II. ARGUMENT

II. ARGUMENT The work product doctrine is "an intensely practical one, grounded in the realities of litigation in our adversary system." United States'. Nobles 422 U.S. 225, 238 (1975).. Relying on Sporck Peil, 759 F.2d 312 (3d Cir. 1985), and its progeny, Plaintiff contends that the compilation of non-privileged documents by attorneys is "opinion work product," and seemingly asserts that the documents themselves, and not just the compilation, can be kept from the defense. These sweeping claims, belied as they are by the record in this case, should be rejected. A. The Supposedly Unassailable Sporck Plaintiff's Memorandum makes it appear as though the principle announced in Sporck has been accepted as gospel throughout the federal court system. Nothing could be further from the truth. Not only was Sporck a 2-1 decision with a strong dissent, later cases and commentators have criticized its expansion of the work product doctrine. In Sporck, a civil securities fraud case, the attorney for the plaintiff deposed a defendant and requested the "identification and production" of documents that the defendant's attorney had used to prepare the defendant for the deposition. 759 F.2d at 313-14. The documents in question, which were not themselves protected from disclosure, had "previously been produced" to the plaintiff. Ad. at 314-15. The defendant's attorney refused to comply with the request, and sought mandamus relief on work product grounds when the district court ordered disclosure and production. A divided panel of the Third Circuit granted the petition, holding that the district court EFTA00177847 "should not have ordered the identification of the documents selected by [defense] counsel." Id.: at 315 (emphasis added). See also id. (agreeing with the defendant that "the identification of the documents as a group must be prevented to protect defense counsel's work product") (emphasis added). The majority ruled that the "selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product," explaining that without such work product protection an attorney might "forego[ ] a sifting of the documents." Id, at 316, 317. Judge Seitz dissented. He was "convinced that [the majority's] ruling [was] an impermissible expansion of the work product doctrine at the expense of legitimate discovery." II at 319. He pointed out that the documents in question were not themselves covered by the doctrine and "had already been produced by the defendants." a Attacking the majority's belief that the litigation strategy of the defendant's attorney would be revealed by identification of the documents used to prepare for the deposition, Judge Seitz explained: The problem with [this] theory is that it assumes that one can extrapolate backwards from the results of a selection process to determine the reason a document was selected for review by the deponent. There are many reasons for showing a document or selected portions of a document to a witness. The most that can be said from the fact that a witness looked at a document is that someone thought that the document, or some portion of the EFTA00177848 document, might be useful for the preparation of the witness for his deposition. This is a far cry from the disclosure of the lawyer's opinion work product. Id. at 319. See also id, at 320 ("Certainly an attorney cannot cloak a document under the mantle of work product by simply reviewing it."). Finally, Judge Seitz criticized the majority's characterization of the compilation as opinion work product, saying that at most it would be fact work product. Sporck has not, contrary to Plaintiffs implication, been universally accepted.' In In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y. 1994), a case presenting facts very similar to those here, a district court in New York refused to follow Sporck. The government in that case executed a search warrant at a law firm's offices to obtain evidence concerning one of the firm's corporate clients and its two principals. The materials taken during the search were provided to a taint prosecutor who was not involved in the underlying grand jury investigation. Isis at 56-57. The firm and its client filed a motion for return of the documents on work product and attorney-client privilege grounds. In support of the motion, one of the firm's attorney's submitted an affidavit (which the district court accepted as true) explaining that 14 of the cartons taken had been "'segregated by [him] as part of a confidential, attorney-directed investigation into Even one of the appellate decisions adopting Sporck involved a divided panel. See In re Allen, 106 F.3d 582 (4th Cir. 1997) (2-1 decision). EFTA00177849 possible illegal activity within and against [the corporate client]." a at 57. The investigation was begun "in preparation for litigation, including possible civil claims against .. . former employees and contractors of the corporate client, as well as defending against governmental claims and any federal criminal investigation of the corporate client." a The district court refined to extend the work product doctrine to the compilation of non-privileged materials: This court declines to extend the concept of work product so far as to protect otherwise non-privileged corporate documents, simply because the lawyer has separated and arranged them in a manner convenient to his intended study for one or more legal problems and which reflects his analysis and thoughts concerning the matter which he was investigating. The argument on its face is slightly frivolous because it assumes that this lawyer investigating these documents could detect or perceive something in them or perceived the need to examine them, which was not readily apparent to a skilled special agent. Id, at 58. Moreover, the court explained, "the policy consequences of permitting a client to insulate incriminating corporate documents which otherwise would have to be produced, by handing them over to an attorney who arranges them in some logical or illogical fashion, is simply too drastic to accept." a The court therefore ordered that documents which were not themselves privileged or protected be "turned over to the [prosecutor] in charge of the prosecution of the matter." a Under the holding of Law Offices, the Court in this case should order that the documents in question be turned over to the defense. Like all other privileges against forced disclosure, the work product doctrine should not be "expansively construed" because it is in "derogation of the search for truth." United States I, Nixon, 418 U.S. EFTA00177850 683, 710 (1974). Law Offices is not the only case to cast doubt on Sporck. See generally P. Grady, Discovery of Computer System Stored Documents and Computer Based Litigation Support Systems: Why Give Up More Than Necessary, 14 John Marshall J. of Comp. & Inf. Law 523, 551 (1996) (noting that "other courts have not accepted the Third Circuit's position" in Sporck). Even those courts which have found some basis for agreement with Sporck have rejected its broad expansion of the work product doctrine. For example, the First Circuit, in a complex case involving a hotel fire, permitted the pretrial disclosure of lists identifying exhibits to be used in depositions. In re San Juan Dupont Plaza Hotel Fire Litigation 859 F.2d 1007, 1017 (1st Cir. 1988). Although the panel held that the lists constituted fact work product, it criticized Sporck and refused to characterize the lists as opinion work product: "Th[e] [Sporck] reasoning, we suggest, is flawed because it assumes that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work product. That is simply not the case; much depends on whether the fruits of the screening would soon be revealed in any event." Id. at 1018? Thus, at most, the compilation of documents by Plaintiff's counsel is fact work product which can be obtained by showing substantial need and undue hardship. Ida at 1015. 2 Several district courts have opted to follow Dupont Plaza instead of Sporck. Sec, Igs, I. astano I. American Tobacco Co, 896 F.Supp. 590, 596 (E.D. La. 1995); Resolution Trust Corp. Heiserman, 151 F.R.D. 367,375 (D. Colo. 1993); Bohannon'. Honda Motor Co„ 127 F.R.D. 536, 539 (D. Kan. 1989); In re Shell Oil Refinery, 125 F.R.D. 132, 133-34 (E.D. La. 1989). EFTA00177851 Similarly, in Gould Inc,. Mitsui Mining & Smelting Co„ 825 F.2d 676, 680 (2d Cir. 1987), the Second Circuit declined to embrace Sporck, explaining that the application of the Sporck principle "depends on the existence of a real rather than speculative concern that the thought processes of . . . counsel in relation to pending or anticipated litigation would be exposed." In this case, given the number of documents involved, it is difficult to see how there can be a "real" danger that the thought processes of Plaintiffs attorneys will be revealed. See also In re Joint Eastern & Southern District Asbestos Litigation, 119 F.R.D. 4, 5-6 (E.D.N.Y. & S.D.N.Y. 1988) (book of photographs, compiled by plaintiff's attorney, showing various forms of asbestos to which plaintiff had been exposed, was discoverable as a fact compilation because it did not reveal attorney's strategy); American Floral Services, Inc.'. Florists' Transworld Delivery Ass'n, 107 F.R.D. 258, 260-61 (N.D. III. 1985) (plaintiff required to reveal identity of two of defendant's employees whom it had interviewed and who apparently had knowledge concerning plaintiff's claim). a. In re Grand July Subpoenas, 959 F.2d 1158, 1167 (2d Cir. 1992) ("With the advent of inexpensive photocopying, it seems likely that most sets of copied documents maintained by law firms will be sufficiently voluminous to minimize disclosure of the attorney's identification of some occasional wheat among the chaff."); In re Shell Oil, 125 F.R.D. at 134 ("it is highly unlikely that Shell will be able to discern the PLC's `theory of the case' or thought processes simply by knowing which 65,000 out of 660,000 documents have been selected for copying"). Criticism of Sporck has not been limited to the judiciary. Commentators have also EFTA00177852 expressed their disagreement with the case. agg K. Waits, Opinion Work Product: A Critical Analysis of Current Law and a New Analytical Framework, 73 Oregon L. Rev. 385, 450 (1994) ("Sporck is wrongly decided[.] Contrary to the assertions in Sporck, . . . the adversary system is not threatened by the revelation of materials that only indirectly reveal an attorney's thinking."); L. Orland, Observations on the Work Product Rule, 29 Gonzaga L. Rev. 281, 298 (1993-94) ("No opinion has been found that explains why the [Sporck] selection and compilation exception . . . should be carved out for preferential treatment."). For the reasons set forth in Judge Seitz's dissent and the decision in Law Offices, this Court should reject Sporck as an unwarranted expansion of the work product doctrine. After all, "pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice." Fisher,. United States, 425 U.S. 391, 403-04 (1976) (addressing attorney-client privilege). Accord Shelton American Motors Corp, 805 F.2d 1323, 1328 (8th Cir. 1986) ("AMC does not contend that the documents themselves, prepared by other departments for the purpose of analyzing AMC vehicles, are protected as work product simply because those documents now may be in the possession of AMC's litigation department."). B. The Limitations on $porck Sporck does not, in any event, go as far as Plaintiff needs it to in order to shield the EFTA00177853 documents at issue from the taint team. Although Plaintiff says that Sumli controls, it fails to acknowledge significant factual differences between this matter and Sporck. First, in Spsicic, unlike here, the party seeking the list of certain documents already had the documents themselves in its possession because they had previously been produced. 759 F.2d at 314, 319. Indeed, the sine qua non of Sporck and its progeny is the protection of the list or index of the selected documents because the documents themselves are already in the hands of the opposition or can be obtained by normal legal channels. See Waits, Opinion Work Product, 73 Oregon L. Rev. at 450 n. 229 ("by definition in document selection cases like Sporck the opponent already possesses the documents").3 When the Court reviews the documents in camera, it will see that they include original documents which must be turned over to the government. ,Se Law Offices, 153 F.R.D. at 59 (lawyer cannot secure work product protection by highlighting an original corporate document that is not otherwise privileged). Thus, at least with respect to those original documents, the defendant does not have possession of them. The necessary predicate does not exist, and Sporck is not triggered. See Gould, 825 F.2d at 680 ("the equities may not favor the application of the Sporck exception if the files from which the documents had been culled . . . were not otherwise available . . . or were beyond 3 Plaintiffs own cases recognize that the compiled documents must be in the possession of, or available to, the opposing party. age, a, In re Allen, 106 F.3d at 608 (adoption of Sporck "does nat protect [the] personnel records from disclosure, just [the attorney's] selection and arrangement of them"); James Julian. Inc. I. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) ("Julian does not object to the defendants obtaining the documents contained in the binder[.]"). EFTA00177854 reasonable access"). And, as noted above, the compilation of documents is at most fact work product which can be obtained upon a showing of substantial need and undue hardship. The defendant can and will make that showing at the evidentiary hearing if and when Plaintiff meets its initial work product burden. C. Plaintiff's Burden and the Need for an Evidentiary Hearing Plaintiff, as the party asserting the protection of the work product doctrine, has the burden of establishing its elements. Sgg, g4, Hodges. Grant & Kaufmann I. U.S. Government. Dept. of the Treasury, 768 F.2d 719, 721 (5th Cir. 1985). Plaintiff has provided a general privilege log and an affidavit, but those submissions, under the circumstances, are insufficient to establish the applicability of the work product doctrine. The log describes only broad categories of documents, and the supporting affidavit completely fails to explain which attorneys compiled which documents. For reasons explained below, those particular facts are critical to the work product analysis in this case. Without those facts, the defendant cannot intelligently determine which of Plaintiff's claims have merit. "'Without identification of the documents, the party against whom the privilege is claimed is completely unable to challenge the validity of th[e] claim." Smith Logansport Community School Corp., 139 F.R.D. 637, 648 (N.D. Ind. 1991) (citation omitted). Plaintiff simply has not carried its burden of establishing its entitlement to work product protection. a. Rabushka I. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) ("Crane met its burden of providing a factual basis for asserting the [attorney-client and work product] privileges when it produced a detailed privilege log EFTA00177855 stating the basis of the claim privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel.") (emphasis added). The Court "must require [Plaintiff] to assert [work product] with a document-by- document explanation as to why the [doctrine] shields the document from the [warrant's] reach. The [Court] must then determine the validity of each assertion -- either by conducting a hearing or inspecting the documents in camera." In re Grand Jury Subpoena, 831 F.2d 225, 228 (11th Cir. 1987) (attorney-client privilege case). Whatever process the Court chooses, it must permit the defendant to participate and meaningfully litigate the applicability of the work product doctrine. In this vein, we point out that, even if Sporck is followed, Plaintiff's work product theory flounders with respect to at least certain of the categories of documents set forth in the privilege log. Contrary to Plaintiff's suggestion, even the most generous interpretations of the work product doctrine do not protect the selection of materials by a client; the doctrine protects attorney work product. age, Bloss I. Ford Motor Co. 126 A.D.2d 804, 805, 510 N.Y.S.2d 304 (N.Y.App.Div. 1987) (documents which could have been prepared by a layman not entitled to work product protection). In any event, Plaintiff has no standing to assert any work product protection on behalf of an unidentified third party or his/her unidentified counsel. See, e.g., Bohannon 127 F.R.D. at 53940 ("work product status does not apply to documents submitted to or received from a third party"). The fact that computer printouts -- routine printouts available from the Plaintiff's EFTA00177856 D. Plaintiff's Failure to Establish Confidentiality and Lack of Waiver "[W]hen an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of his client, knowingly increasing the possibility that an opponent will obtain and use the material, he may be deemed to have waived work product protection." In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981). Under the circumstances, any claim of privilege or work product cannot be accepted without further evidentiary substantiation. See United States'. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996) (where the allegations against one party could not subject another to civil or criminal liability, joint defense privilege is inapplicable), cert. denied, 117 S. Ct. 1842 (1997); Sheet Metal Workers International Association'. Sweeney, 29 F.3d 120, 124-25 (4th Cir. 1994) (any privilege arising from engaging in joint defense requires, as a threshold matter, a legitimate common interest about a legal matter); km Bevil!. Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986) (proponent bears burden of producing evidence establishing privilege). If Plaintiff is going to use the purported joint defense agreement as a weapon in its arsenal, it must be produced to the defendant so that its breadth and applicability can be fairly litigated. EFTA00177857 database that are routinely produced in the course of operating Plaintiff's business -- were made available to and used by attorneys does not protect them from disclosure or turn them into work product. See Santiago i Miles, 121 F.R.D. 636, 642 (W.D.N.Y. 1988) (no work product protection where, although computer reports may have been prepared with pending litigation in mind, the primary motivation behind the creation of such reports was for use in the normal course of business); Colorado ex rel. Woodard Schmidt-Tiago Construction Co„ 108 F.R.D. 731, 734-35 (D. Cob. 1985) (absent additional evidence, no work product protection for readouts from computer program established for use in regular course of business); Fauteck Montgomery Ward & Co., 91 F.R.D. 393, 398-99 (N.D. Ill. 1980) (ordering disclosure of personnel records from computer database where counsel merely raised conclusory claim that the database formulation "entail[ed] numerous strategic legal decisions"). Plaintiff must of course meet its burden with respect to each of the categories of documents it claims are work product. Yet several of the categories it claims are work product have been denied such status. This is the case with training and attendance sheets, see. e.g., Burton I R.J. Reynolds Tobacco Co„ 170 F.R.D. 481, 486 (D.Kan. 1997) (document evidencing attendance of two company employees at meeting not work product under Kansas law), and with Congressional subcommittee testimony, see. e.g„ LaMorte I. Mansfield, 438 F.2d 448, 451-52 (2d Cir. 1971) (any privilege which may exist for testimony given at non-public SEC hearing belongs to SEC, and argument that transcripts were work product was meritless). EFTA00177858 EL—AD RESIDENCES AT MIRAMAR CONDO. i MT. HAWLEY 1257 Clina 716 PSupp.2d 1257 (S.D.Fla. 2010) seeks declaratory relief pursuant to state or federal law. 8. The Clerk is directed to send a copy of this Amended Order to the Clerk of the Judicial Panel on Multidistrict Litigation. 9. The Final Judgment previously is- sued in the Aurelius Action, see Case No.: 10-CV-20236, [DE 531 (S.D. Fla. May 28, 2010), is hereby VA- CATED. EL-AD RESIDENCES AT MIRAMAR CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corpora- tion, Plaintiff, MT. HAWLEY INSURANCE COMPA- NY, a foreign corporation, and West- chester Surplus Lines Insurance Company, a foreign corporation, De- fendants. Case No. 09-60723-CIV. United States District Court, S.D. Florida. June 2, 2010. Background: Condominium association brought action against insurers, stemming from coverage dispute over hurricane dam- age. Association's former attorneys moved to intervene and for ancillary proceeding. Holdings: The District Court, Chris McA- liley, United States Magistrate Judge, held that: (1) intervention as of right was warranted, and (2) ancillary proceeding to sanction former co-counsel was not warranted. Motions granted in part and denied in Part 1. Federal Civil Procedure 4=331 Condominium association's former at- torneys had right to intervene in associa- tion's present action against insurers, stemming from coverage dispute over hurricane damage, for limited purpose of protecting privileged communications; dis- closure of attorneys' privileged communi- cations with former co-counsel would have harmed attorneys in ongoing litigation. Fed.Rules Civ.Proc.Rule 24(a), 28 U.S.C.App.(2006 Ed.). 2. Federal Courts a=21 Ancillary proceeding to sanction for- mer attorneys' former co-counsel was not warranted in action brought by condomini- um association against insurers, stemming from coverage dispute over hurricane dam- age, since court already had all necessary claims before it to resolve sanctioning is- sue, and had ability to manage its proceed- ings, vindicate its authority, and effectuate its decrees without extending its jurisdic- tion. Keith Jeffrey Lambdin, Katzman Gar- finkel Rosenbaum, John David Mallah, Maitland, FL, for Plaintiff. Bradley Ryan Weiss, Benson Mucci & Associates LLP, Thomas E. Tookey, Coral Springs, FL, Brian E. Sims, Michael D. Prough, William C. Morison, Morison Hol- den Derewetzky & Prough LLP, Walnut Creek, CA, Cortland C. Putbrese, Morison Holden Derewetzky & Prough, LLP, Rich- mond, VA, Daniel Howard Coultoff, La- tham, Shuker, Barker, Eden & Beaudine, EFTA00177859 1258 716 FEDERAL SUPPLEMENT, 2d SERIES LLP, Orlando, FL, Scott Michael Janow- itz, William S. Berk, Melissa M. Sims, Berk Merchant & Sims PLC, Coral Ga- bles, FL, for Defendants. OMNIBUS ORDER CHRIS McALILEY, United States Magistrate Judge. Pending before the Court are the follow- ing related motions: (1) Request for Judi- cial Inquiry [DE 103]; (2) Motion for Pro- tective Order [DE 122]; (3) Motion to Intervene [DE 126]; (4) Motion to Con- vene Ancillary Proceedings [DE 180]; and (6) Motion for Hearing on Motion to Con- vene Ancillary Proceedings [DE 132].' The Honorable Adalberto Jordan has re- ferred the motions to me for resolution, and for the reasons stated below the Mo- tion to Intervene is granted, and the other motions are denied. I. BACKGROUND This and a related ease arise from an insurance dispute over damage allegedly caused by Hurricane Wilma to two condo- minium complexes. The Plaintiff in this case, El—Ad Residences at Miramar Con- dominium Association ("Residences"), re- tained the law firm of Katzman Garfinkel Rosenbaum LLP ("KGR") to represent it in its claim against its primary property casualty insurer, Mt. Hawley Insurance Company ("Mt. Hawley") and its excess insurer, Westchester Surplus Lines Insur- ance Company ("Westchester') (collective- ly, "Defendants"). The other condomini- um complex, El—Ad Enclave at Miramar I. Defendant, Westchester Surplus Lines In- surance Company, filed a Motion for Ex- tension of Time to Respond to Motion to Convene Ancillary Proceedings [DE 146]. Because the Court denies the Motion to Convene Ancillary Proceedings is denied, Westchester's Motion is moot. Condominium Association ("Enclave"), also retained KGR to bring suit against Mt. Hawley and a different excess insurer, General Star Indemnity Company.' In March of this year, while this litigation was on-going, the law firm of KGR broke up, with some of its attorneys, led by Daniel S. Rosenbaum, forming the firm Rosenbaum Mollengarden Janssen & Sir- cusa ("RMJS"), and others, principally Alan Garfinkel and Leigh Katzman, form- ing Katzman Garfinkel & Berger ("KGB"). The break-up of KGR has been acrimoni- ous and has led to litigation between the former law partners. The motions now before this Court arise, in large measure, from heated disputes between Rosenbaum on the one hand, and Garfinkel and Katz- man on the other. Immediately following the breakup of KGR, Rosenbaum's law firm, RMJS, en- tered appearances on behalf of both Resi- dences and Enclave. Thereafter, on April 8, 2010, RMJS filed a Request for Judicial Inquiry in this, the Residences case' that can be summarized as follows. Before the formation of KGR, Garfinkel had a law firm called the Garfinkel Trial Group ("GTG"), which hired a consulting firm, Hunter R Contracting LLC ("Hunter R") and TSSA Storm Safe Inc. ("TSSA"), to perform insurance estimates. Kenneth Remain was a member of Hunter R. After several years of this consulting relation- ship, GTG terminated Hunter R and TSSA, which led to litigation between them over monies owed. These disputes spilled over into a number of ongoing law- 2. The "Enclave case" is filed with this Court as Case No. 09-60726-CIV-30ltDAN/MCALI- LEY. 3. The motion is fully titled Request for Judi- cial Inquiry Into Perjury, and Potential Subor- nation of Perjury and Witness Tampering. IDE 103]. EFTA00177860 EL-AD RESIDENCES AT MIRAMAR CONDOS. MT. HAWLEY 1259 CIloas716 F.Supp.2d 1257 (S.D.FIa. 2010) suits filed in state and federal courts, be- tween condominium associations repre- sented by GTG and or the consultants, and the various insurers they had sued. Ro- main was deposed in a number of those lawsuits and testified that Garfinkel, GTG and the consultants had engaged in a scheme to generate falsely high insurance claims, that Garfinkel had received kick- backs from the consultants, and that Gar- finkel, through others, had an improper ownership interest in Hunter R. At a March 30, 2010 deposition taken in several cases, including this case and the Enclave case, Romain recanted these claims of wrongdoing. RMJS asserts that Romain's conflicting sworn testimony demonstrates that Romain has committed perjury, either at his earlier depositions, or at the March 30th deposition, and in its Request RMJS asks this Court to conduct an inquiry into this perjury as well as possible fraud and unethical conduct by Romain, Garfinkel, and possibly others. Several days after RMJS filed the Re- quest for Judicial Inquiry, Residences again changed counsel: Garfinkel's and Katzman's new firm, KGB, filed a notice of appearance on Residence's behalf, and Rosenbaum's firm, RMJS, withdrew as counsel. RMJS continues to represent Enclave, in Case No. 09-60726-CIV-JOR- DAN. The Motion for Judicial Inquiry was filed a few days before a discovery confer- ence I had scheduled for April 16, 2010. 1 took the opportunity, at the start of that hearing, to ask Rosenbaum to answer some questions I had about his Request 4. The transcript of that discovery conference has been filed at DE 119. 5. Rosenbaum Included the following informa- tion he gave the Court. At a time when difficulties had arisen between Rosenbaum and his partners Garfinkel and Katzman, and they were discussing disassociating from one another, Katzman allegedly said: "'You don't for Judicial Inquiry, which he did." Rosenbaum basically restated what is sum- marized above, and was more clear about his concern that his former partners may have paid Romain to change his testimo- ny.' Rosenbaum also disclosed that he had brought his concerns to the U.S. At- torneys Office. As for the inquiry he wants this Court to undertake, Rosenbaum suggested that the Court hold hearings and take testimony from everyone in- volved: the various attorneys and consul- tants and possibly the Plaintiffs them- selves. He believes that a fraud has been worked upon this and many courts and that this Court should look beyond the issues in this case and inquire into improp- er conduct in similar cases filed in other divisions of this Court and in various state courts. In the end, Rosenbaum would have this Court determine whether Gar- finkel and Katzman and the consultants engaged in improper conduct before this or other courts, although he was not clear what remedies this Court might order. Having heard from Rosenbaum, I asked the other parties to file written responses to the Request, and offer their opinions whether a judicial inquiry is appropriate and necessary. The Defendants in both the Residences and Enclave case filed a memorandum in support of this Court convening a broad judicial inquiry. (DE 121]. In that docu- ment Defendants provide considerable de- tail about evidence collected, in a number of cases, of an unethical relationship be- tween Garfinkel and Hunter R and Ro- have to worry about Ken Roman If this is an issue because we can pay him off and he will recant his testimony,' and at that point maybe there is 18, 20 people In the room and I said, 'That's outrageous. There would be no way that you could ever do that or that we could ever permit that.'" (DE 119, pp. 14—I5). EFTA00177861 1260 716 FEDERAL SUPPLEMENT, 2d SERIES main, which Defendants maintain is di- rectly relevant to their defense that the insurance policies have been voided by Plaintiffs' fraud. Defendants acknowledge that there are procedural mechanisms in place that allow this Court to address these issues in this case as needed, but nevertheless argue that a broad inquiry that cuts across case lines is warranted, because Garfinkel and others have "creat- ed a fraud upon the judicial process" throughout this District. [DE 121, p. 12]. Defendants identify twelve witnesses who should testify, and ask the Court to sub- poena years worth of bank and accounting records from Garfinkel and a list of people associated with him. Residences, by that time represented by Garfinkel's and ICatzman's new law firm, filed a response in opposition to the Re- quest [DE 127], It argues that it would be improper for this Court to take on an investigative role and suggests that a broad judicial inquiry would open "an evi- dentiary Pandora's box." (DE 127, p. 9]. Notably, they assert that "(n)othing has transpired before this Court that would implicate any inherent authority the Court might have to punish or order further action taken with respect to misconduct it observes." Ltd., p. 7]. It urges that the issues raised by the Request, and at the April 16 hearing, can be addressed as needed in the normal course of this litiga- tion. Shortly after the April 16 hearing, Resi- dences filed a Motion for Protective Order Enjoining Daniel Rosenbaum from Fur- ther Violating Attorney—Client Privilege to Advance His Own Interests. [DE 122]. While the Motion is filed in the name of Residences, it mostly sets forth a series of accusations that are personal to Garfinkel. The Motion recounts the disputes between 6. Many of the assertions in that response have been repeated in other pleadings they have GTG and its former consultants Hunter R and Romain, characterizes Romain's accu- sations against Garfinkel as false, and claims the defendant insurers have unfair- ly seized upon these allegations to try to defeat the plaintiffs' legitimate claims and have engaged in a campaign to smear Gar- finkel's reputation. The Motion calls Rosenbaum a liar [DE 122, p. 17] and makes a series of disparaging accusations against him about matters that bear on the personal dispute between the former law partners, starting with Rosenbaum's "fi- nancial misconduct" when he allegedly di- verted $700,000 from the KGR bank ac- count into a personal account. Within that context, the Motion charges that Rosen- baum filed the Request for Judicial Inqui- ry, and spoke in support of that Request at the April 16th hearing, not for any legiti- mate purpose, but only to gain an advan- tage in his on-going dispute with Garfinkel and Katzman over the division of their fees and clients. According to the Motion, Rosenbaum served as counsel not only for Residences, but was also counsel to Garfinkel and was part of a Joint Defense Team ("JDT') comprised of an unnamed list of "persons sued and/or affected by" the claims brought by Hunter R, Remain, and TSSA. [DE 122, p. 7). The Motion charges that in the Request for Judicial Inquiry and at the April 16th hearing, Rosenbaum disclosed privileged information gained as part of those representations, and did so without his clients' authorizations. The Motion also accuses Rosenbaum of giving the Court this information in a manner ad- verse to his former client Residences. Resting on these accusations, the Mo- tion asks this Cunt to use its inherent au- thority to enter a "protective order" that filed, and which are summarized elsewhere in this Order. EFTA00177862 EL-AD RESIDENCES AT MIRAMAR CONDO. I. MT. HAWLEY 1261 Chess 716 F.Supp.2d 1257 2010) enjoins Rosenbaum from further disclo- sures of privileged communications. Re- markably, it goes much further and asks this Court to enjoin Rosenbaum from "ap- pearing in any case or taking any action adverse to Alan Garfinkel or any of his former clients in any case where the alle- gations of Ken Romain are, directly or in- directly, at issue." [DE 122, pp. 17-18]. Such broad injunctive relief—on its face— is excessive, as it surely would bar Rosen- baum from participating in the judicial dis- solution proceedings with his former part- ners. The Defendant insurance companies filed oppositions to the Motion for Protec- tive Order. [See DE 129, 133]. In those papers the Defendants point out, inter aria, that Rosenbaum is neither a party to this lawsuit, nor an attorney of record, that discovery is closed and, in any event, no discovery is pending involving Rosenberg. Although styled a motion for protective order, Defendants rightfully point out that it is better understood as a motion for injunctive relief against someone who is not a party to this lawsuit Defendants also raise a number of good arguments that question whether information Rosen- baum disclosed was in fact protected by privilege. They also specifically deny that Rosenbaum has given them "any informa- tion pertaining to his representation of [Plaintiffs] or other former or current clients." [DE 133, p. 3]. Perhaps recognizing the procedural flaws inherent in Residences' Motion for Protective Order, a few days after they filed that Motion, Garfinkel and Katzman filed their Motion to Intervene to Ensure Preservation of Privilege. [DE 126]. They ask to intervene in this case, individ- ually, to protect their personal interests, including what they claim were privileged communications with Rosenbaum. They add that Rosenbaum has cross-noticed Garfinkel's deposition in this and another case, and predict he will use the deposition to "gain leverage in the partnership disso- lution and to harass Garfinkel." [DE 126, p. 2]. A few days later, Garfinkel and Katzman filed yet another motion: Motion to Con- vene Sealed Ancillary Proceedings for In- junctive Relief, Sanctions, and Potential Attorney Disqualification [DE 130].' They repeat their accusations about Rosenbaum, and again charge that in the Request for Judicial Inquiry, and at the April 16th hearing, he disclosed privileged informa- tion, and made statements adverse to his former client Residences in violation of Florida Bar Rule of Professionalism 4-1.6, 4-1.9(b)-(c), and they again ask this Court to invoke its inherent power to discipline Rosenbaum. What's new is the way in which Garfinkel and Katzman ask the Court to accomplish this: they would have this Court convene an ancillary proceeding that would be conducted entirely under• seal, the sole focus of which would be Rosenbaum's alleged misconduct, that would adjudicate whether Rosenbaum vio- lated the Florida Bar Rules of Professional Conduct, and in the process they would have the Court bar Rosenbaum from filing a response to the Motion. In the end, Garfinkel would have this Court discipline Rosenbaum for breach of his ethical obli- gations, enjoin him from further miscon- duct, and disqualify defense counsel from representing their clients in this case, be- cause they have received (unidentified) in- formation protected by the attorney-client privilege and work product doctrine. Ii. ANALYSIS A. Motion to Intervene [11 Both Garfinkel and Katzman assert their right, pursuant to Rule 24(a), F.R. 7. They request a hearing on that Motion. [DE 132]. EFTA00177863 1262 716 FEDERAL SUPPLEMENT, 2d SERIES Civ. P., to intervene in this action "for the limited purpose of protecting the various privileges, and to respond to the personal attacks made upon them individually by Rosenbaum." [DE 125, p. Garfinkel and Katzman will be permitted to inter- vene for the former purpose, but not the latter•. According to the Motion to Intervene, Rosenbaum served as counsel for Garfink- el "in the matter which Romain filed against Garfinkel[,]" and their communica- tions in this respect were protected by the attorney client privilege. Id The Motion further asserts that Rosenbaum, as part of the Joint Defense Team represented his former law firm, KGR, and by association its partner, Katzman, and that disclosure of their privileged communications would harm Garfinkel and Katzman in on-going litigation. [DE 126, p. 3].3 Rule 24(a) reads as follows: (a) Intervention as of Right. Upon timely application anyone shall be per- mitted to intervene in an action: (2) When the applicant claims an inter- est relating to the property or transac- tion which is the subject of the action and he is so situated that disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's in- terest is adequately represented by ex- isting parties. The law in this Circuit, and others, is clear, that this Court must allow intervention by a client "in the first instance ... as soon as the [attorney-client] privilege issued is raised." In re Grand Jury Matter (ABC Coeµ), 736 F.2d 1330, 1881 (11th Cir.1984), (quoting In re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1575 (11th Cir. 1983)); see also In re Grand Jury Subpoe- na (Newparent, Inc.), 274 F.3d 663, 670 (1st Cir.2001) ("Colorable claims of attor- ney-client and work product privilege [are] .. . a textbook example of an entitlement to intervention as of right."); United Stalest. AT & T Co., 642 F.2d 1285, 1292 (D.C.Cir.1980); Sackman I. Liggett Group, Inc., 167 F.R.D. 6, 20-21 (E.D.N.Y. 1996). In allowing intervention, this Court notes that Garfinkel and Katzman have not demonstrated that Rosenbaum in fact served as their lawyer, or that he has or will disclose any of their privileged com- munications. While they have complained mightily that Rosenbaum has already made unauthorized disclosures, Garfinkel and Katzman have not identified for this Court which of Rosenbaum's statements in the Request for Judicial Inquiry, or at the April 16 healing, they claim are privileged. Moreover, Katzman's assertion of privilege is particularly attenuated: he claims that Rosenbaum, as part of the JDT, represent- ed their former law firm, and that as a partner in the firm Katzman personally claims a privilege as to his statements to Rosenbaum. Further, to the extent Katz- man contends that the statement Rosen- baum attributed to him, and repeated at the April 16 hearing ("You don't have to worry about Ken Romain if this is an issue because we can pay him off and he will recant his testimony") was a privileged communication, it would appear to fall squarely within the crime-fraud exception to that privilege. In this and other cir- cuits, Garfinkel and Katzman need not set forth this proof before they intervene. See In re Grand Jury Proceedings (Freeman), 708 F.2d at 1576 (intervention should have been allowed "once the claim of attorney- client privilege ... surfaced."); In re Grand Jury Matter (ABC Corp.), 735 F.2d at 1331 (the extent of the attorney-client privilege, and the possibility of unautho- 8. The Motion does not specifically identify what ongoing litigation It refers to. EFTA00177864 EL-AD RESIDENCES AT MIRAMAR CONDO. . Mt HAWLEY 1263 Cline716 17-5upp.2d 1257 (S.D.Fla. 2010) sized disclosure must be addressed after intervention); United States.). AT & T Co., 642 F.2d at 1291 ("determination of the merits of [the] claim [of privilege] is not appropriate at this threshold stage ... we must accept a party's well-pleaded alle- gations as valid.") Upon intervention, Garfinkel and Katz- man will have to meet their burden to establish that they were in fact represent- ed by Rosenbaum, and that they had privi- leged communications in the course of that attorney-client relationship that have been, or are at risk of, unauthorized disclosure.' Rule 24(a) permits intervention only "upon timely application." As already not- ed, Rosenbaum no long represents Plain- tiff in this action and he, of course, is not a party. The Court will have to hear from him however, as it considers Garfinkel's and Katzman's claims of privilege. The Court will therefore entertain a concise motion by Rosenbaum, pursuant to Rule 24(a) to intervene in this proceeding, for the same limited purpose of participating in this Court's consideration of Garfinkel's and Katzman's claims of privilege. As for Garfinkel's and Katzman's re- quest to intervene to "respond to the per- sonal attacks made upon them individually 9. In this diversity action, claims of privilege are governed by Florida law. F.R. Evd. 501. The burden of establishing that communica- tions were protected from disclosure by the attorney-client privilege falls upon the party autillnilike privilege. Bell Tel. & Tel. Co. . Deasoil, 632 So.2d 1377, 1383 I (Fla.1994); Cone I. Culverhouse, 687 So.2d 888, 892 (Fla. 2d DCA 1997) ('The privilege will not apply unless the party asserting it proves that the communications at issue come yithin its confines."); Wal—Mart Stores, Inc. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997) (same rule applies to work product doctrine). In meeting this burden, each ele- ment of the privilege must be affirmatively demonstrated, and the party claiming privi- lege must provide the court with evidence that demonstrates the existence of the privi- lege, which often is accomplished by affidavit. by Rosenbaum," they may not do so. (DE 126, p. 2]. As one court has noted, to intervene "the interest must be a legal interest as distinguished from interests of a general or indefinite character." United States'. AT & T Co., 642 F.2d at 1292 (citations and quotation marks omitted).1° This Court does not need to provide Gar- finkel and Katzman a forum to respond to Rosenbaum's "personal attacks." In the numerous pleadings they have filed since Rosenbaum's Request for Judicial Inquiry, Garfinkel and Katzman have already re- peatedly answered Rosenbaum's assertions and have done so in a vitriolic manner. Rosenbaum no longer represents Resi- dences, thus he no longer has a voice in this lawsuit to make additional claims about his former law partners. There are other forums in which the former law part- ners can air their grievances against one another they are already embroiled in Judicial dissolution proceedings, and if complaints have not already been filed with the Florida Bar, they are likely to be." Rule 24(a) does not require interven- tion by Garfinkel and Katzman to protect themselves from Rosenbaum's complaints against them. See CSX Tramp., Inc.'. Admiral Ins. Co., 1995 WL 855421 at *1-2, 1995 U.S. Dist. LEXIS 22359 at '4-5 (M.D.Fla. July 20, 1995). In Florida, corporate claims of privilege are sub- ject to a heightened level of scrutiny, and the Florida Supreme Court has established five criteria to establish a corporate claim of attor- pep-client privilege. Deacon, id., at 1383. 10. While the Second Circuit has recognized that injury to reputation is one that might be served by Rule 24(a), the parties have not cited any similar authority in this Circuit, and this Court is aware of none. II. For that matter, evidence of criminal fraud, witness tampering or bribery, is best referred to law enforcement authorities. EFTA00177865 1264 716 FEDERAL SUPPLEMENT, 2d SERIES B. Motion for Ancillary Proceeding [2] Garfinkel and Katzman have also asked this Court to convene an extraordi- nary ancillary proceeding: it would be held under seal," its sole purpose would be to sanction Rosenbaum for his alleged un- authorized disclosures of his clients' privi- leged information in his Request for Judi- cial Action and at the April 16 hearing, enjoin Rosenbaum from future similar con- duct, determine whether Rosenbaum vio- lated Florida Bar Rules of Professional Conduct 4-1.6, 4-1.9(b)-(c), and to disqual- HST Defendants' counsel because Rosen- baum has given them Garfmkel's and Katzman's privileged information. Re- markably, they suggest Rosenbaum should have a limited opportunity to defend him- self in such an action ("Rosenbaum should be ordered not to disclose any information or file any response, unless permitted by Court order.") [DE 130, p. 2). The Supreme Court, in Kokkonen Guardian Life Nair. Co. of Amer., 611 U.S. 876, 114 S.Ct. 1678, 128 L.Ed.2d 391 (1994), wrote the following about ancillary jurisdiction. Federal courts are courts of limited ju- risdiction. They possess only that pow- er authorized by Constitution and stat- ute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establish- ing the contrary rests upon the party asserting jurisdiction. • * • 12. While the Court can make in camera re- view of possible privileged materials, it will not engage In wholesale closed dockets. Pro- ceedings may be sealed only upon a showing of exceptional circumstances, and harm to reputation is not sufficient to overcome the strong presumption In favor of public access to the courts. Brown I. Advantage Engineer- The doctrine of ancillary jurisdiction .. . recognizes federal courts' jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them. Generally spealdng, we have asserted ancillary jurisdiction ... for two sepa- rate, though sometimes related pur- poses: (1) to permit disposition by a single court of claims that are, in vary- ing respects and degrees, factually inter- dependent, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. /a at 377-380, 114 S.Ct. 1678 (citations omitted). Garfinkel and Katzman have not carried their burden to demonstrate that their proposed ancillary proceeding would satisfy either purpose. As for the first purpose, this Court clearly has all claims before it necessary to resolve this matter. As for the second purpose, this Court can "manage its proceedings, vindicate its au- thority, and effectuate its decrees" without extending its jurisdiction. Specifically, it can: (1) resolve any disputes about privi- leges and issue appropriate orders; (2) if it needs to pass on ethics breaches by coun- sel, it has the power to do so; " and (3) it can, and will, use its authority to insist that counsel conduct themselves with a degree of restraint and professionalism that has been lacking in many of the plead- ings now before this Court. In sum, this ing, Inc., 960.17.2d 1013, 1016 (11th Cir. 1992); Wilson American Motors Corp., 759 F.2d 1568 (11th Cir.1985). 13. The Florida Bar Is uniquely suited to ad- dress compliance with its Rules of Profession- al Conduct and, at this Juncture, this Court defers to the Florida Bar to do Just that. EFTA00177866 EL-AD RESIDENCES AT MIRAMAR CONDOS. MT. HAWLEY 1265 Cite as 716 2,..Supp.2d 1257 (S.D.Fhe. 2010) Court will not expand its jurisdiction to engage in an investigation of Rosenbaum.0 C. Motion for Protective Order Residences' Motion for Protective Order is also denied. Residences has not provid- ed this Court with information to support its claim that Rosenbaum has disclosed its confidential attorney-client communica- tions. The Motion can only be understood as Garfinkel's and Katzman's personal complaints about Rosenbaum, and to the extent they ask this Court to enjoin Rosenbaum, a non-party, from prospective violations of the attorney-client privilege, that motion is denied.15 The Court will address Garfinkel's and Katzman's claims of privilege consistent with its ruling on the Motion to Intervene. D. Request for Judicial Action Rosenbaum, and the Defendant insur- ers, would both like this Court to step beyond the four corners of this lawsuit and investigate various possibilities of fraud upon this and other Courts. The proposed areas of inquiry include: (1) Romain's ap- parent perjury, either at the March 30 deposition, or earlier depositions; (2) whether Garfinkel or Katzman improperly persuaded Romain to recant his sworn ac- cusations against them; (3) whether Gar- finkel, Katzman or their consultants en- gaged in fraud by helping their clients to submit false insurance claims. This al- leged misconduct is serious, and this Order should not be misconstrued to suggest oth- erwise. This Court nevertheless declines to en- gage in a free-ranging inquiry into matters 14. If the Court felt that such an inquiry were appropriate, it would not limit the Inquiry to Rosenbaum's alleged transgressions, but would include within its scope the serious allegations of misconduct by Garfinkel and 14317.man. pending before other courts, as those courts are best suited to manage their own proceedings. Allegations of inflated insur- ance claims, kickbacks and improper busi- ness relationships between lawyers and consultants have been raised in the course of similar litigation before other courts, where they have been addressed in the context of those proceedings without hav- ing to embark on a sweeping investigation. The only new information here is Romain's March 30 deposition testimony in which he recanted his earlier accusations of miscon- duct by Garfinkel and others, and Rosen- baum's disclosure, at the April 16 hearing, of Katzman's alleged suggestion that Ro- main could be paid to recant that testimo- ny. These developments, without doubt, are extraordinary. They do not require this Court, however, to broadly investigate matters before other courts and issue rul- ings that may limit how other courts deal with this evidence, if at all, in the cases before them. As for this case, this Court can address evidence of fraud, perjury and other mis- conduct as necessary to resolve the issues here. For example, whether Residences submitted inflated damage claims is rele- vant to Defendants' defense that the policy is void. Exactly what evidence bears on this defense and may be submitted to a jury, can be decided with pre-trial motions and at trial. As already noted, to the extent misconduct exceeds the bounds of this litigation there are other forums and authorities to address them. The point is that this Court has proce- dural mechanisms in place that allow it to IS. The Court strongly rejects the request that this Court enjoin Rosenbaum from "appear- ing In any case or taking any action adverse to Alan Garfinkel or any of his former clients In any case where allegations of Ken Romain are, directly or indirectly at issue," as a mis- use of Its power. [See DE 122, pp. 17-181 EFTA00177867 1266 716 FEDERAL SUPPLEMENT, 2d SERIES consider these issues, as necessary to bring this case to a just conclusion. Given those mechanisms, this Court will not ex- ercise its discretion to make an extraordi- nary and unnecessary use of its power. III. CONCLUSION For the foregoing reasons, it is hereby ORDERED that: 1. Residences' Request for Judicial In- quiry [DE 103] is DENIED. 2. The Defendants' Joint Statement Requesting a Broad Judicial Inquiry [DE 121] is DENIED. 8. Residences' Motion for Protective Order [DE 122] is DENIED. 4. Garfmkel's and Katzman's Motion to Intervene [DE 126) is GRANTED. 6. Garfinkel's and Katzman's Motion to Convene A Sealed and Limited Ancillary Proceeding [DE 130] is DENIED. 6. Garfinkel's and Katzman's Motion for Hearing [DE 132] is DENIED. 7. Westchester's Motion for Extension of Time to Respond [DE 146) is DENIED as moot. Donna Katz MAPLES, Plaintiff, 1. UHS OF GEORGIA, INC., UHS of Geor- gia Holdings, Inc., and UHS of Peach- ford, L.P., doing business as Peach- ford BHS of Atlanta, Defendants. Civil Action No. 1:09-CV-01964—WEJ. United States District Court, N.D. Georgia, Atlanta Division. May 3, 2010. Background: Former employee brought action against her former employer, alleg- ing employer eliminated her part-time nurse position in violation of Age Discrimi- nation in Employment Act (ADEA). Em- ployer moved for summary Judgment. Holdings: The District Court, Walter E. Johnson, United States Magistrate Judge, held that: (1) employee failed to establish prima facie case of disparate treatment, and (2) employee failed to demonstrate pre- text. Motion granted. 1. Civil Rights 6=1210 To establish a disparate-treatment claim under the ADEA, an employee must prove that age was the but-for cause of the employer's adverse decision. Age Dis- crimination in Employment Act of 1967, § 4(a)(1), 29 U.S.C.A. § 623(a)(1). 2. Civil Rights 6=1672 The ADEA does not permit a sepa- rate recovery of compensatory damages for pain and suffering or emotional dis- tress. Age Discrimination in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. 3. Civil Rights e=.1.539 Where there is no direct or statistical evidence of age discrimination, the court applies the burden-shitting framework es- tablished in McDonnell Douglas to evalu- ate an ADEA claim based upon circum- stantial evidence. Age Discrimination in Employment Act of 1967, § 4(aX1), 29 U.S.C.A. § 623(aX1). 4. Civil Rights 6=1639 Under the McDonnell Douglas bur- den-shifting framework, if an employee is EFTA00177868 118 103 FEDERAL RULES DECISIONS previous order, courts are restrained by a careful statutory analysis for each item of a bill of costs. While United States'. Kolesar is helpful in deciding whether the costa of a stenographic transcript should be awarded under 28 U.S.C. § 1920(2), it is not applicable to the decision whether photo- copying expense is reimbursable under 28 U.S.C. § 1920(4). The following statement is a clear explanation of the necessity re- quired for copies under subsection (4): Photocopying charges attributable to dis- covery and the court's copies of plead- ings, motions, and memoranda are "rea- sonable necessary for use in the case" and can be awarded. Extra copies of filed papers and correspondence, and cop- ies of cues, however, are not necessary but are for the convenience of the attor- neys and therefore not taxable. Independence Tube Corp. I Copperweld Corp., 643 F.Supp. 706, 722 (N.D.Ill.1982). B. Disallowance of Reimbursement for Costs of Depositions Not Adequately Identified as Necessary for Motion for Summary Judgment (8) In the previous order, this court awarded the costs of two depositions which were tendered into evidence at the trial. The court's allowance of the costs of those two depositions does not mean, as suggest- ed in the defendant's motion for reconsider- ation, that this court would not award the costs of depositions used in supporting a successful motion for summary judgment. Such an award is appropriate when the attorneys can point to the use of the depo- sitions with some particularity. Consider- ing, however, the strong policy of the American system against the shifting of litigation expenses, a general statement by the attorneys that the parties and the court relied on five depositions for an order granting summary judgment is not suffi- cient; the party seeking reimbursement must show how the depositions were neces- sary for the court's disposition of the mo- tion. This court's ruling, therefore, was consistent with Jeffries I. Georgia Resi- dential Finance Authority, 90 F.R.D. 62 (N.D.Ga.1981), and reconsideration is un- necessary. In summary, the defendant's motion for reconsideration is hereby DENIED, and the court hereby ALLOWS $137.26 for photo- copying expense under 28 U.S.C. § 1920(4). This court's review of the bill of costs is now complete and the items, as allowed in this order and the previous order, may now be included in the judgment. Claire NELSON, Plaintiff, I Samuel N. GREENSPOON, and Eaton, Van Winkle and Greenspoon, a partnership, Defendants. No. 83 Chi. 7962 (SWK). United States District Court, S.D. New York. Sept. 11, 1984. An action was filed involving a dispute between a corporation's former president and her attorney. The corporation sought to intervene to preserve its claims to a purported attorney-client privilege sur- rounding documents generated by the at- torney. The District Court, Kram, J., held that: (1) the corporation could intervene, and (2) the corporation failed to carry its burden of showing that the documents were privileged. Motion to intervene granted and mo- tion for suppression and return of docu- ments denied. 1. Federal Civil Procedure 0=321 Corporation's motion seeking return of allegedly privileged documents in its for- mer president's possession and suppression of those documents already produced in EFTA00177869 NELSON'. OREENSPOON coo as 103 P.R.D. 118 (1984) litigation could be treated as motion to intervene, even though moving papers did not explicitly seek leave to intervene. Fed. Rules. Civ.Proc.Rules 24, 24(a, c), 28 U.S. C.A. 2. Federal Civil Procedure s=135 Although corporation which sought to intervene in order to protect allegedly privi- leged documents did not meet with formali- ties required by intervention rule, that did not preclude granting intervention in that denial of motion would exalt form over substance. Fed.Rules Civ.Proc.Rules 24, 24(a, c), 28 U.S.C.A. 3. Federal Courts s=23 If corporation's intervention to pre- serve its claims to purported attorney-client privilege surrounding various documents involved in litigation was as of right, dis- trict court could hear case irrespective of corporation's citizenship under doctrine of ancillary jurisdiction. Fed.Rules Civ.Proc. Rules 24, 24(a, c), 28 U.S.C.A. 4. Federal Civil Procedure ts=t335 Corporation could intervene in action between corporation's former president and her attorney concerning attorney's repre- sentation of president in order to assert its claim of attorney-client privilege surround- ing documents generated by attorney, who also represented corporation, where attor- ney was not actively protecting that privi- lege. Fed.Rules Civ.Proc.Rule 24(a), (aX2), 28 U.S.C.A.; Fed.Rules Evid.Rule 501, 28 U.S.C.A.; N.Y.McKinney's CPLR 4503. 6. Witnesses o=>198(1) Existence of attorney-client privilege is based upon policy of encouraging openness and full disclosure between client and his or her attorney. N.Y.McKinney's CPLR 4503. 6. Witnesses 9:=198(1) In order to minimize intrusion of attor- ney-client privilege upon ascertainment of truth, scope of privilege must be, and is, confined to narrowest possible ambit which will still achieve purpose of full disclosure between client and his or her attorney. N.Y.McKinney's CPLR 4603. 119 7. Witnesses 4=222 Burden of establishing existence of at- torney-client privilege is upon party claim- ing privilege. N.Y.McKinney's CPLR 4508. 8. Witnesses <3:=204(2) Former president of corporation, which claimed that corporate documents were protected by attorney-client privilege, was properly in possession of those documents where documents discussed former presi- dent's personal matters. N.Y.McKinney's CPLR 4503. 9. Witnesses CP>205 Corporate documents which involved communications to or from third parties, which contained information obtained from third parties or which referred to on-going communications with third party were not confidential and, therefore, were not pro- tected by corporation's attorney-client privi- lege. N.Y.McKinney's CPLR 4503. 10. Witnesses A=204(2) Corporation could not use its claim of attorney-client privilege with respect to documents to regain possession of purport- edly privileged documents in possession of corporation's former president. N.Y. McKinney's CPLR 4503. Morris Pottish, New York City, for plain- tiff. Olnick, Boxer, Blumberg, Lane & Troy by Andrew N. Krinsky, New York City, for defendant Samuel N. Greenspoon. Richenthal, Abrams & Moss by Arthur Richenthal, New York City, for proposed intervenor Hosiery Corp. of America. MEMORANDUM OPINION AND ORDER KRAM, District Judge. The above-captioned action is before this Court in an unusual posture: a corporation, Hosiery Corporation of America ("HCA"), seeks to intervene in this dispute between its erstwhile president, Claire Nelson, and EFTA00177870 120 103 FEDERAL RULES DECISIONS her attorney, Samuel N. Greenspoon, con- cerning Greenspoon's representation of Nelson, in order to preserve its claims to a purported attorney-client privilege sur- rounding various documents generated by Greenspoon, also RCA's attorney, copies of which were sent to Nelson during her ten- ure with HCA and remain in her possession to date. HCA seeks an order directing Nelson to turn over all of the documents, and any copies thereof, and prohibiting her from producing or disseminating those doc- uments in any way. For the reasons stated below, HCA is granted leave to intervene, but its motion to restrain plaintiff and re- plevy the documents is denied. —BACKGROUND— HCA is a closely-held Delaware corpora- tion with its principal place of business in Pennsylvania. HCA is primarily engaged in selling hosiery through the mails. Plaintiff Claire Nelson, along with her late husband Jules, had been the sole and joint owners of the outstanding shares of HCA. Claire Nelson also was President, or executive officer in charge of operations, of HCA for several years prior to the end of 1980. On December 2, 1980, Claire and Jules Nelson entered into a separation agreement. On the same date, Claire en- tered into an agreement with HCA where- by HCA would pay Claire $1,260,000, over the course of ten years, in redemption of her interest in the corporation. Claire was represented in the preparation of these agreements by defendant Green- spoon. Greenspoon is a member of the bar of the State of New York. He had, before and after the preparation of these agree- ments, represented Claire in personal mat- ters. Additionally, Greenspoon had at times represented Jules in personal mat- ters. He also has been HCA's general counsel since 1977. Greenspoon was the only attorney involved in the preparation of these agreements. 1. HCA is represented here by the attorney who represents Greenspoort in the Surrogates Court In or about March, 1981, Claire Nelson's employment by HCA was terminated. She has not been affiliated with HCA since that time. In or about December, 1981, Jules Nel- son instituted an action against Claire in New York State Supreme Court The sub- stance and merits of that action are irrele- vant for purposes of this motion. Claire counterclaimed in that action to set aside the agreements. On November 19, 1983, Jules Nelson died, slowing the progress of the Supreme Court action. That action is still pending. Jules Nelson's will was filed for probate in Surrogate's Court, New York County. Greenspoon and Helen Gioulis (not a party herein) were appointed preliminary execu- tors. The eligibility of Greenspoon for per- manent letters testamentary is being con- tested in Surrogate's Court. In November, 1988, Claire instituted this action against Greenspoon alleging mal- practice and conversion. Discovery in this action had been proceeding apace. Then, in the course of discovery, Claire produced copies of letters written by Greenspoon. Greenspoon maintained that the documents were privileged as between HCA and its attorney, but responded to questions con- cerning them. HCA then brought on the instant mo- tion by Order to Show Cause dated May 11, 1984. In support of its motion, HCA sub- mitted an affidavit by Arthur Richenthal, dated May 7, 1984 ("Richenthal Aff."). At- tached as exhibits to the affidavit were copies of several documents which Claire Nelson has produced during discovery herein as to which HCA claims an attorney- client privilege applies. By this motion, HCA seeks the return of all privileged doc- uments (and any copies thereof) in Claire's possession and the suppression of those privileged documents already produced by Nelson in this action. proceeding. EFTA00177871 —DISCUSSION— (1) Plaintiff raises several procedural arguments in opposition to HCA's motion which must be dealt with first. Initially, plaintiff claims that HCA is a non-party with no standing to move in this action. Admittedly, FICA's moving papers do not explicitly seek leave to intervene, but rath- er indicate that HCA appears "for [a] spe- cific and limited purpose." Richenthal Aff., II 2. However, on June 7, 1984, HCA addressed a letter to the Court requesting that the Court construe the motion as in- cluding a request to intervene. The Court will, therefore, construe this motion as one to intervene. 12) Plaintiff next argues that HCA's pa• pers are insufficient to support a motion to intervene pursuant to Rule 24 of the Feder- al Rules of Civil Procedure. Rule 24(c) provides in relevant part, that "[a] person desiring to intervene shall serve a motion to intervene ... [which] shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." HCA has not met the formalities required by Rule 24(c); however, denying its motion on that ground would exalt form over sub- stance. See Belgian American Mercan- tile Corp. I De Groeve-Marcotte & Fits, 433 F.Supp. 1098, 1101 (S.D.N.Y.1977). In Belgian American, as in this case, the movant, a non-party, had acted by Order to Show Cause for some relief and had not specifically styled its request a petition to intervene. In that case, as in this one, the relief sought was clearly spelled out in the Order to Show Cause, albeit not in the form of a pleading. Noting that the "Sec- ond Circuit has held that in the face of strong circumstances the formal require• ments of Rule 24 need not be insisted on" (citing Kuplerman • Consolidated Re- search & Mfg. Corp.. 469 F.2d 1072, 1014 n. 1(2d Cir.1972)), the court held that "non- compliance with the strict requirements of Rule 24(c)" would not preclude intervention 2. If these documents relate solely to Green- spoon's representation of FICA. as HCA con- tends, this Court is at a loss to understand how they are relevant to, or the subject of, this ac- NELSON I. GREENSPOON 121 P.R.D. I le (1984) and a determination of the intervenor's mo- tion on the merits. 483 F.Supp. at 1101. This Court feels that that is the proper course to take in this instance as well. (3) Plaintiff also argues that the Court would be divested of subject matter juris- diction if HCA were permitted to intervene because HCA is not of citizenship diverse from that of plaintiff. If HCA's interven- tion is as of right, pursuant to Fed.R.Civ.P. 24(a), then this Court is empowered to hear this case irrespective of RCA's citizenship under the doctrine of ancillary jurisdiction. See Formulate, Inc. Hartley Pen Co., 318 F.2d 486 (9th Cir.1963). Rule 24(a) provides, in relevant party, as follows: Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that inter- est, unless the applicant's interest is ade- quately represented by existing parties. (4) HCA seeks to intervene here to as- sert its purported attorney-client privilege to documents being made a subject of this action. This Court finds that the provi- sions of Rule 24(a)(2) do apply to this situa- lotion: to wit, the client claims an interest, an attorney-client privilege, in documents which are the subject of the action,' and the existing party, the attorney, is not ac- tively protecting that privilege. See In re Katz, 623 F.2d 122 (2d Cir.1980). HCA claims that various documents in Claire Nelson's possession are HCA docu- ments, subject to the attorney-client privi- lege, and that she should not be permitted to produce, or otherwise use, such privi- leged documents in this lawsuit. The pa- tion. Be that as It may, Nelson has produced them, and questioned Greenspoon about them; therefore, plaintiff has essentially made them the subject of this action at this stage. EFTA00177872 122 103 FEDERAL RULES DECISIONS rameters of the claimed privilege in this diversity action are defined by state law. Fed.R.Evid. 501. The attorney-client privi- lege in New York is governed by section 4503 of the New York Civil Practice Law and Rules ("CPLR"); however, it is deeply rooted in common law. See People O'Connor, 85 A.D.2d 92, 94, 447 N.Y.S.2d 553, 656 (4th Dep't 1982). [6, 61 The existence of such a privilege is based upon a policy of encouraging open- ness and full disclosure between a client and his or her attorney. See Upjohn Co.' United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981); Priest' Hennessy, 51 N.Y.2d 62, 6748, 431 N.Y. S.2d 611, 613-514, 409 N.E.2d 983, 985-986 (1980). Nonetheless, the application of the privilege serves to exclude reliable evi- dence and, often, to block the truth-deter- mining processes of the courts. Priest, 61 N.Y.2d at 68, 431 N.Y.S.2d at 514, 409 N.E.2d at 986; In re Jacqueline F., 47 N.Y.2d 215, 219, 417 N.Y.S.2d 884, 886-87, 891 N.E.2d 967, 969-70 (1979). In order to minimize the intrusion of the privilege upon the ascertainment of truth, the scope of the privilege must be, and is, confined to the narrowest possible ambit which will still achieve the purpose of full disclosure. Priest, 61 N.Y.2d at 68, 431 N.Y.2d at 514, 409 N.E.2d at 986; see also In re Bekins Storage Co., 118 Misc.2d 173, 177, 460 N.Y. S.2d 684, 690 (Sup.Ct.N.Y.Co.1983). (7) The specific formulation of the priv- ilege, as set out in section 4503 of the CPLR, provides, in relevant part, as fol- lows: Unless the client waives the privilege, ... any person who obtains without the knowledge of the client evidence of a confidential communication made be- tween the attorney ... and the client in the course of professional employment, shall not ... be allowed to disclose such communication. N.Y.Civ.Prac.Law § 4503 (McKinney 1963) (Supplementary Pamphlet 1964 to 1983). 3. Although, as discussed below, it Is not always clear who the client was. Whether or not that privilege covers the communications here at issue must be re- solved by this Court, but the burden of establishing the existence of an attorney- client privilege applicable to these particu- lar circumstances is upon HCA, the party claiming the privilege. See Priest, 61 N.Y.2d at 69, 431 N.Y.S.2d at 514, 409 N.E.2d at 986; see also Katz, 623 F.2d at 125; United States' Demauro, 581 F.2d 50, 66 (2d Cir.1978). HCA argues initially that these commu- nications were made during the course of an attorney-client relationship, and there appears to be no dispute about this' HCA further argues that these corporate com- munications are confidential, urging baldly that "[c)onfidentiality exists where the communications sought to be protected were made for the purposes of either re- ceiving or giving legal advice." HCA's Memorandum in Support of Motion, p. 4. HCA also argues baldly that it has not waived its privilege, and that Nelson pos- sessed these documents without RCA's knowledge. These last three contentions are hotly disputed. Treating the last argument first, it is beyond peradventure that HCA "knew" Nelson obtained these documents,' since she is named on the documents (or at least most of them) as an addressee, either of the original or of a copy. Nelson argues, therefore, that section 4608, by its terms, is inapplicable. HCA argues in response that Nelson received these documents solely in her capacity as corporate officer. As such, HCA argues, Nelson's receipt was the equivalent of HCA's receipt, so the docu- ments remained privileged (to the same extent that they were privileged to begin with). HCA argues further that it did not "know" that she retained the documents after she left her employ there, and that such retention was wrongful and did not divest HCA of its claimed privilege. Nel- son, on the other hand, responds that these documents were addressed to her personal- ly, not as corporate officer, and/or that 4. At least insofar as a corporation can 'knows" anything. EFTA00177873 HCA knew she retained them, at least be- cause Jules (the sole remaining sharehold- er, chief officer, and director of HCA) shipped them to her and knew she had them. HCA argues that Jules' knowledge of, or even complicity in, Nelson's retention of the documents is irrelevant because he did not have the authority to waive HCA's • privilege.° The Court has attempted to parse these bickering thrusts and parries in an effort to determine the applicability of section 4603. It is essential that the general na- ture of the relationship among the four parties involved—Claire, Jules, HCA and Greenspoon—be understood. HCA is, or was a very closely held corporation. Claire and Jules were the sole shareholders, and were the principal officers, of the corpora- tion. HCA was, in sum, very much a "Mom and Pop" operation—the alter ego of Claire and Jules. Greenspoon, was the at- torney for all three. He handled the Nel- sons' personal affairs as well as their busi- ness affairs. The distinctions that HCA makes now, between Claire Nelson, as cor- porate officer, and Claire Nelson, as indi- vidual, and between Claire Nelson and HCA, were not so neatly defined in fact.° DU A perusal of the documents as to which HCA claims its privilege° indicates that Greenspoon quite simply did not al- ways distinguish between Claire, the indi- vidual, and HCA. In other words, several of the documents were addressed to per- sonal matters as well as corporate ones. For example, document D 220 discusses property owned by Jules and Claire Nelson in the context of a broader discussion of corporate matters. Likewise, document D 5. HCA makes this argument through the affida- vit of its attorney without any citation or sup- port in case law or In corporate records. The Court, however, need not address this conten- tion here. 6. The other courts Involved In these tripartite proceedings have apparently held to the same effect with respect to the blurred distinction between Jules and HCA. 7. The Court notes that RCA has not shown the same vigor with which it arguer its desire to NELSON I. GREENSPOON 123 Cite as 103 F.R.D. 113 (1934) 241 refers to life insurance (presumably personal) amidst corporate matters. Docu- ment D 394 refers to Claire's potential criminal exposure from HCA's activities. These are but examples of the personal information discussed in what seem to be predominantly corporate documents. Since these documents discuss Claire's personal matters, I find that she is properly in pos- session of them. (9) Moreover, the Court finds that some of these documents are not confidential, and therefore are not privileged. RCA's bald assertion that a document is automati- cally confidential if legal advice is sought or provided in the document is not %correct statement of the law. See Herbert'. Lan- do, 73 F.R.D. 381, 899 (S.D.N.Y.), remand- ed on other grounds, 668 F.2d 974 (2d Cir.1977), rev'd and remanded on other grounds, 441 U.S. 163, 99 S.Ct. 1685, 60 L,Ed.2d 116 (1979). There, the court stab ed, "(n)or is privileged status automatically conferred by the fact that the memoran- dum may express an opinion of counsel; opinions are privileged only to the extent that they are based upon, and consequently reveal, information furnished by the client in confidence." it (emphasis added). A communication is not confidential if it ip- volves third parties. See, e.g., People Beige, 59 A.D.2d 807, 308, 399 N.Y.S.2d 689, 542 (4th Dept1977) (quoting United States United Shoe Mach. Corp., 89 F.Supp. 357, 368-69 (D.Mass.1950) ("with- out the pLesence of strangers")); Randy Intl Ltd.". Automatic Compactor Corp., 97 Misc.2d 977, 412 N.Y.S.2d 995 (Civ.Ct.. Queens Co. 1979). Thug, documentary communications to or from third parties are not confidential. Likewise, documenta- keep these documents privileged and confiden- tial in the way it actually treats those docu- ments. HCA submitted copies of the very docu- ments it claims arc privileged to this Court as exhibits In the publicly filed order to show cause. HCA did not make any effort to have those documents sealed from public access. Since I find that the documents are not privi- leged, I need not determine whether HCA unwit- tingly waived its privilege by filing these docu- ments In this manner. EFTA00177874 124 103 FEDERAL RULES DECISIONS ry communications are not confidential if copies thereof are sent to third parties. Furthermore, information obtained from third parties is not privileged. See Bekins Storage Co., 118 Misc.2d at 179, 460 N.Y.S.2d at 691. Document D 220 as to which HCA claims a privilege, was ad- dressed to Mr. Terry Arch of Touche, Ross & Co., and therefore is not privileged. A copy of document D 271 was sent to Ms. Dolores Geraghty and therefore is not priv- ileged.' Plaintiff's Exhibits 37 and 38 (part of Exhibit 6 to the Order to Show Cause herein) contain information obtained from Mr. Arch, and refer to ongoing communica- tions with Mr. Arch regarding the subject of the documents; therefore, these are not confidential. See J.P. Foley & Co., Inc Vanderbilt, 66 F.R.D. 523, 626 (S.D.N.Y.1974). These are but examples of the several documents that are not confi- dential, and therefore not privileged for this reason as well. (10) Finally, HCA has not cited a single example of the attorney-client privilege be- ing used to regain possession of purported- ly privileged documents. Given the need to limit the scope of the privilege, this Court will not countenance HCA's attempt to cre- ate new affirmative applications for the privilege. Cf., Liberty Mut. Ins. Co. Engels, 41 Misc.2d 49, 51, 244 N.Y.S.2d 983, 986 (Sup.CL Kings Co.1963) (privilege is a shield, not a sword), offd, 21 A.D.2d 808, 260 N.Y.S.2d 851 (2d Dep't 1964). In sum, HCA has failed to carry its bur- den of showing that these documents are privileged. They appear to properly be in Claire Nelson's possession, and shall re- main so. HCA's motion to intervene is GRANTED and its motion for suppression and return of the documents is DENIED. Preparation for trial is to continue apace. SO ORDERED. 8. The Court does not know the nature of the relationship between Ms. Geraghty and HCA. Ms. Geraghty may be a corporate Insider such that the communication remained confidential; however, HCA certainly did not sustain its bur. den of establishing that fact, if It is the case. GOLDEN EAGLE DISTRIBUTING CORPORATION, Plaintiff, I. BURROUGHS CORPORATION, Defendant No. C-84-0523-WWS. United States District Court, N.D. California. Sept. 19, 1984. Action was brought to recover dam- ages arising out of allegedly defective com- puter system sold to corporation. After removal from state court to federal court in Minnesota on basis of diversity, followed by transfer to the Northern District of California, seller moved to dismiss claims as time barred. Following denial of ma tion, counsel for defendant was directed to submit memorandum explaining why sanc- tions should not be imposed in connection with the motion. The District Court, Schwarzer, J., held that (1) legal argu- ment purporting to reflect existing law but instead being predicated upon, and not merely arguing for, an extension of the existing law violates rule relating to attor- ney's certification of pleadings, motions, and other papers by his signature thereon, regardless of whether purpose is to cause unnecessary delay or needless expense or whether counsel acted in good faith, and (2) failure to cite authority adverse to mov- ant's position or to make reasonable in- quiry to determine whether motion to dis- miss is warranted by existing law also via lates rule, warranting sanctions. Sanctions ordered. L Attorney and Client 4=42(14) Local counsel associated in case with out-of-state counsel for party to the action The same is true of documents addressed to Mr. Uri Shoham, except in the ease of those docu- ments, since they were addressed to Mr. Sho- ham at HCA's address, the Court was willing to assume the insider status of Mr. Shoham in spite of RCA's failure of proof. EFTA00177875 hups://web2.wesilawoom/prinUprintstream.aspiks=WLW11.078Lvr=2.0.. Wdstlaw, Federal Rules of Civil Procedure Rule 24 United States Code Annotated Currentness Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos) Kui Title IV. Parties Rule 24. Intervention (a) Intervention of Right.On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. (b) Permissive Intervention. (1) In General.On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. (2) By a Government Officer or Agency.On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on: (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3) Delay or Prejudice.ln exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights. (c) Notice and Pleading Required.A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. I of 2 9/25/11 9:21 PM EFTA00177876 (Amended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949; Januai 1963, effective July 1, 1963; February 28, 1966, effective July I, 1966; March 2, 1987, effective August 1, 1987; 30, 1991, effective December I, 1991; April 12, 2006, effective December 1, 2006; April 30, 2007, efft December 1, 2007.) Amendments received to 7-15-11 Westlaw. (C) 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 2of2 EFTA00177877 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2011 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE I and JANE DOE 2, Plaintiffs, UNITED STATES OF AMERICA, Defendant. MOTION FOR LIMITED INTERVENTION OF JEFFREY EPSTEIN This is a motion by Jeffrey Epstein pursuant to Federal Rules of Civil Procedure 24(a) and 24(b) to intervene for the limited purpose of seeking a protective order and responding to the motions of Jane Doe 1 and Jane Doc 2 for disclosure, evidentiary use, and widespread dissemination of the plea negotiation letters and emails between his lawyers and federal prosecutors. Those letters and emails were written in furtherance of plea negotiations, encouraged by the broad protections of Federal Rule of Evidence 410, Federal Rule of Criminal Procedure 11(f), and the constitutional right to effective assistance of counsel. They are privileged, confidential, not discoverable, and inadmissible as evidence at any proceeding in this case. I. MANDATORY AND DISCRETIONARY INTERVENTION An PROPER Intervention is proper as a matter of right under Federal Rule of Civil Procedure 24(a) because Mr. Epstein has an interest in protecting his privileged and confidential plea negotiations, and "disposing of the action may as a practical matter impair or impede [his] ability to protect [his] interest . . . ." FED. R. Civ. P. 24(a). Unless allowed to intervene, Mr. Epstein could suffer the injustice of having his privilege and confidentiality claims erased without ever having been heard. EFTA00177878 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2.011 Page 2 of 9 See El-Ad Residences at Miramar Condo. Ass'''. Inc. I Mt. Hawley Ins. Co., 716 F. Supp. 2d 1257, 1262 (S.D. Fla. 2010), quoting In re Grand Jury Subpoena (Newparent Inc.), 274 F.3d 563, 570 (1st Cir. 2001) (in the context of the attorney-client privilege, ruling that colorable claims of privilege are a textbook example of the right to intervene as of right); Appeal of Hughes, 633 F.2d 282, 286 (3d Cir. 1980) ("The governing rule in these circumstances is that the possessor of the claimed privilege or right may intervene to assert it"). Discretionary intervention is also proper under Rule 24(b) because Mr. Epstein's interests in protecting his plea negotiations "share with the main action a common question of law or fact." FED. R. Civ. P. 24(b). That common question of law involves the privileged and confidential nature of Mr. Epstein's plea negotiations, and the unprecedented request of Jane Doc 1 and Jane Doe 2 to use those negotiations as evidence to vacate the product of Mr. Epstein's plea bargain. This is plainly prohibited by Rule 410, and for good reason. The "central feature" of Rule 410 is that "the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States ! Herman, 544 F.2d 791, 797 (5th Cir. 1977). To allow Jane Doe 1 and Jane Doe 2 to now "introduce statements uttered in reliance on the rule would be to use the rule as a sword rather than a shield." Id. D. THE OBJECTION OF JANE DOE 1 AND JANE DOE 2 As required by Local Rule 7.1, we asked counsel for Jane Doc 1 and Jane Doe 2 whether they objected to Mr. Epstein's limited intervention. Counsel responded that they "oppose the motion on timeliness and other grounds." Mr. Epstein's motion is timely for the reasons set forth below. As to the "other grounds" that Jane Doe I and Jane Doe 2 may advance, counsel for both plaintiffs previously admitted that Mr. Epstein has a right to intervene. 2 EFTA00177879 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2011 Page 3 of 9 First, they argued in their opposition to the intervention of attorneys Black, Weinberg, and Lefkowitz that Mr. Epstein "is the real party in interest" and that "harm from the release of the materials (if any) could be only to Jeffrey Epstein." Jane Doe 1 and Jane Doe 2's Response To Motion To Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz [DE 78] at 6. Second, also in opposing the intervention of attorneys Black, Weinberg, and Lefkowtiz, the plaintiffs argued that "[o]nly Epstein has an interest in the validity of the non-prosecution agreement . . . ." Jane Doe I and Jane Doe 2's Response To Motion To Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz [DE 78] at 4. And third, in their "Motion to Use Correspondence To Prove Violations of The Crime Victim 's Rights Act And To Have Unredacted Pleadings Unsealed," filed five months ago, Jane Doe 1 and Jane Doe 2 expressly state that they do not object to Mr. Epstein's timely intervention: The victims have no objection to Epstein intervening in this case — at this time. lf, however, Epstein delays intervention until after a reasonable period of time, the victims will argue that his motion to intervene is untimely. [DE 51 at 8]. III. MR. EPSTEIN'S MOTION To INTERVENE Is TIMELY We address at the outset what has not yet happened in this litigation: There has been no trial or adjudication on the merits of the claims and defenses, and this motion to intervene is not made on the eve of such trial. There is no final judgment that would be undone or affected by Mr. Epstein's intervention. Nor is a final judgment imminent given the discussions about discovery and related matters addressed during the August 12, 2011 hearing. There are no discovery cut off dates, and the motion to intervene is therefore not filed on the eve of such deadlines or after they have passed. 3 EFTA00177880 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2011 Page 4 of 9 There have been no evidentiary hearings or factual findings by the Court that would be undone by the motion to intervene. Rather than impede the litigation, Mr. Epstein's participation will aid the Court in ruling on the sensitive and novel legal issues concerning plea negotiations. Finally, time is not of the essence to Jane Doe 1 and Jane Doe 2 — after all, they ignored this litigation for a year and a half while they pursued money damages against Mr. Epstein. The Court's order dismissing this case for lack of prosecution, which is dated September 8, 2010, noted that there had been no activity in the case since April 2009. [DE 38]. A motion to intervene must be timely. But "(t]imeliness is not a word of exactitude or of precise measurable dimensions . . . [T]imeliness is not limited to chronological considerations but is to be determined from all the circumstances." Stallworth 'Monsanto Co., 558 F.2d 257, 263-64 (5th Cir. 1977). Those circumstances are considered in light of four factors: I. The length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene. 2. The extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case. 3. The extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied. 4. The existence of unusual circumstances militating either for or against a determination that the application is timely. Id. 1. The length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene: Mr. Epstein's interests arose during the August 12, 2011 hearing, when the plaintiffs argued for the first time that their rights under the CVRA were violated not only by the government, but also by Mr. Epstein. Even though Mr. Epstein has no legal duties to the plaintiffs under the CVRA, the 4 EFTA00177881 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2011 Page 5 of 9 plaintiffs argued at the hearing that Mr. Epstein was somehow responsible for the government's communications with each Jane Doe and that Mr. Epstein, a private citizen, caused the government to violate its obligations under the Act. According to the plaintiffs, Mr. Epstein "engineered" and "orchestrated" the claimed CVRA violations, and he "insisted that the rights of these victims" be violated. [Trans. August 12, 2011 at 33-34, 611. The plaintiffs argued that because of this supposed conspiracy between Mr. Epstein and the government, the plaintiffs are entitled to copies of all the plea negotiation letters and emails, to use them as evidence in these proceedings seeking invalidation of the Non-Prosecution Agreement. Id. at 33-34, 61, 107-09. When the plaintiffs articulated a supposed conspiracy directed by Mr. Epstein to use Assistant United States Attorneys to deny the plaintiffs their rights, it became clear that the plaintiffs' purpose in seeking the plea negotiations is to offer them as evidence against Mr. Epstein, in violation of Federal Rule of Evidence 410. This showed that Mr. Epstein's interests were being implicated in the ongoing litigation between the government and the Jane Does and that limited intervention was timely and warranted. 2. The extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case: Jane Doe 1 and Jane Doe 2 will suffer no prejudice if Mr. Epstein is allowed to intervene. As noted earlier, Jane Doc 1 and Jane Doe 2 ignored this case for a year and a half while they pursued claims for money damages against Mr. Epstein. They obviously do not view time as being of the essence and were in no hurry to litigate their claims, despite their knowledge that as of June 30, 2008 Mr. Epstein was in a county jail, and that as of the summer of 2009 he was serving a term of community control, which did not end until July of 2010. 5 EFTA00177882 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2011 Page 6 of 9 Additionally, during the time period when the plaintiffs demonstrated no urgency and sought no expedited relief, Mr. Epstein, pursuant to his obligation under the Non-Prosecution Agreement, paid an attorney representative, Robert Josefsberg, substantial legal fees to represent many of the witnesses against him and settled many civil cases brought by the attorney representative. Mr. Epstein settled those cases in large part because one of the conditions of the Non-Prosecution Agreement was that Mr. Epstein waive certain defenses in civil litigation if certain identified plaintiffs sued him exclusively under the provisions of 18 U.S.C. § 2255. In short, Mr. Epstein met every condition of his Non-Prosecution Agreement with the U.S. Attorney's Office between June 30, 2008 and the Summer 2010, during which time there was inaction by the plaintiffs. Counsel for the plaintiffs are aware that the provisions of 18 U.S.C. § 3771(d)(3) & (5)(13) require that CVRA claims be raised and resolved on an exigent basis, and that litigation, including appeals from adverse rulings, be expedited in order to avoid the current circumstance, where a plaintiff seeks to invalidate an agreement after a citizen has fully served his sentence and has been subjected to a myriad of collateral and adverse consequences, none of which can be reversed. There is also no prejudice to the plaintiffs because there has been no trial or adjudication of the merits of the claims or defenses raised by the existing parties, depositions have not been taken, there have been no evidentiary hearings or factual findings by the Court, and there is no final judgment or decree that would be undone or affected by Mr. Epstein's intervention. In their"Motion to Use Correspondence To Prove Violations of The Crime Victim's Rights Act And To Have Unredacted Pleadings Unsealed," Jane Doc 1 and Jane Doe 2 argue that any motion to intervene by Mr. Epstein would be untimely if filed "after the date on which the government must respond to the victims' motion for a finding of violation of the CVRA," because 6 EFTA00177883 Case 9:08-cv-80736-KAM Document 93 Entered on FLSD Docket 09/02/2011 Page 7 of 9 "that is when the victims must begin drafting a reply pleading." Id. This argument of inconvenience does not go far because many of the issues raised by Mr. Epstein parallel the issues raised by attorneys Black, Weinberg, and Letkowitz as well as those raised during the August 12, 2011 hearing, and Jane Doe 1 and Jane Doe 2 do not have to file their responsive pleadings addressing those issues for one more month.' Thus, by the time Jane Doe 1 and Jane Doe 2 would have to respond to the merits of Mr. Epstein's motion for a protective order, they will have already done most if not all of the work involved in addressing the common legal issues. Allowing Mr. Epstein to intervene will bring the plaintiffs no undue prejudice. 3. The extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied: The issues concerning Mr. Epstein's plea negotiations are significant. As both sides expressed to the Court during the hearing on August 12, 2011, there are no reported cases that address these precise facts. As far as we know, in our combined decades of experience as criminal defense attorneys, there has been no case where third parties in a civil case have sought to discover, much less use, plea negotiations as evidence to vacate the product of the client's plea bargain years after the client has served a prison sentence, served a year of community control, completed his entire sentence, and paid enormous sums of money to the attorney representing persons bringing or threate