Joyner v. Liprie (In re Liprie)

480 B.R. 658
CourtUnited States Bankruptcy Court, W.D. Louisiana
DecidedSeptember 28, 2012
DocketBankruptcy No. 10-21281; Adversary No. 11-02002
StatusPublished
Cited by2 cases

This text of 480 B.R. 658 (Joyner v. Liprie (In re Liprie)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joyner v. Liprie (In re Liprie), 480 B.R. 658 (La. 2012).

Opinion

MEMORANDUM RULING

ROBERT SUMMERHAYS, Bankruptcy Judge.

The present matter before the court is a Motion to Compel the production of privileged documents by creditor Lee Roy Joyner. The parties previously exchanged privilege logs describing the documents that have been withheld on the grounds of the attorney-client privilege and/or the attorney work product protection. Specifically, Joyner challenges the privilege logs submitted by S.F.L. & S.I.L., L.L.C., Jones, Walker, Waechter, Poitevent, Car-rere & Denegre (“Jones Walker”), and the debtor, Samuel Liprie. Following argument, the parties submitted copies of the documents withheld on the basis of privilege for in camera review by the court. Based on the court’s review of the documents and consideration of the relevant authorities, the court GRANTS Joyner’s Motion to Compel IN PART, and DENIES the motion IN PART as set forth below.

BACKGROUND

In 1994, Joyner and Liprie formed a joint venture to develop and market a heart catheterization system known as in-tra-coronary radiation therapy. Joyner is a pulmonologist and medical researcher, and Liprie was a nuclear pharmacist and inventor. The parties referred to their joint venture as Angiorad. Joyner and a third business partner, Dr. Mark Harrison, funded the Angiorad joint venture. The joint venture ultimately produced a device that was successfully tested at a Venezuelan medical facility. The parties’ business relationship, however, began to deteriorate in 1995. In early 1995, Liprie bought out Harrison’s interest in the joint venture. Liprie also sought to buy out Joyner’s 25% interest in the joint venture, but Joyner rejected the buy-out offer. In March [662]*6621995, Liprie attempted to expel Joyner from the Angiorad venture. Joyner then filed suit against Liprie in Louisiana state court on February 8,1996, seeking his 25% share of the profits from the Angiorad joint venture. In that proceeding, Joyner asserted claims for fraud, breach of fiduciary duty, and breach of contract. Following a jury trial, the jury returned a verdict finding: (1) that Joyner had a 25% ownership interest in the Angiorad joint venture; (2) that Liprie defrauded Joyner out of his 25% share of the profits from the Angiorad joint venture; (3) that Liprie breached his fiduciary duties to Joyner; and (4) that Joyner was entitled to $4.3 million in money damages, legal interest, costs, and Joyner’s attorney fees. The court entered judgment on the jury verdict on November 10, 2008. The court’s judgment was affirmed in Joyner v. Liprie, 33 So.3d 242 (La.App. 2nd Cir.2010), and the Louisiana Supreme Court denied writ.

On July 9, 2009, Joyner commenced a collection proceeding in the 38th Judicial District Court for the Parish of Cameron, Louisiana, seeking to “recover converted property and civil fruits” from Liprie and the non-debtor defendants, including SFL and Deutsche Bank. According to Joyner, Liprie created a number of trusts and related entities, and then transferred his assets to those entities for little or no consideration in order to shield the proceeds from the Angiorad joint venture from Joyner’s prior judgment. According to Joyner, Liprie formed a Texas limited partnership in May 2001. Liprie also formed two revocable Texas living trusts: S.F. Liprie Living Trust and S.I. Liprie Living Trust. Liprie and these two living trusts were the general partners of the Texas limited partnership. Liprie and S.I. Liprie Living Trust each owned 1% of Texas limited partnership and the S.F. Liprie Living Trust owned 98%. Joyner alleges that, in January 2005, Liprie revoked the S.F. Liprie Living Trust, and that trust’s 98% interest in Texas limited partnership reverted to Liprie. Liprie then formed a new entity, defendant S.F.L. & S.I.L., L.L.C., as a Louisiana limited liability company with Liprie as the 99% owner of the entity’s membership units. Joyner alleges that the debtor subsequently transferred various assets into S.F.L. & S.I.L., including proceeds from the Angiorad joint venture. Joyner also alleges that Liprie created the Shawn Bray Liprie Inter Vivos Trust No. 1 with his wife as the sole income beneficiary in March 2005, with defendant Deutsche Bank as the trustee. According to Joyner, Liprie subsequently donated his 99% membership interest in S.F.L. & S.I.L. to this trust. This state court collection case was then removed to this court after Liprie filed for relief under Chapter 7 of the Bankruptcy Code, and is pending as Adversary Proceeding No. 11-02003.

Joyner subsequently filed the present adversary proceeding seeking a declaration that his state court judgment is non-dischargeable. The parties exchanged discovery, including privilege logs. The instant motion by Joyner challenges the parties’ privilege log designations.

JURISDICTION

The court has jurisdiction over the matters asserted in this adversary proceeding pursuant to 28 U.S.C. §§ 1334 and 157(a). This matter is a core proceeding in which this court may enter a final order pursuant to 28 U.S.C. § 157(b)(2)(I) and (J).

DISCUSSION

I. The Applicable Legal Standards

A. Application of Federal or State Law on Evidentiary Privileges

The parties raise a threshold question of choice of law: whether federal or state law governing privileges applies. The parties that oppose production have relied, in part, on the accountant-client [663]*663privilege under Louisiana law. If federal law applies, then this privilege is unavailable given that federal courts have not recognized an independent accountant-client privilege. See, e.g., Int’l Horizons, Inc. v. Committee of Unsecured Creditors, 689 F.2d 996, 1003 (11th Cir.1982). Rule 501 of the Federal Rules of Evidence provides that federal common governs privileges in cases where federal law supplies the rule of decision, while state privilege law governs in civil cases involving “a claim or defense for which state law supplies the rule of decision.” Fed.R.Evid. 501. The claims raised in the present case are claims to exclude certain debts from discharge under 11 U.S.C. § 523 and to deny the discharge under 11 U.S.C. § 727. While the court may look to state law for guidance in applying the elements of a non-dischargeability claim, these claims are governed by federal law. Accordingly, federal law on privileges applies to this case.

B.The Attorney-Client Privilege

The attorney-client privilege “protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice.” Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 720 (5th Cir.1985).

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480 B.R. 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joyner-v-liprie-in-re-liprie-lawb-2012.