United States District Court, D. South Dakota, Southern Division
ORDER ON PLAINTIFF'S AND THIRD-PARTY
DEFENDANTS' MOTION TO COMPEL ATTORNEY MATTHEW DOROTHY TO
COMPLY WITH SUBPOENA DOCKET NO. 261
VERONICA L. DUFFY United States Magistrate Judge
diversity matter is pending before the court on the complaint
of plaintiff SPV-LS, LLC. See Docket No. 1. On April
29, 2016, plaintiff and third-party defendants Life Trading
Trust, Financial Services, LLC, and SPV II LLC (collectively
the Krasnerman Entitites), served on Sioux Falls, South
Dakota, attorney Matthew Dorothy a subpoena duces
tecum seeking the production of "all retainer
agreements, invoices, proof of payments/refunds, and
non-privileged communications with respect to potential
representation of the N. Bergman Insurance Trust, Nachman
Bergman, Malka Silberman, and/or the Estate of Nancy Bergman
in any proceeding involving life insurance on the life of
Nancy Bergman." See Docket No. 263-1. Mr.
Dorothy served as counsel of record for third-party defendant
Malka Silberman in this case from November 19, 2015, until
February 12, 2016. See Docket Nos. 128, 180 & 219.
response to the subpoena, Mr. Dorothy produced only a
redacted version of his engagement agreement with Malka
Silberman. See Docket No. 263 at p. 4, ¶ 14.
Mr. Dorothy then filed a written objection to the subpoena
asserting three bases for his objection: (1) client
confidentiality, (2) attorney-client privilege, and (3) work
product doctrine. See Docket No. 263-8 at pp. 3-4.
Along with his objection, Mr. Dorothy provided a chart
labeled "Silberman Privilege Log." See
Docket No. 263-8 at p. 6. The chart lists 11 items as
Item 1 Engagement letter to Malka Silberman 11/23/15
Item 2 Trust Ledger 5/12/16
Items 3-8 Invoices November 2015-April 2016.
Items 9-11 Law Firm Bank Statements November 2015-March 2016
Id. The recipient of items 1 and 3-8 is Malka
Silberman. Id. The recipient of items 2 and 9-11 is
the Dorothy & Krause Law Firm, P.C. Id. The
objection listed for each of the 11 items is identical:
"Attorney-Client Privileged, Work Product, Client
Dorothy did not file a response in opposition to the
Krasnerman Entities' motion to compel. Malka
Silberman's current counsel filed a response (a
"declaration") to the Krasnerman Entities'
motion to compel in which he indicated Ms. Silberman joined
in the oppositions to the motions to compel filed by other
lawyers served with similar subpoenas (Pamela Reiter, Ronald
Parsons and Brian Donahoe). See Docket No. 308.
However, the declaration by Ms. Silberman's current
counsel does not specifically mention or discuss the subpoena
directed to Mr. Dorothy nor does the declaration offer any
facts, grounds, or legal authority for denying the motion as
to Mr. Dorothy. Id.
of the Federal Rules of Civil Procedure provides the
procedure for serving subpoenas on nonparties. See
Fed.R.Civ.P. 45(a) and (b). The same rule also describes by
what procedure a nonparty served with a subpoena may assert
an objection to that subpoena. See Fed.R.Civ.P.
45(d)(2)(B). Objections to producing documents pursuant to a
subpoena must be served on the party issuing the subpoena
within 14 days after the subpoena is served or prior to the
time specified for compliance with the subpoena. Id.
After an objection is made, the party which issued the
subpoena may bring a motion for an order compelling
compliance with the subpoena. See Fed.R.Civ.P.
specifies what is required if a party withholds subpoenaed
documents under a claim that it is privileged or subject to
protection as trial-preparation material. See
Fed.R.Civ.P. 45(e)(2)(A). The party must (1) expressly make
the claim of privilege and (2) describe the nature of the
documents being withheld in such a manner that does not
reveal information that is privileged or protected, but which
allows the parties to assess the claim of privilege.
Dorothy asserts the purported privilege of "client
confidentiality, " separate and apart from his claim of
attorney-client privilege. Because neither Mr. Dorothy nor
Malka Silberman's current counsel responded in opposition
to the motion to compel as to Mr. Dorothy, neither has
enlightened the court as to what the legal basis for a claim
of client confidentiality is. The court is without any
independent knowledge of such a privilege.
the bank records, those records were generated by a third
party (the bank) and sent only to the Dorothy Krause Law
Firm, P.C. The records were not created by Mr. Dorothy, and
the records are produced in the ordinary course of the
bank's business, so it is difficult for the court to
discern how those records may reflect Mr. Dorothy's work
product or trial theories. They are not attorney-client
privileged because they do not concern a communication
between an attorney and his client. Mr. Dorothy shall produce
the bank records listed as items 9-11 in his privilege log,
redacting account numbers, deposit and transfer information
for clients or accounts other than Malka Silberman, and any
other information that may be sensitive or private such as
social security numbers or EINs. The redacted bank statements
shall show all deposit, transfer, or refund activity with
regard to Malka Silberman's representation by Mr.
the trust ledger is an accounting document produced in the
ordinary course of the law firm business for Dorothy and
Krause Law Firm, P.C. It was never transmitted to Malka
Silberman. Presumably it reflects only financial transactions
(debits and credits) with regard to Ms. Silberman's
retainer and trust funds. Again, the court sees nothing in
this document which would bring it under the umbrella of the
attorney-client privilege or which would reveal Mr.
Dorothy's work product. Mr. Dorothy shall produce this
document pursuant to the subpoena, but may redact any