United States District Court, S.D. Florida
BRIAN KEIM, individually and on behalf of a class of similarly situated individuals, Plaintiff,
WATCHES OF SWITZERLAND GROUP USA, INC., a Delaware Corporation, d/b/a "Watches of Switzerland" and "Mayor's Jewelers", et al., Defendants.
ORDER AFTER IN CAMERA REVIEW
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE
CAUSE was previously before the Court upon Plaintiff, Brian
Keim's ("Plaintiff) Motion to Compel
("Motion") [DE 50]. This matter was referred to the
undersigned by United States District Judge James I. Conn.
See DE 4. The Court held a hearing on the Motion on November
12, 2019. At that time, counsel for Defendant, Watches
Switzerland Group USA, Inc. ("Defendant"),
requested that the Court review in camera the 10 emails that
Plaintiffs Motion sought to compel. Plaintiffs counsel stated
that he had no objection to in camera review. Defendant then
provided the Court with the documents at the hearing. The
Court has now had the opportunity to carefully review the
documents submitted for in camera review.
Plaintiffs Motion, he sought production of 10 emails dated
April 28, 2015, to July 9, 2015, which were withheld on
attorney-client privilege grounds in Defendant's
privilege log. [DE 50, p. 4]. Plaintiff believes these emails
concern an insurance application, but that each email has an
attachment or more than one attachment that mentions FACTA.
Id. Plaintiff asserts that Defendant's privilege
log is insufficient because it does not state which authors
and/or recipients are attorneys or clients. Id. at
p. 5. Plaintiff is aware that Miranda Melfi is an attorney,
but he argues that the "log does not show she was
included" in certain emails "for the purpose of
communicating with her in her capacity as a lawyer."
Id. According to Plaintiff, the remaining emails do
not list any attorney authors or recipients. Id.
Finally, Plaintiff states that the descriptions in the log do
not show that the emails' attachments contain any
privileged matter. Id.
response, Defendant argues that all 10 emails are
attorney-client privileged and that each email contains a
"common attachment related to the insurance
application." [DE 51, p. 2');">p. 2]. According to Defendant, the
emails also "concern the completion of the application
for the purpose of negotiating with insurance carriers and
associated communications with Mayor's in-house counsel
for the purposes of obtaining legal advice concerning the
application." Id. Defendant represents that
Miranda Melfi, Mayor's in-house counsel, is a party to
five of the emails, and that three of the remaining emails
are "confidential internal communications regarding
information in contemplation of Ms. Melfi's legal
advice." Id. at pp. 2');">p. 2-3. Furthermore, according
to Defendant, the final two emails consist of confidential
discussions with Defendant's insurance broker, David
Nickerson, for the purpose of negotiating insurance coverage.
Id. at p. 3. Defendant claims these are privileged
because case law establishes that the attorney-client
privilege can be extended to protect an insurance
broker's communication with a corporation. Id.
at pp. 3-4.
reply, Plaintiff points out that Defendant does not dispute
that the emails are relevant. [DE 53, p. 2');">p. 2]. Next, Plaintiff
argues that attorney involvement in an email is not enough.
Id. at p. 3. Rather, Defendant must establish that
the emails were made in confidence and sent to or received
from an attorney for the purpose of giving or seeking legal
advice. Id. Plaintiff also argues that
"confidential internal communications regarding
information in contemplation of Ms. Melfi's legal
advice" are not privileged. Id. With regard to
the two emails involving the insurance broker, Plaintiff
asserts that they were logged improperly and that there is no
evidence that the broker was working to assist
Defendant's counsel with litigation against the insurer.
Id. at pp. 3-4. Finally, Plaintiff contends that
Defendant has not met its burden of establishing that the
attachments are privileged. Id. at p. 5.
November 12, 2019 hearing, Plaintiffs counsel emphasized that
there is no dispute that the documents sought are relevant.
The only issue before the Court is whether they are covered
by the attorney-client privilege. Additionally, both parties
agreed that this Court should conduct an in camera review of
the 10 disputed emails and attachments.
claim of privilege in federal court is resolved by federal
common law, unless the action is a civil proceeding and the
privilege is invoked 'with respect to an element of a
claim or defense as to which State law supplies the rule of
decision....'" Hancock v. Hobbs, 967 F.2d
462, 466 (11th Cir. 1992) (quoting Fed.R.Evid. 501).
"The attorney-client privilege exists to protect
confidential communications between client and lawyer made
for the purpose of securing legal advice." In re
Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). But the
privilege does not cover all communications between an
attorney and her client (Or putative client). Rather, it has
been "construed narrowly so as not to exceed the means
necessary to support the policy which it promotes."
In re Grand Jury Matter No. 91-01386, 969 F.2d 995,
997 (11th Cir. 1992) (citing Fisher v. United
States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39
(1976)). The privilege is designed only to protect
"confidential communications between the attorney and
client regarding the matter of representation." In
re Grand Jury Matter, 969 F.2d at 997.
specific elements of the attorney-client privilege are the
following: (1) where legal advice of any kind is sought; (2)
from a professional legal advisor in his capacity as such;
(3) the communications relating to that purpose; (4) made in
confidence; (5) by the client; (6) are at his instance
permanently protected; (7) from disclosure by himself or by
the legal advisor; (8) except the protection may be waived.
Latele Television, C.A. v. Telemundo Commc'ns Grp.,
LLC, No. 12-22539-CIV, 2014 WL 4449451, at *3-4 (S.D.
Fla. Sept. 10, 2014) (citing Universal City Dev.
Partners, Ltd. v. Ride & Show Eng'g, Inc., 230
F.R.D. 688, 690 (M.D. Fla. 2005)). If any one of these
elements is missing-if the communication is not confidential,
if it is not between the attorney and client (or prospective
client), or if it does not relate to the matter of
representation-the communication at issue is not covered by
the privilege. See Devries v. Morgan Stanley & Co.
LLC, No. 12-81223-CIV, 2013 WL 3243370, at *3 (S.D. Fla.
June 26, 2013).
burden of proof is on the party asserting the privilege to
show that the documents in question are privileged."
United States v. Sigman, No. 11-80155-CR, 2013 WL
5890714, at *4 (S.D. Fla. Nov. 4, 2013). When advice given by
an attorney relates to both business and legal matters, the
legal advice must predominate in order for the
attorney-client privilege to apply. Blake v.
Batmasian, No. 15-CV-81222, 2017 WL 10059251, at *4-5
(S.D. Fla. Oct. 5, 2017), report and recommendation adopted,
No. 15-81222-CIV, 2018 WL 3829803 (S.D. Fla. Aug. 9, 2018)
(citing Carpenter v. Mohawk Indus., Inc., No.
4:07-CV-0049-HLM, 2007 WL 5971741, at *9 (N.D.Ga. Oct. 1,
THE COURT'S FINDINGS AFTER IN CAMERA REVIEW
Court has carefully conducted an in camera review of the 10
emails at issue. The Court has also carefully considered the
arguments presented by both parties at the November 12, 2019
hearing, and the parties' positions as stated in the
Motion [DE 50], Response [DE 51], Reply [DE 53], and the
Joint Notice [DE 58].
Court finds that the first nine emails at issue-those dated
April 28, 2015; April 29, 2015; May 8, 2015; May 13, 2015;
May 13, 2015; June 2, 2015; June 3, 2015; June 4, 2015; and
July 9, 2015 -should be protected by the
attorney-client privilege. These emails appear to contain
confidential communications between a client and a lawyer
made for the purpose of securing legal advice. Even if she is
not specifically listed as the drafter or recipient of all
nine emails, each of the emails involves the legal advice of
Defendant's in-house counsel Miranda Melfi. The Court
also notes there is no reference to FACTA or the handling of
credit cards in any of these nine emails. Next, the Court
finds that the drafts of the insurance applications attached
to the first nine emails should be protected by the
attorney-client privilege as the drafts all reflect Ms.
Melfi's legal advice. Although the issue here is a close
call, the Court finds that that there is ...