UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Flagstar Bank, FSB

v. Case No. 09-mc-13-JM

FREESTAR Bank, N.A.

O R D E R

Defendant moves to quash a subpoena served on The Tracey

Edwards Company (“Tracey Edwards”) because it calls for

production of four allegedly privileged documents. Plaintiff

objects.

Background

Tracey Edwards was retained by defendant to assist it in

choosing a new name and mark and for marketing services. Jason

Knights, one of the account executives of Tracey Edwards, worked

with defendant for over a year in that effort. He worked closely

with defendant’s Chairman of the Board, Ed Vogelsinger. The

latter conferred with and received advice from Malcolm McCaleb,

Jr. Esquire. Scott Dixon, the Executive Vice President of

Pontiac national Bank, received a letter from Mr. Knights and one

from another attorney for defendant, Robert A. Kearney, Esq.

When plaintiff subpoenaed Tracey Edwards and sought its file

Case 1:09-mc-00013-JM Document 8 Filed 05/07/09 Page 1 of 5
2

duces tecum, the following privileged log was produced:

PRIVILEGE LOG OF TRACEY EDWARDS COMPANY, INC.’S FILE

Date Author Recipient Type of

Documents/C

ontents

Description Reason

04/13/06 Malcolm

McCaleb,

Jr.,

Esquire

H. Edward

Vogelsinger

Letter Proposed

Bank Name

and Service

Mark

FREESTAR

Attorneyclient

privilege

04/13/06 H. Edward

Vogelsinger

Jason

Knights

Handwritten

note on

4/13/06

McCaleb

letter

Commenting

on thoughts

passed

along by

attorney

Attorneyclient

privilege

09/04/07 Robert A.

Kearney

Scott Dixon Email Concerns

Flagstar’s

requests

for

information

on

documents

related to

domain

names

Attorneyclient

privilege

09/05/07 Jason

Knights

Scott Dixon Email Response

regarding

Flagstar’s

requests

for

information

on

documents

related to

domain

names

Attorneyclient

privilege

Case 1:09-mc-00013-JM Document 8 Filed 05/07/09 Page 2 of 5
3

Discussion

“The burden is on ... (defendant), as the party claiming

attorney-client privilege, to establish that the privilege exists

and covers the statements at issue here.” United States v.

Bisanti, 414 F.3d 168, 170 (1st Cir. 2005) (citation omitted). 

The essential elements of the claim of attorney-client privilege

are as follows:

(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. 

J.H. Digman, Excellence, § 2292, at 554 (McDaughton res.

1961).

Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002). 

“Generally, disclosing attorney-client communications to a third

party undermines the privilege.” Id., at 246-47 (citation

omitted). There are recognized exceptions to the general rule.

Defendant asserts that disclosure to third party agents of a

client does not constitute a waiver of privilege, relying for

Case 1:09-mc-00013-JM Document 8 Filed 05/07/09 Page 3 of 5
4

authority on a treatise. See Paul R. Rice, Attorney-Client

Privilege in the U.S. § 419 (2nd ed. 1999). Rice asserts that

whether a third party’s communications with a lawyer should be

treated the same as for an insider in the control group should be

assessed on the basis of whether he:

(1) possess(es) decision-making responsibility regarding the

matter about which legal help is sought, (2)...(is)

implicated in the chain of command relevant to the subject

matter of the legal services, or (3)...(is) personally

responsible for or involved in the activity that might lead

to liability for the corporation.

Id. While this test has not been specifically adopted by the

First Circuit, the Circuit has recognized the logic of the

privilege not being waived by the presence of third parties in

some circumstances. See Cavallaro, 284 F.3d. at 247. The test

is consistent with Circuit law and I apply it here.

The facts demonstrate that the third party, Tracey Edwards

Executive Knight, was intimately involved in the very activity -

choosing a name - which is the basis for alleged liability. It

is equally clear that he was in the direct chain of command in

selecting the name. Two of the three prongs are clearly

Case 1:09-mc-00013-JM Document 8 Filed 05/07/09 Page 4 of 5
5

satisfied. However, defendant has claimed the documents are

privileged but has neither filed them in camera nor described

them sufficiently. Without examining them, I cannot determine

they are communications in connection with the obtaining of legal

advice from a lawyer. Id. It is also not clear that Knight had

decision-making responsibility regarding the subject of the

requested legal help.

Defendant is ordered to file the documents for in camera

review.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 7, 2009

cc: Holly J. Kilibarda, Esq.

 Robert A. Kearney, Esq.

 Stephen David Coppolo, Esq.

 William C. Saturley, Esq.

Case 1:09-mc-00013-JM Document 8 Filed 05/07/09 Page 5 of 5