Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Egiazaryan v. Zalmayev
Citations: 290 F.R.D. 421; 2013 U.S. Dist. LEXIS 33351; 2013 WL 945462Docket: No. 11 Civ. 2670 (PKC) (GWG)
Court: District Court, S.D. New York; March 7, 2013; Federal District Court
Ashot Egiazaryan initiated a lawsuit against Peter Zalmayev for defamation and injurious falsehood. In response, Zalmayev filed a counterclaim alleging that Egiazaryan's suit constituted a strategic lawsuit against public participation (anti-SLAPP) under New York Civil Rights Law sections 70-a and 76-a, alongside his own defamation claim. The only remaining claim is Zalmayev’s anti-SLAPP counterclaim. Zalmayev has moved to compel the production of 50 emails from BGR Garbara Limited (BGR), a public relations firm hired by Egiazaryan, which have been withheld under attorney-client privilege and the work product doctrine. BGR, based in London, was retained by Egiazaryan's attorneys at Gibson Dunn in February 2011 to assist with legal representation related to arbitration proceedings. BGR's responsibilities included developing a global media strategy, managing media relations, providing media training, and supporting Egiazaryan’s immigration efforts. BGR committed to maintaining confidentiality regarding Egiazaryan’s information. According to Egiazaryan’s attorney, BGR's role was integral to the legal services rendered, as it provided public relations advice that informed the legal strategy. BGR believed its communications were privileged as part of Egiazaryan’s litigation team. The court granted Zalmayev’s motion to compel the emails in part and denied it in part, based on the outlined reasons. In March 2011, BGR began collecting and producing documents related to a lawsuit involving Egiazaryan and Zalmayev. BGR's involvement included developing legal strategies against Zalmayev's public relations efforts targeting Egiazaryan and consulting with Egiazaryan’s attorney, Drew Holiner. On July 18, 2011, Zalmayev issued document requests that included references to BGR. In response, BGR made substantial efforts to assist Egiazaryan’s law firm, Flemming Zulack Williamson Zauderer LLP (FZWZ), in gathering relevant documents, believing these communications to be confidential and privileged. After Zalmayev served subpoenas on BGR's Washington affiliate on August 19, 2011, BGR retained FZWZ for representation concerning these subpoenas, formalized by a retainer agreement on September 6, 2011. BGR produced over 3,200 pages of documents to Zalmayev, maintaining that many documents were protected by attorney-client privilege. A procedural agreement in August 2011 exempted both parties from creating privilege logs for documents created post-complaint. By December 12, 2011, Egiazaryan's privilege log indicated over 300 documents withheld on privilege grounds, which were later agreed to be produced despite claims of privilege. On May 9, 2012, Zalmayev issued requests to BGR in London under the Hague Convention, seeking non-privileged documents. Egiazaryan filed a motion to strike Hague requests, asserting they were duplicative of existing document requests. During a May 23, 2012 telephone conference, his counsel stated that all non-privileged documents from BGR would be produced, leading Zalmayev to withdraw his requests for those documents. On August 24, 2012, the Court ordered a privilege log for BGR documents created after April 19, 2011. In October 2012, Egiazaryan submitted an initial privilege log withholding 48 BGR emails, followed by a revised log claiming privilege over 50 emails. Zalmayev subsequently filed a motion to compel their production. Upon the Court's request, Egiazaryan submitted the withheld documents for in camera review. Egiazaryan cited four grounds for withholding the emails: 1) attorney-client privilege due to FZWZ's representation of BGR; 2) privilege under the agency exception for communications among BGR, FZWZ, and Egiazaryan's other counsel; 3) privilege under the "common interest" doctrine; and 4) work product protection. The discussion begins with the need to clarify who is asserting the privilege claim for BGR, as Egiazaryan’s brief only mentions his representation. Despite not establishing standing, the Court assumed the arguments regarding BGR's privilege were raised on BGR's behalf, given the shared representation. The ruling emphasizes that, due to diversity jurisdiction, state law, specifically New York's attorney-client privilege statute, governs the privilege claim. The statute protects confidential communications between attorney and client concerning legal advice. To assert attorney-client privilege, communications must primarily be of a legal nature, as established in *Rossi v. Blue Cross, Blue Shield of Greater N.Y.* The essential question is whether the communication was intended to provide legal advice or services to the client, as highlighted in *Spectrum Sys. Int’l Corp. v. Chem. Bank*. The burden of proof lies with the party claiming privilege to demonstrate all elements of the privilege and to show that no waiver has occurred, as noted in *People v. Mitchell* and *John Blair Commc’ns, Inc. v. Reliance Capital Grp.*. Competent evidence, such as affidavits or deposition testimony, is typically required to support these assertions, per *von Bulow by Auersperg v. von Bulow* and *Bourne of N.Y.C., Inc. v. AmBase Corp.*. An attorney-client relationship must exist for the privilege to apply, which is established through an explicit undertaking to perform a specific task, regardless of fee payment or formal agreement. Mere belief in such a relationship is insufficient, as outlined in *Pellegrino v. Oppenheimer, Co.* and *In re Out-of-State Subpoenas Issued by N.Y. Counsel for Cal. Franchise Tax Bd.*. However, a preliminary consultation aimed at retention can establish this relationship. BGR claims an attorney-client relationship with FZWZ began in July 2011, but the affiant's vague statements indicate this was a "working relationship" intended to promote the legal interests of another party rather than to provide legal representation to BGR itself. BGR's involvement in document collection for Egiazaryan's counsel does not create an attorney-client relationship, despite BGR's belief in the confidentiality of its communications. It's common for parties served with document requests to utilize attorneys for obtaining documents under their control, but this does not imply a relationship with the attorney of the responding party. Lough indicates that FZWZ was retained as BGR's legal counsel in August 2011, but fails to clarify the specifics of this retention, which is critical as a prior court order required an affidavit detailing the timeline and reasons for the engagement. Lough’s affidavit lacks the necessary details regarding when FZWZ explicitly undertook to perform specific tasks for BGR. FZWZ cited certain emails as evidence of an attorney-client relationship, but the court found that the relationship was limited to matters concerning subpoenas received on August 19, 2011. BGR became aware of these subpoenas on August 20, 2011, meaning that any attorney-client relationship could not have existed before this date. Consequently, documents predating August 20, 2011, do not enjoy attorney-client privilege. However, after being informed of the subpoenas, BGR engaged in privileged communications with FZWZ starting August 21, 2011, regarding how to respond, even before a formal retainer agreement was executed on September 6, 2011. These communications are protected by attorney-client privilege as they pertain to legal advice sought by BGR. Documents 24-25, 28-29 on the Revised Privilege Log are protected by attorney-client privilege. In contrast, documents 26 and 27, related to an internal telephone conference about FZWZ's retention, do not convey legal advice and instead pertain to fee arrangements, thus lacking privilege. Fee arrangements typically do not constitute confidential communications. Documents 31-34, 36-38, 40, and 46-49 are also protected as they involve confidential communications regarding BGR's obligations related to subpoenas, following an in camera review. Egiazaryan claims privilege over additional documents (1-3, 7-9, 11-12, 17, 19-21, 30, 35, 39, 41-42, and 50), while Zalmayev argues that this privilege was waived. Egiazaryan contends that BGR acted as his agent, which, if true, would maintain the privilege despite the presence of third parties. Generally, communications between a defendant and counsel in the presence of a third party are not privileged unless that third party is an agent facilitating communication. The agency exception requires a demonstration of a reasonable expectation of confidentiality and the necessity for third-party involvement to obtain informed legal advice, where the latter must be nearly indispensable for the communication. The attorney-client privilege is waived when a third party's involvement is merely useful rather than essential for communication between attorney and client. Egiazaryan's claim of privilege regarding communications with BGR is denied, as he has not demonstrated that BGR's participation was necessary for his discussions with his attorneys. Although BGR was engaged to assist with messaging and legal strategy, Egiazaryan failed to show that their role was critical for effective communication, unlike instances where a translator or accountant facilitates understanding. His assertions that BGR contributed legal recommendations or discussed legal options do not meet the required standard to maintain privilege. The distinction is made that while public relations efforts may support legal goals, they do not constitute legal advice, leading to a waiver of privilege. Egiazaryan's references to cases involving public relations professionals do not align with New York law, as those cases applied federal common law and do not establish a precedent for including public relations agents under the privilege exception in New York. Under New York law, the agency exception to the attorney-client privilege requires that a third party be essential or serve a specialized role in facilitating attorney-client communications. Courts have characterized this exception as conservative, recognizing it only in limited circumstances where a non-lawyer's services are crucial to the lawyer's legal work. For instance, communications with a public relations firm providing standard advice do not qualify for this exception. In a notable case, a public relations firm was engaged by lawyers during a grand jury investigation to generate favorable publicity, which was deemed necessary for a specific litigation goal: influencing the decision to indict. The court ruled that privilege could only be claimed if the communications promoted the observance of laws or the administration of justice. However, it found that the firm’s activities did not promote legal observance but did support the administration of justice by affecting media influence on the prosecution. In contrast, the current case involving Egiazaryan and BGR does not meet the criteria for the agency exception. BGR was retained prior to the litigation and was not engaged for a specific litigation-related task. Its role was focused on general public relations aimed at improving Egiazaryan's image, rather than fulfilling a legal advocacy function necessary for the administration of justice. Thus, the precedent set by the grand jury investigation case is not applicable here, as it was limited to that specific context. In the case of In re Chevron Corp., the court interpreted the holding as "very narrow," applicable primarily to high-profile grand jury investigations, with similar conclusions reached in other federal cases. The plaintiff failed to demonstrate that the public relations specialist performed beyond standard services or that her communications were essential for the attorney to provide legal advice. The court noted that the agency exception does not apply to public relations communications that only help counsel gauge public reaction rather than aid in understanding the client's communications necessary for legal advice. The In re Copper Market Antitrust Litigation case was distinguished, as the corporation involved had a crisis management firm acting as a functional equivalent to its employees, which was not present in this case. Here, no evidence suggested that BGR acted as a directing entity for FZWZ, leading to the conclusion that any attorney-client privilege associated with Egiazaryan's relationship with his attorneys was waived upon disclosure to BGR, as BGR's involvement did not facilitate communication between FZWZ and Egiazaryan. Egiazaryan claimed attorney-client privilege over several documents based on the "common interest" doctrine, asserting a shared legal interest between FZWZ and BGR. However, the court clarified that the doctrine assesses the interests of clients, not attorneys, interpreting Egiazaryan's argument to mean that he, rather than FZWZ, shared a common interest with BGR. The court acknowledged that New York courts often rely on federal case law for guidance on the common interest doctrine in civil proceedings, indicating a broader jurisdictional approach to its applicability. The common interest rule is an extension of the attorney-client privilege, aimed at safeguarding confidential communications between parties engaged in a joint legal strategy. Under this rule, only communications intended to advance a shared legal interest during a common enterprise are protected. It is not necessary for the attorney of the communicating party to be present for the privilege to apply. For the common interest rule to be invoked, there must be a shared legal interest between the parties, and the communications must be designed to further that interest; mere personal or business interests are insufficient. Dual representation in litigation is a clear sign of common interest, and disclosures between parties do not waive the privilege as long as they engage in a joint defense or strategy, even if represented separately. The rule does not apply merely due to a shared attorney or common litigation interest; a substantial showing of a need for a common defense is required. While some precedents suggest that identical legal interests are necessary, more recent rulings indicate that a limited common purpose may suffice for the rule's application, especially when there is an interlocking relationship necessitating certain disclosures. Egiazaryan fails to demonstrate a common interest with BGR that would invoke the attorney-client privilege for the emails in question. His assertion of a mutual interest in protecting his legal interests and formulating a legal strategy is insufficient, as it does not constitute a common legal strategy necessary to prevent waiver of privilege. BGR is not involved in any of Egiazaryan’s lawsuits and therefore has no obligation to develop a joint litigation strategy. As a result, the emails shared with BGR were not part of a common legal strategy and the privilege was waived. Regarding the work product doctrine, Egiazaryan seeks protection for specific documents but must demonstrate that they were prepared in anticipation of litigation and by or for a party or representative. While state law governs attorney-client privilege, federal law applies to the work product doctrine, which aims to protect a lawyer’s preparation from adversarial intrusion. The burden is on the party claiming work product protection to prove its applicability, showing that the materials were prepared for litigation purposes and involved investigative or analytical tasks. Public relations advice does not typically qualify for this protection, indicating that not all materials related to litigation are protected under the work product doctrine. The work product doctrine does not apply to public relations activities related to litigation strategy, as its purpose is to protect the confidentiality of litigation processes rather than the impact of litigation on external stakeholders such as customers or the media. Courts have ruled that analyses of public reactions to judgments and public relations strategies are not protected under this doctrine. Specific examples include a publicity strategy deemed a business concern and documents prepared for public relations not qualifying as work product under the Freedom of Information Act. Egiazaryan's assertions that certain emails contained legal strategies were insufficiently detailed, prompting the Court to conduct an in-camera review. The review revealed that many emails primarily discussed public relations strategies, lobbying efforts, and image enhancement without reference to legal strategy or attorney opinions. As such, these documents do not fall under the protection of the work product doctrine as outlined in Fed. R. Civ. P. 26(b)(3). Conversely, certain remaining emails were identified as prepared for litigation purposes and thus qualify for protection. Documents drafted by public relations consultants that influence litigation strategy are protected under the work product doctrine if they are created in anticipation of litigation. Specific documents from BGR’s Revised Privilege Log (2, 4, 14-16, 30, and 41-42) were found to meet this criterion. However, to maintain this protection, it must be demonstrated that the work product has not been waived. Waiver typically occurs when disclosure is made to an adversary or increases the likelihood of such disclosure. Disclosures to public relations consultants who maintain confidentiality do not constitute waiver. In this case, BGR had a confidentiality clause ensuring the protection of the work product, and thus no waiver occurred. Although work product protection can be overcome by showing substantial need and inability to obtain the information without undue hardship, Zalmayev failed to demonstrate such need. BGR also claimed work product protection for emails related to subpoenas, but only documents 26 and 27 were relevant, as they were not prepared at the direction of Egiazaryan’s law firm and concern BGR as a non-party. Consequently, these documents do not receive protection under Federal Rule of Civil Procedure 26(b)(3), which does not apply to nonparties. Since BGR did not argue for protection under the common law work product doctrine, these documents must be disclosed. Ultimately, it was concluded that documents 2, 4, 14-16, 30, and 41-42 are protected by the work product doctrine, while documents 1, 3, 5-13, 17-18, 21-23, 26-27, 35, 39, 44-45, and 50 are not. Zalmayev’s motion to compel production of documents is partially granted and partially denied. Egiazaryan is ordered to produce specific documents (1, 3, 5-13, 17-23, 26-27, 35, 39, 43-45, and 50) from the Revised Privilege Log, while the remaining documents are protected by attorney-client privilege or work product doctrine. Zalmayev's request for supplementation of the privilege log is denied, as the Court finds that requiring such supplementation would be redundant given the documents are already in its possession. Zalmayev asserts that Egiazaryan's previous promise to provide BGR documents should negate privilege claims, but the Court notes that it lacks clarity regarding this promise and does not view it as a valid basis for rejecting the privilege claims. Zalmayev also seeks an order to remove redactions from previously produced documents, but fails to specify which documents are improperly redacted or provide justification for the claim. Consequently, the ruling focuses solely on the 50 emails listed on the privilege log. Additionally, Egiazaryan's claim of a shared legal interest with BGR regarding document production does not apply, as the relevant communications are already protected under existing privilege. Document 43's protection claim remains unsubstantiated by Egiazaryan.