Alix v. McKinsey & Co., Inc.

Background

In a joint letter, Defendants asked the court to order production of ten “Assignment-related emails” involving Robert Shields. Jay Alix and AlixPartners had withheld the emails under the attorney-client privilege, which generally protects confidential communications made for obtaining or providing legal advice. After a telephone conference, AlixPartners submitted the emails for the court’s private review, and both sides submitted additional materials addressing the dispute. The parties also asked the court to allow certain materials to remain sealed or redacted.

Attorney-Client Privilege Ruling

The court denied Defendants’ motion to compel production. It concluded that AlixPartners met its burden of showing that the communications to and from Shields were made or received in his capacity as AlixPartners’ Board Chair, were made for the purpose of obtaining legal advice, and—apart from two inadvertent disclosures—were kept confidential. The court stated that Shields’s other relationship with Alix and his role with Lakeview did not defeat AlixPartners’ ability to assert the privilege because the communications were made in his capacity as an AlixPartners fiduciary. The court also distinguished the circumstances from those in a prior related proceeding cited by Defendants.

Sealing Ruling

The court explained that materials relevant to the judicial process are “judicial documents” and generally carry a presumption of public access. The party seeking continued sealing must show that the interests favoring secrecy outweigh public access, including through specific evidence of serious potential harm from disclosure.

The court ordered unsealed the materials it had reviewed to resolve the discovery dispute:

- The parties’ supplemental letters and attached or referenced exhibits, including specified portions of Alix’s deposition testimony; - The portions of the joint letter concerning the privilege dispute, but not portions concerning other disputes that the court said were moot or not ready for decision; - Exhibit E to the joint letter; and - The portions of the privilege logs listing the ten emails.

The court found that the presumption of access was weaker because the materials concerned a discovery dispute, but concluded that the parties still had not overcome it. A confidentiality agreement and general assertions that the materials contained private business information were insufficient without a specific showing of serious harm. The court left other sealed or redacted materials in their existing form because they either were not judicial documents or were subject to a sufficiently weak presumption of access that had been overcome.

Order

The Clerk of Court was directed to terminate ECF Nos. 318, 319, and 321 and to unseal ECF Nos. 320 and 322. The parties were ordered to refile their joint letter and Exhibits A, B, D, and E in accordance with the court’s rulings by March 11, 2024.