EuroChem North America Corp. v. Ganske, Julie

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN EUROCHEM TRADING USA CORPORATION, Plaintiff, v. W. KENT GANSKE, individually and d/b/a and sole proprietor of AG CONSULTANTS, and JULIE L. GANSKE, Defendants. ORDER W. KENT GANSKE, individually and d/b/a AG 18-cv-16-slc CONSULTANTS, and JULIE GANSKE, Counter-Plaintiffs and Third-Party Plaintiffs, and WS AG CENTER, INC., Third-Party Plaintiffs, v. 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. ________________________________________________________________________________________ On 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. The 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.

DISCUSSION The 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). The work product privilege is set forth in Federal Rule of Civil Procedure 26(b)(3): (3) 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 discovered if: (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 or other representative concerning the litigation. I. The Preliminary and Final Report by the Avant Advisory Group Although the entirety of both versions of the Avant report appear to have been prepared in anticipation of litigation, the ECTUS parties agreed to produce the documents to the Ganske parties, with certain parts redacted. The court agrees that the redacted portions reveal the “mental impressions, conclusions, opinions or legal theories” of ECTUS’s lawyers or representatives and need not be disclosed. II. The Emails For the most part, ECTUS’s proposed redactions of the emails are appropriate. However, the following documents do not appear to have been prepared in anticipation of litigation, or to involve confidential communications between the ECTUS parties and their lawyers for the purpose of seeking legal advice; nor do they seem to contain sensitive business information: Bates No. Sender Recipient Date Subject 663 Wirth Chlup 1/18/18 Ganske Guaranty Complaint.DO CX 756 (copy at 762) Otero Sidnev, 1/2/18 Conference Call Bendana, Chlup 12/27/17 EuroChem Trading USA Corp. vs. WS AG Center, Inc. - REF # 1425024993 757 (copy at 763) Sidnev Otero, Bendana, 12/26/17 6:48 Conference Call Chlup, Popov p.m. 12/27/17 EuroChem Trading USA Corp. vs. WS AG Center, Inc. - REF # 1425024993 791-792 Hechler Simon, Smith 11/30/17 FW: Ganske 809 (copies at 810 Hechler Ilyin, Pilipenko 12/8/2017 Memo_WS AG- and 854) Bad Debt_2017.11. 28-Approval of write-off in statutory books 1106-1111 (email Simon, Simon, 3/14/17-3/15/17 Avant string) Davidson, Davidson, Engagement Aubort Aubort Letter- EuroChem v. Kent Ganske/WS Ag EuroChem v. Kent Ganske/WS Ag 1267 (copy at Bendana Bakken 11/30/17 Re: Ganske 1269) ORDER Not later than August 30, 2019, the ECTUS parties shall provide unredacted copies of the above documents to the Ganske parties. In the alternative, ECTUS may submit a brief response in opposition to this order, objecting in full or in part. Any objection to this order shall be supported by specific arguments and facts to support application of the attorney-client or

work product privileges, or showing that the contents of a particular email constitutes sensitive, confidential business information.

Entered this 27th day of August, 2019. BY THE COURT: /s/ _______________________ STEPHEN L. CROCKER Magistrate Judge