The Middle District of Tennessee recently denied a plaintiff’s motion to compel production of allegedly privileged emails. In Armouth International, Inc. v. Dollar General Corp. et. al., Case No. 14-0567 (M.D. Tenn., November 2, 2015), Defendants withheld certain email threads and redacted other emails on the basis of attorney-client privilege. Prior to the filing of the case, Plaintiff was a supplier of merchandise to Defendants. The merchandise was found to have some defect, and Defendants placed a hold on releasing the merchandise to retail stores. The hold was eventually released upon decision by Defendants’ general counsel, Stephenson, as a legal decision. Plaintiff asserted that it was a business decision and not a legal decision, and thus averred that the emails withheld or redacted relating to Stephenson are not protected by attorney-client privilege and should be produced. Plaintiff sought an in camera review of the emails.
Although the court found that Plaintiff made some compelling arguments, it held that Plaintiff did not provide a factual basis for a reasonable belief that the emails contained non-privileged communications. The hold was initially placed due to legal considerations – merchandise that did not comply with federal regulations. Plaintiff asserted that this was a business decision and not a legal one, despite Defendants’ contention that Stephenson made the decision to release the hold “precisely because it required the legal opinion of an attorney.” The “mere fact” that business decisions were a part of legal decision does not render the privilege asunder. The court found that based upon context and the statements in the privilege log, it was likely the attorney-client emails were protected communications. The privilege claims were narrow and specific. The court found it to be a “fishing expedition” and denied the motion.