Bonde v. Wexler & Kaufman, PLLC
- John Koeltl
- 1:23-cv-02877
- U.S. District Court · Southern District of New York
- 6
In Bonde v. Wexler & Kaufman, Judge Moses granted in part Bonde’s discovery request, ordered depositions, and deferred a privilege dispute.
The order directly affected Carl Ulfsson Bonde; defendants Brett Wexler, Evan Teich, and Wexler & Kaufman, PLLC; non-party Zeena Benson Bonde; and the parties’ discovery and privilege obligations.
What happened
In Bonde v. Wexler & Kaufman, PLLC, Carl Ulfsson Bonde asked the court to require two individual defendants to attend depositions and to produce internal firm communications that they claimed were protected from disclosure.
The court ordered Brett Wexler and Evan Teich to attend depositions by November 17, 2023. It allowed the defendants to postpone Bonde’s deposition until after their expert forensic report, and it made no ruling on whether Bonde’s wife, Zeena Benson Bonde, could be deposed. The parties also had to discuss an examination of certain electronic accounts and devices related to possible hacking.
Judge Moses granted the letter-motion in part, but deferred the request for the withheld communications. She required the defendants to submit evidence supporting their privilege claim and samples for private court review, and allowed Bonde to respond. The court also postponed the settlement conference indefinitely and directed the Clerk to close the motions.
The detailed version
- Bonde v. Wexler & Kaufman, PLLC · No. 1:23-cv-02877
- John Koeltl
- Oct. 30, 2023
Background
Plaintiff Carl Ulfsson Bonde filed a letter-motion dated October 9, 2023, seeking two forms of discovery relief: an order requiring individual defendants Brett Wexler and Evan Teich to appear for depositions during the existing fact-discovery period, and an order requiring the defendants to produce internal communications among personnel of Wexler & Kaufman, PLLC that the defendants had withheld as protected by attorney-client privilege.
The order states that defendants had retained Eric Weiden of Pondurance LLC to conduct a forensic examination concerning which parties, if any, had been hacked. The parties were directed to meet and discuss the access Pondurance would need to Bonde’s email accounts, computers, or other devices, as well as procedures protecting private material unrelated to the lawsuit. They also had to discuss whether the examination should include Zeena Benson Bonde’s email accounts, computers, or other devices.
Rulings on Depositions and Forensic Examination
The court granted the letter-motion in part. Wexler and Teich were ordered to appear for depositions on or before November 17, 2023, on dates reasonably convenient to the witnesses and counsel. The court stated that Bonde should not expect to reopen those depositions after defendants served their expert forensic report.
Defendants were permitted to defer Bonde’s deposition until after serving that report. Bonde was required to appear promptly after service of the report, on a reasonably convenient date. Because defendants had not attempted to require Zeena Benson Bonde to appear for a deposition by notice or subpoena, the court issued no ruling on whether or when her deposition could occur.
The parties were required to file a joint letter by November 8, 2023, stating whether they had reached agreement about the forensic examination. If they had not, they had to describe the remaining disputes and any requested judicial relief. The order states that, absent another court order, defendants’ expert forensic report was due no later than December 22, 2022, even though the rest of the order concerns events in 2023.
Withheld Communications and Privilege
The disputed materials consisted of 152 WhatsApp messages exchanged among Wexler, Marc Kaufman, and Dora Sagdullaev from August 24 through September 21, 2022, and two emails Wexler sent to Aleksandr Dzyuba on August 20, 2022. The privilege log described the materials as internal firm communications concerning a claim and, for the emails, communications with information-technology personnel. During the conference, defendants’ counsel stated that defendants relied on attorney-client privilege for each item.
Applying New York law, the court explained that attorney-client privilege protects confidential communications between a lawyer or the lawyer’s employee and a client made during professional legal work. The communication must be made to obtain or provide legal advice. The party asserting the privilege bears the burden of proving the facts establishing the privileged relationship. Once the claim is challenged and court intervention is requested, that party must submit competent evidence rather than conclusory statements.
The court found that defendants had not yet submitted admissible evidence establishing that the withheld messages and emails were privileged. It deferred deciding Bonde’s request to compel production of those materials and gave defendants until November 8, 2022, to submit affidavits or declarations addressing whether each communication was confidential, between an attorney and client, and made to seek or provide legal advice. Their submission was also to explain each person’s role in the communications.
Defendants were required to submit ten challenged messages for private review by the court: five selected by defendants and five selected by Bonde. The supporting evidence was to be filed publicly, while the samples were to be submitted for the court’s private inspection. Bonde could file a response of no more than four pages by November 15, 2023.
Other Dispositions
The settlement conference scheduled for November 2, 2023, was postponed indefinitely. The Clerk of Court was directed to close the motions at Dockets 28 and 29. The order was signed by Barbara Moses, United States Magistrate Judge.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.