NELSON GAMACHE, et al., individually and on behalf of a class of all others similarly situated, Plaintiffs, v. JOHN F. HOGUE, JR., et al., Defendants CASE NO.: 1:19-CV-21 (LAG) United States District Court, M.D. Georgia, Albany Division Signed March 21, 2022 Counsel Colin M. Downes, Washington, DC, R. Joseph Barton, Washington, DC, Daniel Mark Feinberg, Nina R. Wasow, Feinberg Jackson Worthman & Wasow LLP, Berkeley, CA, William S. Stone, Atlanta, GA, for Plaintiffs. Joelle C. Sharman, Atlanta, GA, Robert E. Lesser, Covington, GA, for Defendants John F. Hogue, Jr., Graham Thompson, Technical Associates of Georgia Inc Employee Stock Ownership Plan, John Does 1-20, Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan. Joelle C. Sharman, Atlanta, GA, for Defendants James Urbach, Glenn Kirbo, Randy Hall. Gardner, Leslie A., United States District Judge ORDER *1 Before the Court is Plaintiffs’ Motion to Compel Technical Associates to Produce Subpoenaed Documents. (Doc. 93). For the reasons stated below, Plaintiffs’ Motion is GRANTED. BACKGROUND Plaintiffs filed this class action pursuant to the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1001 et seq., against Defendants John F. Hogue, Jr., Graham Thompson, James Urbach, Glenn Kirbo, Randy Hall, and the Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan. (Doc. 1). Plaintiffs amended their Complaint on April 19, 2019. (Doc. 30). Plaintiffs, all of whom are former employees of Technical Associates of Georgia., Inc. (TAG) and participants in the TAG Employee Stock Ownership Program, allege that Defendants engaged in prohibited transactions and breached fiduciary duties in violation of 29 U.S.C. §§ 1104(a)(1), 1105, 1106(a)(1)(D), and 1106(b). (Id. at 26–33). On June 6, 2020, Plaintiffs served a subpoena on TAG—a non-party—seeking documents and emails related to the 2011 refinancing at issue in this ERISA action. (Doc. 93 at 7; see Docs. 93-2 at 2; Doc. 93-3 at 2). Specifically, Plaintiffs sought emails between Defendants Hogue and Thompson, using TAG's email system, and their attorney at King & Spalding. (Doc. 93 at 15; see Doc. 93-8 ¶¶ 4–6; Doc. 93-9 ¶¶ 4–6). The subject matter and context of the emails were related to Defendants Hogue and Thompson's compensation negotiations with TAG's Board of Directors; and Plaintiffs contend that TAG, as a counterparty, was adverse to Defendants in those negotiations. (Doc. 93 at 15). TAG served its responses and objections on July 27, 2020. (Id. at 2; Doc. 93-4). TAG made an initial production of documents that same day, and made a second production of email correspondence on September 28, 2020. (Doc. 93 at 7; Doc. 93-1 ¶ 3). On November 20, 2020 and January 18, 2021, TAG made supplemental productions of documents. (Doc. 93 at 7: Doc. 93-1 ¶ 3). TAG also produced a privilege log and a revised privilege log on July 27, 2020 and November 11, 2020, respectively. (Doc. 93 at 7; Doc. 93-1 ¶ 3; Doc. 93-5). Plaintiffs’ Counsel and TAG “conferred in an effort to resolve [the] disputes regarding the scope of the subpoena, format of production for electronically stored information, assertions of privilege, and other issues.” (Doc. 93 at 7 (citation omitted)). TAG's Counsel “clarified that the[ ] emails were being ‘withheld on the basis of attorney[-]client privilege’ based on a purported privilege that ‘belongs to [Defendants] Hogue and [ ] Thompson and not to TAG.’ ” (Doc. 93 at 8 (citing Doc. 93-7); see also Doc. 105 at 2). On April 1, 2021, the Court held a discovery hearing and granted Plaintiffs leave to file a motion to compel if the Parties could not reach an agreement. (See Doc. 91). Additionally, the Court requested a sampling of the emails for in camera review. (Id.). On April 22, 2021, Plaintiffs filed the instant Motion. (Doc. 93). Defendants’ Counsel sent the sample emails for in camera review on May 13, 2021. (See Doc. 103 at 1–2); see also Email from Robert E. Lesser, Law Offices of Robert E. Lesser, LLC, to Felicia Rushing, Courtroom Deputy, Middle District of Georgia (May 13, 2021, 4:30 P.M.) (on file with the Court). After an extension, Defendants filed their Response on May 26, 2021. (Doc. 103). The next day, TAG filed its Response. (Doc. 105). On June 8, 2021, Plaintiffs filed their Reply. (Doc. 107). Plaintiffs’ Motion is now ripe for review. See M.D. Ga. L.R. 7.3.1(A). LEGAL STANDARD *2 “Federal Rule of Civil Procedure 45 ‘permits a party to procure discovery from a non-party through the issuance and service of a subpoena.’ ” KMC Acquisition Corp. v. Escoe Indus. Mech., Inc., No. 3:15-CV-119 (CAR), 2017 WL 354852, at *2 (M.D. Ga. Jan. 24, 2017) (citation omitted). Rule 45 also sets forth the procedures for a party seeking to obtain an order of compliance from a non-party: “At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). The general rules of discovery outlined in Rule 26 govern the scope of a Rule 45 subpoena. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1) (emphasis added). Courts must employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules. See Akridge v. Alfa Mut. Ins., 1 F.4th 1271, 1276–77 (11th Cir. 2021). Rule 26 also states that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1); see also Fed. R. Evid. 401. This requires that discovery be provided if the information has some bearing on the claims or defenses in the case. See Akridge, 1 F.4th at 1276 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)); Dunkin’ Donuts, Inc. v. Mary's Donuts, Inc., No. 01-0392-CIV-GOLD, 2001 WL 34079319, at *2 (S.D. Fla. Nov. 1, 2001). In addition to Rule 26, the Court must also consider whether compliance with a subpoena imposes an undue burden. Rule 45 provides that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Thus, the Court must balance the requesting party's need for the discovery against the burden imposed on the subpoenaed party. See Jordan v. Comm'r, Miss. Dep't of Corr., 947 F.3d 1322, 1337 (11th Cir. 2020) (citations omitted). DISCUSSION Plaintiffs argue that their Motion should be granted because: (1) Defendants waived any privilege by sharing their emails with an adverse counterparty, and (2) even if the emails are privileged, they are subject to the fiduciary exception. (Doc. 93 at 8–18). TAG[1] and Defendants argue that Plaintiffs’ Motion should be denied because the email communications requested in the subpoena are privileged under the common interest doctrine and that the fiduciary exception is inapplicable. (Doc. 103 at 3–13). I. Reasonable Expectation of Privacy Plaintiffs first argue that the emails between Defendants Hogue, Thompson, and King & Spalding sent using Defendants Hogue and Thompson's TAG email accounts are not privileged because Defendants: (1) had no expectation of privacy, (2) waived their attorney-client privilege by sharing the emails with an adverse third party, and (3) cannot show that the common interest doctrine applies. (Doc. 93 at 11–20). Defendants argue that the emails are privileged under the common interest doctrine. (Doc. 103 at 3–5). *3 “The burden of proof is upon ... the party invoking the attorney-client privilege, to establish (1) the existence of an attorney-client relationship and (2) the confidential nature of the information sought.” In re Grand Jury Subpoena, 788 F.2d 1511, 1511 (11th Cir. 1986) (per curiam) (citation omitted). “[P]rivileges must be narrowly construed because they impede the search for truth.” United States v. Singleton, 260 F.3d 1295, 1300 (11th Cir. 2001) (per curiam) (first citing United States v. Nixon, 418 U.S. 683, 710 (1974); and then citing United States v. Chapman, 866 F.2d 1326, 1333 (11th Cir. 1989)). The Eleventh Circuit has articulated certain elements that must be proven to claim the attorney-client privilege at the federal level, including that: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Grand Jury Proc. 88-9 (MIA) (Newton), 899 F.2d 1039, 1042 (11th Cir. 1990) (emphasis added) (quoting In re Grand Jury Proc. (Jones), 517 F.2d 666, 670 (5th Cir. 1975)). The Eleventh Circuit has also stated that “a communication is protected by the attorney-client privilege ... if it is (1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential.” United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985) (per curiam) (citing United States v. Melvin, 650 F.2d 641, 645 (5th Cir. Unit B 1981)). When determining whether a person using their employer's email system had a reasonable expectation of privacy, our sister court identified four important considerations: (1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or email, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies? Leor Expl. & Prod. LLC v. Aguiar, No. 09-60136-CIV, 2009 WL 3097207, at *4 (S.D. Fla. Sept. 23, 2009) (quoting In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005)); see also In re Rsrv. Fund Sec. & Deriv. Litig., 275 F.R.D. 154, 159 & n.2 (S.D.N.Y. 2011) (noting that In re Asia Glob. Crossing’s “four-factor test ... has been widely adopted” and collecting cases applying the test). Plaintiffs have established, and the Parties do not dispute, that Defendants Hogue and Thompson had an attorney-client relationship with King & Spalding and that the subject emails sought and contained legal advice. (See Doc. 93 at 7–8; Doc. 103 at 3). The Parties do, however, dispute the confidential nature of the communications. Specifically, Plaintiffs argue that because the subject emails were sent on TAG's email system, Defendants Hogue and Thompson did not have a reasonable expectation of privacy. (Doc. 93 at 12–15). The TAG email policy set limits on personal use, advised employees that their emails could be subject to monitoring, and warned that emails on the system could be subject to discovery—thus giving third parties access. (See Doc. 93-6 at 3–5). This policy is included in the TAG 2011 Employee Handbook. Specifically, the policy states that: *4 All communications and information transmitted by, received from, or stored in this [E-mail] system are TA records and is the sole property of TA. The E-mail system is to be used primarily for TA business purposes. Use of the E-mail system for personal purposes is permitted within a reasonable limit, as long as the personal use does not interfere with TA operations. .... E-mail records and computer files may be subject to discovery in litigation.... (Id. at 3–4). Moreover, the policy further warns that “TA employees have no right of personal privacy in any matter stored in, created, received, or sent over the TA E-Mail system” and that TA “may exercise the right to monitor, access, retrieve, and delete any matter stored in, created, received, or sent over the E-mail system.” (Id. at 3 (emphasis added)). The Eleventh Circuit has not established a bright-line rule, but our sister courts have found that “a policy reserving the right to access and monitor employee accounts is sufficient to support a finding that an employee has no reasonable expectation of confidentiality in e-mails transmitted over an employer's e-mail system.” Bingham v. Baycare Health Sys., No. 8:14-cv-73-T-23JSS, 2016 WL 3917513, at *4 (M.D. Fla. July 20, 2016) (collecting cases stating the same). Finally, TAG's email policies were clearly stated in the employee handbook, and knowledge of email policies in employee handbooks are imputed to company officers. See, e.g., In re Royce Homes, LP, 449 B.R. 709, 741 (Bankr. S.D. Tex. 2011) (imputing knowledge of an email-monitoring policy in a handbook to the party asserting privilege (citing Long v. Marubeni Am. Corp., No. 05Civ.639(GEL)(KNF), 2006 WL 2998671, at *3 (S.D.N.Y. Oct. 19, 2006))). Given TAG's email policy, employees had no reasonable expectation of privacy in emails sent on TAG's system. And Defendants Hogue and Thompson did not have any heightened expectation of privacy due to their roles as officers of the company. See, e.g., In re Info. Mgmt. Servs., Inc. Derivative Litig., 81 A.3d 278, 290 (Del. Ch. 2013) (holding that officers’ “expectations of privacy in their work email are no different from any other employee's”). II. Waiver and Common Interest Doctrine As Defendants did not have a reasonable expectation of privacy in the emails sent on the TAG system, the question is whether Defendants waived their attorney-client privilege by sending emails to King & Spalding on the TAG system. Plaintiffs argue that because TAG was an adverse party to Defendants Hogue and Thompson in their compensation negotiations, Hogue and Thompson waived any privilege by sending the emails using the TAG email system. (Doc. 93 at 15). Plaintiffs also argue that the common interest or joint defense privilege exception is inapplicable because (1) Defendants cannot show that Hogue, Thompson, and TAG anticipated joint litigation, and (2) the interests of Hogue, Thompson, and TAG were adverse and commercial rather than legal and identical. (Id. at 17; Doc. 107 at 8–13). Defendants argue that the common interest exception applies despite any overlap of commercial and legal interests. (Doc. 103 at 3–5). Generally, “voluntary disclosure of a privileged attorney-client communication constitutes waiver. One exception to this rule is the common interest doctrine, under which the privilege extends to communications between actual or potential co-defendants and their counsel.” In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004(CDL), 2010 WL 11519568, at *2 (M.D. Ga. Jan. 22, 2010) (first citing In re Santa Fe Int'l Corp., 272 F.3d 705, 710–11 (5th Cir. 2001); then citing Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D. Cal. 1987); and then citing United States v. Almeida, 341 F.3d 1318, 1324 (11th Cir. 2003)). “[W]hether the common interest privilege has even been invoked is a fact-intensive inquiry dependent on the content of the communication and whether an agreement was made in furtherance of a common interest.” Gold Cross EMS, Inc. v. Child.’s Hosp. of Ala., 79 F. Supp. 3d 1316, 1328 (S.D. Ga. 2015) (citations omitted), aff'd on other grounds, 648 F. App'x 976 (11th Cir. 2016) (per curiam). *5 When determining whether the common interest privilege has been invoked, courts often focus on two inquiries. First, “a number of courts have held that the common interest doctrine only applies when the disclosure to a third party is made when both the privilege holder and the third party anticipate joint litigation regarding the subject matter of the communication.” In re Mentor, 2010 WL 11519568, at *2 (first citing In re Santa Fe, 272 F.3d at 710–11; and then citing Hewlett-Packard Co., 115 F.R.D. at 310). “In other words, ... there [must be] ‘a palpable threat of litigation at the time of the communication, rather than a mere awareness that one's questionable conduct might some day result in litigation.’ ” Id. (quoting In re Santa Fe, 272 F.3d at 711). A second “factor in establishing a community of interest is that the nature of the interest be identical, not similar, and be legal, not solely commercial.” Cheeves v. S. Clays, Inc., 128 F.R.D. 128, 130 (M.D. Ga. 1989) (emphasis added) (citation omitted). The burden of establishing that the common interest or joint defense exception applies lies with the party seeking to assert the attorney-client privilege. See Go Med. Indus. Pty, Ltd. v. C.R. Bard, Inc., No. 1:93cv-1538-HTW, 1995 WL 605802, at *2 (N.D. Ga. July 6, 1995) (citing United States v. Gotti, 771 F. Supp. 535, 545 (E.D.N.Y. 1991)); United States v. Patel, 509 F. Supp. 3d 1334, 1338–39 (S.D. Fla. 2020). As determined above, Defendants Hogue and Thompson did not have a reasonable expectation of privacy when using the TAG email system and therefore voluntarily disclosed the privileged communications. Thus, the question becomes whether the common interest doctrine applies. Defendants Hogue and Thompson have not met their burden to show that the common interest doctrine applies. First, Defendants have not pointed to any pending or threatened litigation at the time the emails were sent, nor have they shown that there was an actual anticipation of joint litigation regarding the subject matter of the communications. Defendants declare that they sought counsel regarding “any implications in terms of ERISA's prohibited transaction rules and other laws” and that they did this “not only for [themselves] but also for the benefit of the Plan and TAG.” (Doc. 93-8 ¶ 4; Doc. 93-9 ¶ 4; Doc. 103 at 3). But Defendants have not shown that there was any “palpable threat of litigation at the time” the emails were sent. See In re Mentor, 2010 WL 11519568, at *2–3 (noting that communications between a company and potential buyers of one of its divisions was not subject to the common interest doctrine because there was no action “looming against the [company or the buyers] at the time of the disclosure” (citation omitted)). Although Defendants “may have had a general suspicion” that they or TAG might someday become the “potential subject of litigation,” the “mere awareness that one's questionable conduct might some day result in litigation is not sufficient to warrant protection” by the common interest doctrine. Id. at 3 (internal quotation marks omitted) (quoting In re Santa Fe, 272 F.3d at 711). Second, based on the Court's review of the privilege log and in camera review of the sample emails, it appears that the focus of these communications related solely to Defendants Hogue and Thompson's strategies for their involvement in the 2011 refinancing, including strategies for renegotiating their employment agreements. (See generally Doc. 93-5). As TAG had a financial interest in paying Hogue and Thompson less, it was an adverse party. Moreover, to the extent that these emails relate to ERISA's prohibited transaction rules, Defendants Hogue and Thompson fail to explain what shared legal interest TAG would have in Hogue and Thompson avoiding participation in a prohibited transaction. “A concern shared by parties regarding litigation does not establish by itself that the parties held a common legal interest.” Gulf Islands Leasing Inc. v. Bombardier Cap., Inc., 215 F.R.D. 466, 473 (S.D.N.Y. 2003) (citations omitted). Nor is “[t]he parties’ interests in ensuring that the transaction was structured in a way that is legally appropriate ... sufficient to warrant the extension of the common interest privilege.” Chattanooga-Hamilton Cnty. Hosp. Auth. v. Hosp. Auth. of Walker, No. 4:14-CV-0040-HLM, 2015 WL 11622949, at *9 (N.D. Ga. May 11, 2015) (citation omitted). *6 Defendants fail to show that they had a reasonable expectation of privacy in their email communications on the TAG email system. Nor have they established that the common interest doctrine applies to these communications. Thus, the communications are not protected by the attorney-client privilege. Because the Court grants Plaintiffs’ Motion on this ground, the Court does not analyze whether the fiduciary exception to the attorney-client privilege applies. CONCLUSION Accordingly, Plaintiffs’ Motion to Compel Technical Associates (Doc. 93) is GRANTED. TAG is hereby ORDERED to comply with Plaintiffs’ subpoena dated June 2, 2020 and, in conformance with this Order, produce all non-privileged documents in its possession, custody, and control that are responsive to the subpoena within fourteen (14) days of this Order. Plaintiffs’ Counsel is ORDERED to serve this Order on TAG. SO ORDERED, this 21st day of March, 2022. Footnotes [1] TAG's Response “relies upon the positions asserted by ... Defendants in their filings responsive to the Motion to Compel.” (Doc. 105 at 2). Thus, the Court considers the arguments made in Defendants’ Response (Doc. 103) for purposes of this Order.