Brunckhorst III v. Bischoff

Background

Frank Brunckhorst III, individually and as trustee of The Frank Brunckhorst III 2001 Trust, moved to compel Schulte Roth & Zabel LLP, counsel for Eric Bischoff, to respond to a November 2, 2022 subpoena. The subpoena originally contained twenty document requests. Brunckhorst withdrew seven requests and narrowed the time period for eleven others. The remaining requests concerned the shareholder agreement, Bischoff’s ownership and transfers of Boar’s Head shares, Barbara Brunckhorst’s shares and trusts, and related notices and communications.

Schulte did not challenge the relevance of the requested documents. Instead, it argued that the subpoena was unduly burdensome, was not proportional to the needs of the case, and risked requiring review of attorney-client communications and attorney work product. Schulte also argued that the court should consider factors identified by the United States Court of Appeals for the Second Circuit concerning discovery from a party’s lawyer. Those factors include the need for the discovery, the lawyer’s role in the relevant matter and litigation, the risk of privilege and work-product issues, and the extent of discovery already completed.

Eric Bischoff separately moved to compel Brunckhorst to produce emails exchanged with any “@boarshead.com” or “@farbestfoods.com” email address from January 1, 2020, through February 28, 2022. Bischoff argued that the emails were relevant to whether Brunckhorst was a “Full Time” employee who devoted “Substantially All” of his business time to Boar’s Head. Brunckhorst objected that the request was overly broad and represented that relevant emails had already been produced.

Analysis of Brunckhorst’s Motion

The court concluded that Brunckhorst had shown a need for the subpoenaed materials because the requests, as narrowed, excluded documents already produced and therefore sought materials that could not be obtained from another source. The court rejected Schulte’s argument that Brunckhorst had to show a separate “specific need” for the documents.

For requests 9, 12, 13, 14, 15, 17, 18, 19, and 20, the court found a significant risk that the requests would reach privileged communications or attorney work product created because Schulte was representing Bischoff in this or related litigation. The court determined that complying with those requests would create an inappropriate and undue burden on Schulte and would distract the firm from representing Bischoff.

For requests 3, 5, 10, and 16, the court found that Schulte’s earlier work as Bischoff’s trusts-and-estates counsel, together with the narrower scope of those requests, made it more likely that Schulte possessed responsive, non-privileged documents and reduced the burden of reviewing them. The court also found that the amount of prior discovery did not justify denying these requests because the subpoena excluded documents already produced.

The court granted Brunckhorst’s motion as to requests 3, 5, 10, and 16, as narrowed during the parties’ discussions. It modified each request by adding an exception for documents addressing the relevant subjects in the context of discussing this or any other litigation. Schulte could choose to provide either a privilege log or a metadata log for those requests. The court denied the motion as to requests 9, 12, 13, 14, 15, 17, 18, 19, and 20.

Analysis of Bischoff’s Motion

The court agreed that Bischoff’s request for all emails exchanged with the specified company email addresses was overly broad. Not every email sent or received through Brunckhorst’s work email accounts would be relevant to the parties’ claims or defenses. Brunckhorst had already agreed to produce remaining emails relating to his work at Boar’s Head or Farbest Foods.

The court noted, however, that emails unrelated to ordinary work could still be responsive if they showed how much Brunckhorst communicated with a work colleague in that person’s capacity as a work colleague. The court assumed those emails were covered by Brunckhorst’s agreement to produce responsive documents.

Ruling

The court held that Brunckhorst’s motion to compel was granted in part and denied in part. Bischoff’s motion to compel was denied. Fact discovery was reopened only as needed for Schulte to respond to requests 3, 5, 10, and 16, and Schulte and Brunckhorst were ordered to file a joint status letter thirty days after the order reporting on the progress of that discovery. Judge John P. Cronan directed the clerk to close the motions at Docket Numbers 205, 213, and 226.