In re Tom’s Foods, Inc., No. 05-40683, 2006 Bankr. LEXIS 1323 (Bankr. M.D.Ga. July 13, 2006).

The Responsible Liquiditating Officer of Debtor sought production of e-mails between former principal of the debtor and an attorney who also served on the debtor’s board of directors.  The corporate shareholder who had possession of the e-mails refused to produce on the basis of attorney-client privilege.  The court found the e-mails were not privileged.

"The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential. In order to show that communications made to an attorney are within the privilege, it must be shown that ‘the communication was made to him confidentially, in his professional capacity, for the purpose of securing legal advice or assistance.’ ‘The key question in determining the existence of a privileged communication is "whether the client reasonably understood the conference to be confidential."’

Turning to the case at bar, the Court, from its in camera review, is not persuaded that the e-mails at issue are protected by the attorney-client privilege or the joint-defense privilege. The e-mails were widely distributed by Mr. Divin. Several e-mails were sent to persons who were not officers or directors of Debtor. Six e-mails were sent to persons affiliated with Heico, an entity separate and distinct from Debtor. Five e-mails were sent to persons by blind copy. The Court is not persuaded that the e-mails were confidential communications between Mr. Divin and Mr. Meadows.

In the Court’s view, the e-mails sought guidance from Mr. Meadows on how Debtor’s Board of Directors and management should respond to Debtor’s financial distress. The substance of the e-mails concerned matters within Debtor’s business affairs.