Pegaso Development Inc. v. Moriah Education Management LP

Background

Pegaso Development Inc. brought a diversity-jurisdiction breach-of-contract action against Moriah Education Management LP and Moriah Software Management LP concerning two promissory notes. After disputes about the identity of one defendant and post-judgment proceedings, Magistrate Judge Fox ordered David Harrison to provide evidence supporting statements in an affidavit. District Judge Analisa Torres later overruled Harrison’s objections to that production order except as to the public filing of documents claimed to be privileged, and directed that those documents be submitted for private judicial review.

Harrison’s law firm, Spiro Harrison, submitted five exhibits. The claimed protections were the attorney-client privilege, which protects confidential communications made for obtaining or providing legal advice, and the attorney work-product doctrine, which protects materials prepared for litigation.

Exhibit 1

Exhibit 1 contained two engagement letters between Spiro Harrison and the defendants. The court held that the letters did not describe litigation strategy, the client’s motive for seeking representation, or the specific legal services to be provided. The letters merely gave a general description of the matter, including a reference to responding to information subpoenas. The court also found that Harrison and Spiro Harrison had previously quoted from an engagement letter in court filings, preventing them from relying on privilege while withholding the underlying document. The court further found that Harrison offered no sufficient basis for work-product protection. Exhibit 1 was therefore not privileged.

Exhibits 2, 3, 4, and 5

Exhibit 2 contained an email with notes about a letter from Pegaso’s counsel and a draft response. The court found that the document was prepared in anticipation of ongoing litigation and that the notes reflected an attorney’s mental impressions and legal opinions. It was therefore protected attorney work product.

Exhibits 3, 4, and 5 contained emails involving Greg Zilberstein, current counsel from Spiro Harrison, and former counsel from Nelson Mullins. The court found that communications among the client, current counsel, and former counsel could remain privileged. Its private review showed that the emails contained confidential legal advice and information, and that they concerned legal questions and ongoing litigation. The court therefore found those exhibits protected by the attorney-client privilege.

Disposition

Judge Jennifer E. Willis sustained the privilege-based objections to public filing for Exhibits 2, 3, 4, and 5. She overruled the objection to public filing for Exhibit 1 because it contained no privileged material.