Robinson v. De Niro

Background

Graham Chase Robinson moved to compel Robert De Niro and Canal Productions, Inc. to produce documents withheld based on attorney-client privilege and the work-product doctrine. Attorney-client privilege protects confidential communications made to obtain or provide legal advice. The work-product doctrine generally protects materials prepared because of existing or expected litigation. Robinson also sought attorney’s fees and costs if her motion succeeded.

Robinson argued that the defendants’ privilege log was late, vague, and inadequate; that communications involving non-attorneys and transactional matters were not protected; that privilege had been waived by putting Canal’s investigation and state-court lawsuit at issue; and that the crime-fraud exception applied. The defendants argued that the log complied with the federal and local rules, that the timing was justified by the volume and scope of electronic discovery, and that the documents concerned legal advice, attorney mental impressions, litigation strategy, or investigation conducted for the litigation.

The court reviewed 25 documents privately. It found that the defendants’ privilege log contained sufficient identifying information and complied with the applicable rules. Although the defendants had not initially provided logs with every production tranche, the court found that they later complied with the court’s instructions, met and conferred, provided clarifications, and produced additional documents. The court concluded that their conduct was not a sufficiently serious violation to result in wholesale waiver of privilege.

Crime-Fraud Exception

The court rejected Robinson’s argument that the crime-fraud exception required disclosure. That exception removes protection for communications made to further criminal or fraudulent conduct. After reviewing the selected documents and text messages, the court found no substantial possibility that a crime or fraud had been committed or that the communications with counsel had been used to further one.

Document Rulings

The court’s rulings included the following:

- Draft complaints, demand letters, and related communications involving legal advice, attorney strategy, or comments on draft pleadings were properly withheld. A cover note transmitting a draft complaint without legal commentary, REV 00063035, had to be produced. - Documents REV 00050335 and REV 00050353, which revealed counsel’s assessments and litigation strategy concerning the state-court action, were properly withheld. The document without a control number, identified in the privilege log as document 26, was also properly withheld as attorney-client material and work product. - TXT 0000008401 had to be produced because it merely identified information through a website link and did not convey or seek legal advice or reveal attorney mental impressions. - REV 00055207, an email concerning insurance coverage and an attached retainer agreement, had to be produced because the email did not contain legal advice and the defendants identified no special circumstances making the client’s identity or fee arrangement privileged. - REV 00032616, a confidential draft letter intended for the New York Times and circulated to a Canal employee for review, was privileged. The opinion states that the final letter sent to the newspaper was not privileged. - REV 00069550 and TXT 0000008400, which recommended a lawyer, were not privileged or work product and had to be produced. - REV 00053893 and REV 000125432, concerning proposed communications with Robinson after her resignation and requests for legal advice about wording, were properly withheld. - REV 000123826, which included Robinson’s resignation letter and later attorney communications, had to be produced with redactions. Robinson’s resignation letter was to be produced, while the attorney-related portions could remain redacted. - TXT 0000002625, a communication between a Canal employee and a lawyer concerning issues in the state-court action and counsel’s impressions, was properly withheld. - REV 00055526 and REV 00055858, detailed legal invoices revealing discovery, investigation, litigation strategy, and legal services, were privileged. Cover emails seeking approval to pay invoices—REV 00061377, REV 00063722, and REV 00063738—were not privileged or work product and had to be produced. REV 00063738 could include a redaction of a reference to another employee. - Because the defendants relied on their investigation as support for a counterclaim, the factual information uncovered by that investigation had to be disclosed, although communications with counsel about that information could remain protected. REV 00069368, REV 00069843, and the document identified in the chart as REV 00069845 had to be produced with redactions for attorney communications and certain irrelevant or sensitive information. The opinion’s discussion refers to REV 00069485 instead of REV 00069845; the chart uses REV 00069845. - TXT 0000008207, which revealed counsel’s requests for information and investigation strategy, was properly withheld as attorney-client material and work product. - REV 00057032, an invoice from a retailer containing factual information about Robinson’s purchase history, had to be produced because it was factual information uncovered during the investigation and any work-product protection had been waived to that extent.

Disposition

The court granted in part and denied in part Robinson’s motion to compel. It directed the defendants to produce the improperly withheld documents identified in the court’s chart by March 16, 2022. The court denied Robinson’s request for attorney’s fees and costs, concluding that each side should bear its own expenses because the motion was only partly successful. Judge Katharine H. Parker signed the opinion as a United States Magistrate Judge.