Baring Industries, Inc. v. Rosen

Background

The parties appeared for a discovery conference on July 23, 2025. This order memorialized oral rulings and resolved additional matters involving depositions, affirmative defenses, and subpoenas.

Deposition and Scheduling Rulings

The parties agreed to conduct a limited, remote deposition of Donald Durward. The court ordered the parties to file a letter by July 29, 2025, confirming dates for all outstanding depositions. If they could not confirm a schedule, the letter had to list each witness’s availability so the court could set appropriate dates.

The court extended the deadline to complete fact discovery from September 28, 2025, to October 6, 2025, to accommodate the deposition of Michael Fitzgibbon. The deadline for completing expert discovery remained October 30, 2025.

Motion to Strike Affirmative Defenses

Baring Industries moved to strike four affirmative defenses asserted by the defendants. The court denied that motion without prejudice. The court also stated that, if it had not already done so, Baring Industries could serve targeted discovery requests seeking documents supporting the defendants’ Seventh, Twelfth, and Thirteenth Affirmative Defenses.

Attorney-Client Privilege and Subpoenas

Baring Industries sent a pre-motion letter before seeking to quash subpoenas under Federal Rule of Civil Procedure 45(d)(3) or obtain a protective order under Rule 26(c). The subpoenas were directed to Conrad & Scherer LLP, Irwin R. Gilbert, and Irwin R. Gilbert, P.A. They sought documents concerning communications between each subpoenaed recipient and Baring Industries about the underlying litigation involved in Baring Industries’ legal-malpractice claim.

Baring Industries objected based on attorney-client privilege and argued that the requests could reveal privileged communications, work product, invoices, bills, and telephone records. The defendants argued that Baring Industries had waived the privilege by placing the contents of those communications “at issue” in the lawsuit.

The court explained that an “at issue” waiver occurs when a party affirmatively places the subject of its own privileged communications at issue so that examining those communications is necessary to decide the party’s claim or defense. Relevance alone is not enough. The party asserting the privilege must rely on privileged legal advice to support its claim or defense.

The court found that Baring Industries had not placed the requested communications at issue. Although communications with Mr. Gilbert and other attorneys could be relevant to the malpractice claim, Baring Industries did not rely on their contents to prove its case and had expressly disavowed any intent to do so. The court also rejected the defendants’ argument that Mr. Gilbert’s views about Baring Industries’ chances on appeal, or any alleged period of concurrent representation, justified invading the privilege.

The court stated that whether Baring Industries relied on advice from another attorney was not itself an “at issue” waiver. It also noted that Baring Industries needed to show that the defendants’ conduct was a proximate cause of damages, but did not need to show that it was the only proximate cause. The court followed decisions applying this reliance-based approach and rejected older cases that treated mere relevance as sufficient for waiver.

Rulings and Effect

The court granted the motion to quash the subpoenas seeking privileged communications. Baring Industries therefore was not required to provide a privilege log. The court denied without prejudice the motion to strike the affirmative defenses, directed the parties to proceed with depositions and file a schedule, extended fact discovery to October 6, 2025, and kept expert discovery open until October 30, 2025. The Clerk was requested to terminate the motions at ECF Nos. 54, 56, 62, and 69.