Filed: Aug. 15, 2018
Latest Update: Aug. 15, 2018
Summary: ORDER MONTE C. RICHARDSON , Magistrate Judge . THIS CAUSE is before the Court on Defendant's Motion for In Camera Review of Select Documents Listed on Plaintiff's Privilege Log ("Motion for In Camera Review") (Doc. 131), Plaintiff's Opposition thereto (Doc. 149), and Defendant's Notice of Supplemental Authority (Doc. 152). In the Motion for In Camera Review, Defendant asks the Court to review, in camera, certain documents that Plaintiff is withholding from production based on cla
Summary: ORDER MONTE C. RICHARDSON , Magistrate Judge . THIS CAUSE is before the Court on Defendant's Motion for In Camera Review of Select Documents Listed on Plaintiff's Privilege Log ("Motion for In Camera Review") (Doc. 131), Plaintiff's Opposition thereto (Doc. 149), and Defendant's Notice of Supplemental Authority (Doc. 152). In the Motion for In Camera Review, Defendant asks the Court to review, in camera, certain documents that Plaintiff is withholding from production based on clai..
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ORDER
MONTE C. RICHARDSON, Magistrate Judge.
THIS CAUSE is before the Court on Defendant's Motion for In Camera Review of Select Documents Listed on Plaintiff's Privilege Log ("Motion for In Camera Review") (Doc. 131), Plaintiff's Opposition thereto (Doc. 149), and Defendant's Notice of Supplemental Authority (Doc. 152).
In the Motion for In Camera Review, Defendant asks the Court to review, in camera, certain documents that Plaintiff is withholding from production based on claims of privilege,1 in order to determine if the privileges have been properly asserted and, if so, whether any exception applies, and then order production of all non-privileged documents to Defendant. (See Doc. 131.) Contemporaneously with its Motion for In Camera Review, Defendant has filed its Motion to Compel Production of Documents Sought in Its Third Request for Production to Plaintiff ("Defendant's Motion to Compel") (Doc. 146), which seeks to compel "certain discovery relating to communications between Plaintiff and its counsel, Fish & Richardson, relating to the copyright applications and registrations at issue in this case" (Doc. 131 at 3). Defendant states that its request for an in camera inspection relates to the relief sought in its Motion to Compel so the Court may view the records at issue before ruling on the Motion to Compel.2 (Id.)
Defendant states that for the reasons set forth in both its Motion for In Camera Review and its Motion to Compel, "serious questions exist regarding the appropriateness of Plaintiff's claims of privilege." (Id. at 6.) Defendant explains:
The evidence uncovered to date unequivocally demonstrates that Plaintiff has committed a fraud on the US Copyright Office, and that it delegated to its counsel all dealings with the Copyright Office. The evidence also establishes that Plaintiff has put at issue other documents over which it claims privilege. Moreover, other documents listed on Plaintiff's Privilege Log do not involve an attorney and/or were sent to former employees of Plaintiff that, under certain circumstances, may not invoke the protections of the attorney-client privilege.
(Id. at 6-7.)
Plaintiff admits that Defendant's Motion for In Camera Review is intertwined with Defendant's Motion to Compel, and asserts that the "crime-fraud" and "delay" arguments, which also encompass the "former employee" and "entry without an attorney" documents (see Doc. 149 at 2-3), should be dealt with in the context of Defendant's Motion to Compel. (Id. at 2 & n.2.) As to the remaining documents for which Defendant requests an in camera inspection (Privilege Log entries 150, 154, 157, 161, 162, 164, 165, 166, 169, 170, 171, 172, 364, 367, and 370), but does not specifically mention in its Motion for In Camera Review, Plaintiff contends that Defendant has articulated no basis for relief.
In the Motion to Compel, Defendant states that "the Court can engage in [an] in camera review to determine the applicability of the crime-fraud exception." (Doc. 146 at 10.) Defendant asserts that:
Web.com has made a prima facie showing that AIG was planning to obtain fraudulent copyright registrations when it sought the advice of Fish & Richardson, and that AIG ultimately used Fish & Richardson to obtain copyright registrations by fraud on the Copyright Office. Accordingly, documents shared with counsel regarding the circumstances surrounding the creation of the Visibility Report and HTML code, as well as the copyright registrations sought in connection with such, are critically relevant, and excepted from the attorney/client privilege. And, to the extent that there is any doubt, Web.com alternatively requests that this Court require an in-camera review of the responsive documents to determine whether the crime/fraud exception applies.
(Id. at 24.)
In response to the Motion to Compel, Plaintiff states:
[W]hen presented fully and without mischaracterization, the evidence. . . demonstrates that Web has not and cannot meet its burden of showing (1) a prima facie case that AIG was planning or involved in fraudulent conduct, i.e., that it intended to conceal information from the copyright office, when it sought the advice of counsel, or that it committed a fraud subsequent to receiving the benefit of counsel's advice, and (2) that AIG sought the advice of counsel in furtherance of such conduct. . . . Should any question remain in the Court's mind, the next step would be for an in camera review of the communications in question, which AIG will provide to the Court upon request.
(Doc. 174 at 18.)
As "question[s] remain in the Court's mind" regarding the allegedly privileged documents and the applicability of the crime-fraud exception, the Court will exercise its discretion to review the subject documents in camera. See United States v. Zolin, 491 U.S. 554, 574 (1989) (holding that "in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception"). In its Motion for In Camera Review and Motion to Compel and supporting documentation, Defendant has shown "a factual basis adequate to support a good faith belief by a reasonable person . . . that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies."3 Id. at 572; see also Wiggins v. Gov't Employees Ins. Co., Case No. 3:16-cv-1142-J-32MCR, 2017 WL 3720911, *1 (M.D. Fla. May 5, 2017) ("Where there is a sufficient evidentiary showing that an issue exists regarding the application of a privilege, the court must utilize its own discretion and determine whether in camera review is appropriate under the circumstances presented."). Also, the circumstances of this case justify this conclusion, considering the importance to the case of the alleged privileged information and the reduced number of documents that are still at issue.
Therefore, Plaintiff shall have the documents that are at issue in Defendant's Motion for In Camera Review and Motion to Compel delivered to the undersigned's chambers no later than August 22, 2018.4 In addition to providing these documents, Plaintiff shall also provide the Court and Defendant with a revised privilege log.5 The Court will then enter an order regarding its findings on the documents and whether any portion of them should be produced to Defendant.
Accordingly, it is ORDERED:
The Motion for In Camera Review (Doc. 131) is GRANTED to the extent stated herein.6
DONE AND ORDERED.
