Keim v. ADF Midatlantic, LLC

Defendant filed a motion to compel the production of emails sent from Plaintiff’s counsel to non-party telephone carriers related to modification and narrowing of subpoenas issued by the Plaintiff to the non-party telephone carriers. Defendant argues that the communications pertain to key issues of commonality for class certification. Plaintiff argues that the communications constitute opinion work product.

The court granted the motion to compel. The court first divided the emails into two categories: emails sent by carriers’ counsel to Plaintiff’s counsel and emails sent by Plaintiff’s counsel to carrier’s counsel. The court determined no work-product privilege exists for emails sent by carriers’ counsel because the carriers are neither parties to the case or have an interest in the case that would create a confidential relationship.  The emails sent by Plaintiff’s counsel to carriers’ counsel are not protected under the work product doctrine. The emails are not opinion work product, since they do not contain counsel’s strategy or legal theory for the case and contain information regarding the modification, scope, and execution of the subpoena. Second, even if the emails contained work product, any claim of protection was waived by Plaintiff’s counsel because the communications were with counsel for numerous telephone companies where there was no reasonable anticipation of confidentiality.

Order Granting Defendants’ Motion to Compel Plaintiff’s Production of Carrier Subpoena Communications

Defendants’ Motion To Compel Plaintiff’s Production of Carrier Subpoena Communications

Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Compel Plaintiff’s Production of Carrier Subpoena Communications

Defendants’ Reply In Support Of Motion To Compel Plaintiff’s Production of Carrier Subpoena Communications