In 6340 NB LLC v. Cap. One, N.A., No. 20-CV-02500 (OEM) (JMW) (E.D.N.Y. Nov. 16, 2023), New York Magistrate Judge James M. Wicks denied privilege related motions by both parties. He denied the plaintiff’s motion for an in-camera review, as well as the defendant’s motion to compel the plaintiff to produce certain additional documents or otherwise provide further detail to the documents it claims to be privileged.

Case Background

In this case regarding a legal dispute involving a ground lease agreement for the construction of a bank branch, there were privilege related motions by both parties.

In the first one, the plaintiff requested an in camera review of and to compel the defendant to produce 74 documents listed on pages 2–4 of Exhibit 17, or at a minimum, the 12 documents that the defendant admitted were between non-lawyers. The plaintiff previously requested the same relief in September 2022, and was denied without prejudice because it was premature. The plaintiff, in renewing its motion, claimed the defendant was playing a “shell game” to hide information regarding the decision and rationale to terminate the lease.

The defendant claimed that it turned over every non-privileged document, its privilege log adequately explained why other documents were privileged, and the plaintiff could not articulate why reviewing the documents was not sufficient. The defendant contended the documents were privileged because: they related to discussions with Capital One’s in-house counsel; legal advice sought or context of the advice; concern in-house or outside counsel’s work product.

In the second one, the defendant sought an order requiring 6340 NB to account for and produce communications related to three “critical events” It also requested that the Court order the plaintiff to detail the documents it claimed to be privileged, rather than provide a categorical log so that the defendant and the Court may fully assess the privilege claim and to perform an additional search for and produce responsive documents. The defendant indicated it did not believe, and argued it was not credible, that only two emails between Dave Ross and Richard Becker (the plaintiff’s principals) existed for this period.

The plaintiff argued that it produced eight (not just two) non-privileged emails during the period between Becker and Ross and also argued that the Stipulation Order only required categorical logs and requiring it to produce a detailed log was improper. The plaintiff also contended that the defendant did not provide support to show that the communications were wrongly labeled as privileged and stated it believed the defendant’s motion was only meant to divert the Court’s attention from the plaintiff’s motion.

Judge’s Ruling

Ruling on the first of the privilege related motions by both parties, Judge Wicks stated: “Here, the Court declines to engage in an in-camera review for several reasons. First, Capital One has complied with the Local Rules in providing an adequate privilege log: it states the description of the privilege as well as the author and addressees of such document…According to Capital One’s privilege log, all communications occurred between company employees and counsel regarding the agreement negotiations, agreement terms, termination, costs and design of the premises, decisions to open a branch, or the zoning process…This is further evidenced by Mark Graybeal’s, former in-house counsel of Capital One, affidavit which stated that he provided legal advice in many of the communications”.

Judge Wicks added: “Second, conducting an in-camera review would be a mere fishing expedition and would not yield any further information than 6340 NB already possesses. 6340 NB requested information related to the decision to terminate the Ground Lease prior to the Termination Notice being sent; communications related to the decision not to operate a retail branch; and communications regarding the Termination Notice…It spent hours deposing several Capital One employees…about these issues, yet seeks to take a second bite at the apple in filing this motion for an in camera review…6340 NB has not made a sufficient evidentiary showing of the need to justify in camera review under the circumstances. As such, this Court declines 6340 NB’s invitation to do so.”

Regarding the second privilege related motion, Judge Wicks stated: “Here, 6340 NB has sufficiently asserted privilege. Like Capital One for its opposition to 6340 NB’s motion…, Kevin M. Walsh Esq.’s and 6340 NB’s privilege logs comply with the Local Rules… Notably absent from Capital One’s motion to compel is any indication that 6340 NB’s log fails to comply with the Local Rules or that there is an improper assertion of privilege.”

Judge Wicks also stated in rejecting the second of the privilege related motions by both parties: “Capital One requests that 6340 NB be required to provide further detail to its privilege log to assess the privilege claims. However, critically, and perhaps even fatal to Capital One’s claims, is the fact that the parties agreed to exchange categorical privilege logs…It would be unfair for 6340 NB to now have to supplement its statements based on Capital One’s mere assumptions. Further, courts in this Circuit have found that categorical logs are indeed acceptable and appropriate under certain circumstances.”

So, what do you think? Do you agree with the Court’s rulings here? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. See Kelly Twigger discuss this case here!

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