TransPerfect Global, Inc. v. Lionbridge Technologies, Inc.
- Denise Cote
- 1:19-cv-03283
- U.S. District Court · Southern District of New York
- 5
In TransPerfect Global v. Lionbridge, Judge Cote ruled that certain communications with defense counsel were protected from discovery.
TransPerfect may not obtain the communications that fall within the court’s privilege ruling, but it will receive non-privileged communications and the email the defendants did not claim was privileged. The defendants may withhold communications substantially similar to the reviewed exemplars, subject to a later privilege log and TransPerfect’s ability to challenge particular documents.
What happened
TransPerfect Global sued Lionbridge Technologies and H.I.G. Middle Market after an auction involving TransPerfect and H.I.G.’s review of TransPerfect’s confidential business information. During that review, the defendants’ law firm, Kirkland & Ellis, performed legal due diligence and other work related to a possible bid.
TransPerfect challenged the defendants’ refusal to produce communications with Kirkland, arguing that the documents should be produced or that only legal advice should be withheld. The court reviewed five sample documents and considered whether their main purpose was obtaining or giving legal advice rather than business advice.
Judge Denise Cote overruled TransPerfect’s objection and held that the communications in the samples were protected and could be withheld, except for one email that the defendants had not claimed was protected and would produce. The defendants must later provide a privilege log, and TransPerfect may then challenge specific documents.
The detailed version
- TransPerfect Global, Inc. v. Lionbridge Technologies, Inc. · No. 1:19-cv-03283
- Denise Cote
- Aug. 31, 2020
Background
The dispute arose from an auction for the sale of TransPerfect Global, Inc. Lionbridge Technologies, Inc., described as a chief competitor of TransPerfect, is owned by H.I.G. Middle Market, LLC. H.I.G. was invited to participate in the auction and, under a confidentiality agreement, received access to TransPerfect’s sensitive business information in a Clean Room.
H.I.G. and its agents reviewed that information while deciding whether to submit a bid. The defendants engaged firms to conduct due diligence, including Kirkland & Ellis LLP, which represented the defendants in this lawsuit and worked for them during the transaction underlying the case. TransPerfect sought discovery of communications between the defendants and Kirkland from the relevant period in 2017.
Privilege Dispute
The parties disputed whether the communications were protected by the attorney-client privilege. That privilege protects confidential communications between a lawyer and client made to obtain or provide legal advice. The court explained that the presence of a lawyer alone does not make a communication privileged; the communication’s predominant purpose must be legal advice rather than business advice.
The court reviewed five withheld documents provided for its review. The communications dated from October 21 through November 13, 2017, and generally concerned drafting a bid letter and contract, conducting legal due diligence, and drafting an employment agreement and term sheet. The court found that the communications reflected Kirkland’s legal analysis and advice.
Ruling
The court held that each exemplar could be withheld as a privileged communication between Kirkland and its clients. The sole exception was the initial communication in Exemplar A, an October 18, 2017 email from a Credit Suisse employee. The defendants did not claim that email was privileged and would produce it.
The court overruled TransPerfect’s objection to the defendants’ privilege claim. Kirkland represented that it had produced and would produce non-privileged communications containing information obtained from the Clean Room. The defendants could withhold communications substantially similar in subject matter and content to the five exemplars at that time. After the defendants provide an itemized privilege log, TransPerfect will have another opportunity to challenge the privilege claim for particular documents.
Classification and Effect
This is a procedural order concerning discovery and attorney-client privilege; it did not decide the underlying claims in the lawsuit. The ruling permits the defendants to withhold qualifying communications with Kirkland, while requiring production of non-privileged material and the unclaimed email. Judge Denise Cote issued the memorandum opinion and order on August 31, 2020.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.