STANISLAV ROYZENSHTEYN VS. PRASHANT PATHAK (C-000045-18, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1810-19T2
STANISLAV ROYZENSHTEYN
and ROMAN GERASHENKO,
Plaintiffs-Appellants,
v.
PRASHANT PATHAK, CAREY
KURTIN, EKAGRATA, INC.,
IN COLOUR CAPITAL, INC.,
ONYX ENTERPRISES CANADA,
INC., and J. WILLIAM KURTIN,
Defendants-Respondents,
and
ONYX ENTERPRISES INT'L
CORPORATION,
Defendant.
______________________________
Argued telephonically May 26, 2020 –
Decided August 6, 2020
Before Judges Messano, Ostrer and Vernoia.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Monmouth
County, Docket No. C-000045-18.
Daniel Ginzburg argued the cause for appellants.
Brian J. Pendleton, Jr. argued the cause for respondents
(DLA Piper LLP (US), attorneys; Brian J. Pendleton,
Jr., Marc A. Silverman, Amanda Laufer Camelotto,
Kristin A. Pacio, Jenny Xiaoying Zhang, and Gina
Trimarco, on the brief).
PER CURIAM
Plaintiffs Stanislav Royzenshteyn and Roman Gerashenko formed Onyx
Enterprises Int'l Corp. (Onyx), a New Jersey corporation, in 2008 and were its
sole shareholders and directors until 2015.1 That year, in exchange for a capital
investment in the corporation (the transaction), plaintiffs agreed that defendants
Prashant Pathak and Carey Curtin (Carey), residents of Ontario, Canada, would
become majority shareholders and directors in Onyx.2 Pathak, through his
private equity firm Ekagrata Inc. (Ekagrata), and Carey formed In Colour
Capital, Inc. (ICC), and Onyx Enterprises Canada, Inc. (OEC), to facilitate the
1
We provide context for the dispute through reference to the allegations
contained in plaintiff's second amended complaint filed in July 2019.
2
Because Carey Curtin's father, J. William Kurtin (William), is also a
defendant, we use their first names to avoid confusion. We intend no disrespect
by this informality.
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2
transaction. William, another Ontario resident, was allegedly the source of
funds for the investment.3 Plaintiffs claimed to have agreed to the terms of the
transaction because Pathak allegedly assured them that Canadian Tire
Corporation (CTC), a multi-billion-dollar Canadian company with which Pathak
had influence, agreed to acquire a stake in Onyx. CTC never did.
Following the closing, plaintiffs were minority shareholders in Onyx, and
OEC owned the majority of its shares. Disputes arose shortly after the
transaction closed in July 2015. Plaintiffs' second amended complaint claimed
among other causes of action that defendants committed legal and equitable
fraud in the inducement, securities fraud, breach of fiduciary duties, minority
shareholder oppression, and interference with plaintiffs' prospective economic
relations. Plaintiffs sought rescission of the transactional agreements and a
return to the status quo ante before the transaction, plus compensatory and
punitive damages.
In addition to a general denial, defendants filed a counterclaim asserting,
in part, breach of contract, shareholder oppression, breach of fiduciary duty,
unjust enrichment, and conversion. They sought an accounting, imposition of a
3
Throughout the opinion, our use of "defendants" refers to Pathak, Carey,
William, Ekagrata, ICC and OEC, but not Onyx.
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3
constructive trust, a forced sale of plaintiffs' Onyx shares to OEC, or conversely,
plaintiffs' forced purchase of OEC's shares in Onyx, or the forced sale of Onyx
to a third-party buyer, and other relief.
After plaintiffs responded to defendants' discovery requests, defendants
moved to compel plaintiffs' further production due to allegedly inadequate
responses. In his January 2019 order, the judge granted defendants partial relief
and required plaintiffs to produce a revised privilege log that was in "readable
form." In March, defendants moved for sanctions because of plaintiffs' non-
compliance with the January order. It is unclear from the record how the court
resolved that motion.
Plaintiffs did not furnish the revised privilege log until July 17, 2019,
identifying 1276 communications over which plaintiffs asserted attorney-client
privilege. In a July 25, 2019 letter to plaintiffs' counsel, defense counsel noted
the upcoming discovery end date and claimed that plaintiffs were improperly
refusing to produce the communications "based on Onyx's privilege." Counsel
claimed that as majority shareholder of the company, OEC possessed the
privilege, not plaintiffs. In addition, defendants claimed there were "no
attorneys involved in [some] emails" listed in the log, and others involved
attorneys who did not represent either plaintiffs or Onyx. Lastly, defendants
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4
asserted there were "at least [two-hundred-ninety-one] communications that
[p]laintiffs [were] not even involved in[.]"
In an email to defense counsel, plaintiff's counsel asserted that his clients
"own the privilege on their emails prior to July 17, 2015[,] because they were
looking to sell their own shares in exchange for funding for Onyx." He
ultimately advised defense counsel to make his threatened motion to compel
production as necessary. On July 31, 2019, defendants again moved to compel
further document production from plaintiffs.
The judge heard oral argument on defendants' motion. Defense counsel
reprised the arguments made in his letter to plaintiffs' counsel. He also noted
that Onyx's attorney, who was present in court, was not asserting any privilege
over the items in the log. Defense counsel also argued that plaintiffs waived
any claim of privilege by asserting fraud in the inducement, thereby making their
knowledge, state of mind and any reliance on defendants' representations critical
issues in the lawsuit.
Plaintiffs' counsel argued that his clients retained the right to assert the
attorney-client privilege because Onyx was a "closely-held corporation[.]" He
claimed that even if the privilege was the corporation's, Royzenshteyn, as its
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chief executive officer, had not waived the privilege and Onyx's board of
directors had not approved release of the communications.
The judge asked if plaintiffs objected to Onyx's counsel reviewing the
putatively privileged communications. Plaintiff's counsel responded, "My
clients only have an objection . . . as to the transaction-related documents, . . .
because again . . . they control the privilege as to those documents because they
were the clients . . . ." The judge reserved decision.
The judge's October 25, 2019 order (the October order) required plaintiffs
to "produce all documents identified on their revised privilege log." Plaintiffs
moved for reconsideration and to quash defendants' subpoenas duces tecum and
ad testificandum served on David Sorin, a lawyer intimately involved with the
transaction and a partner at McCarter & English (McCarter). The judge entered
two orders on December 20, 2019 (the December orders), denying the requested
relief. He also entered an order on December 23, 2019, denying plaintiffs'
motion for a stay.
We granted plaintiffs' motion for leave to appeal, but only as to the orders
"related to the compelled production of documents over which plaintiffs assert
attorney-client privilege." We entered a stay pending our further review, and
we required plaintiffs to file their privilege log, along with copies of the
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allegedly privileged communications referenced in the log, for our in camera
review.
I.
In large part, the crux of plaintiffs' appeal involves the nature and scope
of Sorin's retention. During the fall of 2014, negotiations with defendants were
progressing. Royzenshteyn sent an email to Sorin on December 21, 2014,
thanking him for a meeting earlier that day, and stating: "Although we have no
NDA [non-disclosure agreement] in place, I assume all information is
confidential based on 'Attorney Client Privilege.'" Sorin responded in short
order, "Yes, everything is indeed confidential. No worries on that front
whatsoever."
However, it was not until April 24, 2015, that, expressly on behalf of
Onyx, Royzenshteyn countersigned an engagement letter sent by Sorin. Sorin
specified that McCarter would "provide legal services to Onyx," and "represent
Onyx . . . in connection with a proposed transaction with Ekagrata . . . ." A
separate "Terms of Engagement" document accompanied Sorin's letter and made
clear that McCarter's representation was limited to "you," a term defined as the
"client or clients identified in [the] engagement letter." The term did not include
"[i]ndividuals or entities that [were] related to or affiliated with you, such as
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partners, officers, directors, stockholders, parent companies, related companies,
or family members, [who] are not clients, unless we otherwise agree in writing."
In his deposition, when asked whether he was "represented by counsel on all the
transactions" with defendants through July 2015, Royzenshteyn replied, "Onyx
was."
The transaction closed on July 17, 2015, with the execution of five
agreements: the Preferred Stock and Warrant Purchase Agreement; the Investor
Rights Agreement; the Stockholders Agreement; and two, three-year
employment contracts, one with each plaintiff. Onyx was a signatory on all five
documents. Sorin drafted only the employment agreements and submitted them
to defendants' counsel for approval. At closing, OEC paid Onyx $5 million,
approximately $1.5 million of which cancelled Onyx's indebtedness to OEC as
the result of a bridge loan, and Onyx issued fifty-two percent of its voting shares
to OEC. Under the Stockholders Agreement, plaintiffs, Pathak and Carey
became Onyx's board of directors. 4
In a written statement of reasons supporting the October order, apparently
without conducting any review of the communications in the privilege log, the
4
We need not discuss the disputes that ensued or the court appointment of a
fifth director.
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8
judge provided several alternative reasons for rejecting plaintiffs' claim of
privilege over all the communications in the log. Given "the patent language of
the retainer agreement," the judge rejected plaintiffs' contention that they, not
Onyx, were "the clients [r]elated to the transaction." The judge also stated that
"[e]ven if [p]laintiffs were clients, they would . . . be joint[]clients with Onyx
and would be unable to assert privilege against Onyx. . . . Defendants, like
[p]laintiffs, own the privilege and have an equal right to access it."
The judge further determined that even if plaintiffs "could shield Onyx's
privilege from [d]efendants, . . . [p]laintiffs have waived any such privilege [,]"
because they had "affirmatively placed the subject of [their] own privileged
material at issue in th[e] litigation, and ha[d] selectively produced numerous
communications with Onyx's attorney for the transaction." 5 The judge
concluded that "[p]laintiffs' allegations put their pre-investment
communications . . . as to what they expected and knew about [CTC's]
involvement in the transaction squarely at issue here."
The judge also noted that plaintiffs failed to address nearly three hundred
communications in the privilege log which seemingly did not include plaintiffs
5
This was a specific reference to a limited number of emails to or from Sorin
or others at McCarter that plaintiffs produced without reservation.
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9
at all. He reasoned that as to those, "a person cannot assert privilege over
communications to which they are not a party."
Although we have not been supplied with the motion for reconsideration
and its supporting documents, we discern the basis of plaintiffs' motion from the
judge's written statement of reasons supporting the December orders. Plaintiffs
argued that in concluding Onyx was McCarter's client, the judge overlooked
N.J.S.A. 2A:84A-20(3), see N.J.R.E. 504(3), which defines a client as "a person
. . . that . . . consults a lawyer . . . for the purpose of retaining the lawyer or
securing legal service or advice from him in his professional capacity [.]"6
Plaintiffs claimed they had consulted Sorin for legal advice regarding the
transaction and, therefore, they were his clients. They noted that all the
circumstances of the transaction supported the conclusion that plaintiffs never
consented to be excluded as clients of McCarter. Plaintiffs further argued that
even if the privilege was Onyx's privilege, neither the company nor its board of
directors had taken steps to waive it.
Plaintiffs further argued they did not waive any privilege "by affirmatively
placing the subject of their privileged material at issue in this litigation," or by
6
Throughout the balance of the opinion, we shall refer solely to the Rules of
Evidence without referencing their corresponding statutory citations.
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"selectively producing communication between them and McCarter." Lastly,
plaintiffs contended the judge erred by ordering them to produce "every single
email in their [p]rivilege [l]og," because some communications were with other
counsel, including plaintiffs' present counsel, "on issues relating to this
litigation."
The judge concluded that "a motion for reconsideration [was] not the place
to debate McCarter's alleged misconduct." He found the McCarter engagement
letter, along with the terms and conditions, "was evidence enough . . . that
McCarter represented Onyx, not . . . [p]laintiffs." Rejecting plaintiffs' argument
that Onyx's status as a closely held corporation bestowed the privilege on them
individually, the judge concluded that Onyx was "constructed more like a
corporation rather than a partnership." Finally, the judge determined that
plaintiffs had "not offered evidence to show . . . the [c]ourt's conclusions were
palpably incorrect or failed to consider probative evidence."
II.
Before us, plaintiffs argue they, not Onyx, were clients of McCarter,
particularly given Onyx's status as a closely held corporation. Plaintiffs contend
it was unreasonable considering all the circumstances to conclude that McCarter
only represented Onyx. They also contend that if McCarter only represented
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Onyx, it would have violated the Rules of Professional Conduct (RPC),
specifically, RPC 1.2(c), because they never consented to McCarter's limited
representation of Onyx alone, and they were entitled to rely on Sorin's assurance
that all communications were confidential. Plaintiffs further argue that even if
they share the privilege with Onyx, neither can waive the privilege as to third
parties without the other's consent, and defendants' status as shareholders and
directors of Onyx "does not entitle them to access the privileged
communications." In addition, plaintiffs contend it was error for the court to
conclude they waived the privilege over any documents, either through
selectively producing some emails or by asserting fraud claims against
defendants. Lastly, plaintiff argue it was error to order them to produce all the
communications, because some were clearly privileged.
"We 'normally defer to a trial court's disposition of discovery matters . . .
unless the court has abused its discretion[,]' or the decision is based on 'a
mistaken understanding of the applicable law.'" Hedden v. Kean Univ., 434 N.J.
Super. 1, 10 (App. Div. 2013) (alteration in original) (quoting Payton v. N.J.
Tpk. Auth., 148 N.J. 524, 559 (1997)). "Because '[a] trial court's interpretation
of the law and the legal consequences that flow from established facts are not
entitled to any special deference[,]' we review the applicability of the attorney-
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12
client privilege, and its potential waiver in this case, de novo." Ibid. (alterations
in original) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
We conclude the record is inadequate for us to resolve all the points now
raised as they relate to every entry in the privilege log. In our view, the trial
court was required to conduct an in camera review of the specific
communications in the privilege log before ordering plaintiffs to supply all of
them to defendants. See Corsie v. Campanalonga, 317 N.J. Super. 177, 184
(App. Div. 1998) ("There is abundant authority for the proposition that in
camera review of claimed confidential material is an approved and essential step
when a privilege is invoked." (citations omitted), rev'd in part, 160 N.J. 473(1999)).
Initially, "only . . . in camera inspection of the documents by the trial
judge" can determine if any of the communications "were made within
[counsel's] professional capacity as a lawyer" for plaintiffs. United Jersey Bank
v. Wolosoff, 196 N.J. Super. 553, 563 (App. Div. 1984). Furthermore, in an
analogous situation involving a closely held corporation, we have held that a
hearing might be necessary to determine the identity of the client and whether a
law firm should be disqualified from further representation based on
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professional advice rendered to one of the principals of the corporate defendant .
Comando v. Nugiel, 436 N.J. Super. 203, 208, 218–19 (App. Div. 2014). See
also McCarthy v. John T. Henderson, Inc., 246 N.J. Super. 225, 232–35 (App.
Div. 1991) (court found absence of personal attorney-client relationship only
after evidentiary hearing).
Even though plaintiffs' assertion of fraud and their reliance on defendants'
misrepresentations may affect consideration of whether the privilege is waived,
see, e.g., Blitz v. 970 Realty Assocs., 233 N.J. Super. 29, 37–38 (App. Div.
1989), as we said in Dontzin v. Myer, "we do not imply that an allegation of
fraud automatically would justify piercing the privilege[,]" 301 N.J. Super. 501,
511 (App. Div. 1997). An in camera review is needed to limit any waiver to
those documents that would directly rebut the essence of the claimed
misrepresentation and reliance. See Weingarten v. Weingarten, 234 N.J. Super.
318, 329–31 (App. Div. 1989) (in camera review needed to determine subject
and scope of claim and hence of the implied waiver); Wolosoff, 196 N.J. Super.
at 567–68. In a somewhat analogous context involving a claim of privilege and
the defendant's asserted affirmative defense, the Court said, "[T]he trial court
should conduct an in camera review of the materials at issue to determine if the
privilege applies to specific documents, and, if so, whether those documents are
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so tenuously related to the affirmative defense that waiver is over come despite
the assertion of that defense." Payton, 148 N.J. at 554.
We therefore reverse the orders under review and remand for further
proceedings consistent with this opinion.
III.
We set some guideposts to assist the court on remand. "[T]he attorney-
client privilege generally applies to communications (1) in which legal advice
is sought, (2) from an attorney acting in his capacity as a legal advisor, (3) and
the communication is made in confidence, (4) by the client." Hedden, 434 N.J.
Super. at 10 (citing Metalsalts Corp. v. Weiss, 76 N.J. Super. 291, 297 (Ch. Div.
1962)). The client, as holder of the privilege, may waive the privilege and
disclose the communication. N.J.R.E. 530. In addition, our courts have
"recognize[d] implicit waiver of the attorney-client privilege 'where the [client]
has placed in issue a communication which goes to the heart of the claim in
controversy.'" In re Grand Jury Subpoena Issued to Galasso, 389 N.J. Super.
281, 298 (App. Div. 2006) (second alteration in original) (quoting Kinsella v.
Kinsella, 150 N.J. 276, 300 (1997)); accord Wolosoff, 196 N.J. Super. at 567.
Of course, in this case, a critical issue was the identity of McCarter's
client. The judge at first blush seemingly accepted, as a matter of law, that the
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retainer agreement was between McCarter and Onyx, and, under its explicit
terms, Onyx, not plaintiffs, was McCarter's client, and it, not plaintiffs, held the
privilege. The judge did not specifically address the numerous entries in the
privilege log, dated both before and after the transaction closed, between
plaintiffs and other lawyers, although it seems the judge implicitly accepted
defendants' claim that Onyx was the client in all those instances, since he
ordered disclosure of every item in the log.
N.J.R.E. 504(3)(a) provides: "'client' means a person or corporation . . .
that, directly or through an authorized representative, consults a lawyer or the
lawyer's representative for the purpose of retaining the lawyer or securing legal
service or advice from him in his professional capacity[.]" A communication
made in the course of that attorney-client relationship is presumed confidential.
N.J.R.E. 504(3)(b). The attorney-client "relationship is governed both by the
[RPC] and the Supreme Court's exclusive jurisdiction to regulate the conduct of
attorneys." Kamaratos v. Palias, 360 N.J. Super. 76, 84 (App. Div. 2003) (citing
N.J. Const. art. VI, § 2, ¶ 3).
When a corporation retains an attorney, the attorney normally represents
"the [corporation] as distinct from its directors, officers, employees, members,
shareholders or other constituents." RPC 1.13(a). There is no exception for
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closely held corporations. McCarthy, 246 N.J. Super. at 230. Plaintiffs cite
several out-of-state decisions and ask us essentially to adopt a new rule of law
applicable to subchapter S corporations, which, we acknowledge, the Internal
Revenue Code treats as partnerships for federal tax purposes. DeVito v.
Sheeran, 165 N.J. 167, 171 n.1 (2000). Plaintiffs urge us to accept that
shareholders in a closely held corporation hold the privilege individually and
distinctly from the corporate entity. We decline the invitation. See McCarthy,
246 N.J. Super. at 231 (noting our courts have rarely "disregarded the corporate
form and determined that the principals of the corporation were
indistinguishable from the corporation itself").
An attorney "may also represent any of [the corporation's] directors,
officers, employees, members, shareholders or other constituents," although
each client must consent to "the dual representation" if it would involve "a
concurrent conflict of interest." RPC 1.7; RPC 1.13(e). Furthermore, "[i]n
dealing with a[] [corporation]'s directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of the
client when the lawyer believes that such explanation is necessary to avoid
misunderstanding on their part." RPC 1.13(d).
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"Where [two] or more persons have employed a lawyer to act for them in
common, none of them can assert such privilege as against the others as to
communications with respect to that matter." N.J.R.E. 504(2); see also Biunno,
Weisbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 504
(2019) ("Where two or more persons employ the same attorney to act for them
in common, no one of the clients may assert the privilege against any one or all
of the others." (citing Aysseh v. Lawn, 186 N.J. Super. 218, 227 (Ch. Div.
1982))). This "common interest exception only applies when the parties 'have
employed a lawyer to act for them in common.'" In re Envtl. Ins. Declaratory
Judgment Actions, 259 N.J. Super. 308, 315 (App. Div. 1992) (quoting then
Evid. R. 26(2)(c)).
Viewing the record in its entirety, we reject plaintiffs' claims that they
were McCarter's sole clients for purposes of the transaction, although we cannot
say, because the trial court did not decide, whether plaintiffs were the sole
clients of other attorneys and law firms whose communications appear in the
privilege log. However, the record before us suggests the possibility that Sorin
and the firm were representing both Onyx and plaintiffs. Sorin told
Royzenshteyn, prior to execution of a formal retainer agreement, that their
communications would remain confidential, and the only closing documents
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Sorin drafted were the two employment contracts for plaintiffs. The balance of
the closing documents were not drafted by Sorin or McCarter. Onyx executed
all five of the agreements, yet the record reveals that plaintiffs worked directly
with Sorin regarding the terms of the employment contracts. See Petit-Clair v.
Nelson, 344 N.J. Super. 538, 543–44 (App. Div. 2001) (rejecting the plaintiff's
arguments that he only represented the defendants' corporations because the
retainer agreement was signed by one of the defendants in his corporate
capacity).
We cannot conclude with certainty that McCarter was in fact providing
joint representation, or when that joint representation commenced. In the first
instance, that requires careful in camera consideration of the specific
communications between plaintiffs and the firm's lawyers and may necessitate
a plenary hearing as to when such joint representation arose. See, e.g.,
Comando, 436 N.J. Super. at 208 (noting the need for evidentiary hearing before
deciding potential disqualification of law firm based on alleged individual
representation of the plaintiff and the limited liability company in which she had
an interest). Nevertheless, on the record before us, to the extent that the judge
held the privilege was solely Onyx's to waive, we disagree.
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If, following remand, the court concludes that for some or all of
McCarter's involvement or the involvement of other attorneys, the firm or
attorney jointly represented plaintiffs and Onyx, then plaintiff cannot assert the
privilege against Onyx, a defendant in this suit on plaintiffs' derivative
oppressed minority shareholder claim. Aysseh, 186 N.J. Super. at 227.
Plaintiffs argue that Onyx cannot waive the privilege as to third parties, i.e.,
Pathak, Carey and other defendants in this lawsuit.
However, the wrinkle in this case is that Pathak and Carey are OEC's
representatives on Onyx's board, they serve as directors of the corporation, and,
therefore, they are part of Onyx's post-transaction management. Defendants
claim that as new management, they have the right on behalf of the corporation
to waive the privilege as to all communications. See Hedden, 434 N.J. Super.
at 15 (the privilege and control of the privilege belong to "the organizational
client, namely, the officers and directors of the organization" (citing Commodity
Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985))). In Oswall
v. Tekni-Plex, Inc., we considered whether it was appropriate to disqualify
corporate counsel from personally representing the defendant corporation's
former president in a suit brought by a former employee. 299 N.J. Super. 658,
660–61 (App. Div. 1997). We quoted with approval the United States Supreme
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Court's exposition of who may assert or waive the attorney-client privilege
following a change in corporate management:
[W]hen control of a corporation passes to new
management, the authority to assert and waive the
corporation's attorney-client privilege passes as well.
New managers installed as a result of a takeover,
merger, loss of confidence by shareholders, or simply
normal succession, may waive the attorney-client
privilege with respect to communications made by
former officers and directors. Displaced managers may
not assert the privilege over the wishes of current
managers, even as to statements that the former might
have made to counsel concerning matters within the
scope of their corporate duties.
[Id. at 669 (alteration in original) (quoting Weintraub,
471 U.S. at 349).]
Accord In re Estate of Fedor, 356 N.J. Super. 218, 220–21 (Ch. Div. 2001)
("management" means current management); see also N.J.S.A. 14A:10-6(c)
(after merger or consolidation, the "surviving or new corporation shall . . .
possess all rights, privileges, powers, immunities . . . of each of the merging or
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consolidating corporations").7 On the record before us, however, there is no
proof that Onyx has in fact formally waived the privilege. 8
On remand, after its in camera review to determine whether plaintiffs may
assert the privilege with respect to any communications in the privilege log, if
the court determines there was joint representation provided by an attorney or
firm, it must then determine whether Onyx formally waives the privilege.
Thereafter, if plaintiffs continue to assert privilege as to a disputed
communication, the court must decide whether plaintiffs may still assert the
privilege as to third parties, i.e., the defendants in this lawsuit, despite Onyx's
corporate waiver of the privilege.
7
The transaction documents included a choice of law provision, with the parties
agreeing that Delaware law was to apply. In Great Hill Equity Partners IV, LP
v. SIG Growth Equity Fund I, LLLP, which involved factual circumstances very
similar to those presented here, the court held that under Delaware General
Corporate Law, analogous to N.J.S.A. 14A:10-6(c), the attorney-client privilege
passed to and could be exercised by the surviving corporation as a matter of law.
80 A.3d 155, 160–62 (Del. Ch. 2013) (construing Del. Code Ann. tit. 8, § 259(a)
(2020)). We do not hold that Delaware law controls the issues in this case;
however, the decision provides persuasive authority for interpreting our statute.
8
We decline to consider in the first instance plaintiffs' collateral assertion that
Pathak and Carey have a disqualifying conflict of interest and may not vote as
directors regarding Onyx's waiver of the privilege. Plaintiffs are free to make
that argument in the trial court.
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IV.
Our cursory review of plaintiffs' privilege log and some of the underlying
communications demonstrates that plaintiffs must be required to provide the
trial court with more detail regarding their assertion of privilege. Plaintiffs
claim privilege over communications from June 2014, one year before the
transaction, through December 2017, after this litigation commenced. As
already noted and recognized by the trial court, plaintiffs themselves are not
parties to hundreds of these communications.
There are communications between plaintiffs and others with attorneys —
not Sorin or others affiliated with McCarter — that date both before and after
the transaction. The record before us includes some information regarding the
retention of those attorneys and the nature or their representation. But the
existing record does not answer all the questions we have raised above regarding
the identity of the client, whether representation was a joint representation, and
the nature and scope of legal services provided by each attorney or firm.
To facilitate what we recognize will be an arduous in camera review, we
order plaintiffs to provide the judge with a detailed explanation of why the
attorney-client privilege applies to each of the 1276 communications identified
in their privilege log, and to identify those communications for which plaintiffs
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assert they alone were the clients with appropriate support for that proposition.
Without deciding the issue, and without foreclosing plaintiffs from making any
argument to the trial court, from our cursory review, it does not appear that
plaintiffs alone were the clients in a large percentage of communications that
preceded the closing of the transaction. Conversely, communications between
plaintiffs and attorneys other than Sorin or other McCarter attorneys that post-
date the transaction are likely subject to the privilege, absent a finding of
implicit or explicit waiver.
Plaintiffs may file the explanation under seal, for the trial court's in camera
review, along with any objections regarding the relevancy of the communication
to facts at issue in the litigation. See Wolosoff, 196 N.J. Super. at 567 n.3
("Wholly irrelevant communications before and after settlement negotiations
having no possible bearing on this question remain protected by the attorney-
client privilege."). This will assist the court in tailoring any disclosures based
on an explicit or implicit waiver of the privilege as appropriate.
We reverse the orders that required plaintiffs to produce all
communications listed in the privilege log and denied their motion for
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reconsideration. We remand the matter to the trial court for further proceedings
consistent with this opinion.9 We do not retain jurisdiction.
9
There was reference in the record to the trial court's appointment of a discovery
master. We have no idea whether that occurred and if the discovery master
remains in place. We do not foreclose the judge's referral of these issues to the
discovery master for examination and recommendations to the court.
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