Delgado v. Donald J. Trump For President, Inc.

Background

Arlene Delgado moved to compel non-party Eric Trump to produce documents withheld in response to a subpoena. Eric Trump asserted the lawyer-client privilege, which protects confidential communications made for the purpose of obtaining legal advice, and the work product doctrine, which protects certain materials prepared because of anticipated litigation. He also relied on the common-interest doctrine for communications shared with representatives of Donald J. Trump For President, Inc. (the “Campaign”) and their lawyers or consultants.

After Delgado filed the motion, Eric Trump revised his privilege log and produced some documents. The revised log listed approximately 100 withheld documents. The court stated that approximately 26 involved both lawyer-client privilege and work-product protection, while most of the others invoked only lawyer-client privilege. Approximately 90 documents had been shared with Campaign representatives or their lawyers, and approximately 28 had been produced with allegedly protected portions redacted.

Parties’ Positions and Legal Standards

Delgado argued that protection had been waived by including consultants or other people outside the lawyer-client relationship in email communications. She also challenged the privilege log’s compliance with the Federal Rules of Civil Procedure and the court’s local rules.

The court explained that the party asserting protection bears the burden of showing that it applies and was not waived. Under the standards discussed by the court, lawyer-client privilege generally requires a lawyer-client relationship, a communication made to obtain legal advice, and an intent to keep the communication confidential. Disclosure to an outside person generally waives the privilege, although disclosure to an agent may not waive it when confidentiality was reasonably expected and the person’s involvement was necessary to obtain informed legal advice.

The work product doctrine protects materials prepared because of the prospect of litigation, but not materials created for ordinary business purposes merely because a lawyer requested or received them. Fact-based work product may be disclosed on a showing of substantial need and inability to obtain equivalent information without undue hardship; attorneys’ mental impressions and legal theories receive stronger protection.

The common-interest doctrine can preserve lawyer-client or work-product protection when separate parties share communications in furtherance of a common legal, rather than merely commercial, interest. The court concluded that Eric Trump, the Trump Organization, and the Campaign shared a common legal interest concerning enforcement of a confidentiality agreement and claims brought or threatened by Delgado.

Court’s Analysis

The court reviewed all documents on the privilege log privately and concluded that many were properly protected because they conveyed or sought legal advice concerning the arbitration, this lawsuit, threatened litigation, or settlement. The court also found that many communications involving the Campaign, Eric Trump, and the Trump Organization furthered their common legal interest.

The court reached a different conclusion for three communications shared with Lara Trump, who was employed by Giles-Parscale Inc., described in the opinion as a vendor or consultant to the Campaign. Eric Trump did not explain why her inclusion was necessary for legal advice, and the court found that she did not share the relevant common legal interest. The court therefore found that lawyer-client protection had been waived for Documents 1, 2, and 56 and ordered those documents produced.

The court also ordered production of communications from Alan Garten to Susie Wiles and Alina Habba that did not seek or convey legal advice. Communications concerning Delgado’s internet postings likewise were not protected because they did not seek or convey legal advice and were not work product. For some email chains, only the upper messages were protected; the lower portions consisted of communications with the American Arbitration Association, Delgado, or Delgado’s lawyers and had to be produced.

Disposition

The court granted in part and denied in part Delgado’s motion to compel. It directed Eric Trump to produce the documents identified in Appendix A, either in full or in redacted form, by Wednesday, July 3, 2024. The order was issued and signed by U.S. Magistrate Judge Katharine H. Parker.