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A Morristown, N.J., law firm will have to turn over client e-mails in a federal court battle between a former client and his ex-employer, as a judge has rejected the firm’s assertions of privilege. The messages were exchanged among Riker Danzig Scherer Hyland & Perretti, its former client, Warren Tobin of New Zealand, and Matthew Young, a “lay adviser” to Tobin in a related New Zealand proceeding. Tobin and Young are defendants in Stayinfront, Inc. v. Tobin, 05-Civ.-4563, in which U.S. District Judge Stanley Chesler held on Nov. 3 that there was no attorney-client privilege protection for the e-mails because the privilege had been waived by sharing the messages with Young. Work product privilege was also unavailable. Chesler found the defendants’ “recalcitrance, willful noncompliance and disregard for the rules and authority of this Court” constituted exceptional circumstances that justified piercing the privilege to compel production. The e-mails, sent between May 12, 2004, and March 9, 2005, concern a Bergen County state court action Tobin filed in 2003 to enforce rights under stock purchase and severance agreements with his former employers, Stayinfront, Inc. and NAP Associates, both based in Fairfield, N.J. Riker Danzig represented Tobin in the case, which settled in 2004. Two months later, Tobin filed a wrongful discharge case with New Zealand’s Employment Relations Authority. In that case, he was represented by Young, who, though not a barrister or solicitor, is authorized under New Zealand law to represent clients before the authority as a lay adviser. Then, in August 2005, Stayinfront and NAP sued Tobin, Young, and Young’s employer, Employment Associates, Ltd. of Auckland, New Zealand. They claim that Tobin, a former director and vice president who was bought out in 2002, breached a covenant not to sue contained in the stock-purchase and severance agreement when he brought the New Zealand case. They also assert a tortious-interference-with-contract claim against Young and his company for allegedly inducing Tobin to bring the New Zealand action. The current suit was filed in state court and removed to federal court on diversity grounds. The plaintiffs want the e-mails at issue so they can pursue punitive damages against the defendants, and Chesler’s ruling grew out of Riker’s efforts to fight a subpoena served by the plaintiffs last March, after Tobin and Young had already advised the court they would not participate in the litigation and were dropping Riker as their counsel. Chesler held that Young’s status as a non-attorney defeated any claim of privilege under New Jersey law and that Riker Danzig failed to meet its burden of showing that Young was a necessary intermediary or agent who thus fell within the privilege. Nor was there a privilege under New Zealand law because the e-mails did not relate to the New Zealand proceedings, Chesler stated. Riker’s Julian Wells says of the ruling, “We took a position that we felt and still feel is correct but the judge differed.” There is no plan to appeal the ruling to the Third Circuit, he says. Sean Lipsky, of Hackensack’s Cole, Schotz, Meisel, Forman & Leonard, who represents Stayinfront and NAP, says he is pleased with the decision but otherwise declines comment.

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