Spread Enterprises v. First Data Merchant Services

U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Civil Practice

New York Law Journal

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Magistrate Judge E. Thomas Boyle

An email from First Data executive MacNaughton to business director Jurek (MacNaughton email) said a "business decision" had to be made on the issue of certain fee overcharges to First Data's merchants. In-house counsel Cohen was either "cc'd" or included in the "to" line for later emails addressing the issue. Spread Enterprises sought to compel production of the emails, withheld by First Data under the attorney-client privilege. After in camera review, the court held that although two emails were properly withheld, the attorney-client privilege did not apply to emails contained in Exhibits 2 and 15 through 19. In compelling production of the emails in Exhibits 2 and 15 through 19, the court found that nothing in those emails qualified as a request for legal advice addressed to Cohen. Also, nothing in Cohen's response could be construed as conveying legal advice. Cohen's response to the MacNaughton email was simply a reminder that a business decision had yet to be reached. Nor did Jurek's and MacNaughton's presence at a conference call discussing the "legal implications of the proposals outlined" in the MacNaughton email show that Cohen was acting in a legal capacity at all times that the subject emails were exchanged.

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