United States District Court, D. Maine
ORDER ON APPEAL
TORRESEN UNITED STATES DISTRICT JUDGE
me is Defendant CalPERS Corporate Partners, LLC's appeal
of the Magistrate Judge's Order quashing CalPERS's
subpoena of third-party Bernstein, Shur, Sawyer & Nelson,
P.A. (“BSSN”), a law firm that
served as counsel to the Debtor in the bankruptcy action that
underlies the instant case. CalPERS's Mot. (ECF No. 106).
I AFFIRM the Magistrate Judge's
timely objection to a magistrate judge's order on a
non-dispositive motion, I must set aside any part of the
order that is clearly erroneous or contrary to law. Fed. R.
Civ. Pro. 72(a). Under the “clearly erroneous”
standard, I “must accept both the trier's findings
of fact and the conclusions drawn therefrom unless, after
scrutinizing the entire record, [I] ‘form a strong,
unyielding belief that a mistake has been made.' ”
Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4
(1st Cir. 1999). When an objection turns on a pure question
of law, my review under the “contrary to law”
branch of the Rule 72(a) standard is de novo. PowerShare,
Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010).
CalPERS's timely appeal asserts three objections. I take
each in turn.
first argues that the Magistrate erroneously found that the
evidence sought through its subpoena was not relevant. I note
that CalPERS failed to respond to BSSN's relevance
argument in its briefing below, CalPERS's Opp'n (ECF
No. 92), and that CalPERS's counsel's limited
discussion of relevance at the hearing on this discovery
dispute was a far cry from the developed argument presented
to me. Hearing Tr. 24:1-22 (ECF No. 108-2). To the extent
that CalPERS's relevance argument is not waived, I find
upon a review of the entire record that it was not clear
error for the Magistrate to conclude that the requested
evidence was neither sufficiently relevant nor proportionate
to the needs of this case to necessitate disclosure under
Federal Rule of Civil Procedure 26(b)(1).
next argues that the Magistrate erred as a matter of law in
finding that a purported “limited waiver” of the
attorney-client privilege between the Debtor, the
Debtor's Liquidating Trustee, and the Committee of
Unsecured Creditors for the Debtor, did not constitute a
complete waiver of the privilege. CalPERS is correct that the
First Circuit has held that a party cannot effect a
“limited waiver” of the attorney-client
privilege. E.g. United States v. Mass. Inst. of
Tech., 129 F.3d 681, 684-86 (1st Cir. 1997). But this
rule is inapposite to the Magistrate's finding that no
waiver (“limited” or otherwise) occurred here.
Hearing Tr. 40:24-41:21 (noting that while the Magistrate
“appreciate[d] the argument about First Circuit law
that when there is a waiver then that waiver opens up all
related documents or communications on the subject matter . .
. the question before the Court [was] whether there was a
waiver under the circumstances, ” and finding there was
not). I find that the Magistrate did not clearly err when he
determined that the parties' correspondence and conduct
did not reflect a waiver. CalPERS's “limited
waiver” argument accordingly fails.
finally argues that the Magistrate's ruling regarding
waiver was clearly erroneous because the Liquidating Trustee
did not take reasonable steps to protect the Debtor's
privilege. See Fed. R. Evid. 502(b) (disclosure does
not operate as a waiver if “(1) the disclosure is
inadvertent; (2) the holder of the privilege . . . took
reasonable steps to prevent disclosure; and (3) the holder
promptly took reasonable steps to rectify the error”).
Nothing in the record causes me to “form a strong,
unyielding belief” that the Magistrate erred in making
his heavily fact-based determination that the Liquidating
Trustee took reasonable steps to prevent disclosure of
privileged materials. See Hearing Tr. 41:16-19;
see also Phinney, 199 F.3d at 4. In the context of
this proceeding, the Magistrate reasonably concluded that the
Liquidating Trustee's efforts were, if not fool-proof,
foregoing reasons, I AFFIRM the Magistrate
 Before the Magistrate, CalPERS took
the position that the Bankruptcy Judge's April 13, 2017,
Standing Order, CalPERS's Opp'n Ex. A (ECF No. 92-1),
precluded the Committee from asserting that the Committee
fell within the scope of the Debtor's privilege.
CalPERS's Opp'n 5 (ECF No. 92). The Standing Order
appears to have been superseded by the Bankruptcy Judge's
May 7, 2018, order confirming the Debtor's and the
Committee's joint plan of liquidation in the bankruptcy
action. CalPERS's Opp'n Ex. D (ECF No. 92-5).
CalPERS's position below also conflicted with
CalPERS's October 9, 2018, representation to the
Liquidating Trustee and to the Committee that “the
debtor's privilege is maintained by/extends to its Board
and extends to the Committee, which has stepped into the
debtor's shoes and has the power to ...