*1 THIS MATTER, having come before the Court on request for an In-Camera review sought by the parties, and the Court having reviewed the briefed issues and being otherwise fully apprised, finds:

This is a dispute arising from discovery of communications between attorney Beth Kushner (hereinafter, “Kushner”) and Defendant Rex Parris (hereinafter, “Parris”). Kushner and Parris are both alumni of Plaintiff. Kushner and Parris first met through Plaintiff and eventually formed both a personal and professional relationship. As attorneys often do with their peers, they discussed cases and gave each other advice throughout their friendship. According to Parris, in or about 2009, Kushner began giving him legal advice and ultimately represented him in various matters. ECF Doc. 173 ¶ 6.

Regarding this matter, in September and October of 2020, Defendants provided discovery responses to Plaintiff. Among those responses were numerous emails between Kushner and Parris. The earliest of the emails date back to April 2020 and the latest September of 2020. Plaintiff points out that unlike other produced documents which were redacted, these emails were not. ECF Doc. 170 pg 2. After reviewing the emails, Plaintiff decided to prepare a subpoena duces tecum for Kushner regarding other documents and emails she may hold as a factual witness. Id. However, before any subpoena was issued, Kushner filed an appearance on behalf of Defendants on March 4, 2021. ECF Doc. 148. Despite having almost four months to do so before her appearance, Plaintiff served Kushner with a subpoena duces tecum on March 30, 2021. ECF Doc. 170-1. On April 6, 2021, Kushner contacted Plaintiff and claimed the emails at issue were privileged. ECF Doc. 170-2.

Plaintiff stresses that it planned on subpoenaing Kushner long before it had any knowledge she was going to appear in this matter. ECF Doc. 170 pg 2. It also claims to have specifically tailored its requests in the subpoena to avoid any information regarding Kushner's past representation of Parris or information from her time as counsel of record in this matter. Id. at pg 3. Rather than being privileged communications, Plaintiff believes the emails at issue 1) evidence Kushner's role as a “conduit” for Parris to reach Plaintiff's Listserv and 2) demonstrate Kushner was acting in concert with Defendants in promoting a competing entity. Id. To the extent Kushner was acting as counsel for Parris, Plaintiff argues the emails predate this litigation and do not concern the solicitation of legal advice. Id. Lastly, as a procedural argument, Plaintiff asserts Defendants have failed to comply with the Court's Protection Order (ECF Doc. 91) which requires any attempted claw back to be done promptly. Id. at pg 5.

Defendants, with a procedural argument of their own, first urge the Court to simply not consider Plaintiff's motion due to its failure to comply with Local Rules 7.1(b)(1)(A) and 37.1(b), which impose a duty to confer. ECF Doc. 171 pg 5. Defendants further argue the emails at issue are privileged due to the nature of Parris and Kushner's past relationship and because Parris specifically received legal advice from Kushner pertaining to this matter. Id. at pg 7-11. Kushner's tardiness in this matter, according to Defendants, is a result of tragic personal matters and has no strategic significance whatsoever. Id. at pg 4.

1. Violation of Local Rules 7.1(b)(1)(A) and 37.1(b)

*2 The duty-to-confer requirement is not simply a technical hoop through which a litigant must jump. Farris v. Roberts, No. CV 12-221 MV/LFG, 2013 WL 12164704, at *1 (D.N.M. May 3, 2013). Rather, the duty to confer is intended to reduce litigation costs and expedite the ultimate disposition of litigation by having counsel, in good faith, attempt to resolve discovery disputes before they ripen into a formal motion. Id. The Court has authority to overlook non-compliance with procedural rules and consider the motion on the merits, especially since it is generally preferable to avoid hyper-technical approaches to litigation. Id. at *2. However, to disregard the duty-to-confer requirement essentially renders the procedural rules and the district's own local rules meaningless and relegates them to mere suggestions.

Considering the circumstances, particularly in this case, the Court finds it necessary to overlook non-compliance with Local Rules 7.1(b)(1)(A) and 37.1(b). It seems that attempts to reduce litigation costs or expedite the disposition of this case have been met with futility. The Court would only contribute to that futility by denying a motion of this nature for non-compliance. It must be understood, though, the Court will not take kindly to this failure again.

2. Attorney Client Privilege

Next, the Court must determine whether the attorney-client privilege applies to the emails at issue. In federal court, federal common law “governs a claim of privilege” regarding a federal claim or defense. See Fed. R. Evid. 501. The burden of establishing the applicability of the attorney-client privilege rests on the party seeking to assert it. In re Grand Jury Proc., 616 F.3d 1172, 1183 (10th Cir. 2010). The party must bear the burden as to specific questions or documents, not by making a blanket claim. Id. The privilege must be strictly constructed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. Id. (citing Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)).

The attorney-client privilege is meant to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Hedquist v. Patterson, 215 F. Supp. 3d 1237, 1243 (D. Wyo. 2016). To establish application of the attorney-client privilege, the party claiming the privilege must prove there was: (1) a communication, (2) between privileged persons, (3) made in confidence, and (4) for the purpose of seeking, obtaining, or providing legal assistance. Id. Privileged persons include attorneys, clients, and “any of their agents that help facilitate attorney-client communications or legal representation. Id.

However, the mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege. In re Grand Jury Proc., 616 F.3d 1172, 1182 (10th Cir. 2010) (citing Motley v. Marathon Oil Co., 71 F.3d 1547, 1550–51 (10th Cir.1995)). Rather, the “communication between a lawyer and client must relate to legal advice or strategy sought by the client[.]” Id. (citing United States v. Johnston, 146 F.3d 785, 794 (10th Cir.1998)).

The Court finds Kushner was in fact acting as Parris's attorney. The attorney-client relationship does not require a contract, payment, or official labels. Nor does the fact that communications “pre-date” litigation have any bearing on whether an attorney-client relationship existed. When Parris approached Kushner for legal advice, even though she was a friend, an attorney-client relationship was created. That is assuming, considering Kushner has represented Parris in previous matters, such a relationship did not already exist between the two.

*3 Strictly constructing the privilege, and by applying it to only those communications between Parris and Kushner relating to legal advice or strategy sought by Parris, the Court finds most of the emails at issue are privileged, while few are not.

a. Privileged Communications

The Court finds the following emails privileged:

b. Non-privileged Communications

Some communications between Kushner and Parris were not for the purpose of seeking, obtaining, or providing legal assistance. While it may be true that Kushner has represented Parris in the past, the emails found as non-privileged evidence two friends communicating, in an informal manner, about issues personal to both of them. Advice from a friend, riddled with legal jargon because that friend is an attorney, does not automatically render those communications confidential. Plaintiff claims Kushner was a “conduit” for Parris to reach Plaintiff's Listserv and that she helped create confusion by promoting a competing entity. While the Court has no opinion on that statement at this time, it is abundantly clear Kushner was forwarding emails from Plaintiff's Listserv to Parris, posting emails created and edited by Parris at Parris's request, and engaging in colloquial opinion filled banter with Parris.[1] Plaintiff's “conduit” argument, and the fact it might call Kushner as a witness, has no bearing on the Court's analysis of attorney-client privilege. The arguments seem more suited for a disqualification motion.

The following emails are non-privileged:

3. Waiver of Privilege

The Court's determination that most of the emails are subject to attorney-client privilege does not end the inquiry. Disclosure of otherwise privileged documents may sometimes operate as a waiver to those protection. The issue of waiver by inadvertent production is governed Federal Rule of Evidence 502. Rule 502(b) provides, when made in a federal proceeding, the disclosure of attorney-client privileged communications does not operate as a waiver in a federal or state proceeding if (1) the disclosure is inadvertent, (2) the holder of the privilege or protection took reasonable steps to prevent disclosure and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).[2] Fed. R. Evid. 502.

*4 Throughout discovery, Defendants have redacted or refused to produce certain documents due to their privileged nature. ECF Doc. 170 pg 2. Still, Defendants produced the emails at issue without redaction or an accompanying claim of protection. Only after Kushner appeared in this matter and was served with a subpoena, did she and co-counsel discover the emails at issue. Plaintiff believes, now that the Court has found some of the emails privileged, that such an action constitutes a waiver of the protection. The Court disagrees.

While the Court's Protection Order discusses inadvertent disclosures, it does not define what constitutes inadvertence. If a court order or agreement does not provide adequate detail regarding what constitutes inadvertence... the court will default to Rule 502(b) to fill in the gaps in controlling law. New Mexico Oncology & Hematology Consultants, Ltd. v. MV/GBW Presbyterian Healthcare Servs., No. CV 12-526, 2017 WL 5644390, at *3 (D.N.M. Feb. 27, 2017) (citing Mt. Hawley Ins. Co. v. Felman Prod., Inc. 271 F.R.D. 125, 130, 133 (S.D.W. Va. 2010)).

An “inadvertent” disclosure is one that was done unintentionally. When, “... the production was the result of an unintended disclosure rather than an intentional disclosure made under mistaken facts... the first prong of Rule 502(b) [is met].” Smith v. Auto-Owners Ins. Co., No. 15-CV-1153 SMV/GBW, 2016 WL 11117291, at *4 (D.N.M. Oct. 5, 2016). “[C]lassifying a disclosure is a binary choice: it is either intentional or inadvertent.” Irth Sols., LLC v. Windstream Commc'ns LLC, No. 2:16-CV-219, 2017 WL 3276021, at *8 (S.D. Ohio Aug. 2, 2017).

At least at the time of production, Parris's attorneys of record intentionally disclosed Parris's communications with Kushner. There is no evidence suggesting the disclosure was unintentional, only evidence showing counsel who produced the communications was mistaken as to the privileged nature of the emails. This would explain why some communications and documents were withheld or redacted, while Kushner's communications with Parris were not. However, the Court has been unable to find authority holding that one's attorney of record may waive attorney-client privilege held by the client and a second unaffiliated attorney. Nor has the Court been able to find authority holding that disclosure of privileged conversations to a second, separately retained, attorney constitutes a waiver.

Soon after Kushner was affiliated with this case, and officially co-counsel with the disclosing attorney, she discovered the improper disclosures and addressed them with opposing counsel. To that extent, the Court disagrees with Plaintiff that any waiver occurred. The Court also disagrees that Defendants have failed to comply with the Protection Order. The promptness discussed in the Protection Order does not create a window for which improperly disclosed materials must be detected. It only requires Kushner to respond exactly as she did.

4. Ethical Violations

Admittedly, Kushner has placed herself in a precarious position. Undoubtedly, she allowed Parris to use her to send messages, and communicate with, individuals on Plaintiff's Listserv. Kushner realized she was “more valuable” to Parris by retaining access to Plaintiff's Listserv and deemed herself Parris's Listserv “mole”. Defendants dismiss Plaintiff's allegations because they equate Plaintiff's Listserv to something like a social media platform. The analogy is too simple. Listservs are electronic mailing lists. Listservs the modern equivalent of sending letters to individual subscribers.

*5 The analogy also overlooks the fact that the Listserv is owned and managed by Plaintiff exclusively. The individuals on the Listserv retain the privilege to communicate through it because of their association with Plaintiff. Further, every communication sent via the Listserv makes its way to the very individuals that make up the entity that is Plaintiff. As such, the Listserv is more akin to a marketing tool, which is owned, managed, and controlled by Plaintiff.

That means Kushner was using a marketing tool of Plaintiff's to communicate with Plaintiff Listserv subscribers as well as the Plaintiff's Board. Wyoming Rule of Professional Conduct 4.2 says, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person or entity the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Wyo. R. Pro. C. Rule 4.2. Relevant to the issue at hand is comment seven, “[i]n the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with that the matter may be imputed to the organization for purposes of civil or criminal liability.” Wyo. R. Pro. C. Rule 4.2 cmt 7.

The Court has determined that these actions by Ms. Kushner were not carried out in the performance of her duties as an attorney for Mr. Parris and as such this issue is avoided for the purpose of consideration of this motion.

IT IS SO ORDERED.