WHITE CAP, L.P., Plaintiff, v. HEYDEN ENTERPRISES, LLC, d/b/a Heyden Supply, BRIAN WELSH, MIGUEL RIVAN, WAYNE ROSENBLUM, TIMOTHY KAVNEY, and GOMER BLACK, JR., Defendants CASE NO. 23-14248-CIV-MARTINEZ/MAYNARD United States District Court, S.D. Florida Entered on FLSD Docket October 25, 2024 Maynard, Shaniek M., United States Magistrate Judge ORDER ON WHITE CAP'S EXPEDITED MOTION TO COMPEL AND FOR SHOW CAUSE PROCEEDINGS [DE 302] *1 THIS CAUSE is before me upon the above Motion, which includes three requests for relief. First, Plaintiff White Cap (“White Cap”) seeks to compel the Heyden Defendants[1] to produce documents allegedly improperly withheld on grounds of privilege. Second, White Cap seeks an order compelling Rivan, Heyden Supply, and their counsel to show cause why they should not be sanctioned for maintaining false representations and why certain communications about devices belonging to Rivan are not subject to the crime-fraud exception to privilege. Third, White Cap seeks an order requiring the law firm of Cole, Scott and Kissane (“CSK”) to show cause why it should not be disqualified from continuing to represent the Heyden Defendants. The Heyden Defendants oppose the Motion, DE 311, DE 316, and White Cap has replied, DE 315, DE 323. I heard from counsel at a discovery status conference held before me on October 3, 2024, reviewed selected withheld emails in camera, and am otherwise fully advised. For the following reasons, the Motion is GRANTED IN PART AND DENIED IN PART as set forth below. The Motion largely centers on electronic devices belonging to Rivan that have been disclosed as containing relevant information, including computers and thumb drives alleged to contain computer imaging. White Cap paints a picture of a purported illicit scheme relating to Rivan's computer and involving Rivan, non-party Gregg Moore (another former White Cap Account Manager who joined Heyden Supply like Rivan), and Rivan's past and present counsel. According to White Cap, available evidence “demonstrate[s] a clear and coordinated response between Rivan and Moore to respond to inquiries from counsel regarding Rivan's computer, Rivan's counsel's efforts to mask the missing computer and the mysterious thumb drive with the entire computer back up and their concerted effort to hide the true reason for the conflict [causing two prior law firms to withdraw their representation]: the apparent intentional destruction of a computer or information on it by one or more of the defendants.” DE 302 at 11. Although the Motion identifies three categories of requested relief in the “Introduction” section, DE 302 at 2, the Motion includes several subsets of varying requests. As a result, the parties’ extensive briefing invokes multiple issues, legal doctrines, and arguments. Ultimately, in the interest of clarity, I determine it best to address the parties’ arguments along the lines of the three categories as introduced by White Cap in the Motion. I address each category in turn below. 1. White Cap's Request to Compel Production of Withheld Documents A. The Heyden Defendants’ Privilege Log Generally *2 First, White Cap seeks for the Court to compel the Heyden Defendants to produce documents that White Cap maintains have been improperly withheld on grounds of privilege or with no assertion of privilege made. The Heyden Defendants counter that they have provided a sufficiently detailed privilege log describing all documents properly withheld as either privileged or work product protected. I have examined the Heyden Defendants’ full privilege log spanning 36 pages, DE 302-11, and I reviewed in camera six email chains including Rivan and Moore identified on the privilege log, three of which White Cap highlights in its Motion. The attorney-client privilege is the oldest of the common-law privileges designed to encourage “full and frank communication between attorneys and their clients.” See Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). “The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.” In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992) (quoting In re Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982)). To assert attorney-client privilege, the asserting party must prove that what is sought to be protected is (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client. Id.; MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 582–83 (S.D. Fla. 2013). The privilege is “not absolute. Because it ‘serves to obscure the truth, ... it should be construed as narrowly as is possible consistent with its purpose.’ ” U.S. v. Noriega, 917 F.2d 1543, 1551 (11th Cir. 1990); see also Fisher v. U.S., 425 U.S. 391, 403 (1976) (“Yet the privilege is not all-inclusive and is, as a matter of law, construed narrowly so as not to exceed the means necessary to support the policy which it promotes”). “[T]he party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.” U.S. v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991); MapleWood Partners, 295 F.R.D. at 583 (“The proponent must establish the existence of the privilege by a preponderance of the evidence.”) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 593 (1993)). The attorney-client privilege may be waived by voluntary disclosure to third parties. See MapleWood Partners, 295 F.R.D. at 584 (“[W]aiver can be found by voluntary disclosure, as disclosure is inconsistent with the confidentiality requirement of purportedly privileged communications”). However, there are exceptions. Relevant here, the common interest exception allows a party to “share its work-product with another party without waiving the right to assert the privilege when the parties have a shared interest in actual or potential litigation against a common adversary, and the nature of their common interest is legal, and not solely commercial.” Id. at 550, n. 287 (S.D. Fla. 2013). In addition, the “joint defense doctrine is an extension of the work-product doctrine and allows parties facing a common litigation opponent to exchange privileged communications and attorney-work-product in order to prepare a common defense without waiving either privilege.” Fojtasek v. NCL, 262 F.R.D. 650, 654 (S.D. Fla. 2009). Federal Rule of Civil Procedure 26 codifies the work product privilege as follows: (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). *3 Fed. R. Civ. P. 26(b)(3)(A). “The work product doctrine protects from disclosure documents and tangible things prepared in anticipation of litigation by or for a party or by or for that party's attorney acting for his client.” Atriums of Palm Beach Condo. Assn., Inc. v. QBE Ins., Co., 2009 WL 10667478, at *3 (S.D. Fla. June 17, 2009). The party asserting work product privilege bears the burden of establishing it by a preponderance of the evidence. MapleWood Partners, 295 F.R.D. at 584. For the protection to apply, the asserting party must prove that it anticipated litigation at the time each document or communication was created. Holladay v. Royal Caribbean Cruises, Ltd., 333 F.R.D. 588, 592 (S.D. Fla. 2019). “[I]n determining whether a document was made in anticipation of litigation, the primary focus is the reason or purpose for creating the document.” Place St. Michel, Inc. v. Travelers Prop. Cas. Co. of Am., 2007 WL 1059561, at *2 (S.D. Fla. Apr. 4, 2007). Unlike the attorney-client privilege, it is not necessary that work product be intended to remain confidential, so disclosure to a third party does not necessarily destroy the privilege. “[T]he purpose of the work product rule is not to protect the evidence from disclosure to the outside world but rather to protect it only from the knowledge of opposing counsel and his client, thereby preventing its use against the lawyer gathering the materials.” Wright & Miller, Fed. Prac. & Proc. Civ. § 2024 (3d ed.). The proper analysis is whether the putative work product is created in a way that is reasonably designed to conceal it from the opposing party, not whether it was intended to be kept confidential from all third parties. Raymond James Fin. Servs., Inc. v. Arijos, 2020 WL 1492993, at *3 (S.D. Fla. Mar. 27, 2020). Here, White Cap asserts that the Heyden Defendants’ privilege log fails to provide sufficient information for White Cap to meaningfully evaluate their privilege assertions. In support, White Cap identifies 302 instances of privilege entries containing broad descriptions for email chains regarding or relating to legal advice from counsel. DE 302 at 15. In response, the Heyden Defendants assert that most of the entries in the privilege log cover post-complaint documents which are generally exempt from being included in a privilege log in the first place. DE 311 at 4-5 (citing Stern v. O'Quinn, 253 F.R.D. 663, 689 (S.D. Fla. 2008) (“In the Southern District of Florida, a policy decision has been made that, despite the relevancy of a given document, in most cases, there is no good reason to require a party to go through the expense and burden of creating a privilege log with respect to documents created after the commencement of a case”)); see also S.D. Fla. Local Rule 26.1(e)(2)(C) (memorializing this policy decision). While this may be true, the Heyden Defendants’ inclusion of post-complaint documents on the privilege log does not wholly obviate the need to provide proper descriptions. The primary purpose of a privilege log is to provide information about the nature of withheld documents sufficient to enable the receiving party to make an intelligent determination about validity of the assertion of privilege. Deary v. Progressive Am. Ins. Co., 2020 WL 6365015, at *3 (S.D. Fla. Aug. 25, 2020) (citing Fed. R. Civ. P. 26(b)(5)(A); Wingo Holdings, LLC v. Northfield Ins. Co., No. 05-80587-CIV, 2006 WL 8433647, at *9 (S.D. Fla. Apr. 27, 2006)). *4 In reviewing the instant privilege log, several entries identify communications between Defendants and their prior[2] or current counsel, which coincide with the description of attorney-client privileged communications. Furthermore, my in camera review of six email chains identified on the log and solely including Rivan and non-party Moore reveal that those logged entries cover communications that facilitate the exchange of information and legal advice for anticipated or actual use in furthering this litigation, including communicating important information regarding the parties’ long-standing TRO and injunctive relief obligations. That said, White Cap has sufficiently identified instances of generic descriptions for certain communications, particularly those identified as attorney-client privileged but solely between non-attorneys. The absence of more detailed descriptions has left White Cap unable to meaningfully assess whether the asserted privileges are valid. In order to strike a proper balance between protecting truly privileged documents from disclosure while also ensuring the sufficiency of the privilege log, I determine it best to grant in part White Cap's request only insofar as the Heyden Defendants shall be required to produce the following select documents listed on their privilege log to me for in camera review: All emails exclusively between Defendant Welsh and Tim Mace and Defendant Welsh and Chris Scammell being withheld as attorney-client privileged, i.e. HEY-FL050708, HEY-FL048535, HEY-FL050716. Email between Defendants Rosenblum and Welsh withheld as “Email chain regarding legal advice from counsel in anticipation or furtherance of litigation, i.e. HEY-FL49468. All withheld communications listed on the privilege log from October 27, 2023, which was the date the Heyden Defendants provided initial disclosures, through December 1, 2023, the day after the first set of counsel moved to withdraw on an emergency basis. B. Request for Production (“RFP”) Nos. 69 and 24[3] White Cap seeks to compel Heyden Supply and Rivan to produce documents responsive to the following two discovery requests: REQUEST NO. 69 [addressed to Heyden Supply]: Produce all documents and communications relating to or describing the reason for the withdrawal of any counsel in this litigation. This request excludes communications directly between Heyden Supply and its outside counsel. RESPONSE: There are no non-privileged documents responsive to this Request. REQUEST NO. 24 [addressed to Rivan]: Produce all documents and communications, including text messages, between you and anyone else regarding this litigation. RESPONSE: None. DE 302-12 at 2, 5. Regarding RFP No. 69, Heyden Supply maintains that the request, as phrased, only seeks non-privileged communications as it plainly excludes “communications between Heyden Supply and its outside counsel.” As such, Heyden Supply stands by its response that there are no non-privileged documents responsive to this request and there is nothing further to compel. I find no reason to disbelieve this assertion. Regarding RFP No. 24, the Heyden Defendants state that this “response remains correct as there are no responsive documents regarding [ ] the litigation, but rather responsive documents to the facts of what actually happened during Rivan's time at White Cap and at Heyden in relation to the issues raised in the Complaint.” DE 311 at 11. It is not clear what is meant by this statement. Regardless, RFP No. 24 seeks all documents and communications between Rivan and anyone else regarding this litigation without any sort of limitation. As written, this request is entirely overbroad, has the potential to encompass entirely irrelevant information, and cannot feasibly be narrowed in any meaningful way. I thus deny White Cap's request to compel further responses to these two requests. C. Request to Question Rivan and Moore About Their Communications With Each Other and With Counsel *5 White Cap asks the Court to “confirm that White Cap may question Rivan and Moore regarding their communications with the Heyden Defendants’ counsel and each other regarding Rivan's computer and USB drive.” DE 302 at 17. As grounds, White Cap presupposes that Rivan and Moore engaged in communications regarding “destruction of his computer and USB device imaging.” Id. As will be discussed more fully below, this argument is based on a theory by White Cap tied to the submission of inconsistent statements regarding the computer and thumb drive, as well as the timing of phone conversations and emails between Rivan and Moore around the same time two sets of successive counsel withdrew from this litigation. Upon review of the record, I agree that White Cap has uncovered valid questions relating to Rivan's computer and thumb drive. While Moore is not a named party in this litigation, White Cap does not dispute that he is a current sales representative for Heyden Supply who used to work for White Cap. It is further undisputed that Moore and Rivan worked together at the same time and there have been documents produced to White Cap concerning Moore. The Heyden Defendants maintain that communications by Heyden Supply's counsel and the Individual Defendants also applied to Moore in his role as a “Former Employee of White Cap” which explains why there are communications between Moore and Rivan around the time of attorney communications to Rivan and the other individual Defendants concerning their obligations in this litigation. As the Heyden Defendants correctly posit, there are only six emails between Rivan and Moore listed in the privilege log. At my request, these six emails were provided to me for in camera review. Following this in camera review, I find that these emails were properly withheld on grounds of being privileged communications involving advice of counsel to clients and other parties with common interests rendered during and in relation to this litigation. These communications encompass privileged information protected under either attorney-client privilege, the common interest doctrine, or the joint defense doctrine. Ultimately, I find that White Cap has uncovered valid questions warranting further inquiry. To address these questions, I have determined that the best approach is for me to conduct an ex parte hearing at which Rivan and Moore will both be required to appear before me and be prepared to answer my inquiries about their phone, email, or documentary communications between them and possibly others relating to Rivan's disposal of a computer containing White Cap information and Rivan's production of devices, including certain USB drives, to his past and present counsel. 2. White Cap's Request for Show Cause Proceedings on Allegedly False Representations Made and Application of the Crime Fraud Exception Next, White Cap requests show cause proceedings to address allegedly false representations by Rivan, Heyden Supply, and their counsel and potential application of the crime fraud exception to compel the disclosure of communications regarding Rivan's computer and thumb drives. The Heyden Defendants counter that no false representations have been made and the crime fraud exception does not apply here. “The crime-fraud exception allows a party—in rare circumstances—to obtain discovery that otherwise would be protected by the attorney-client privilege or the attorney work product doctrine.” Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1335 (11th Cir. 2018) (emphasis added). The crime fraud exception is not new. The Supreme Court applied the exception over a century ago and held that “[a] client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.” Clark v. U.S., 289 U.S. 1, 15 (1933). For the exception to apply, the following two-part test must be met: *6 First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel's advice. Second, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it. In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987). If the moving party makes these showings, “the burden of persuasion shifts to the party invoking the privilege to provide a reasonable explanation of the conduct or communication to rebut the prima facie showing.” Platypus Wear, Inc. v. Clarke Modet & Co., 2008 WL 11402009, at *2 (S.D. Fla. June 6, 2008) (citing Am. Tobacco Co. v. State, 697 So. 2d 1249, 1256 (Fla. 4th DCA 1997)). Here, White Cap extensively argues that the crime fraud exception applies to the Heyden Defendants’ claims of privilege and that the Court should therefore initiate show cause proceedings. In support, White Cap proffers a meticulous timeline of events surrounding statements and actions by Rivan and his counsel regarding devices he possessed containing admittedly relevant information. One device is a computer containing “files related to” Rivan's job at White Cap, including “DET files.”[4] Rivan's first counsel identified this computer as a laptop in initial disclosures served after this lawsuit was filed, but Rivan later stated in this deposition that this computer was actually a desktop that was recycled or disposed of around one week before his departure from White Cap to join Heyden Supply, i.e. before this lawsuit was filed. See DE 302-7 at 9, 13 (stating that he got rid of the “old dinosaur” computer by “trash[ing] it, smash[ing] it and put[tting] ‘em inside the recycling”). Adding to the confusion, Rivan's first counsel indicated that, prior to its disposal, this computer's contents were saved to a USB drive that had been provided to her (which Rivan's third counsel verified), but Rivan denied giving the USB drive to his first counsel in his deposition and stated instead that the USB drive was first provided to his second counsel for imaging and then again to his third counsel. Id. at 8. Between the time the USB drive was provided to his second and third counsel, Rivan testified to inserting the USB drive into his family computer “just to make sure everything was there.” Id. at 9. In addition to highlighting these inconsistent statements, White Cap also cites to the timing of phone conversations and email communications between Rivan and Moore around the same time two sets of prior counsel withdrew from this litigation on grounds of conflict. According to White Cap, the available evidence establishes an “the undeniable inference” that “Rivan's destroyed computer set in motion a series of events” including “panicked calls and a cover story.” DE 302 at 5-6. In its reply, White Cap continues to build on its theory of fraudulent conduct by citing to more recently provided USB drive metadata alleged to show file modifications that squarely contradict Rivan's testimony. DE 315 at 3-4. *7 I agree that White Cap has raised valid questions about Rivan's disposal of a computer with relevant information; the handling of a USB drive or drives alleged to contain information from that disposed-of computer; and related representations made by Rivan and his counsel to opposing counsel and the Court. White Cap asserts fraud upon the Court and collusion involving Rivan, his past and present counsel, and potentially others. At present, White Cap's allegations depend upon inferences and speculation flowing from the timing of Court filings, withheld emails, and Rivan's documented phone calls. Notably, White Cap has not pointed to any evidence showing that Rivan or any of the Heyden Defendants obtained attorney assistance that either perpetuated or was closely related to the commission of crime or fraud. See Schroeder, 842 F.2d at 1226. I have reviewed in camera six emails involving Rivan and Moore that White Cap cites in support of its theory of collusion and the contents of these emails do not support White Cap's claims of obtaining attorney assistance in furtherance of criminal or fraudulent conduct. White Cap asserts and CSK candidly acknowledges that there have been inconsistencies in this case relating to certain representations about Rivan's computer and thumb drives, however none of these inconsistencies rise to the level of warranting full-scale show cause proceedings or the wholesale disclosure of large swaths of communications that are otherwise privileged or protected. See In re Grand Jury Subpoena, 2 F.4th at 1345 (the crime fraud exception requires a “showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed” and such showing must “have some foundation in fact”—mere allegations are insufficient); U.S. v. Stein, 2023 WL 2585033, at *3 (S.D. Fla. Mar. 21, 2023) (application of the crime fraud exception “is often understood to require ‘probable cause’ to suspect the perpetration or attempted perpetration of a crime or fraud”) (quoting Drummond, Inc. v. Collingsworth, 2015 WL 13768169, at *3 (N.D. Ala. Dec. 7, 2015)). White Cap argues that Rivan, his counsel, and potentially others have committed a crime (and, alternatively, a fraud on the court), however, White Cap has only provided allegations of purported wrongdoing. Importantly, however, White Cap's allegations suffice to warrant further inquiry. Specifically, a court may conduct an in camera review where a party seeking to apply the crime fraud exception shows a “factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime fraud exception applies[.]” Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1417 (11th Cir. 1994) (citing U.S. v. Zolin, 491 U.S. 554, 572 (1989) (holding that in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception). “Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court.” Id. Here, White Cap has met the lesser evidentiary showing required and I exercise my discretion to conduct an in camera review to see if it yields evidence establishing the exception's applicability. Zolin, 491 U.S. at 574-75. In addition, I will hold an in person ex parte hearing to inquire of Rivan, Moore, and certain attorneys who have represented the Heyden Defendants and made key representations to the Court and opposing counsel in their role as defense counsel. This decision is based on my reasonable belief that further proceedings may either yield evidence establishing the exception's applicability or, on the other hand, may dispel any claim that Rivan has engaged in nefarious or fraudulent activity and that attorney assistance was obtained in furtherance or in close relation to such activity. 3. White Cap's Request for Show Cause Proceedings on Potential Disqualification Lastly, White Cap requests show cause proceedings to address the potential disqualification of current counsel for the Heyden Defendants. The Heyden Defendants counter that White Cap lacks standing to move for disqualification. A federal court's local rules and federal common law govern the disqualification of counsel. Herrmann v. GutterGuard, Inc., 199 F. App'x 745, 752 (11th Cir. 2006); S.D. Fla. Local Rule 11.1(c) (“The standards of professional conduct of members of the Bar of this Court shall include the current Rules Regulating The Florida Bar.”). The movant has the burden of establishing that disqualification is warranted. In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003). Because a litigant is presumptively entitled to counsel of its choosing, only a compelling reason will justify disqualification. Id. And because disqualification can bring substantial hardship to a client, a court should impose this measure “sparingly.” Norton v. Tallahassee Mem'l Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982). Moreover, because a party may use a disqualification motion to harass or for a tactical advantage, a court should view a disqualification motion with caution. Herrmann, 199 F. App'x at 752; see also Playa Del Mar Ass'n, Inc. v. Hartford Steam Boiler Inspection & Ins. Co., 2011 WL 13217276, at *2 (S.D. Fla. May 2, 2011) (“Motions to disqualify opposing counsel are highly disfavored in the Eleventh Circuit”). Counsel's violation of an ethics rule does not require disqualification. Prudential Ins. Co. of Am. V. Anodyne, Inc., 365 F. Supp. 2d 1232, 1236 (S.D. Fla. 2005). Instead, a “court should be conscious of its responsibility to preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant's right to freely chosen counsel.” Woods v. Covington Cnty. Bank, 537 F.2d 804, 810 (5th Cir. 1976). *8 Here, White Cap fails to establish that the requested show cause proceedings regarding disqualification are warranted. Rather than cite to an ethical rule that has allegedly been violated, White Cap instead invokes the doctrine of judicial estoppel and argues that “the Heyden Defendants repeatedly represented in court filings that a joint representation was not ethically possible” which the Court relied upon in allowing prior counsel to withdraw and CSK's “representations otherwise are the polar opposite of this earlier position.” DE 302 at 21. I am not persuaded. Judicial estoppel is an equitable doctrine committed to the discretion of the district court. Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 n.4 (11th Cir. 2017) (en banc). Judicial estoppel “protect[s] the integrity of the judicial process by prohibiting parties from changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). It is inapplicable unless a party takes a legal position that is “clearly inconsistent” with an earlier one. Id. at 750. In deciding whether to apply judicial estoppel, courts consider whether: (1) the party to be estopped took a position under oath in a prior proceeding that is inconsistent with his or her position in the current lawsuit; and (2) the party intended to make a mockery of the judicial system. See Slater, 871 F.3d at 1180. Here, White Cap has not established that the Heyden Defendants have taken “clearly inconsistent” positions in different proceedings. Further, it is conceivable that the three sets of counsel that have represented the Heyden Defendants during this case have assessed the conflict issue and reached differing conclusions. I previously addressed the issue of current defense counsel CSK's joint representation of the Heyden Defendants, which included my review of an ex parte submission submitted by CSK, after which I found “that this law firm has thoroughly and adequately vetted its joint representation” of the Heyden Defendants. DE 183. White Cap has neither offered a valid justification to revisit this prior ruling nor presented compelling reasons to initiate show cause proceedings aimed at examining application of the sparingly imposed and highly disfavored measure of disqualifying opposing counsel. CONCLUSION Based on the foregoing, it is hereby ORDERED AND ADJUDGED that White Cap's Expedited Motion to Compel and for Show Cause Proceedings, DE 302, is GRANTED IN PART AND DENIED IN PART as follows: 1. By October 29, 2024, the Heyden Defendants shall produce the following select documents listed on their privilege log to me via email (maynard@flsd.uscourts.gov) for an in camera review: All emails exclusively between Defendant Welsh and Tim Mace and Defendant Welsh and Chris Scammell being withheld as attorney-client privileged, i.e. HEY-FL050708, HEY-FL048535, HEY-FL050716. Email between Defendants Rosenblum and Welsh withheld as “Email chain regarding legal advice from counsel in anticipation or furtherance of litigation, i.e. HEY-FL49468. All withheld communications listed on the privilege log from October 27, 2023, which was the date the Heyden Defendants provided initial disclosures, through December 1, 2023, the day after the first set of counsel moved to withdraw on an emergency basis. 2. An in-person ex parte hearing with defense counsel and the following witnesses only is set before me in the U.S. District Courthouse located at 101 South U.S. Highway 1, Fort Pierce, Florida 34950 in Courtroom 4074, on Thursday, November 7, 2024, at 10:00 A.M. at which time I expect to hear sworn testimony from the following individuals: *9 Defendant Miguel Rivan Greg Moore Justin Levine, Esq. Claire Williamson, Esq. Vicki Holzer, Esq. Samuel Menaged, Esq. 3. Current defense counsel shall make all necessary arrangements for the above individuals to appear before me for this scheduled hearing. To the extent any of these individuals wish to appear for the hearing via Zoom, an appropriate motion or motions shall be promptly filed so that my staff may make necessary arrangements. 4. White Cap may submit ex parte a list of proposed questions to be asked, in my discretion, at the ex parte hearing. Any such list shall be submitted to me via email (maynard@flsd.uscourts.gov) by Tuesday, November 5, 2024. Footnotes [1] Heyden Enterprises LLC d/b/a Heyden Supply (“Heyden Supply”), Brian Welsh (“Welsh”), Miguel Rivan (“Rivan”), Wayne Rosenblum (“Rosenblum”), and Timothy Kavney (“Kavney”) (collectively the “Heyden Defendants”) are all currently represented by the same counsel. Defendant Gomer Black, Jr. (“Black”) is separately represented. [2] Among other things, White Cap argues that logged emails from attorney Claire Williamson, former counsel for the Heyden Defendants, following her withdrawal as counsel in this case “are not privileged because no attorney-client relationship existed with respect to this matter at the time of the communication.” DE 302 at 15. White Cap cites no authority in support of this proposition. The attorney-client privilege applies to “confidential communications between an attorney and h[er] client relating to a legal matter for which the client has sought professional advice.” Miccosukee Tribe of Indians of Florida v. U.S., 516 F.3d 1235, 1262 (11th Cir. 2008). The privilege does not cease to exist simply because an attorney has withdrawn from a particular case. In addition, Claire Williamson and her law firm Hudson Lambert Parrott, LLC are current litigation counsel for Heyden Supply and its employees in two related, pending White Cap lawsuits pending in Alabama and Georgia state court. See DE 1-1 at 1-2 in Member Case No. 24-14279-Civ-Martinez/Maynard, Williamson et al. v. White Cap, L.P. [3] White Cap identifies “RFP No. 23” in its Motion, DE 302 at 15, but a review of the attached discovery responses shows that the at-issue discovery request addressed to Rivan is actually RFP No. 24, DE 302-12 at 5. [4] According to White Cap, DET files are files from a program called SHEAR97 that Rivan used for detailing. It appears to White Cap that the DET files are roughly created in chronological order by file number. For example, file 31970 was created earlier than file 32010. According to White Cap, the highest file number from a USB drive alleged to contain information from Rivan's computer is 32027, but the highest file number Rivan sent at White Cap was 32079, a difference of 55 DET files. See DE 315 at 4, n. 4. White Cap opines that this difference suggests the possible existence of relevant information that has either been deleted or not produced in discovery as required. Perhaps.