Tagged opinion 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA

Miami Division 

www.flsb.uscourts.gov 

IN RE: Chapter 11 

AMERICA-CV STATION GROUP, INC. CASE NO. 19-16355-LMI 

CARIBEVISION HOLDINGS, INC. CASE NO. 19-16359-LMI 

AMERICA-CV NETWORK, LLC CASE NO. 19-16976-LMI 

CARIBEVISION TV NETWORK, LLC CASE NO. 19-16977-LMI 

Debtors. (Jointly Administered Under 

 / No. 19-16355-BKC-LMI) 

ORDER GRANTING EX-PARTE JOINT MOTION TO DETERMINE 

APPLICABILITY AND EXTENT OF PRIVILEGES FOR DOCUMENTS LISTED 

ON PEGASO EQUITY HOLDERS’ PRIVILEGE LOG 

This matter came before the Court upon the Ex-Parte Joint Motion to 

Determine Applicability and Extent of Privileges for Documents Listed on Pegaso 

Equity Holders’ Privilege Log (ECF #438) (the “Motion”) filed by America-CV 

Laurel M. Isicoff

Chief United States Bankruptcy Judge

___________________________________________________________________________

ORDERED in the Southern District of Florida on September 6, 2023.

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Station Group, Inc., Caribevision Holdings, Inc., America-CV Network, LLC, and 

Caribevision TV Network, LLC (the “Reorganized Debtors”) and Pegaso Television 

Corp., Emilio Braun, and Ramon Diez Barroso (the “Pegaso Equity Holders”). The 

Parties0F

1 ask this Court to review the Pegaso Equity Holders’ assertions of 

attorney-client and work product privilege related to a select subset of 

documents on the Pegaso Equity Holders’ Privilege Log.1F

2 The Reorganized 

Debtors object to and dispute the claim by the Pegaso Equity Holders that the 

following documents listed on the Privilege Log are covered by either the 

attorney-client privilege or the work product doctrine: Nos. 1, 2, 4 – 18, 19, 21, 

22– 24, 25, 27, 28, 29, 32-34, 47, 51, 53, 54, 61, 73, 94, 98, 128, 129, and 130 

(the “Disputed Privileged Documents”). The Court has reviewed the Motion2F

3 and 

also the Disputed Privileged Documents in camera. 

Attorney-Client Privilege 

“The Eleventh Circuit requires three essential elements to establish the 

existence of an attorney-client privilege. First, it must be shown that an 

individual made a confidential communication to an attorney. Second, the 

communication must be made to an attorney in his professional capacity. Third, 

the purpose of the communication must be to secure legal advice or assistance.” 

1 All capitalized terms not defined herein shall have the meanings ascribed to them in the Motion.

2 On May 18, 2023, the Reorganized Debtors served their First Set of Requests for Production of 

Documents to the Pegaso Equity Holders. On June 19, 2023, the Pegaso Equity Holders served 

their Objections and Responses of the Pegaso Equity Holders to Reorganized Debtors’ First Set of 

Requests for Production of Documents, along with the Privilege Log.

3 The Court thanks and commends counsel for the manner in which the Motion was prepared. 

The time and effort required to present both sides of each factual and legal argument with respect 

to each category of Disputed Privileged Documents reflects highly on all counsel involved, and 

illustrates the level of professionalism to which all attorneys should aspire. 

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In re Stickle, 2016 Bankr. LEXIS 314, at *9 (Bankr. S.D. Fla. 2016); see also 

United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). “Courts 

generally agree that the attorney-client privilege in the corporate context applies 

only to communications made for the purpose of obtaining legal advice. With 

that in mind, the fact that an attorney is copied with a written communication 

among nonlawyers does not make the communication privileged.” Welch v. 

Regions Bank (In re Mongelluzzi), 568 B.R. 702, 713-14 (Bankr. M.D. Fla. 2017).

To the extent an attorney is included on any communication or document, there 

is no attorney-client privilege, unless it is established that the attorney was 

necessary to the communication in his or her capacity as the attorney. See 

Wyndham Vacation Ownership, Inc. v. Reed Hein & Assocs., 2019 U.S. Dist. 

LEXIS 231848, at *40 (M.D. Fla. 2019). The burden of proof is with the party 

asserting the privilege. Jackson v. Gen. Electric Capital Corp. (In re Fundamental 

Long Term Care, Inc.), 509 B.R. 387, 395 (Bankr. M.D. Fla. 2014). To satisfy this 

burden, the movant must demonstrate with facts—not mere assertions—that the 

attorney-client privilege exists. Stickle, 2016 Bankr. LEXIS 314, at *9. The 

privilege is not absolute and, thus, should be "construed as narrowly as is 

consistent with its purpose." United States v. Noriega, 917 F.2d 1543, 1551 (11th 

Cir. 1990).3F

4

4 The Court reviewed the deposition testimony of Mr. Diez-Barroso attached to the Motion and 

finds that the testimony, together with the information included in the Motion and the contents 

of the Disputed Privileged Documents, sets forth sufficient facts to allow a judicial determination 

as to whether the attorney-client privilege exists and whether the Pegaso Equity Holders have 

satisfied their burden of proof.

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The Pegaso Equity Holders assert that all communications involving 

Fernando Calles, a Mexican attorney who they assert represents, and did 

represent at all material times, Pegaso Television Corp., Emilio Braun, and 

Ramon Diez-Barroso with respect to any issues related to the Reorganized 

Debtors, are privileged pursuant to the attorney-client privilege. Relevant to the 

dispute regarding the Disputed Privileged Documents, in addition to being 

counsel to the Pegaso Equity Holders, Mr. Calles was also a member of the 

Reorganized Debtors’ board of directors (the “Board”) prior to late May 2020.

The Reorganized Debtors argue: (1) Mr. Diez-Barroso’s recent deposition 

testimony is evidence that Mr. Calles was not acting as a lawyer, but rather as 

the designated agent for Mr. Diez-Barroso for all business matters and decisions; 

and (2) because Mr. Calles was also a member of the Board, that he acted as a 

business person in addition to any legal advice he may have provided and, 

consequently, that communications with Mr. Calles in his business capacity are 

not protected by the attorney-client privilege. The Pegaso Equity Holders argue 

that the communications with Mr. Calles were intended to be, and were, made 

with respect to Mr. Calles’ position as attorney. Just because Mr. Calles was 

also a member of the Board and may have been involved in business decisionmaking for the Pegaso Equity Holders, they argue, does not compromise the 

privilege if the communication could constitute both legal advice and business 

strategy. 

The Court reviewed the deposition testimony of Mr. Diez-Barroso and 

disagrees with the Reorganized Debtors’ interpretation of that testimony. 

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Throughout the deposition, Mr. Diez-Barroso always referred to Mr. Calles as his 

attorney. The Court recognizes that Mr. Calles also acted as a representative for 

company matters, but that does not eliminate his role as attorney to Mr. DiezBarroso and the Pegaso Equity Holders. Contrary to the argument of the 

Reorganized Debtors, Mr. Calles’ dual role does not disqualify the privilege of any

communication. Therefore, the Court finds that, to the extent the 

communications otherwise qualify, the attorney-client privilege applies to

communications that include, or are directed to, or initiated by, Mr. Calles. 

However, the attorney-client privilege does not extend to every

communication involving Mr. Calles, even if there was an expectation of 

confidentiality. The only protected communications are those that were made to 

Mr. Calles in his professional capacity and for the purpose of securing legal 

advice. See Jackson, 509 B.R. at 395 (discussing the applicability of the attorneyclient privilege in the corporate context and that such privilege applies only to 

communications made for the purpose of securing legal advice). To determine 

whether a specific communication is protected by the attorney-client privilege, 

the resolution must be made on a case-by-case, a document-by-document basis. 

See Stickle, 2016 Bankr. LEXIS 314, at *14 (citing Int’l Horizons, Inc v. The Comm. 

of Unsecured Creditors (In re Intl’l Horizons, Inc.), 16 B.R. 484, 488 (N.D. Ga. 

1981)). Accordingly, the Court reviewed in camera each of the communications 

at issue.

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The Court finds that the documents contained in Privilege Log Nos. 8, 9, 

11-15, 17, 184F

5, 23, 24, and 94 are protected by the attorney-client privilege 

because in each of these communications it is clear that each was made for the 

purpose of securing, or Mr. Calles was providing, legal advice of some sort. On 

the other hand, the documents contained in Privilege Log Nos. 1, 2, 4-7, 10, 16, 

21, 22, 25, and 27-29 are not subject to the attorney-client privilege because the 

purpose of these communications was not to secure legal advice. 

Work Product Privilege

The work product doctrine is codified in Rule 26(b)(3) of the Federal Rules 

of Civil Procedure, made applicable to bankruptcy proceedings by Federal Rule 

of Bankruptcy Procedure 7026. In relevant part, Rule 26(b)(3) states: 

(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.

Fed. R. Civ. P. 26(b)(3). 

5 Privilege Log Nos. 17 and 18 includes Privilege Log No. 16 but it is not possible to determine 

whether document 17 or 18 is the duplicate of 16.

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Rule 26(b)(3) shields as work product (1) any document or tangible thing, 

(2) prepared in anticipation of litigation, (3) that was created by or for a party, 

or for his representatives. See Bridgewater v. Carnival Corp., 286 F.R.D. 636, 

639 (S.D. Fla. 2011). “With regard to determining whether documents were 

prepared ‘in anticipation of litigation,’ the law is clear that if documents are 

prepared for a business purpose - or for some other non-litigation purpose - they 

fall outside the protection of the work product doctrine. . . . The law is equally 

clear that documents prepared by counsel or parties, or by their representatives, 

in specific preparation for a filed lawsuit, are protected work product.” Wyndham 

Vacation, 2019 U.S. Dist. LEXIS 231848, at *44-45. “The application of the 

doctrine becomes difficult for those documents generated somewhere in the 

middle of the spectrum.” Bridgewater, 286 F.R.D. at 641. 

Courts have developed different tests to determine whether a document 

should be given the protection of the work product privilege. Judge Jonathan 

Goodman provides an excellent overview of the different tests:

Under the primary purpose test, a document is deserving of work 

product protection as long as the primary motivating purpose 

behind the creation of the document was to aid in possible future 

litigation. Under the dual purpose test, dual-purpose documents are 

protected from disclosure if, taking into account the facts 

surrounding their creation, their litigation purpose so permeates 

any non-litigation purpose that the two purposes cannot be 

discretely separated from the factual nexus as a whole. . . . In 

addition to using the primary purpose and dual purpose tests, other 

courts have sometimes used other tests, such as the “because of” 

test. Under that test, material used for business purposes does not 

lose work product protection if it was created because of anticipated 

litigation, and would not have been prepared in substantially similar 

form but for the prospect of that litigation. . . . In the Eleventh 

Circuit, contrary to most circuits (which follow the “because of” test), 

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district courts have mostly either used the primary purpose or dual 

purpose test.

Goosby v. Branch Banking & Trust Company, 309 F. Supp. 3d 122 1233 (S.D. 

Fla. 2018) (internal citations and quotations omitted). Although several courts, 

including in the Goosby case, have stated that the Eleventh Circuit has not yet 

adopted a test, this Court disagrees. In United States v. Davis, 636 F.2d 1028, 

1040 (5th Cir. 1981) the former Fifth Circuit wrote: 

It is admittedly difficult to reduce to a neat general formula the 

relationship between preparation of a document and possible 

litigation necessary to trigger the protection of the work product 

doctrine. We conclude that litigation need not necessarily be 

imminent, as some courts have suggested, as long as the primary 

motivating purpose behind the creation of the document was to aid 

in possible litigation.

(internal citations omitted). This has become known as the “primary purpose 

test.” Since, in accordance with Bonner v. City of Prichard, 661 F.2d 1206, 1209 

(11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions 

handed down by the former Fifth Circuit before October 1, 1981, this Court finds 

it is bound to apply the primary purpose test. See Wyndham Vacation, 2019 U.S. 

Dist. LEXIS 231848 at *45-46 (applying the primary purpose test after 

determining that Davis was binding).5F

6 Under the primary purpose test, “the 

question becomes whether the purportedly privileged documents were prepared 

with the primary motivating purpose of aiding in possible litigation.” Id. 

6 Neither Party briefed or even mentioned the fact that there are differing tests to determine the 

scope of the work product privilege and, consequently, did not provide any basis for this Court

to depart from this standard. 

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The Reorganized Debtors argue, among other things: (1) that any 

documents not created by an attorney are not subject to work product privilege; 

and (2) any documents created not just for litigation, but for litigation as well as 

any other purpose, the work product doctrine does not apply. The Reorganized 

Debtors cite to United States v. Jimenez, 265 F. Supp. 3d 1348, 1351 (S.D. Ala. 

2017) for the proposition that “the law of this Circuit is that materials prepared 

by a client are not protected by the work product doctrine.” However, as the 

Pegaso Equity Holders correctly point out, the Jimenez court expressly stated 

that its decision, in a criminal action, regarding the work product doctrine did 

not rest on Rule 26(b)(3)(A). See id. n.6 (“While Civil Rule 26(b)(3)(A) incorporates 

the attorney work-product doctrine discussed in...Hickman v. Taylor, 329 U.S. 

495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the work-product doctrine exists 

independent of Civil Rule 26(b)(3)(A), and neither party has shown why this Rule 

of Civil Procedure should apply in this criminal case.”) (emphasis in original) 

(internal citations and quotations omitted). The Reorganized Debtors’ reliance on 

Jimenez is misplaced; this is a civil case and Rule 26 does apply. See, e.g., Prime 

Prop. and Cas. Ins. v. Kepali Grp., Inc., 2022 WL 18781022, * 2 (S.D. Fla. 2022) 

(quoting and citing In re Zantac (Ranitidine) Pro. Liability Litig., 2021 WL 

2907850, at *3 (S.D. Fla. 2021)) (“work product also includes materials prepared 

by a party in anticipation of litigation, even without the input of counsel.”). 

Consequently, the Court finds that party communications are subject to the 

work product privilege and all communications must be viewed through the lens 

of the primary purpose test. 

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After reviewing the Disputed Privileged Documents in camera, the Court 

finds that the documents contained in Privilege Log Nos. 32-34, 61, and 98 are 

protected by the work product privilege because they were created by or for a 

party or a party’s representative and were prepared in anticipation of litigation. 

With respect to the documents contained in Privilege Log Nos. 128-130, only

conversations taking place after the May 28, 2020 decision granting the 

Modification Order and Confirmation Order, which initiated the direct litigation 

between the Parties, are subject to the work product privilege. The Pegaso Equity 

Holders argue that the relationship between Carlos Vasallo/Vasallo TV and the 

Pegaso Equity Holders were always antagonistic, and therefore, the Court 

should view all the communications through the lens of anticipated litigation. 

However, this Court finds that up until the May 28 “event” the parties were 

working towards a common purpose no matter how strained their relationship. 

Because May 28, 2020 is the date that initiated direct litigation between the 

Parties, any communications prior to that date were not prepared with the 

primary motivating purpose of aiding in future litigation. Lastly, the documents 

contained in Privilege Log Nos. 47, 51, 53, 54, and 73 are protected by work 

product privilege because “the primary motivating purpose behind the creation 

of the document was to aid in possible litigation.”6F

7

The Court, for the foregoing reasons,

7 A party can still seek to discover a work product document so long as it shows a “substantial 

need for the materials to prepare its case and cannot, without undue hardship, obtain their 

substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii); Wyndham Vacation, 2019

U.S. Dist. LEXIS 231848, at *20. If and at such time as the Reorganized Debtors seek such relief, 

the Court shall address them.

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ORDERS AND ADJUDGES as follows:

1. With respect to the Reorganized Debtors’ objections to the Pegaso 

Equity Holders’ assertions of attorney-client privilege for the documents listed as 

Numbers 1, 2, 4-19, 21-25, 27-29, and 94 on the Privilege Log, the Court

OVERRULES the objections as to Numbers 8, 9, 11-15, 17, 18, 23, 24, 94 and 

SUSTAINS the objections as to Numbers 1, 2, 4-7, 10, 16, 21, 22, 25, 27-297F

8;

2. With respect to the Reorganized Debtors’ objections to the Pegaso 

Equity Holders’ assertions of work product privilege for the documents listed as 

Numbers 32-34 and 98 on the Privilege Log, the Court OVERRULES the 

objections8F

9;

3. With respect to the Reorganized Debtors’ objections to the Pegaso 

Equity Holders’ assertions of work product privilege for the documents listed as 

Number 61 on the Privilege Log, the Court OVERRULES the objections9F

10;

4. With respect to the Reorganized Debtors’ objections to the Pegaso 

Equity Holders’ assertions of work product privilege for the documents listed as 

Numbers 128 and 129 on the Privilege Log, the Court OVERRULES IN PART

and SUSTAINS IN PART the objections as follows: OVERRULES the objections

as to any document sent after May 28, 2020 and SUSTAINS the objections as to 

any document sent prior to May 28, 2020;

8 The Court makes no ruling as to Number 19 because the document was not translated. 9 Because the Court has overruled the objections based on the work product privilege, the Court 

makes no ruling with respect to the asserted attorney-client privilege.

10 Because the Court has overruled the objections based on the work product privilege, the Court 

makes no ruling with respect to the asserted attorney-client privilege.

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5. With respect to the Reorganized Debtors’ objections to the Pegaso 

Equity Holders’ assertion of work product privilege for the documents listed as 

Number 130 on the Privilege Log, the Court OVERRULES IN PART and 

SUSTAINS IN PART the objections as follows: OVERRULES the objections as to 

any document sent after May 28, 2020 and SUSTAINS the objections as to any 

document sent prior to May 28, 2020; 

6. With respect to the Reorganized Debtors’ objections to the Pegaso 

Equity Holders’ assertions of work product privilege for the documents listed as 

Numbers 47, 51, 53, 54, and 73 on the Privilege Log, the Court OVERRULES the 

objections.

###

Copies to: 

Paul J. Battista, Esq. 

Phillip M. Hudson, III, Esq.

Morgan L. Swing, Esq.

Attorney Battista is directed to serve a copy of this Order on interested 

parties who do not receive service by CM/ECF, and file a proof of such service 

within two (2) business days from entry of the Order.

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