Giuffre v. Dershowitz

Background

Giuffre filed a motion to compel, arguing that Dershowitz improperly withheld documents under the common-interest doctrine, attorney-client privilege, and work-product privilege. After an earlier order, Giuffre selected five documents from each category for the court’s private review. Dershowitz submitted the 15 documents and additional arguments.

Common-Interest Documents

The common-interest doctrine can protect the confidentiality of otherwise privileged communications shared by parties pursuing a common legal strategy. It does not create an independent privilege; the underlying communication must first be protected by attorney-client privilege or work-product protection.

The court found that Dershowitz could withhold Documents 1 and 2 because they were communications made to provide or obtain legal advice and fell within the parties’ joint-defense agreement. The court found that Document 3 concerned a publicly available news article and facts, rather than legal advice or strategy, and ordered it produced. Document 4 was largely unprotected and had to be produced, but nine words following “marty said” had to be redacted because they contained protected legal advice. The court ordered Document 5 produced because, even assuming it was privileged, it was sent after Jeffrey Epstein’s death, when Epstein and Dershowitz could no longer share a common legal interest in the matters.

The court also directed Dershowitz to review the remaining documents on his privilege log that he claimed were protected by the common-interest doctrine and produce documents that lacked attorney-client privilege or postdated Epstein’s death.

Attorney-Client Documents

Attorney-client privilege protects confidential communications between a client and lawyer made to provide or obtain legal advice. The party asserting the privilege bears the burden of establishing that the communication involved a client and counsel, was intended to remain confidential, and was made for legal advice or services.

The court concluded that Dershowitz had not met that burden for Documents 6 through 10. It found no evidence of an attorney-client relationship and said the communications were more consistent with a friend seeking advice from a friend than a client seeking advice from a lawyer. Judge Preska admonished Dershowitz to review his privilege log and produce similar communications. The court stated that sanctions may follow if production is not made and court intervention is required.

Work-Product Documents

Work-product protection generally covers materials prepared in anticipation of litigation, unless the requesting party shows a substantial need and cannot obtain equivalent information without undue hardship. The party asserting the protection must show that the document was prepared because of the prospect of litigation and would not have been prepared in substantially similar form otherwise.

The court found that Documents 11 and 12 were protected work product and that the protection had not been waived. It found that any protection for Document 13 had been waived because the memorandum was prepared to provide information to a New York Times reporter. The court found that Dershowitz had not shown that Document 14 was prepared in anticipation of litigation; its stated purpose was to reveal information to the U.S. Attorney’s Office. The court also found that Document 15 was not attorney work product.

Order

The court ordered that the unprivileged documents be produced promptly. The opinion does not state a single overall disposition of Giuffre’s motion to compel as “granted” or “denied”; instead, it gives document-by-document rulings and related instructions.