A magistrate judge determined that a category of emails between a group of defendants and a third party are considered work product as a plaintiff attempted to have the court order production of those documents.
U.S. Magistrate Judge Bruce E. Reinhart of the Southern District of Florida made the ruling on March 27.
Raymond James Financial Services, Inc. sued ADA Serena Cordova Arijos and dozens of other defendants for declaratory judgment and preliminary and permanent injunctive relief to stop defendants from taking claims to arbitration with the Financial Industry Regulatory Authority (FINRA). Now, RJFS wants the court to deem emails between the defendants’ legal team and third-party Edith Hinojosa as non-privileged, requiring the emails to be produced.
“The parties dispute whether an exchange of emails between counsel and a witness that is the functional equivalent of a witness interview can be work product. I find that it can,” wrote Judge Reinhart. Work product is different than attorney-client privilege as it doesn’t have to be kept confidential.
The judge pointed out that defendants’ counsel’s reason for talking with Hinojosa in the first place was to back claims in their fraud lawsuit against RJFS. The defendants initially alleged that “they lost money on investments sold to them by Biscayne Capital, a firm that was unaffiliated with RJFS, and which defendants alleged perpetuated a fraud,” according to the lawsuit.
Judge Reinhart wrote that the defendants haven’t been able to prove that documents labeled “regarding retention of counsel and in anticipation of litigation,” according to the lawsuit, are not work product. He noted that the explanations of the emails aren’t extremely detailed.
At the same time, RJFS hasn’t shown that it has an extreme need, or that it will suffer an adverse impact if it’s not provided for them. Judge Reinhart pointed out that Hinojosa was in deposition for nearly seven hours, and RJFS failed to use that time to prove its current request.
Ultimately, Judge Reinhart ordered Hinojosa to provide emails categorized as “regarding retention of counsel and in anticipation of litigation.” RJFS was denied its request for all other emails.