Brunckhorst III v. Bischoff

Background

Frank Brunckhorst III, individually and as trustee of the Frank Brunckhorst III 2001 Trust, sued Eric Bischoff and others over who had the right to buy Boar’s Head shares from the Barbara Brunckhorst Trusts after Barbara Brunckhorst’s death in November 2020. Bischoff later asserted counterclaims against Brunckhorst and crossclaims against other defendants.

During discovery, Bischoff moved to compel Brunckhorst to produce documents withheld under claims of attorney-client privilege and attorney work-product protection. Brunckhorst argued that the documents were also protected by the common-interest doctrine. That doctrine can preserve privilege when parties with a shared legal interest exchange otherwise privileged information as part of a common legal strategy.

Communications with the Trustees

Brunckhorst claimed that he and the trustees of the Barbara Brunckhorst Trusts shared a common legal interest from January through April 2021. He said they worked together to challenge Bischoff’s claimed right to purchase the shares, enforce the Shareholder’s Agreement, and carry out the stated intentions associated with that agreement and a memorandum of understanding.

The court found sufficient evidence that Brunckhorst and the trustees had a shared legal interest during that period. It rejected Bischoff’s arguments that no common interest could exist because Brunckhorst was the plaintiff and the trustees were defendants in the current case, because the trustees later denied having a common interest, and because there was no formal written agreement. The court explained that the relevant relationship was the parties’ relationship when the communications occurred and that a written agreement was not required.

The court also rejected Bischoff’s argument that communications were unprotected when no lawyer was present. It concluded that sharing otherwise privileged information between parties with a common legal interest does not itself waive the privilege. The court found that the challenged communications concerned legal issues rather than merely business matters.

Communications with the Martins

Brunckhorst claimed that he and Robert S. Martin and Robert P. Martin formed a common-interest agreement beginning in March 2019 because Bischoff had sued or threatened to sue them concerning Boar’s Head shares. The parties later signed a written Common Interest/Joint Defense Agreement on June 18, 2021, which expressly covered past, present, and future communications related to this action and an action in Florida.

The court found sufficient evidence that Brunckhorst and the Martins had shared a legal interest in opposing Bischoff’s legal challenges and protecting their respective positions under the Shareholder’s Agreement. It rejected Bischoff’s argument that the common interest could not have existed before the written agreement, noting that the parties’ declarations supported an earlier oral agreement and that a formal written agreement was not required.

The court also rejected the argument that the Martins and Brunckhorst lacked a common legal interest because both had filed notices asserting a possible right to purchase the shares. The court explained that parties need not have identical legal interests if they share a limited common legal purpose, such as preventing Bischoff from acquiring the shares.

Finally, the court rejected Bischoff’s challenge to communications involving David Koche in January 2021. Although Koche also served as a trustee, the court found that he participated in the challenged communications solely as legal counsel to Brunckhorst and/or the Martins and for the purpose of providing legal advice. The privilege-log descriptions also supported the conclusion that the communications involved legal analysis, planning, advice, and litigation strategy.

Disposition

The court denied Bischoff’s motion to compel. It held that the challenged communications were protected by the common-interest doctrine, attorney-client privilege, or attorney work-product protection as applicable. The clerk was directed to close the motion pending at Docket Number 145. The order was signed by John P. Cronan, United States District Judge, on July 15, 2022.