Carnegie Institution of Washington v. Mahendra Brothers Exports Private Limited

Background

During a June 25, 2020 call involving counsel for the parties and certain affected third parties, plaintiffs applied to compel EMBY International LLC, a third party, to produce an unredacted copy of two emails. The emails were produced as documents EMBY000010 and EMBY000011. EMBY had redacted small portions of the emails, asserting attorney-client privilege and the common-interest doctrine.

Legal standards

Attorney-client privilege protects confidential communications between a client and counsel made to obtain or provide legal assistance. The party asserting the privilege must show that the communication was between client and counsel, was intended to be and actually was kept confidential, and was made for the purpose of obtaining or providing legal advice.

The court explained that the common-interest doctrine is not itself a privilege. Instead, it can prevent waiver of attorney-client privilege when a privileged communication is disclosed to a party engaged in a common legal enterprise with the privilege holder.

Ruling

After reviewing unredacted copies of the emails in camera, meaning privately and outside the parties’ presence, the court found that the redacted passages did not contain communications between a client and counsel made to obtain or provide legal advice. At most, they contained a layperson’s quasi-legal opinion, not attributed to a lawyer, that the author voluntarily shared with third parties. Because the passages were not protected by the asserted privilege, the court granted plaintiffs’ application.

Judge Rakoff ordered EMBY International LLC to produce unredacted copies of the documents to plaintiffs by 5 p.m. on July 1, 2020.