Legal Question in Intellectual Property in Florida
Privileged In Discovery
The opposing party to a lawsuit formed an LLC online, and has claimed privilege for documents pertaining to the LLC's formation. I believe their discussions about forming the LLC are relevant, it could contain statements like ''We know we are doing bad things and could get sued, let's form an LLC to save ourselves.'' They almost surely never really spoke to an attorney in the formation, although the online service that started it for them may techincally be their attorney.
I have two questions.
1) Are discussions they had before the date they retained an attorney privileged?
2) Am I allowed to ask in an interrogatory on what date they retained an attorney and who the attorney was, or is this information itself privileged?
2 Answers from Attorneys
Re: Privileged In Discovery
Forming a corporation to avoid personal liability is not improper. it is, in fact, one of the reasons corporations are validly created.
Generally you would be able to know when the lawyer is retained.
discussions before hiring the attorney may be work product. sometimes they are and sometimes they are not. It may or may not be relevant. I would need to know a lot more about the suit to make a judgment on the relevance issue, but generally that is a very broad test.
Re: Privileged In Discovery
Yes you can ask those questions. You can ask them why they set up the company. Setting up a company after they have already incurred personal liability will not protect them, nor will it protect them if they are doing something illegal. Depending on the facts, it may also be possible to have a court consider the company as fraudulent and hold them personally liable regardless of when in the course of their activities it was established. If their discussions are not already taken down by a court reporter, you will have very little chance of them testifying that they set it up to protect them from liability for activities they knew were illegal.
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