The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TWIN BRIDGES WASTE AND RECYCLING,
LLC,
Plaintiff,
v. 1:21-CV-0263
(DNH/DJS)
COUNTY WASTE AND RECYCLING SERVICE,
INC, et al.,
Defendants.
APPEARANCES: OF COUNSEL:
DREYER BOYAJIAN, LLP DONALD W. BOYAJIAN, ESQ.
Attorneys for Plaintiff JAMES R. PELUSO, ESQ.
75 Columbia Street
Albany, NY 12207
BOIES, SCHILLER & FLEXNER LLP ADAM SHAW, ESQ.
Attorneys for Plaintiff SCOTT E. GANT, ESQ.
30 South Pearl Street, 11th Floor
Albany, NY 12207
NIXON PEABODY, LLP WILLIAM E. REYNOLDS, ESQ.
Attorneys for Defendants ANDREW C. ROSE, ESQ.
677 Broadway, 10th Floor KELLY A. SPRAGUE, ESQ.
Albany, NY 12207
DANIEL J. STEWART
United States Magistrate Judge
DISCOVERY ORDER
The parties in this matter have resisted production of certain documents based
upon the attorney-client or work product privilege. Privilege logs have been prepared
and exchanged, and the matter was discussed at length during oral argument held on
May 8, 2024. See Dkt. No. 163. In order to assist with the disclosure determination,
the Court directed that copies of the withheld documents, and related privilege logs, be
provided to Chambers for an in camera review. The parties have complied with that
directive, and the Court’s review of the documents has now been completed.
Accordingly, the Court rules as follows on the privilege issues:
I. DOCUMENTS WITHHELD BY DEFENDANTS
Defense counsel submitted in camera sixty-eight (68) documents for which the
attorney-client or work product privilege was asserted, in whole or in part. Sixteen
(16) of the challenged documents were withheld from production in their entirety. The
other fifty-two (52) documents were produced, but with partial redactions. The
documents reviewed by the Court in camera, identified by privilege log #, were as
follows: 60-61, 76, 85-56, 91, 99-100, 227, 328, 334, 339-340, 429, 453-455, 463-
464, 469, 471, 482-483, 495-496, 507, 512, 515, 518-519, 521-522, 525, 527, 530,
532, 534, 537, 541, 608, 617, 783, 785, 804-807, 895, 897, 900-902, 1121-1122, 1185,
1305, 1315-1317, 1320, 1322-1325, 1328, 1362, 1363, & 1364.
Plaintiff’s counsel has opposed the claim of privilege on several grounds. Dkt.
No. 152. In particular, Plaintiff’s counsel asserts the Defendants’ designations are
improper because they involve (1) communications between non-lawyers; (2)
documents with the primary purpose of business advice; (3) documents asserting work
product protection without any present or anticipated litigation; (4) documents sent to
Waste Connections concerning day-to-day operations and activities of County Waste
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and/or Robert Wright disposal; and (5) documents sent outside of County Waste
and/or Robert Wright to other nonparties that precludes any privilege. Id. at p. 4.
As a general matter, the attorney-client privilege applies to “(1) a
communication between client and counsel that (2) was intended to be and was in fact
kept confidential, and (3) was made for the purpose of obtaining or providing legal
advice.” In re Cnty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007); see also United States v.
Mejia, 655 F.3d 126, 132 (2d Cir. 2011). Its purpose is “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.” Upjohn Co. v.
United States, 449 U.S. 383, 389 (1981). “[T]he privilege exists to protect not only the
giving of professional advice to those who can act on it but also the giving of
information to the lawyer to enable him to give sound and informed advice.” Id. at
390.
Corporations may be considered clients for the purposes of attorney-client
privilege, and the internal communication of corporate legal advice does not
necessarily waive the privilege. Id. at 392. In other words, a corporation’s privilege
applies to communications between corporate counsel and corporate employees, so
long as those communications are made “at the direction of corporate superiors in
order to secure legal advice.” Id. at 394.
As an initial point, Defendants’ counsel has clarified that the inclusion of the
name “Katrina Jackson” in the privilege log was a technical error, and that she in fact
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is not a recipient of any of the emails or documents in question. See Dkt. No. 163 at
pp. 35-36. Rather, the individual who received documents was Worthing Jackson,
President and CEO of Defendant Waste Connections. See, e.g., Defendants’ Privilege
Log # 429. The Court has confirmed with this assertion with its own review. This is
significant because the inclusion of a third party in the communication can negate the
claim that the statements were confidential. NXIVM Corp. v. O’Hara, 241 F.R.D. 109,
138 (N.D.N.Y. 2007). “Confidentiality is not lost, however, if the third person was
present in furtherance of the rendition of legal services or was reasonably necessary
for the transmission of the communication.” Weinstein’s Evidence Manual, §
18.03[2][d]. Moreover, corporations that demonstrate sufficient interrelatedness can
be treated as one entity for attorney-client privilege purposes if they are closely
affiliated or share the same legal interest. Music Sales Corp. v. Morris, 1999 WL
974025, at *7 (S.D.N.Y. Oct. 26, 1999).
Based upon the Court’s in camera review, it is apparent that the emails in
question involve consultation with in-house legal counsel regarding several sensitive
and confidential issues. The referenced in-house counsel was more than just a mere
add on to the conversation, and the in camera documents are relevant to inquiries from
the client involving their legal counsel regarding the propriety of the Company’s
response to certain situations. The Court concludes, therefore, that the privilege has
been properly asserted as to the limited documents and selections of redacted emails
submitted for review and is therefore upheld.
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Apart from the privilege issue, the Court also concludes that most if not all of
the documents in question need not be disclosed as they are not proportionally relevant
to the needs of the case. Insofar as the conversations revolve around various drafts of
documents, or the corporation’s internal approach to handling of legal situations,
disclosure of those preliminary drafts or discussions is unnecessary once the final
document, i.e. the consulting agreement, the customer letter, or the disposal
agreement, etc., have been provided. Similarly, the various iterations of potential
responses to media inquiries regarding an upcoming story are not proportionally
relevant where the actual story with the company’s comments (which is what would
have been available to, and thus affected, the consumer) presumably has been
provided, or is downloadable, and where preliminary communications with the
reporter were already supplied.
II. DOCUMENTS WITHHELD BY PLAINTIFF
Plaintiff Twin Bridges has provided 152 documents, or sets of documents, that
it has asserted as constituting either attorney-client or work product privilege. The
Court reviewed in camera the following documents: Log Entry ## 1, 10, 39, 44, 63,
79-85, 90, 117, 120, 125, 128, 136, 138-143, 146, 152-153, 164-165, 168-169, 171,
173-185, 187, 189-190, 206, 215-216, 219, 221-223, 242, 245-278, 281-283, 296, 305,
313, 316-329, 333, 335, 338-343, 346, 348-376, 380-381, 383-387, 389, 392-396, &
398-399.
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Defendants’ position is that the above referenced documents are not properly
classified as privileged, because they were shared with, among others, Jerry Cifor, a
business consultant, and therefore any such protection was lost. Dkt. No. 149.
Generally, the attorney-client privilege applies only to communications between
lawyers and their clients, however, “[u]nder certain circumstances . . . the privilege for
communication with attorneys can extend to shield communications to others when the
purpose of the communication is to assist the attorney in rendering advice to the
client.” United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995). Thus, the Second
Circuit has extended privilege to communications between a client and an accountant,
finding that “[a]ccounting concept[s] are a foreign language to some lawyers,” and
therefore “the presence of the accountant is necessary, or at least highly useful, for the
effective consultation between the client and the lawyer which the privilege is
designed to permit.” United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961).
The Court’s in camera review of the emails and related documents reveals a
basic fact: CPA Jerry Cifor and Tangram Partners LLC were utilized by legal counsel
for purposes of assessing and assisting in the financial implications of numerous
documents or other situations that were necessary for their legal representation of
Twin Bridges and its potential sale. For that reason, the Court upholds the claim of
privilege.
Consistent with the Court’s discussion above regarding Defendant County
Waste, the Court again notes that the majority of the documents withheld by Plaintiff
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(i.e. communications involving in-house counsel with Mr. Cifor and others relating to
the purchase, or contemplated purchase of Twin Bridges by Casella Waste involving,
for example, draft asset purchase agreements; draft tax filings; HSR filings; employee
status notifications; due diligence checklists and reports; contracts; closing statements;
flowcharts; as well as many other related documents or emails) were also not
proportionally relevant to the needs of the case. As part of the Court’s prior Discovery
Order, Dkt. No. 94, copies of the finalized purchase agreement have already been
provided. Accordingly, the documents, emails, and related communications with
counsel and Plaintiff’s employees or financial consultants, or at counsel’s request,
regarding the purchase, are not proportionally relevant to the needs of this case as it
now stands. Similarly, emails with counsel relating to, or discussing, the Susan
Wright letter or internet posts, are not proportionally relevant where the Court has
already ordered production of numerous versions of the letter in question, in their
native form.1 Dkt. No. 163.
III. CONCLUSION
Based upon the forgoing, the Court upholds the assertion of privilege upon the
documents submitted by both parties for in camera review. Each party shall retrieve
1 And, of course, witnesses can be questioned regarding non-privileged communications, including any with
Mrs. Wright regarding input into, or directions regarding, the alleged defamatory letter.
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and preserve their respective binder(s) of documents submitted to the Court.
IT IS SO ORDERED.
Dated: August 13, 2024
Albany, New York
o 7°
Dan Ste
U.S™Magistrate Judge