In re Lifetrade Litigation

Background

Plaintiffs submitted an amended letter motion under Federal Rules of Civil Procedure 26(b)(1) and 37 concerning subpoenas to former Lifetrade law firms Locke Lord, LLP and Withers Bergman, LLP. Plaintiffs sought documents relating to the firms’ representation of the Lifetrade entities and Roy Smith, except communications concerning Smith’s personal affairs. Plaintiffs also asked the court to overrule or strike the firms’ privilege objections and to require a Withers representative to attend a July 13, 2023 status conference.

The opinion states that both firms had produced some responsive documents but continued to withhold unspecified documents on privilege grounds. Neither firm had provided a log identifying the withheld documents. A subpoena had also been served on another former Lifetrade firm, Dechert, LLP, but the motion did not include Dechert because discussions about its objections were ongoing.

Arguments and Prior Ruling

Plaintiffs argued that the requested materials were relevant and proportional to the needs of the case. They relied on a prior ruling at an April 27, 2023 case-management conference that the defunct Lifetrade entities had no attorney-client privilege protecting their files. The opinion states that counsel for Defendant John Marcum and counsel for the Smith estate did not object to that ruling. Plaintiffs therefore argued that the firms’ privilege objections to the subpoena were invalid.

Withers’s attached responses objected that the subpoena was vague, overly broad, unduly burdensome, and disproportionate, particularly because Withers was not a party to the underlying action. Withers also asserted attorney-client privilege, work-product protection, protections belonging to former clients or Smith’s estate, confidentiality interests of other clients, and protections for health information. Withers stated that it had transferred its files concerning the matter to counsel for Smith’s estate in September 2020. Withers agreed to produce some nonprivileged documents after a reasonable search but stated that it would not search for or produce documents responsive to certain requests.

Court’s Action

The court did not grant or deny the amended motion to compel or finally resolve the privilege objections in this order. Instead, the court ordered Withers to respond to plaintiffs’ letter by July 17, 2023. Because Withers had not had the same opportunity as Locke Lord to become familiar with the motion before the July 13 case-management conference, the court did not require Withers to send a representative, but invited it to do so. If Withers attended, the court would hear its argument regarding the motion.

The court stated that it would address the motion concerning Locke Lord at the July 13, 2023 conference. Plaintiffs’ counsel was ordered to serve a copy of the order on Withers Bergman, LLP. The order therefore set procedures for addressing the discovery dispute but did not state a final disposition of plaintiffs’ requests for production or their request to overrule or strike the privilege objections.