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Eurochem Trading USA Corp. v. Ganske
United States District Court, W.D. Wisconsin
August 27, 2019
EUROCHEM TRADING USA CORPORATION, Plaintiff,
W. KENT GANSKE, individually and d/b/a and sole proprietor of AG CONSULTANTS, and JULIE L. GANSKE, Defendants. W. KENT GANSKE, individually and d/b/a AG CONSULTANTS, and JULIE GANSKE, Counter-Plaintiffs and Third-Party Plaintiffs, and WS AG CENTER, INC., Third-Party Plaintiffs,
EUROCHEM TRADING USA CORPORATION, Plaintiff and Counter-Defendant, and EUROCHEM GROUP AG, SCOTT SIMON, IVAN BOASHERLIEV, BENTREI FERTILIZER, LLC and BEN-TREI, LTD., Third-Party Defendants. Bates No. Sender Recipient Date Subject
Stephen L. Crocker Magistrate Judge
August 16, 2019, this court held a telephonic hearing on the
Ganske parties' motion to compel discovery (dkt. 117).
Among the items in dispute were “the Avant
report” and a recently-disclosed batch of email
communications to and from ECTUS's representatives,
including their lawyers, in which Ganske or his companies
were discussed. Asserting that some of these communications,
in whole or in part, were protected from disclosure under the
attorney-client and/or work product privileges, the ECTUS
parties agreed to submit both redacted and unredacted
versions to the court, ex parte, for in camera review of
their assertions of privilege.
ECTUS parties submitted these documents on August 19 and 20,
2019. With respect to some of the emails, ECTUS asserted an
additional privilege based on “confidential and
sensitive commercial information.” The court has
reviewed the documents against these assertions of privilege
and finds that for the most part, the redactions are
appropriate. As for the few documents that seem to fall
outside the scope of any privilege, the court will identify
them below, and give ECTUS until August 30, 2019 in which to
either provide the Ganske parties with an unredacted copy or
to file a brief reply to this order expanding on the reasons
for its assertion of privilege.
attorney-client privilege protects from discovery
confidential communications between client and attorney that
were made in order to obtain legal assistance. Fisher v.
United States, 425 U.S. 391, 403 (1976); United
States v. Bey, 772 F.3d 1099, 1101 (7th Cir. 2014). The
Seventh Circuit has adopted the general principles governing
the attorney client privilege as outlined by Wigmore:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8) except the protection be waived.
United States v. Lawless, 709 F.2d 485, 487 (7th
Cir. 1983) (citing 8 Wigmore § 2292). Whether the
privilege exists is a fact-intensive inquiry, In re Grand
Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000),
with the burden of proof on the party claiming privilege.
Shaffer v. AMA, 662 F.3d 439, 446 (7th Cir. 2011).
work product privilege is set forth in Federal Rule of Civil
Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another
party or its representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent).
But, subject to Rule 26(b)(4), those materials may be
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders
discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions, opinions,
or legal theories of a party's attorney ...