United States District Court, D. Maine
ORDER ON MOTIONS
JOHN C. NIVISON, Magistrate Judge.
This matter is before the Court on Defendant's Motion for In Camera Review (ECF No. 37), and Plaintiff's Motion to Strike Defendant's Motion for In Camera Review (ECF No. 38). Both motions focus on an email communication that Plaintiff claims is protected from discovery by the attorney-client privilege, but was inadvertently disclosed during discovery. As explained below, after consideration of the parties' arguments, the Court denies Plaintiff's Motion to Strike, and denies Defendant's Motion for In Camera Review.
In discovery, Plaintiff inadvertently produced to Defendant an email communication that is within the general scope of the attorney-client privilege. Through its motion, Defendant asks the Court to review the communication to determine whether the communication falls within an exception to the privilege. In particular, Defendant contends that the Court's review is appropriate because the email communication was made in "furtherance of fraud" as contemplated by the exception to the privilege set forth in Maine Rule of Evidence 502(d)(1), which provides:
(d) Exceptions. There is no privilege under this rule:
(1) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud[.]
In response to Defendant's motion, Plaintiff asks the Court to strike and, therefore, not consider the motion. Plaintiff maintains that the Court should not consider the motion because Defendant did not first obtain leave of court to file the motion as required by Local Rule 26(b). Plaintiff also argues that the motion should be stricken because Defendant did not appropriately manage the privileged material.
Plaintiff's Motion to Strike
Local Rule 26(b), upon which Plaintiff relies in part, prohibits the filing of a "discovery motion" without "the prior approval of a judicial officer." The Rule also requires that before a party requests the court's intervention on a discovery dispute, the party must attempt to resolve the issue directly with the opposing party. Defendant did not seek leave of court to file the motion for in camera review.
A preliminary issue is whether the motion is a "discovery motion." Insofar as Defendant ultimately requests that the Court order the production of the email communication, Plaintiff's characterization of the motion as a "discovery motion" is not unreasonable. However, because the motion is not the typical discovery motion (e.g., motion to compel, motion for protective order), and because Defendant first requests an in camera review of the email communication before the Court considers the possible production of the document, Defendant's belief that Local Rule 26(b) was inapplicable is understandable. The applicability of Local Rule 26(b) thus is somewhat uncertain. Given that uncertainty, the Court will not strike the motion based on Defendant's failure to comply with the Rule.
The Court also is not persuaded that Defendant's management of the documents after production warrants the striking of the motion. While Plaintiff correctly notes that in Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 20, 742 A.2d 933, 941, the Maine Law Court endorsed a process by which the recipient of an inadvertently disclosed document is to return the document, the process does not preclude Defendant's motion for in camera review.
Defendant's Motion for In Camera Review
Recognizing the attorney-client privilege as "the oldest of the privileges for confidential communications known to the common law, " and as a privilege designed "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice, " the United States Supreme Court held that under certain circumstances, a court could conduct an in camera review to determine whether the crime-fraud exception to the attorney-client privilege is applicable. United States v. Zolin, 491 U.S. 554, 562, 565 (1989) (citation omitted). The Court cautioned: "Before engaging in in camera review to determine the applicability of the crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crimefraud exception applies." Id. at 572 (internal question marks and citation omitted). The Court further explained that a court "should make that decision [whether to conduct an in camera review] in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply." Id.
The applicability of the crime-fraud exception depends on "whether the client intended to use the attorney's services, or advice, to commit or plan to commit an ongoing or future crime or fraud." In re Motion to Quash Bar Counsel Subpoena, 2009 ME 104, ¶ 17, 982 A.2d 330, 337. Therefore, "[t]he exception may apply... ...