace. The Court does not address the propriety of Defendant Pace asserting the present privilege on behalf of Defendant Henry Schein for documents in the sole possession of Defendant Henry Schein without an affirmative assertion from Defendant Henry Schein of that same privilege. Instead, the Court analyzes the present dispute in the manner the parties collectively presented the dispute—Defendants are jointly asserting the privilege in response to various discovery requests presented to Defendant Pace. To the extent the parties wished the Court to view the present dispute in any other manner, the parties have failed to properly raise that to the Court's attention, and therefore, the parties have waived any such argument.

Plaintiff's letter brief also contains several arguments regarding the sufficiency of Defendants’ privilege log. (See, Id. at 1, 4–5). Beyond this footnote, the Court does not address Plaintiff's arguments aimed solely at the sufficiency of Defendants’ privilege log. This issue was not formally or properly presented to the Court in any timely fashion, and therefore, it is not now properly before the Court. The parties’ joint letter, [Docket No. 192], sought only in-camera review of certain disputed documents; this is the only issue now before the Court.

Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

The previously discussed Employment Agreement which Defendant Pace signed with Plaintiff during her employment with Plaintiff contained a governing law provision which provided that the Employment Agreement was “a Colorado contract and shall be construed under and be governed in all respects by the laws of Colorado, without giving effect to the conflict of laws provisions of Colorado law.” (Employment Agreement [Docket No. 80-1]). While this governing law provision provides that Colorado law represents the substantive law applying to Plaintiff's claims arising out of the Employment Agreement, it does not apply to the “law of privileged communications.” Hercules, Inc. v. Martin Marietta Corp., 143 F.R.D. 266, 268 (D. Utah 1992) (discussing privilege law in the context of claims governed by Colorado substantive law pursuant to the governing law provision of the relevant contract).

Although the communication is presented across three documents it appears to be a single text message.

Documents #6452.1 and #4897.1 fall outside of this generalized argument because on the face of those email communications Mr. Hughes does not appear to be providing Defendant Pace with information he obtained from Ms. Han.

Although Defendant Pace was not included as a recipient on the July 19, 2019, email from Ms. Han, Ms. Han appears to have used a previous email string which did include Defendant Pace as the base upon which to send her July 19, 2019, email. Nevertheless, Defendant Pace was not a recipient of Ms. Han's July 19, 2019, email as sent by Ms. Han ostensibly because Ms. Han removed Defendant Pace as a recipient.

As noted above, Defendants do not articulate any specific argument as to how documents #285673.1, #6452.1, and #4897.1 could constitute materials protected under the work product doctrine. Any such argument would likely fail as documents #285673.1, #6452.1, and #4897.1 are emails from Mr. Hughes to Defendant Pace not Ms. Han to Defendant Pace. Defendants fail to provide, and this Court does not finds, any case where a party was permitted to prevent disclosure based on the work product doctrine after a party other than the attorney had provide the purported work product to another party for reasons other than securing or providing legal advice. To the extent Defendants argue that Defendant Pace should be not be considered a party to which disclosure could waive the protections of the work product doctrine pursuant to the common interest doctrine, Defendants have failed to demonstrate that Colorado law applies the common interest doctrine to waiver of the protections of the work product doctrine as opposed to the attorney-client privilege.

The document labelled #7596.1 also has Defendant Henry Schein's outside counsel, Avi Skoff, as a recipient; however, Plaintiff does not argue that this attorney's inclusion on the email in any way operates as a waiver of the attorney-client privilege.