Tactical Infrastructure S.A. v. Apex Energy Alternative Resources, Inc., et al.

Background

The underlying case arose from an alleged $500,000 investment made through Tactical in Apex Energy Alternative Resources, Inc. The investment concerned commodity deals brokered by Robert Willoughby involving diesel-fuel storage. Tactical brought claims against Apex related to a promissory note and against Willoughby for fraud. The defendants asserted a counterclaim against Tactical’s principal, Uri Ansbacher, for tortious interference and libel arising from an investigation conducted by Herrick Feinstein LLP.

The defendants requested communications involving Akiva Rosner, Herrick Feinstein LLP, and Cohen Tauber Spievack & Wagner P.C., as well as retainer agreements and other documents concerning the investigation and Ansbacher’s relationship with Tactical. Tactical, Ansbacher, and Rosner’s counsel withheld responsive materials on privilege grounds. Counsel also refused to provide a privilege log, which is a written list describing withheld documents sufficiently to allow the opposing party and the court to assess the privilege claim.

Parties’ Positions

The defendants argued that Tactical had to provide a privilege log before the court could evaluate whether the withheld materials were protected. They also argued that some communications involving Rosner may have concerned business advice rather than legal advice.

Tactical’s position, as described by the court, was that communications involving an attorney were inherently privileged and that no privilege log was required until the privilege questions were resolved. Tactical offered to provide a log later.

Court’s Analysis

The court explained that attorney-client privilege protects confidential communications between a client and an attorney made to obtain or provide legal advice. The protection applies only when the communication is primarily or predominantly legal in character. An attorney’s involvement does not automatically protect communications that concern business or technical matters, and copying an attorney on a communication does not by itself make the communication privileged.

The court held that a party withholding discovery based on privilege must provide a privilege log. The party asserting privilege bears the burden of establishing each element of the privilege claim. Without a log, neither the defendants nor the court could determine whether the withheld documents were privileged. The court also stated that Tactical could not use privilege as both a shield and a sword by selectively withholding communications while making it impossible to evaluate the privilege claims.

Rulings and Deadlines

The court granted the defendants’ motion to compel Tactical to produce a privilege log. Tactical’s counsel was directed to provide a log for any discovery responses they continued to claim were privileged no later than November 21, 2025. Documents that Tactical conceded, after review, were not privileged had to be produced on the same date.

The court granted the defendants’ request for a one-day extension of the deadline to file the motion. It also stated that the defendants could file a motion for fees under Federal Rule of Civil Procedure 37(a)(5), with billing records, by November 21, 2025; Tactical’s opposition, if any, would be due December 9, 2025, with no replies.

The court denied the defendants’ counsel’s motion to withdraw without prejudice pending resolution of any fee motions under Rule 37(a)(5). The order did not decide whether any particular withheld document was privileged.