1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Paradise Entertainment Limited, et al., Case No. 2:24-cv-00428-JCM-BNW
5 Plaintiffs/Counter-Defendants, ORDER 6 v.
7 Empire Technological Group Limited, et al.,
8 Defendants/Counter-Claimants.
9 10 Before this Court is Plaintiffs’ Motion to Compel, in which Plaintiffs seek disclosure of 11 withheld attorney-client communications under exceptions to the privilege. ECF No. 87. 12 Defendants opposed, and Plaintiffs replied. ECF Nos. 90 and 98. This Court held a hearing on the 13 motion on August 25, 2025, and took the matter under submission. ECF No. 108. For the reasons 14 discussed below, this Court denies Plaintiffs’ motion without prejudice. 15 I. BACKGROUND 16 A. Facts and Procedural History 17 Plaintiffs and Defendants are companies that supply gaming equipment to casinos. 18 Plaintiffs consist of Paradise Entertainment Limited (“Paradise”) and LT Game (Canada) Limited 19 (“LT Game”). Paradise is a Macau-based company headed by its chairman, Dr. Jay Chun. LT 20 Game is a wholly owned subsidiary of Paradise that is based in Nevada. It is involved with the 21 development, marketing, sale, and lease of Paradise’s electronic-gaming products in the North 22 American market. Defendants consist of Empire Technological Group Limited (“Empire”), 23 Gaming Specialized Logistics LLC, and individuals Linyi “Frank” Feng, Roy Allison, Daryn 24 Kiely, and Yi Zhao. 25 Lewis Roca began representing LT Game in 2011. It opened over 20 matter files during 26 the course of this representation. Lewis Roca began representing Empire in 2013, and it opened 27 over 80 matter files in the course of that representation. Lewis Roca contends that the companies 1 had separate engagement letters, none of which provided for joint representation. In addition to 2 maintaining separate files, Lewis Roca billed the companies separately. 3 In early 2008, Dr. Chun appointed his brother-in-law, Mr. Feng, to manage LT Game. In 4 2012, Paradise arranged for the incorporation of Empire under the name LT Game International. 5 Paradise placed Mr. Feng in charge of the company in 2015, and the company changed its name 6 to Empire in 2016. Defendants contend that Paradise never possessed an ownership, legal, or 7 other interest in Empire or its assets. ECF No. 90 at 7–8. The parties disagree as to whether 8 Empire was supposed to be Plaintiffs’ long-term exclusive distributor of gaming equipment in 9 North America. 10 Mr. Feng served as President of LT Game and Empire simultaneously from 2015 through 11 2022. Mr. Kiely entered into an employment contract with LT Game as its chief technology 12 officer in August 2019. Mr. Allison entered into an employment contract with LT Game in 13 January 2020 to be its senior vice president of operations and business development. Mr. Kiely 14 resigned from LT Game in March 2023 to work for Empire. Similarly, Mr. Allison left LT Game 15 in June 2023 to work for Empire. Plaintiffs assert that both employees’ LinkedIn profiles show 16 that they were working for Empire while employed at LT Game, like Mr. Feng. 17 The parties’ business dealings were subject to a supply framework agreement. According 18 to the 2021 version of that agreement, Paradise would supply or procure to supply the products to 19 Defendants by way of sale and/or leasing. Then, Defendants would further develop, assemble, 20 enhance, or otherwise manufacture the same into customized devices for onward sale and/or 21 leasing of gaming users in the territory on a “non-exclusive basis.” ECF No. 90-3, Section 3.1. 22 Plaintiffs allege that, beginning in 2018, Mr. Feng started to surreptitiously transform 23 Empire into their direct competitor. For example, Plaintiffs contend that: Mr. Feng took over one 24 million dollars from LT Game to fund a separate company that he controlled; Defendants re- 25 branded LT Game’s gaming equipment and leased it to a large casino so that it could earn money 26 from those leases; Defendants persuaded Paradise to sell a large amount of heavily discounted 27 gaming equipment to a company unknowingly owned by Mr. Feng and Mr. Allison. Plaintiffs 1 also allege that Empire is now competing directly with Paradise in Macau, and that they have lost 2 tens of millions of dollars as a result of Defendants’ fraud. 3 Plaintiffs filed two motions to compel in early February of this year. ECF Nos. 55 and 58. 4 This Court denied those motions without prejudice given the parties’ notice that the motions may 5 be mooted by a large document production. ECF No. 71. Following the document production, 6 Plaintiffs filed one renewed motion to compel, which is the subject of this Order. ECF No. 87. 7 B. Parties’ Arguments 8 Plaintiffs move to compel Defendants to disclose their communications with Lewis Roca 9 (and other counsel that LT Game used) on the ground that Defendants are improperly claiming 10 attorney-client privilege. ECF No. 87 at 1. Specifically, Plaintiffs seek communications between 11 Empire, Lewis Roca, and other LT Game counsel during the period when Defendants were 12 managers at LT Game, as well as communications that involved LT Game employees. Plaintiffs 13 further seek any emails or messaging accounts that Defendants used via Mr. Feng’s non-party 14 companies to communicate with LT Game’s counsel under Rule 45. See id. at 16. They note that 15 Defendants have not served privilege logs regarding the non-party companies. Id. 16 Plaintiffs put forth a variety of arguments in support of their request. First, Plaintiffs argue 17 that Defendants waived the attorney-client privilege because (a) the privilege logs are vague, and 18 (b) the Empire employees who communicated with Lewis Roca disclosed the communications to 19 third parties because they were also employees of LT Game. Id. at 12, 15. Second, Plaintiffs 20 argue that the withheld communications between Mr. Feng (on behalf of Empire and his other 21 corporations) and Lewis Roca should be disclosed because those communications belong to LT 22 Game, and Mr. Feng did not show that he sought legal advice in his individual capacity under 23 Bevill. Id. at 13–14 (citing Matter of Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 24 120, 124 (3d Cir. 1986)). Third, Plaintiffs argue that Empire and LT Game were joint clients of 25 Lewis Roca, such that the joint-client exception applies. Id. at 15–16. Fourth, as an alternative 26 argument, Plaintiffs ask for in camera review of the withheld communications based on the 27 crime-fraud exception and improper privilege logs. Id. at 17–18. 1 In response, Defendants contend that their privilege logs are proper. In addition, they 2 argue that just because an employee holds two jobs does not automatically constitute waiver of 3 the attorney-client privilege. ECF No. 90 at 16–17, 20. Defendants explain that Bevill is 4 inapplicable here as Mr. Feng is not asserting an individual attorney-client privilege; rather, 5 Empire is asserting the privilege. Further, Defendants argue that Empire and LT Game were 6 separate clients of Lewis Roca, as demonstrated by the fact that Lewis Roca maintained separate 7 client files, separate engagement agreements, and obtained conflict waivers. Id. at 10–13. Finally, 8 Defendants contend that Plaintiffs have not met their evidentiary burden to show that in camera 9 review is warranted. Id. at 17–18. 10 II. DISCUSSION 11 A. Legal Standard 12 The attorney-client privilege protects confidential disclosures made by a client to an 13 attorney to obtain legal advice and an attorney’s advice in response to such disclosures. United 14 States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). It is “the oldest of the privileges for 15 confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 16 383, 389 (1981). The attorney-client privilege serves to protect confidential communications 17 between a party and its attorney in order to encourage “full and frank communication between 18 attorneys and their clients and thereby promote broader public interests in the observance of law 19 and administration of justice.” Id. However, it is essential to distinguish the broader policy 20 objectives from the means of achieving them. In re Teleglobe Communications Corp., 493 F.3d 21 345, 360 (3d Cir. 2007). “Upjohn counsels a more nuanced inquiry into whether according a type 22 of communication protection is likely to encourage compliance-enhancing communication that 23 makes our system for resolving disputes more operable.” Id. at 361. 24 The federal laws of privilege apply to cases that involve both state and federal claims, like 25 this one. See Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014); ECF No. 69 at 3. Under federal 26 law, an attorney-client relationship exists: (1) where legal advice of any kind is sought (2) from a 27 professional legal adviser in his capacity as such, (3) the communications relating to that purpose, 1 disclosure by himself or by the legal adviser, (8) unless the protection be waived. Admiral Ins. 2 Co. v. U.S. Dist. Ct. for Dist. of Arizona, 881 F.2d 1486, 1492 (9th Cir. 1989) (citing In re 3 Fischel, 557 F.2d 209, 211 (9th Cir. 1977)). Furthermore, the party asserting the attorney-client 4 privilege—here, Defendants—has the burden of proving the attorney-client privilege applies. See 5 Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 25 (9th Cir. 1980). 6 B. Empire has an attorney-client relationship with Lewis Roca. 7 As an initial matter, this Court finds that an attorney-client relationship exists between 8 Empire and Lewis Roca. The parties do not meaningfully address this point. Nonetheless, based 9 on Defendants’ privilege logs and exhibits, which include a declaration by counsel at Lewis Roca 10 and engagement-agreement addendums between Lewis Roca and Empire, this Court finds that 11 Defendants have met their burden of proving that an attorney-client relationship was formed. See 12 In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (“We have previously 13 recognized a number of means of sufficiently establishing the [attorney-client] privilege, one of 14 which is the privilege log approach.”). 15 C. Defendants have not waived the attorney-client privilege. 16 Plaintiffs appear to make two waiver arguments: one regarding the privilege logs and one 17 regarding voluntary disclosure. As to Plaintiffs’ first argument, they state:
18 A party claiming privilege must provide a log accompanied by sufficient information to support and conclude the applicability of the privilege. Fed. R. Civ. P. 26(b)(5) (party 19 claiming privilege must “describe the nature of the documents, … in a manner that, without revealing information itself privileged or protected, will enable other parties to 20 assess the claim.”). Failure to assert privileges in accordance with Rule 26(b)(5) can result in a waiver of the privilege. See, e.g., Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 21 F.R.D. 691, 698 (D. Nev. 1994).
22 ECF No. 87 at 12. Plaintiffs offer no explanation as to how or why Defendants’ privilege logs are 23 insufficient or constitute waiver.1 Still, this Court will consider the argument given that it is 24 Defendants’ burden to show that it did not waive the privilege. See Weil v. Inv./Indicators, Rsch. 25 26 27 1 In their reply, Plaintiffs do state that the privilege logs are vague and ambiguous, however, they made these statements in the section on in camera review and did not otherwise connect them to a 1 & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981). Here, Defendants’ privilege logs contain 2 information detailing the communication date, communication type, who sent the communication 3 (including email addresses), who received the communication (including email addresses), who 4 was copied and blind copied on the communication (including email addresses), the level of 5 privilege (e.g., completely privileged), the privileged basis, and a description of the 6 communication. ECF No. 88-1, Ex. L and Ex. M. The description notes whether it was a request 7 or provision of legal advice, and what that legal advice concerned, such as “licenses and 8 applications” or “product sales.” Id. This is sufficient to determine that Defendants did not waive 9 the privilege based on an insufficient log theory. See Diamond State Ins. Co. v. Rebel Oil Co., 10 Inc., 157 F.R.D. 691, 698 (D. Nev. 1994) (“This demonstration is generally accomplished by the 11 submission of a privilege log which identifies (a) the attorney and client involved, (b) the nature 12 of the document, (c) all persons or entities shown on the document to have received or sent the 13 document, (d) all persons or entities known to have been furnished the documents or informed of 14 its substance, and (e) the date the document was generated, prepared, or dated.”). 15 As to Plaintiffs’ second argument, “[a]n express waiver occurs when a party discloses 16 privileged information to a third party who is not bound by the privilege, or otherwise shows 17 disregard for the privilege by making the information public.” Bittaker v. Woodford, 331 F.3d 18 715, 719 (9th Cir. 2003); see also United States v. Sanmina Corp., 968 F.3d 1107, 1116–17 (9th 19 Cir. 2020). Under Plaintiffs’ view, for example, Mr. Feng’s communications with Lewis Roca in 20 his role as President of Empire would be expressly waived because he was simultaneously an 21 employee of LT Game. See ECF No. 87 at 15. As Defendants point out, this view has several 22 flaws. See ECF No. 90 at 16–17. 23 First, it is illogical for a client to also be a third party under the plain meaning of the word. 24 A “third party” is “someone other than the principal parties in a matter, or someone who is not a 25 party to a lawsuit, agreement, or other transaction . . . .” THIRD PARTY, Black’s Law Dictionary 26 (12th ed. 2024). Second, adopting Plaintiffs’ interpretation of waiver would undermine the 27 purpose of the attorney-client privilege—to promote compliance enhancing communications 1 360 (3d Cir. 2007) (citing Upjohn Co. v. United States, 449 U.S. 383 (1981)). For example, if an 2 employee worked at company A and company B, any communication that employee made with 3 either company would automatically be waived. Such a result would discourage employees from 4 communicating with attorneys for fear of their communications being waived. Finding there has 5 been no waiver, this Court turns to Plaintiffs’ other arguments. 6 D. The Bevill test is inapplicable here. 7 Any privilege related to a corporate officer’s role and responsibilities “within a 8 corporation” belongs to the corporation, not the individual officer. Matter of Bevill, Bresler & 9 Schulman Asset Mgmt. Corp., 805 F.2d 120, 124 (3d Cir. 1986) (citing Commodity Futures 10 Trading Comm’n. v. Weintraub, 471 U.S. 343, 348 (1985)). However, in Bevill, the Third Circuit 11 held that individual corporate officers or employees could assert a personal claim of attorney- 12 client privilege if they met five factors: 13 First, they must show they approached counsel for the purpose of seeking legal advice. Second, they must demonstrate that when they approached counsel they made it clear that 14 they were seeking legal advice in their individual rather than in their representative capacities. Third, they must demonstrate that the counsel saw fit to communicate with 15 them in their individual capacities, knowing that a possible conflict could arise. Fourth, they must prove that their conversations with counsel were confidential. And fifth, they 16 must show that the substance of their conversations with counsel did not concern matters within the company or the general affairs of the company. 17 18 Id. at 123, 125 (quoting In re Grand Jury Investigation, 575 F. Supp. 777, 780 (N.D. Ga. 1983)) 19 (brackets omitted and emphases added). The Ninth Circuit adopted the Bevill test in United States 20 v. Graf. 610 F.3d 1148, 1161 (9th Cir. 2010). 21 Plaintiffs argue that Defendants cannot meet the five factors under Bevill. ECF No. 87 at 22 13–14. Defendants respond that Bevill is not the appropriate test because it was designed to 23 analyze whether a corporate employee holds a personal attorney-client privilege with corporate 24 counsel—not a privilege dispute between separate corporations. ECF No. 90 at 7. Plaintiffs 25 respond that Bevill should apply because it is a scenario in which company managers used the 26 company’s attorneys, and the Third Circuit did not draw a distinction as to whether the manager 27 sought advice for a company. ECF No. 98 at 5–6. 1 This Court agrees with Defendants. Bevill is inapposite because the individual 2 Defendants—Mr. Feng, Mr. Kiely, and Mr. Allison (corporate officers of LT Game and 3 Empire)—are not asserting a personal claim of attorney-client privilege between themselves and 4 Lewis Roca. Rather, Defendants are asserting a claim of attorney-client privilege between Lewis 5 Roca and a separate corporation, Empire. Plaintiffs’ arguments that Bevill should apply fail to 6 address why the holding in Bevill—which considered individual officers and personal claims of 7 privilege—extends to a separate corporation asserting a claim of privilege. Moreover, this Court 8 has not found case law that supports interpreting Bevill so broadly. 9 E. The Joint-Client Privilege 10 Lawyers may represent multiple clients on the same matter if the clients give their consent 11 and there is no significant risk that the lawyer will be unable to fulfill his duties to all clients. In 12 re Teleglobe Commc’ns Corp., 493 F.3d 345, 362 (3d Cir. 2007), as amended (Oct. 12, 2007) 13 (citing Restatement (Third) of the Law Governing Lawyers §§ 128–31). A joint-client 14 relationship arises when co-clients convey their desire for representation, and the lawyer agrees. 15 Id. Like single-client representations, joint-client representations may arise by implication. Id. 16 If a court determines that two parties are joint clients, then communications made in the 17 scope of the joint representation are not privileged as to each other but remain privileged to those 18 outside the joint representation. In re Teleglobe Commc’ns Corp., 493 F.3d 345, 363 (3d Cir. 19 2007), as amended (Oct. 12, 2007). Thus, determining the scope of a joint-client relationship is 20 key to determining which materials are not privileged as to the co-clients. 21 The Ninth Circuit has yet to elaborate on a test to determine whether an implied-joint- 22 client relationship exists, but courts in this district and many others are frequently guided by In re 23 Teleglobe Commc’ns Corp., 493 F.3d 345 (3d Cir. 2007), as amended (Oct. 12, 2007) and Sky 24 Valley Ltd. P'ship v. ATX Sky Valley, Ltd., 150 F.R.D. 648 (N.D. Cal. 1993).2 As explained in 25
26 2 See Hall CA-NV, LLC v. Ladera Dev., LLC, No. 3:18-CV-00124-RCJ-WGC, 2019 WL 5448458 27 (D. Nev. Oct. 24, 2019), aff’d, No. 3:18-CV-00124-RCJ-WGC, 2020 WL 1033560 (D. Nev. Mar. 2, 2020); see also Newmark Grp., Inc. v. Avison Young (Canada) Inc., No. 2:15-CV-00531-RFB- 1 Teleglobe and Sky Valley, courts may consider a wide variety of circumstances to determine 2 whether the parties intended to create an implied-joint-client relationship, including: 3 (1) the conduct of the two parties toward one another, (2) the terms of any contractual relationship (express or implied) that the two 4 parties may have had, (3) any fiduciary or other special obligations that existed between them, 5 (4) the communications between the two parties (directly or indirectly), (5) whether, to what extent, and with respect to which matters there was separate, 6 private communication between either of them and the lawyer as to whom a “joint” relationship allegedly existed, 7 (6) if there was any such separate, private communication between either party and the alleged joint counsel, whether the other party knew about it, and, if so, whether 8 that party objected or sought to learn the content of the private communication, (7) the nature and legitimacy of each party's expectations about its ability to access 9 communications between the other party and the allegedly joint counsel, (8) whether, to what extent, and with respect to which matters either or both of the 10 alleged joint clients communicated privately with other lawyers, (9) the extent and character of any interests the two alleged joint parties may have 11 had in common, and the relationship between common interests and communications with the alleged joint counsel, 12 (10) actual and potential conflicts of interest between the two parties, especially as they might relate to matters with respect to which there appeared to be some 13 commonality of interest between the parties, and (11) if disputes arose with third parties that related to matters the two parties had in 14 common, whether the alleged joint counsel represented both parties with respect to those disputes or whether the two parties were separately represented. 15 16 Sky Valley, 150 F.R.D. at 652–53. These factors are also relevant to determining the scope of any 17 joint representation. Teleglobe, 493 F.3d at 363. 18 Courts must be careful not to confuse joint clients with clients of the same lawyer who 19 share a common interest. Id. “Whether individuals have jointly consulted a lawyer or have merely 20 entered concurrent but separate representations is determined by the understanding of the parties 21 and the lawyer in light of the circumstances.” Id. (quoting Restatement (Third) of the Law 22 Governing Lawyers § 75). Courts must also consider the ultimate policy rationales behind the 23 attorney-client and joint-client privileges. Id. at 653. “For each possible resolution we must ask: 24 would this holding cause harm to or would it promote the underlying purposes that inform 25 privilege doctrine?” Id. 26 Finally, the burden of proof rests with the party asserting that a joint-client relationship 27 exists. See Sky Valley Ltd. P’ship v. ATX Sky Valley, Ltd., 150 F.R.D. 648, 650 (N.D. Cal. 1993); 1 (“The party asserting the joint client exception has the burden of establishing its existence.”). 2 Here, it is Plaintiffs’ burden to establish that LT Game and Empire have a joint-client 3 relationship, as well as the scope of such relationship. 4 To meet this burden, Plaintiffs cite to Nevada Revised Statute 49.115(5) and Hall, a 5 District of Nevada case, to describe the joint-client privilege. ECF no. 87 at 15–16. However, 6 Plaintiffs do not address the test in Teleglobe or Sky Valley, even though the court in Hall relied 7 on those cases to reach its decision. See id. The extent of Plaintiffs’ analysis is as follows: 8 Because LT Game and Empire engaged Lewis Roca to provide legal advice on matters benefiting both LT Game and Empire, Lewis Roca was acting as the common attorney for 9 both parties. Consequently, Defendants cannot shield their communications with shared counsel, particularly during a time when Defendants were simultaneously serving as 10 managers of both LT Game and Empire. 11 Id. at 16. 12 Defendants respond that this argument has no factual or legal support. ECF No. 90 at 9. 13 They contend that Lewis Roca understood Empire and LT Game to be separate clients, hence the 14 separate matter files, separate invoices, and separate engagement agreements. Id. at 10 (citing 15 ECF No. 90-9 (Ex. C) Declaration of Ken Rossman, an attorney at Lewis Roca). Defendants 16 further state that Empire also understood the representation to be separate, as it never signed a 17 joint-representation agreement or otherwise intended to be joint clients. Id. (citing ECF No. 90-2 18 (Ex. B), Declaration of Mr. Feng). 19 In their reply, Plaintiffs argue that the record is clear that Empire and LT Game were 20 overlapping entities that Lewis Roca would have perceived as two sides of a joint operation. ECF 21 No. 98 at 7. Plaintiffs then state that several factors from Sky Valley stand out—such as fiduciary 22 obligations, common interests, the relationship between common interests and communications 23 with joint counsel, and potential conflicts of interests. Id. But Plaintiffs fail to connect their 24 evidence to these factors, and instead conclude: “All of these factors, and others, support the 25 conclusion that LT Game and Empire comprised a joint engagement during the relevant time 26 period.” Id. 27 Here, Plaintiffs have not met their burden to show that a joint-client relationship exists. 1 relationship between LT Game and Empire, or what the scope of such a relationship would be. 2 This Court is particularly mindful of the Third Circuit’s directive in Teleglobe that “[o]rdering the 3 production of documents on the privilege log must be predicated on a factual finding [of a joint- 4 client relationship],” and that the factfinder . . . should consider “the existence and scope of a co- 5 client relationship.” In re Teleglobe Commc’ns Corp., 493 F.3d 345, 380 (3d Cir. 2007), as 6 amended (Oct. 12, 2007) (emphasis added). On this record, this Court cannot conclude that the 7 joint-client exception applies to the privileged communications. 8 Even considering the undeveloped arguments, the evidence presents a mixed bag as to 9 whether LT Game and Empire were joint clients. Regarding the parties’ conduct towards one 10 another (factor one), Plaintiffs contend that they invested tens of millions of dollars towards the 11 combined LT Game and Empire operations. ECF No. 55-2 at 27, ¶ 10 (Declaration of Mr. Chan). 12 LT Game financed Empire to obtain gaming licenses and paid hundreds of thousands of dollars 13 for Empire’s legal fees with Lewis Roca. Id. at 28, ¶ 12. As Defendants point out, Plaintiffs had a 14 strong financial incentive to help Empire acquire gaming licenses because they could only access 15 United States gaming jurisdictions via Empire and its licenses. ECF No. 90 at 12. They further 16 state that Empire paid for the vast majority of its own legal fees, including paying for the majority 17 of its fees from Lewis Roca and for its gaming licenses. ECF No. 90-2 at 5, ¶ 25–26. 18 Nonetheless, LT Game and Empire shared the same office space until 2021 and the same 19 employees (notably Mr. Feng, Mr. Allison, and Mr. Kiely) until around 2022/2023. Id. at 92–93, 20 ¶ 4 (Declaration of Marcos Medero). Plaintiffs paid the lease for the office, which was about 21 $13,000 per month, and many of the shared employees were on LT Game’s payroll. Id. at 93, ¶ 5. 22 This conduct between Empire and LT Game shows that their management and operations were 23 closely intertwined. 24 The contractual relationship between Empire and LT Game (factor two), remains neutral. 25 According to the 2021 supply framework agreement which was renewed annually, the parties had 26 an extensive business relationship. Still, that agreement provided Plaintiffs would supply products 27 to the Defendants, who would sell or lease the products to gaming users in North America “on a 1 Plaintiffs contend that they justifiably believed that Empire was their long-time-exclusive 2 distributor. ECF No. 87 at 14. As Mr. Chan stated: “It is plainly against common sense that we 3 would invest significant funds and resources to support the establishment of a competitor, 4 including hiring lawyers at our own expense to secure gaming licenses for Empire.” ECF No. 55- 5 2 at 30, ¶ 17. Of course, Mr. Feng stated otherwise: “Empire was never intended to operate for 6 Paradise’s exclusive benefit, nor exclusively as Paradise’s distributor.” ECF No. 90-2 at 4, ¶ 9. 7 This factor remains neutral as the supply framework agreement contradicts Paradise’s belief— 8 though well justified—that Empire was its exclusive distributor. 9 The fiduciary obligations between the parties (factor three) favors a joint-client 10 relationship). Mr. Feng, Mr. Kiely, and Mr. Allison were all employees of LT Game who owed a 11 fiduciary duty to the company. ECF No. 98 at 1. As Plaintiffs explain, Lewis Roca could not have 12 expected to keep communication with Mr. Feng confidential knowing that he was a fiduciary to 13 LT Game as its President. Id. at 3. Defendants do not dispute Mr. Feng’s fiduciary obligation to 14 LT Game. Rather, they explain that Paradise never possessed an ownership, legal, or other 15 interest in Empire or its assets. ECF No. 90 at 7–8. But the fact that Mr. Feng (and other shared 16 employees) owed fiduciary duties to both companies could support a joint-client relationship 17 because it follows that the companies should be aligned as to legal and business goals. 18 Based on the submitted evidence, LT Game and Empire appear to have separate 19 engagement letters with Lewis Roca, which weighs against finding a joint-client relationship. 20 While this consideration does not fit squarely among the factors, it is important. Defendants did 21 not attach any original engagement agreements, and neither did Plaintiffs. However, Defendants 22 did attach numerous engagement addendums for when Lewis Roca opened new matter files with 23 Empire. ECF No. 90-8 at 3–37. The addendums identify Empire as the client and are addressed to 24 Mr. Feng or Mark Hettinger, who was general counsel for Empire. Id. 25 Plaintiffs attached engagement addendums regarding LT Game. ECF No. 55-2 at 34-65. 26 These addendums identified LT Game as a client and were all addressed to Mr. Feng, except for 27 two, which were addressed to Leo Chan (CFO/Secretary). Id. at 56, 61. While Plaintiffs argue 1 the record. This Court bases its decision on the evidence in front of it. Because the addendums 2 demonstrate that Lewis Roca opened new matters under separate client files for LT Game and 3 Empire, the addendums suggest—but are not conclusive of—separate attorney-client agreements 4 with Lewis Roca. 5 Plaintiffs contend that they did not know about Empire’s private communications with 6 Lewis Roca, hence why they are presently seeking to learn the content of those communications 7 (factor six). In addition, Plaintiffs’ expectations about their ability to access communications 8 between Empire and Lewis Roca is somewhat justified (factor seven). Mr. Feng owed a fiduciary 9 duty to Plaintiffs, and Plaintiffs invested millions of dollars into Empire under the belief that it 10 would be their exclusive and long-time distributor. See ECF No. 87 at 12. These factors slightly 11 favor a joint-client relationship. 12 Considering the actual and potential conflicts of interest between LT Game and Empire, 13 this factor (ten) cuts both ways. Lewis Roca sought and obtained conflict waivers from LT Game 14 and Empire concerning a promissory note. ECF No. 90-7 at 3–8. The firm wrote: “Because we 15 have done work for both parties, we kindly ask that Frank sign the attached conflict waivers. For 16 the purposes of drafting the Note, we will represent Empire.” Id. Lewis Roca’s express statement 17 that it was representing Empire (and not LT Game) is evidence that the parties were not jointly 18 represented. But the wrinkle here is that Mr. Feng signed the conflict waiver on behalf of Empire 19 and LT Game. Id. at 5–8. Even if the conflict waivers suggest separate representations, the 20 waivers are limited to the promissory note. It may be the case that the parties had a joint-client 21 relationship as to other matters. 22 Therefore, while the fiduciary obligations of Mr. Feng and the extremely close 23 relationship between LT Game and Empire favor a joint-client relationship, evidence of separate 24 engagement agreements, invoices, and matter files cuts against such a relationship. Perhaps more 25 importantly, however, is the fact that there is little evidence apart from declarations and privilege 26 logs. This Court does not have the original engagement agreements, and there is not enough 27 evidence to properly determine the scope of the joint-client relationship were this Court to find 1 one. For example, the evidence regarding the requisition forms, engagement addendums, conflict 2 waivers, and contracts appear to be incomplete. 3 In addition, this Court heeds the Third Circuit’s warning that judges “should not confuse 4 joint clients with clients of the same lawyer who share a common interest.” See In re Teleglobe 5 Commc’ns Corp., 493 F.3d 345, 363 (3d Cir. 2007), as amended (Oct. 12, 2007). It is possible 6 that the relationship between Empire and LT Game constitutes the latter. In sum, this Court 7 declines to find a joint-client relationship between Empire and LT Game on this record. As such, 8 it need not consider policy rationales at this time. 9 F. In Camera Review 10 Though the attorney-client privilege is one of the oldest and most fundamental common- 11 law privileges, it is not absolute. In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th 12 Cir. 2007), abrogated by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009). Under the 13 crime-fraud exception, clients who consult attorneys for advice in furtherance of fraud will not be 14 protected by the attorney-client privilege. Id. Parties seeking disclosure under this exception must 15 show (1) that “the client was engaged in or planning a criminal or fraudulent scheme when it 16 sought the advice of counsel to further the scheme”; and (2) that the sought after communications 17 are “sufficiently related to” and made “in furtherance of [the] intended, or present, continuing 18 illegality.” Id. (quoting In re Grand Jury Proceedings, 87 F.3d 377, 381–83 (9th Cir. 1996)). A 19 lesser evidentiary showing is needed to trigger in camera review, as Plaintiffs seek here. United 20 States v. Zolin, 491 U.S. 554, 572 (1989). 21 Under Zolin, the district court conducts a two-step analysis to decide whether in camera 22 review is appropriate to determine the applicability of the crime-fraud exception. Id. First, “‘the 23 judge should require a showing of a factual basis adequate to support a good faith belief by a 24 reasonable person’ that in camera review of the materials may reveal evidence to establish the 25 claim that the crime-fraud exception applies.” Id. (internal citation omitted). “The threshold we 26 set . . . need not be a stringent one.” Id. Second, the district court exercises its discretion in 27 deciding whether to conduct an in camera review. Id. In reaching its decision, the court should 1 review, the relative importance to the case of the alleged privileged information, and the 2 likelihood that the evidence produced through in camera review, together with other available 3 evidence then before the court, will establish that the [] exception does apply.” Id. 4 Plaintiffs cite to the factual-background section of their brief to argue that they can meet 5 the Zolin threshold. Their background section includes the following allegations: 6 • In 2020, Mr. Feng took over one million dollars from LT Game as funding for a 7 separate company, F2 TPS, and Paradise was unaware of the transaction/would not 8 have authorized it. ECF No. 55-2 at 30 ¶ 17(b) (Declaration of Mr. Chan); ECF 9 No. 55-2 at 94 ¶ 8 (Declaration of Marcos Medero). 10 • In 2020, Mr. Feng and Mr. Kiely filed a patent application pertaining to casino 11 gaming equipment, and they assigned that patent to Empire despite Mr. Kiely’s 12 employment contract requiring assignment to LT Game. ECF No. 69, ¶ ¶ 123–24 13 (Amended Complaint); ECF No. 1-1, at 4, Ex. A, Section 5.B (Original Complaint 14 Exhibit, Mr. Kiely’s Employment Contract). 15 • In 2022, Mr. Feng reported to Paradise that Commerce Casino no longer wanted to 16 do business with LT Game. Defendants then re-branded the LT Game card shoes 17 at Commerce Casino and took the leasing revenue. ECF No. 55-2 at 30 ¶ 17(d) 18 (Declaration of Mr. Chan). 19 • Mr. Feng moved the shared employees between LT Game and Empire to a new 20 office space starting in 2021 while LT Game continued to pay rent at an 21 unoccupied address. ECF No. 55-2 at 30 ¶ 17(d) (Declaration of Mr. Chan). 22 • In 2021, Mr. Feng arranged for Lewis Roca to prepare a Shared Services 23 Agreement to be signed by Mr. Feng on behalf of LT Game and Empire, though 24 Paradise was not aware of the document. ECF No. 55-2 at 30 ¶ 17(d) (Declaration 25 of Mr. Chan). 26 • In 2022, Defendants persuaded Paradise to sell a LT Game equipment at a 27 discounted rate to Solution Gaming, which, unbeknownst to Paradise, was 1 controlled by Mr. Feng and Mr. Allison. ECF No. 55-2 at 30 ¶ 17(f) (Declaration 2 of Mr. Chan). 3 • In 2021, Mr. Feng approached Paradise saying that Lewis Roca determined that 4 LT Game needed to enter into new contracts with Empire. Paradise entered into 5 these contracts under the belief that Empire was LT Game’s exclusive distributor 6 and not actively establishing a competing business. ECF No. 55-2 at 31, ¶ 17(g) 7 (Declaration of Mr. Chan). 8 • Empire has now opened a branch in Macau where it is attempting to compete 9 directly in Paradise’s primary market. ECF No. 55-2 at 29, ¶¶ 10–15. 10 ECF No. 87 at 6–7. 11 Defendants respond that these purported examples of fraud are conclusory statements that 12 merely parrot the complaint and cannot meet the threshold. ECF No. 90 at 18. They argue that 13 “[b]ecause Plaintiffs wholly fail to establish that Empire engaged counsel to further the alleged 14 fraudulent scheme, they cannot invoke the crime-fraud exception. Plaintiffs therefore cannot 15 justify in camera review.” Id. at 19. Specifically, Defendants argue that the conclusory allegations 16 of fraud cannot meet the threshold because a “sneaking suspicion” that a client engaged in crime 17 or fraud when it consulted an attorney is insufficient. Id. at 18 (citing In re Grand Jury Proc., 87 18 F.3d 377, 381 (9th Cir. 1996)). Defendants further argue that Plaintiffs make no attempt to 19 demonstrate that the attorney-client communications are “sufficiently related to” and made “in 20 furtherance of [the] intended, or present, continuing illegality” at this stage. Id. at 19 (citing In re 21 Grand Jury Proc., 87 F.3d at 381–83). 22 Plaintiffs reply that Lewis Roca “was advising Defendants in every aspect of how to 23 advance in the gaming industry, and that advice necessarily was to the detriment of LT Game, 24 which Empire was supplanting.” ECF No. 98 at 8. Plaintiffs further explain that Lewis Roca 25 helped Empire obtain gaming licenses on the false belief that those licenses were for LT Game’s 26 benefit; that Lewis Roca prepared the 2021 documents at the direction of Mr. Feng, who was 27 trying to make it appear that Empire and LT Game were separate companies; and that any other 1 kind of legal advice, such as employment matters or payroll or the Nevada Gaming Control 2 Board, would have been in furtherance of fraud. Id. at 8. 3 First, Plaintiffs have not met the threshold showing for in camera review. Though the 4 threshold is low, Plaintiffs merely reiterated facts from their complaint and attached no exhibits to 5 support their allegations. The only exhibits attached to the motion are the privilege logs and a 6 three-page declaration from counsel. ECF No. 88-1. These unsupported allegations are not 7 enough for a reasonable person to determine, in good faith, that in camera review of the 8 privileged materials may reveal evidence that the crime-fraud exception applies. See United 9 States v. Zolin, 491 U.S. 554, 574 (1989) (holding that the party seeking in camera review “must 10 present evidence . . . .”) (emphasis added). Finding differently would be akin to the kind of 11 “groundless fishing expedition” Zolin sought to prevent. Id. at 575. 12 Even if this Court were to consider the two declarations that Plaintiffs incorporated by 13 reference in their motion, it would still be insufficient to meet the Zolin threshold. While the 14 declarations by Mr. Chan and Mr. Medero support Plaintiffs’ factual allegations by repeating 15 similar facts, they do not cite to any supporting evidence. While the Ninth Circuit has found an 16 affidavit sufficient to meet the Zolin threshold, the affidavit in that case was “based on testimony 17 of two former employees of the Corporation as well as on telephone records, invoices, and other 18 documentary evidence.” See In re Grand Jury Subpoena 92-1(SJ), 31 F.3d 826, 830 (9th Cir. 19 1994). 20 More concerning, however, is that Plaintiffs did not sufficiently explain why the scope of 21 in camera review should include all 5,000+ documents. The Ninth Circuit has found error when a 22 district court did not limit the scope of its in camera review to documents generated during the 23 course of the alleged criminal scheme. Id. at 831. So, even if this Court decided to conduct an in 24 camera review, it is unclear what the scope of such review would be. 25 Here, Plaintiffs generally contend that any kind of advice that Lewis Roca gave 26 Defendants would be in furtherance of fraud because the firm advised them on every aspect of 27 how to advance in the gaming industry. ECF No. 98 at 8. But the scope of Plaintiffs’ fraud 1 identify materials spanning from 2017 to 2023, but Plaintiffs allege instances of fraud occurring 2 between 2020 and 2022. Further, the privilege logs have descriptions of the privileged 3 communications like “providing confidential legal advice of counsel regarding Empire financials 4 and CARES Act,” which do not align with any instance of fraud Plaintiffs have alleged. See ECF 5 No. 88, Ex. L. Therefore, Plaintiffs have not provided a factual basis upon which a reasonable 6 person, in good faith, could find that all 5,000+ documents may reveal evidence to establish that 7 the crime-fraud exception. See In re Outlaw Lab’ys, LP Litig., No. 18CV840 GPC (BGS), 2020 8 WL 5500220, at *5 (S.D. Cal. Sept. 11, 2020) (“Here, the Stores must provide a factual basis in 9 this motion showing that review of these seven categories of documents may reveal evidence to 10 establish the crime-fraud exception applies.). 11 Because Plaintiffs have not met the threshold showing under Zolin, this Court denies their 12 request for in camera review. However, this decision is without prejudice. Should discovery 13 reveal evidence to support Plaintiffs’ position, they may re-file their motion. 14 G. Other LT Game Counsel and the Non-Party Companies 15 Plaintiffs argue that “it is possible” Defendants engaged other lawyers in a manner similar 16 to how LT Game had engaged Lewis Roca, and it is Defendants’ burden to prove differently. 17 ECF No. 87 at 26. They contend the same analysis that is applied to Lewis Roca should be 18 extended to other attorneys. Id. This is the extent of Plaintiffs’ arguments. As to the non-party 19 companies, Plaintiffs seek production of “any email or messaging accounts of the subpoenaed 20 Non-Party Companies to communicate with LT Game’s counsel” that are being withheld under a 21 claim of privilege. Id. Plaintiffs note that Defendants have not provided privilege logs as to these 22 non-party companies. Id. 23 Defendants argue that “Plaintiffs flunk the basic threshold requirement of establishing 24 why Defendants’ privilege assertions are improper.” ECF No. 90 at 16. They contend that 25 Plaintiffs’ motion focuses exclusively on Lewis Roca and does not provide any argument or 26 evidence as to the other attorneys. Id. Defendants do not appear to address Plaintiffs’ argument 27 regarding the non-party companies. 1 This Court will not address Plaintiffs’ undeveloped argument as to other counsel. See 2 || Hibbs v. Dep’t of Hum. Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001) (denying relief based on 3 || argument that was “too undeveloped to be capable of assessment”); see also Lux v. Buchanan, 4 || No. 2:23-CV-00839-MMD-NJK, 2024 WL 1598805 (D. Nev. Apr. 12, 2024) (“While it may 5 || ultimately be the responding party’s burden of persuasion to defend against a motion to compel, 6 || the movant must still present meaningfully developed argument as to each particular discovery 7 || objection in dispute.”) (internal citations omitted). Plaintiffs’ arguments are mere speculations, 8 || and they cite to no authority. As to the non-party companies, however, this Court will order the 9 || parties to meet and confer regarding the need for Defendants to produce a privilege log. 10 |} Il. CONCLUSION 11 IT IS THEREFORE ORDERED that Plaintiffs’ motion to compel (ECF No. 87) is 12 || DENIED without prejudice. 13 IT IS FURTHER ORDERED that the parties must meet and confer within 21 days of 14 || this Order regarding the privilege log as to the non-party companies. 15 16 17 DATED: October 20, 2025. 18 19 KK gm la We bat, BRENDA WEKSLER □ 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28