Former Magistrate Judge Kaplan Issues Order On Privilege Dispute In Nerium Case

On September 5, 2017, former Magistrate Judge Kaplan, acting as special master in Nerium Skincare v. Nerium Biotechnology, issued Special Master Order No. 13 (available here) dealing with a privilege objection concerning plaintiffs’ communications with a public relations firm. In support of their objection, plaintiffs submitted a privilege log identifying eight e-mails withheld from production, an affidavit, and about 1,400 pages of documents to Judge Kaplan for his in camera review.

Judge Kaplan noted, among other things, that the party asserting privilege must provide “a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.” In camera inspection “is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.” (emphasis in original).

Judge Kaplan concluded that plaintiffs failed to adduce sufficient evidence to establish that the relevant communications were protected by the attorney-client privilege:

Other than a privilege log and the documents themselves, the only evidence submitted by Plaintiffs is the affidavit of one of its lawyers, Alexander Toney, who states: “My communications with Levick Strategic Communications, LLC have been for the purpose of gathering evidence from the Internet for use in briefing and giving legal advice to the client. These communications were and remain confidential. I have directed Levick not to perform any public relations work.”

As an initial matter, the Special Master observes that Toney addresses only his communications with Levick. Most of the emails withheld from production are neither to nor from Toney. More importantly, the Toney affidavit fails to show how each document, or category of documents, falls within the scope of the attorney-client privilege.

Notwithstanding this failure of proof, the Special Master has reviewed a sampling of the 1,386 pages of documents submitted by Plaintiffs in an attempt to glean information that might shed additional light on the privilege issue. Some of the documents and attachments, such as court filings and public relations materials, clearly are not privileged. However, in most instances, the Special Master has been left to speculation and guess-work in interpreting the documents. Without evidence explaining these documents and the information contained therein, Plaintiffs cannot establish their claim of privilege.

As such, Judge Kaplan ordered the production of the requested documents.

This entry was posted in Magistrate Judge Kaplan (Ret.). Bookmark the permalink.