Lamartina v. VMware, Inc.

Background

In response to plaintiff William Lamartina’s subpoena, non-party Peter Dockery produced 92 pages of documents. Dockery was formerly employed by VMWare as a Senior Vice President. VMWare later asserted that portions of four documents reflected attorney-client communications between Dockery and VMWare’s in-house counsel. The documents were DOCK013-017, DOCK021-030, DOCK071, and DOCK075.

Lamartina argued that the redacted material was not privileged because the communications were not made to seek or provide legal advice. He said the documents were communications Dockery prepared after learning that he would be removed from his position and that they reflected Dockery’s belief that his removal was retaliation for pointing out misconduct. Lamartina also argued that the crime-fraud exception applied.

VMWare responded that the redacted material reflected or summarized communications with in-house counsel so counsel could investigate possible misconduct and provide legal advice to VMWare. VMWare argued that the crime-fraud exception did not apply.

Attorney-Client Privilege

Because the action is based on federal-question jurisdiction, the court applied federal common law governing privilege. Attorney-client privilege protects confidential communications between attorneys and clients made for the purpose of giving legal advice. For communications with more than one purpose, the court applied the primary-purpose test: the communication may be privileged if its primary purpose was giving or receiving legal advice rather than business or other nonlegal advice. VMWare, as the party asserting privilege, had the burden of proving that the privilege applied.

The court concluded that, with limited exceptions, the four documents either summarized earlier communications in which Dockery disclosed possible misconduct to in-house counsel or recorded contemporaneous disclosures of possible misconduct to counsel. VMWare submitted a declaration from its former general counsel stating that VMWare had a policy requiring employees to report actual or suspected misconduct or legal violations to in-house counsel so counsel could investigate and provide legal advice. The declaration stated that Dockery’s communications were received and handled for that purpose and were made and kept confidential. Because Lamartina made no contrary showing, the court found that VMWare established attorney-client privilege, regardless of Dockery’s subjective motivations.

Specific Documents

For DOCK013-017, an email from Dockery to several non-lawyer VMWare employees, the court found that the email summarized separate communications Dockery had with in-house counsel and non-lawyer employees about the same topics. The court held that VMWare could not redact the privileged material without also improperly redacting the nonprivileged communications with other employees. It ordered VMWare to leave unredacted the text after “Anu Datta, & Paula Delaney,” including the phrase beginning with “e.g.” VMWare could continue redacting the references to in-house counsel that came before that phrase, and all other redactions were to remain.

For DOCK021-030, an email exchange between Dockery and VMWare’s then-general counsel Amy Fliegelman Olli, the court found that VMWare’s revised redactions could fairly be characterized as communications with counsel about the reasons, and possibly the legality, of Dockery’s termination. The court made no changes to those redactions. It noted that the analysis might differ if Dockery’s own wrongful-termination or retaliation claims were part of this action, but said those claims were not part of the case.

For DOCK071, an email Dockery sent to himself recounting a conversation with in-house counsel about possible misconduct, the court found the underlying communication privileged and required no changes to VMWare’s redactions.

For DOCK075, an email Dockery sent to himself recounting conversations with in-house counsel, the court found that the underlying communications were privileged. But it held that Dockery’s independent record of his own views about how other employees felt was not privileged. VMWare therefore could not redact the last sentence, beginning “We now have . . .” All other redactions were to remain.

Crime-Fraud Exception

The crime-fraud exception removes attorney-client protection when a client consults an attorney for advice that will help commit a crime or fraud. The party invoking the exception must show both that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice and that the communications were sufficiently related to and made in furtherance of the continuing or intended illegal conduct.

Lamartina correctly identified alleged securities fraud concerning disclosure and management of VMWare’s backlog as the heart of the case, but the court found that he offered no evidence that Dockery assisted VMWare in a fraudulent scheme or that Dockery’s communications with in-house counsel furthered such a scheme. After reviewing the documents privately, the court found no evidence supporting the crime-fraud exception.

Disposition

Judge Virginia K. DeMarchi ordered VMWare to reproduce DOCK013-017 and DOCK075 with the specified redactions removed by January 30, 2024. The court resolved the remainder of the privilege dispute in VMWare’s favor. Lamartina was ordered to immediately destroy the unredacted copies of all four disputed documents.