Fiber Materials, Inc. v. Subilia,___A.2d___, 2009 WL 2048329 (Me. 2009)

Brief Summary
The Maine Supreme Judicial Court criticized a corporation’s counsel for disseminating the allegedly attorney-client privileged contents of an executive’s company laptop.

Complete Summary
Fiber Materials, Inc. sued its former president Maurice Subilia for fraud. Subilia moved both to strike a portion of Fiber Materials’ complaint, which cited a document allegedly protected by Subilia’s attorney-client privilege, and to disqualify Fiber Materials’ counsel for improperly obtaining and using the document.

The document was a letter from Subilia’s personal counsel regarding an indemnification claim Subilia had against Fiber Materials. Subilia stored the letter on his Fiber Materials laptop. Fiber Materials’ in-house counsel retrieved the laptop from Subilia and discovered the letter. Because the letter was labelled privileged, Fiber Materials’ in-house counsel sought advice from an Assistant Bar Counsel. Before the Assistant Bar Counsel could render advice, however, the in-house attorney turned the laptop over to Fiber Materials officials and outside counsel for Fiber Materials.

The trial court denied Subilia’s motion, and Subilia appealed. The Maine Supreme Judicial Court held that Subilia’s interlocutory appeal was improper, but also commented on the questionable way in which Fiber Materials’ counsel obtained the letter.

The court held that Subilia’s interlocutory appeal was improper because none of the exceptions to the final judgment rule applied. First, the death knell exception might apply if appeal was necessary to retain confidentiality, the court noted, but the document Subilia sought to protect had already been widely disseminated. The collateral order exception did not apply for the same reason. Finally, the judicial economy exception did not apply because the issue appealed would not have effectively disposed of the case.

The court then commented on Fiber Materials’ handling of the letter. The court noted several acts of imprudence. For example, Fiber Materials’ in-house counsel should not have disseminated the letter until hearing back from the Assistant Bar Counsel, and Fiber Materials’ litigation counsel displayed a dismissive attitude by, arguably unnecessarily, quoting the letter in the complaint and attaching it thereto.

A concurring judge did not agree with the court’s critique of Fiber Materials’ counsel. The judge noted that Fiber Materials’ computer and email policies—of which Subilia was aware—suggested that the contents of the laptop were not confidential as to Fiber Materials.

Significance of Opinion
This opinion explores, but does not resolve, issues that can arise when corporate privacy policy conflicts with attorney-client privilege.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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