Superb Motors Inc. et al v. Deo et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
SUPERB MOTORS INC. et al.,
Plaintiffs,
MEMORANDUM
AND ORDER
-against-
23-CV-6188 (JMW)
ANTHONY DEO et al.,
Defendants.
-------------------------------------------------------------X
A P P E A R A N C E S:
Emanuel Kataev
Sage Legal LLC
18211 Jamaica Avenue
Jamaica, NY 11423
Attorneys for Plaintiffs Superb Motors Inc., Team Auto Sales LLC and Robert A. Urrutia
Jeffrey Ruderman
Cyruli Shanks & Zizmor LLP
420 Lexington Avenue, Suite 2320
New York, NY 10170
Attorneys for Plaintiffs 189 Sunrise Hwy Auto LLC, Northshore Motor Leasing, LLC,
1581 Hylan Blvd Auto LLC, 1580 Hylan Blvd Auto LLC, 1591 Hylan Blvd Auto LLC,
1632 Hylan Blvd Auto LLC, 1239 Hylan Blvd Auto LLC, 2519 Hylan Blvd Auto LLC, 76
Fisk Street Realty LLC, 446 Route 23 Auto LLC, Island Auto Management, LLC, Brian
Chabrier, Joshua Aaronson, and Jory Baron
Jeffrey Benjamin
The Linden Law Group, PC
250 Park Avenue, Ste 7th Floor
New York, NY 10177
Attorneys for Defendants Anthony and Sarah Deo, Dwight Blankenship, Marc Merckling,
Michael Laurie, Car Buyers NYC, Inc., Gold Coast Cars of Syosset LLC, Gold Coast
Cars of Sunrise LLC, Gold Coast Motors Automotive Group LLC, Gold Coast Motors of
LIC LLC, Gold Coast Motors of Roslyn LLC, Gold Coast Motors of Smithtown LLC,
UEA Premier Motors Corp.
3/4/2026
FILED
CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
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Harry R. Thomasson
3280 Sunrise Highway, Ste Box 112
Wantagh, NY 11793
Defendant Appearing Pro Se
Ariel E. Ronneburger
Cullen and Dykman LLP
333 Earle Ovington Boulevard, Ste 2nd Floor
Uniondale, NY 11553
Attorneys for Defendant Flushing Bank
Jeffrey Cianciulli
Weir LLP
1330 Avenue of the Americas, Ste 23rd Floor
New York, NY 10019
Attorneys for Defendant Libertas Funding LLC1
No appearances by other Parties
WICKS, Magistrate Judge:
Three separate discovery disputes are before the Court, but with a common thread. Each
seeks to compel deposition testimony over the objections of attorney-client privilege and/or
attorney work-product doctrine. The first (ECF No. 392) and third (ECF No. 418) motions stem
from attempts to preserve privileged communications between Defendant Harry R. Thomasson,
Esq. (“Thomasson”) and his prior clients who are also his co-defendants, Mark Merckling
(“Merckling”) and Dwight Blankenship (“Blankenship”). The second motion (ECF No. 398)
seeks to compel all communications between Thomasson and his co-defendant and prior client,
Anthony Deo (“Deo”) based upon the crime-fraud exception. For reasons that follow Plaintiffs’
Motions to Compel the testimony of Merckling (ECF No. 392) and Blankenship (ECF No. 418)
are GRANTED, but the Motion to Compel waiver of attorney client privilege as to
1 Jeffrey Cianciulli appeared on behalf of Libertas Funding LLC for the March 2, 2026 oral argument.
However, there is no notice of appearance on the docket. Counsel is directed to file a notice of
appearance.
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communications between Deo and Thomasson based upon the crime-fraud exception (ECF No.
398) is DENIED.
RELEVANT BACKGROUND
On January 26, 2026, the deposition of Defendant Merckling was conducted. A dispute
arose during the deposition, and the parties contacted the Court. Present on the call were
Emanuel Kataev and Jeffrey C. Ruderman for Plaintiffs and Thomasson, proceeding pro se.
Counsel for Merckling and for the remaining Deo Defendants2 was not present, and Merckling
proceeded pro se for purposes of this deposition. The dispute arose in connection with an
assertion of attorney client and work product privileges as raised by Thomasson several times on
behalf of Merckling. The Court reserved a ruling on this issue allowing the parties to brief the
issue. (See Electronic Order dated 1/26/2026.) Now before the Court is Plaintiffs’ Motion to
Compel Merckling’s deposition testimony. (ECF No. 392.) Defendant Thomasson and Deo
Defendants oppose this motion. (ECF Nos. 393-94.) Plaintiffs upon request were granted leave to
file a reply. (ECF Nos. 400-01.)
In addition, Plaintiffs filed a subsequent Motion to Compel deposition testimony of
Defendant Deo and Defendant Thomasson “concerning all communications between them
pursuant to the crime-fraud exception to privilege.” (ECF No. 398.) Oppositions were submitted
by Thomasson, and Deo Defendants (ECF Nos. 403-04, 4063), and replies were likewise
submitted by Plaintiffs (ECF Nos. 409-411).
2 The “Deo Defendants” are Anthony Deo, Sarah Deo, Dwight Blankenship, Marc Merckling, Michael
Laurie, Car Buyers NYC Inc., Gold Coast Cars of Syosset LLC, Gold Coast Cars of Sunrise LLC, Gold
Coast Motors Automotive Group LLC, Gold Coast Motors of LIC LLC, Gold Coast Motors of Roslyn
LLC, Gold Coast Motors of Smithtown LLC, and UEA Premier Motors Corp.
3 The Court makes two clarifying points. First, it appears ECF Nos. 404 and 406 are the same entry, and
as such, the Court will only make reference to ECF No. 404. Second, Thomasson refers to ECF No. 397
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Shortly thereafter, during the deposition of Blankenship held on February 18, 2026,
Thomasson raised the same privilege objections as he did at Merckling’s deposition. The parties
contacted the Court for a ruling. Present on the call were Emanuel Kataev and Jeffrey C.
Ruderman for Plaintiffs, and Thomasson, proceeding pro se. Blankenship who has a counsel of
record, chose to attend the deposition without his counsel. The dispute was in connection with
objections made by Thomasson to questions posed to Blankenship on the basis of attorney-client
and work-product privileges. The Court reserved a ruling on this issue allowing the parties to
brief the issue. (See Electronic Order dated 2/18/2026.) Now before the Court is Plaintiffs’
Motion to Compel Blankenship’s deposition testimony. (ECF No. 418.) Defendant Thomasson
opposed this motion. (ECF No. 417.) However, Blankenship’s counsel of record, Jeffrey
Benjamin (“Benjamin”) did not submit any opposition.
Oral argument was held on March 2, 2026 on all three motions. (See Electronic Order
dated 3/2/2026.)
ANALYSIS
The attorney-client privilege is one of the oldest recognized privileges for
confidential communications. Upjohn Co. v. United States, 449 U. S. 383, 389
(1981); Hunt v. Blackburn, 128 U. S. 464, 470 (1888). The privilege is intended to
encourage “full and frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of law and the
administration of justice.” Upjohn, supra, at 389.4
The attorney-client privilege is meant to encourage frank, candid discussion between
counsel and client. See In re Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Swidler &
Berlin v. United States, 524 U.S. 399, 403 (1998)). When faced with issues of privileged matters
as the motion to compel and ECF No. 398 as the motion for sanctions in his opposition papers. It is the
opposite—ECF No. 397 is the motion for sanctions while ECF No. 398 is the motion to compel.
4 Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998).
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therefore, Courts should tread carefully and with due caution. As this “complaint asserts both
federal and state claims and the requested information is relevant to both sets of claims,
principles of federal law apply.” Lively v. Skyline Agency LLC, No. 25-MC-347 (LJL), 2025 WL
2532796, at *3 (S.D.N.Y. Sept. 3, 2025); In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 217
(S.D.N.Y. 2001) (“Where, as here, subject matter jurisdiction is based on a federal question,
privilege issues are governed by federal common law.”)
“[C]ourts apply the privilege only where necessary to achieve its purpose and construe
the privilege narrowly because it renders relevant information undiscoverable.” Cuomo v. Off. of
New York State Att'y Gen., 754 F. Supp. 3d 334, 358 (E.D.N.Y. 2024) (quoting United States v.
Krug, 868 F.3d 82, 86 (2d Cir. 2017)). “The relationship of attorney and client, a communication
by the client relating to the subject matter upon which professional advice is sought, and the
confidentiality of the expression for which protection is claimed, all must be established in order
for the privilege to attach.” In re Enron Corp., 349 B.R. 115, 126 (Bankr. S.D.N.Y. 2006)
(citation omitted).
The work-product doctrine and the attorney-client privilege are often asserted to
protect the same material from discovery; however, there is a substantial difference
between the two. The attorney-client privilege exists to protect confidential
communications between a lawyer and the lawyer's client. It assures the client that
any statement the client makes is held in the strictest of confidence. As a result, the
client holds the privilege and may assert or waive it.
Distinction between work-product doctrine and attorney-client privilege, H ANDBK . F ED.
C IV. DISC . & DISCLOSURE § 1:49 (4th ed.).
It is beyond peradventure that the client, not the attorney, is the holder of the privilege.
See Bus. Integration Servs., Inc. v. AT & T Corp., 251 F.R.D. 121, 123 (S.D.N.Y. 2008), aff'd,
No. 06-CV-1863 (JGK), 2008 WL 5159781 (S.D.N.Y. Dec. 9, 2008) (“the privilege lies with the
client, … and that it is therefore for [the client] to waive this privilege or not”); Lama v. Malik,
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25 F. Supp. 3d 316, 319 (E.D.N.Y. 2014) (same); Pu v. Russell Publ'g Grp., Ltd., No. 15-CV-
3936 (VSB), 2016 WL 9021990, at *5 (S.D.N.Y. Sept. 2, 2016), aff'd, 683 F. App'x 96 (2d Cir.
2017) (collecting cases).
The witnesses deposed whose communications are at issue are Deo, Merckling and
Blankenship. Thomasson was the purported former lawyer for each. Thomasson was not being
deposed. Thomasson does not represent Deo, Merckling or Blankenship in this action and thus
cannot advance arguments or advocate on their behalf or direct them not to answer. See Baliga
on behalf of Link Motion Inc. v. Link Motion Inc., 385 F. Supp. 3d 212, 222 (S.D.N.Y. 2019)
(“Generally, one defendant cannot raise arguments on behalf of another.”) Deo, Merckling and
Blankenship are represented by separate counsel, namely, Jeffrey Benjamin.5
I. 	Motion to Compel Testimony of Merckling and Blankenship (ECF Nos. 392,
418)
Like a moth to a flame or a dog who won’t drop the bone, Thomasson, notwithstanding
having been disqualified from representing both Merckling and Blankenship (ECF No. 117),
continues to display conduct as though he represents them. In depositions he proceeds to object
to questions posed to those witnessed that do not infringe on his personal rights. This has been
central to many of the deposition disputes. Indeed, the Court has addressed this very issue in past
rulings. (See ECF No. 388 n.2.) Although Thomasson has the absolute right to represent himself
and participate in depositions such as by asking questions of witnesses and raising “form”
objections just as any other represented party (see Fed. R. Civ. P. 30(c); Electronic Orders dated
1/5/2026 and 1/12/2026), that right, however, is not unbridled. Au fond, he cannot advance
arguments on behalf of others. See In re Texaco Inc. S'holder Derivative Litig., 123 F. Supp. 2d
5 Benjamin did not appear at the depositions, rather, both Blankenship and Merkling chose to proceed
without counsel in attendance. (See ECF Nos. 392 at 1; 418 at 1.) At oral argument, Benjamin confirmed
that his clients choose to proceed this way.
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169, 172 (S.D.N.Y. 2000), aff'd, 28 F. App'x 83 (2d Cir. 2002) (“The right to proceed pro se in
civil actions is guaranteed by 28 U.S.C. § 1654. It is well-established, however, that this right to
proceed pro se does not encompass the right to proceed pro se on behalf of the interests of
another.”) Accordingly, Thomasson’s privilege objections to the questioning of these three
witnesses are overruled. That, however, does not end the inquiry.
The relief sought here, however, goes far beyond simply preventing Thomasson from
raising objections. Rather, Plaintiffs seek to invade discussions between witnesses and their
purported former counsel. Therefore, the remaining queries are, (i) whether the communications
are covered by the attorney-client privilege in the first instance and (ii) even if so, has there been
a waiver under the crime-fraud exception?
A review of the relevant transcripts is warranted.
A. The Merckling Deposition
MR. KATAEV: What did you speak about with Mr. Thomasson on August 3, 2023?
MR. MERCKLING: About being locked out of the business.
MR. THOMASSON: Objection. That is absolutely privileged, Mr. Kataev.
MR. KATAEV: Are you instructing him not to answer the question?
MR. THOMASSON: I am instructing him not to answer any questions that involve
our conversations on and after August 3, 2023.
MR. KATAEV: And you're instructing him not to answer to preserve his privilege?
MR. THOMASSON: 	It ‐‐ those conversations were absolutely attorney‐client
privileged conversations between me and Marc Merckling. That would be every
conversation we ever had after the night of the lockout at Superb, including the
night of that lockout. That was the first conversation I ever had with him, and it
was strictly business. There was nothing else I ever discussed with him.
MR. KATAEV: I understood that. But my question is, are you instructing him not
to answer in order to preserve his privilege?
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MR. THOMASSON: Yes
(ECF No. 392-1 at 10-11.)
***
MR. KATAEV: Do you have any knowledge about where Mr. Urrutia lives?
MR. MERCKLING: Do I have any knowledge?
MR. KATAEV: Yeah.
MR. MERCKLING: I believe Costa Rica, or something like that I was told. I don't
know.
MR. KATAEV: Who told you that?
MR. THOMASSON: Objection. If that was something you got from any lawyer,
do not disclose conversations with lawyers.
MR. MERCKLING: I heard it someplace. I don't know from where.
(ECF No. 392-1 at 12.)
B. The Blankenship Deposition
MR. KATAEV: When you arrived what did you observe?
MR. BLANKENSHIP: I believe I met Harry, Mark and Anthony on the sidewalk
at that time.
MR. KATAEV: And those were the first individuals that you spoke to?
MR. BLANKENSHIP: Yes.
MR. KATAEV: What did you all three say to each other?
MR. THOMASSON: Objection. That was my work product that I was
engaged in at that time as I was trying to figure out what was going on and I
don't waive that privilege.
MR. KATAEV: You may answer the question.
MR. THOMASSON: I'm instructing the witness not to discuss what it was
that he discussed with me, if anything.
MR. RUDERMAN: Mr. Thomasson, that's not your privilege.
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MR. THOMASSON: Work product is my privilege.
MR. RUDERMAN: You have no privilege as an attorney, it doesn't exist. If
you insist that you have a privilege, we are going to have to go back to the
judge. You have no privilege with the client. Only the client has the privilege.
MR. THOMASSON: I said it is my work product that I was doing that night,
Mr. Ruderman. I was trying to find out and figure out what was going on.
MR. RUDERMAN: You have no privilege in your work product, only the
client does. Then we will go back to the judge.
MR. THOMASSON: Go back to the judge. I don't agree to go off the record.
MR. KATAEV: You have a fundamental misunderstanding of what work
product is. It's a writing. What work product? Were you there with a pen
and a pad, Mr. Thomasson?
MR. THOMASSON: I don't know if I was taking notes or not, but I was
trying to figure out what was going on in anticipation of whatever was coming
next.
MR. KATAEV: In other words you have no work product because there is
nothing in writing.
MR. THOMASSON: That's your conclusion, but I'm instructing the witness
not to discuss what it is that he and I discussed that night, if anything. I don't
even know if we did because I was in the middle of trying to figure out what
was going on in anticipation of litigation.
MR. RUDERMAN: Are you reaching out to the court?
MR. KATAEV: As we speak.
MR. RUDERMAN: Can we take a break?
(ECF No. 423-1 at 15-18.)
C. Are these communications privileged and if so, have they been waived?
Here, Thomasson argues that both work-product and attorney-client privileges should be
protected. Each is analyzed in turn.
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i. 	Attorney-Client Privilege
Attorney-client privilege only applies where the communication in question is
primarily or predominantly of legal character. Fundamentally, legal advice involves
the interpretation and application of legal principles to guide future conduct or to
assess past conduct. Where a party only asserts privilege over a limited portion of
a document, courts in this Circuit routinely consider the predominant purpose of
[the] isolated portion. The burden is on a party claiming the protection of a privilege
to establish those facts that are the essential elements of the privileged relationship,”
and they must do so by competent and specific evidence, rather than by conclusory
or ipse dixit assertions.
In re OpenAI, Inc., Copyright Infringement Litig., 802 F. Supp. 3d 688, 694 (S.D.N.Y. 2025)
(citations omitted).
“[T]he party invoking the privilege bears the burden of establishing its applicability to
the case at hand.” Procter & Gamble Co. v. Ultreo, Inc., 574 F. Supp. 2d 334, 336 (S.D.N.Y.
2008) (citation omitted); Lead Creation Inc. v. P’ships & Unincorporated Ass’ns identified on
Schedule A, 668 F. Supp. 3d 302, 307 (S.D.N.Y. 2023) (same). “Consistent with the often-
repeated axiom in this circuit, the Court elects to construe the attorney-client privilege ‘confined
within the narrowest possible limits underlying its purposes.’” Gilead Scis., Inc. v. Khaim, 779 F.
Supp. 3d 300, 308–09 (E.D.N.Y. 2025) (quoting Obeid v. Mack, No. 14-CV-6498 (LTS) (HBP),
2016 WL 7176653, at *8 (S.D.N.Y. Dec. 9, 2016)). However, Thomasson asserted these
privileges, not the prior clients. “It is well-established that the attorney-client privilege belongs
solely to the client and it may only be waived by him or her.” Lama, 25 F. Supp. 3d at 319; In re
Bank of New York Mellon Corp. Forex Transactions Litig., 66 F. Supp. 3d 406, 410 n.19
(S.D.N.Y. 2014) (citation omitted) (“The [attorney-client] privilege ‘belongs solely to the client
and may only be waived by him….’”) Merckling and Blankenship did not object. In fact,
Merckling proceeded to answer Question two during the deposition. Therefore, the Court makes
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no rulings if these communications are even privileged because Thomasson has no standing to
object. As such, Thomasson’s attorney-client privilege objections are overruled.6
If the communications are privileged only Merckling and Blankenship as the holders may
raise the objections. The threshold issue however is whether Thomasson, Merckling and
Blankenship had an attorney-client relationship during the relevant time period of the
questioning, namely, on August 3, 2023.
The submissions on the instant motions are exiguous, scant with detail. Accordingly, the
Court canvassed the various docket entries throughout the history of this case and, coupled with
counsels’ representations made at oral argument and contained in the motion papers, find that the
following occurred on August 3, 2023:
After an internal audit conducted by Superb, there were allegedly 100 vehicles missing,
and Bruce Novicky (“Novicky”), Superb’s Chief Operating Officer confronted Deo on this, who
“lied” about why the vehicles were missing. (ECF No. 316 at 73.) Thus, Plaintiffs removed Deo
from “day-to-day operations”. (Id.) In addition, Superb Plaintiffs contacted the Nassau County
Police Department and locked out the Deo Defendants from the dealership. (ECF No. 392 at 1.)
When the police arrived, Novicky filed a criminal complaint against Deo only. (ECF No. 401 at
3.) Thomasson was called to the dealership that day where Merckling and Blankenship were
present as well. (Id.) Novicky alleges that Blankenship did not stay quite long. (Id.) Merckling
testified in his deposition that he spoke to Thomasson that night regarding being locked out of
6 For argument’s sake, if Thomasson did hold the attorney-client privilege, not enough is shown here to
establish his entitlement to the privilege. For example, that communications were held for the purpose of
legal advice. See United States Sec. & Exch. Comm'n v. Collector's Coffee Inc., 338 F.R.D. 309, 315
(S.D.N.Y. 2021) (quoting United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011) (“Under federal
common law, ‘[t]he attorney-client privilege protects communications (1) between a client and his or her
attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or
providing legal advice.’”)).
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the business. (ECF No. 392-1 at 10.) However, nothing further was stated because Thomasson
objected, asserting privilege. (Id.) At Blankenship’s deposition, however, he unequivocally stated
that he did not seek legal advice from anybody because he did not think he was getting involved
in a case. (ECF No. 418-1 at 13.)
While Plaintiffs dispute that Thomasson was counsel to Merckling and Blankenship on
August 3, Benajmin and Thomasson argue that an attorney client relationship did exist.
Thomasson freely admitted at oral argument that no engagement letter under 22 N.Y.C.R.R. §
1215 exists memorializing the engagement of either. That, however, does not end the inquiry. In
such cases, “where there is no written agreement or other documentary evidence clearly
establishing that existence of the necessary attorney-client relationship, the court must consider
the words and actions of the parties to ascertain if an attorney-client relationship was formed.”
Bonde v. Wexler & Kaufman, PLLC, 345 F.R.D. 31, 39 (S.D.N.Y. 2023) (internal citations and
quotations omitted). “Moreover, since the privilege belongs to – and [exists] for the benefit of –
the client, not the attorney, the existence of the required attorney-client relationship generally
must be proved by something more than the attorney's claim that such a relationship existed.”
Charlestown Cap. Advisors, LLC v. Acero Junction, Inc., No. 18-CV-4437 (JGK)(BCM), 2020
WL 757840, at *7 (S.D.N.Y. Feb. 14, 2020).
The night of the “lockout” was not a simple night as described. Law enforcement was
present and thus, under the circumstances, a written agreement or the like was not feasible. Thus
the Court must look at other relevant facts when there is no writing, such as the actions by the
parties, whether legal fees were charged or paid and the like. See Makhoul v. Watt, No. 11-CV-
05108 (PKC) (VMS), 2014 WL 977682, at *6 (E.D.N.Y. Mar. 12, 2014) (quoting Heine v.
Colton, Hartnick, Yamin & Sheresky, 786 F.Supp. 360, 367 (S.D.N.Y. 1992) (listing examples
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such as “[a]n attorney's appearance in a judicial or quasi-judicial proceeding creates a
presumption that the attorney-client relationship exists”). However, no bills, timesheets, invoices
or other documents have been provided to the Court. Blankenship’s deposition testimony
directly contradicts the representations made by Benjamin and Thomasson. Additionally, the
Notice of Appearance filed by Thomasson was only on September 10, 2023, over a month from
the date in question. (ECF No. 29.) Indeed, absent from the submission on this motion are
declarations or affidavits from Merckling and Blankenship that Thomasson was their lawyer on
August 3, 2023. While it is likely that Thomasson was in conversations with Merckling and
Blankenship between August 3, 2023, and September 10, 2023, there is no support in the record
confirming that an attorney-client relationship existed on August 3.
Moreover, where no formal contract or agreement exist, “courts may consider whether
the client and attorney shared ‘regular communications relating to the subject matter of the
representation’ … whether the parties engaged in activity ‘in furtherance of the objective of the
retention’ [or] whether the attorney provided legal advice and publicly held himself out as an
attorney to the purported client. Kleeberg v. Eber, No. 16-CV-9517 (LAK)(KHP), 2019 WL
2085412, at *13 (S.D.N.Y. May 13, 2019) (internal citations omitted) (also discussing that a
client’s subjective belief that a relationship exists, is not sufficient).
There is simply no evidence to show that on the night of August 3, 2023, Thomasson had
formed an attorney-client relationship with Merckling or Blankenship. Thomasson’s conclusory
assertions on March 2, 2026 that he “verbally confirmed” that he would represent him in
connection with criminal allegations and “presumed also that civil litigation would ensue” falls
short. (ECF No. 393 at 1-2.) To date, Benjamin has not submitted any documents or a declaration
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setting forth that a relationship existed. Nor have the individual defendants provided affidavits
that a relationship existed as of August 3, 2023.
In Makhoul, the Court after an in-camera review of several documents that included bills,
emails, and contracts, found “no relevant evidence showing an attorney-client relationship”
existed. 2014 WL 977682, at *13. Here, the Court is given nothing to even conduct an in-camera
review. Likewise, in Bonde, the Court was provided with documents that referred to Plaintiff as a
client with the firm “Wexler” and the Court there found that at the time of the alleged privileged
communications, an attorney-client relationship existed. 345 F.R.D. at 43. Yet, the Court found
no relationship to another firm referred to as “Kaufman” because the “record [was] silent” apart
from conclusory statements such as in this case. Id. at 43-45.
Therefore, on the record before the Court, Merckling’s and Blankenship’s objections
based upon attorney-client privilege are overruled as to any questions concerning conversations
between Thomasson and both of them on August 3, 2023..
Accordingly, Plaintiffs’ Motions to Compel testimony from Merckling and Blankenship
are granted.
ii. 	Work-Product Doctrine
In light of the conclusion that no attorney-client relationship existed on August 3, it
follows that Thomasson cannot rely upon the attorney work-product doctrine. Moreover,
Thomasson conceded at oral argument that the work-product doctrine does not apply here.
Therefore, the objections as to work-product are overruled.
II. 	Motion to Compel Testimony of Deo and Thomasson (ECF No. 398)
The crime-fraud exception is a limited exception to the attorney-client privilege. The
exception applies when there is a showing of legal advice provided in furtherance of a crime or
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fraud. See Off. Comm. of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 342 B.R. 416, 427
(S.D.N.Y. 2006), on reconsideration, No. 01-CV-8539 (RWS), 2006 WL 2883255 (S.D.N.Y.
Oct. 6, 2006) (“The Second Circuit has held that the crime fraud exception to the attorney-client
privilege is a limited exception….”) Once that showing is established, the privilege no longer lies
with the client, and the communications –once privileged –lose that protection and are thus
discoverable. See United States Sec. & Exch. Comm'n v. Collector's Coffee Inc., 338 F.R.D. 309,
315 (S.D.N.Y. 2021) (quoting Clark v. United States, 289 U.S. 1, 15 (1933) (“However, ‘[t]he
privilege takes flight if the relation is abused. 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.’”)).
Since the policy of the privilege is that of promoting the administration of justice,
it would be a perversion of the privilege to extend it to the client who seeks advice
to aid him in carrying out an illegal or fraudulent scheme. Advice given for those
purposes would not be a professional service but participation in a conspiracy.
Accordingly, it is settled under modern authority that the privilege does not extend
to communications between attorney and client where the client's purpose is the
furtherance 	of 	a 	future 	intended 	crime 	or 	fraud.
§ 95. Consultation in furtherance of crime or fraud, 1 M C C ORMICK ON EVID . § 95 (9th ed.).
A party seeking to invoke the crime-fraud exception must demonstrate that there is
probable cause (1) “that the client communication or attorney work product in question was itself
in furtherance of the crime or fraud” and (2) “to believe that the particular communication with
counsel or attorney work product was intended in some way to facilitate or to conceal the
criminal activity.” In re Grand Jury Subpoenas Dated Sept. 13, 2023, 128 F.4th 127, 141–42 (2d
Cir. 2025) (quoting In re Richard Roe, Inc., 168 F.3d 69, 71 (2d Cir. 1999)); Avalon Holdings
Corp. v. Gentile, 350 F.R.D. 8, 14 n.4 (S.D.N.Y. 2025) (same). “The crime-fraud exception does
not apply simply because privileged communications would provide an adversary with evidence
of a crime or fraud. … ‘Probable cause’ means ‘a reasonable basis for believing that the
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objective was fraudulent.’ It is the client's intent to engage in criminal activity, not counsel's,
that is relevant; counsel need not even be aware that their assistance was sought for criminal
purposes.” Linde v. Arab Bank, PLC, 608 F. Supp. 2d 351, 357 (E.D.N.Y. 2009) (internal
citations omitted). “In assessing whether the Plaintiffs have demonstrated probable cause, the
Court may review, in camera, the privileged document and ascertain if it supports the view that it
was being used at the time of its drafting to commit or conceal a fraud or a crime.” NXIVM Corp.
v. O'Hara, 241 F.R.D. 109, 132 (N.D.N.Y. 2007). “There has been little guidance on the
quantum of proof needed to invoke the crime/fraud exception.” Aiossa v. Bank of Am., N.A., No.
10-CV-01275 (JS)(ETB), 2011 WL 4026902, at *6 (E.D.N.Y. Sept. 12, 2011). “However, courts
in the Southern and Eastern Districts of New York have applied a standard more demanding
‘than a simple, if reasonable, suspicion of fraud’ and less demanding than fraud shown by a
preponderance of the evidence.” Id. (quoting In re Omnicom Group, Inc. Securities Litig., No.
02-CV-4483, 2007 WL 2376170, at *11 (S.D.N.Y. Aug. 10, 2007)); see also Sec. Inv. Prot.
Corp. v. Bernard L. Madoff Inv. Sec. LLC, 319 F.R.D. 100, 107 (S.D.N.Y. 2017) (“Indeed,
requiring that the showing be made by a preponderance of the evidence is consistent with the
procedure under Rule 104 of the Federal Rules of Evidence, which provides that preliminary
questions regarding the existence of a privilege are to be decided by the court using that
standard.”) “If the court finds that the crime-fraud exception is applicable, it “does not extend to
all communications made in the course of the attorney-client relationship, but rather is limited to
those communications and documents in furtherance of the contemplated or ongoing criminal or
fraudulent conduct.” Amusement Indus., Inc. v. Stern, 293 F.R.D. 420, 427 (S.D.N.Y. 2013)
(quoting In re Grand Jury Subpoena, 419 F.3d 329, 343 (5th Cir. 2005)).
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Here, there is no dispute that a privilege exists between Deo and Thomasson. Rather,
Plaintiffs contend that this matter involves allegations of fraud and racketeering, which was
primarily perpetrated by the Deo Defendants providing false financial information in order to
obtain lender financing from Defendant Libertas Funding LLC (“Libertas”) resulting in the
destruction of Plaintiffs’ businesses. (ECF No. 398 at 1.) Plaintiffs further aver that “Thomasson
was instrumental in carrying out this scheme when Plaintiff Joshua Aaronson (“Aaronson”)
intercepted the Libertas funds; without the Libertas funds, Deo would never have gotten his foot
in the door at Superb.” (Id.) Plaintiffs state that among other things, Thomasson demanded that
Aaronson turn over the Libertas funds and coordinated with Deo to make a criminal complaint.
(Id.) Thus, Plaintiffs argue that based on the above, Plaintiffs “are entitled to disclosure of all
communications between Thomasson and Deo, as well as the other Deo Defendants, concerning
these events and all surrounding and related events.” (Id. at 2.) Thomasson opposes stating that
Plaintiffs fail to illustrate that he had any knowledge of any crimes (on-going or future), and
there is no evidence to date that crimes were committed by any Deo Defendant.7 (ECF No. 404
at 2.) Benjamin takes “no position” and “defer[s] to [Thomasson’s] response.”8 (ECF No. 403 at
1.)
7 Thomasson’s argument as to knowledge is not persuasive here. Indeed, as discussed at oral argument,
knowledge by the attorney of the crime or fraud is not required. See Eletson Holdings Inc. v. Levona
Holdings Ltd., No. 23-CV-7331 (LJL), 2025 WL 2688216, at *3 (S.D.N.Y. Sept. 19, 2025) (“The
applicability of the crime-fraud exception does not depend upon whether counsel itself was culpable.”)
8 Plaintiffs in their reply argue that because Benjamin “‘take[s] no position’ … and thus does not oppose
the relief sought on behalf of Deo, and Thomasson is forbidden from making any arguments on Deo’s
behalf, such that Deo’s attorney-client privilege with Thomasson should be deemed waived on this
independent ground.” (ECF No. 409 at 1.) However, as previously established, it is Deo, not Benjamin
nor Thomasson who will waive the attorney-client privilege.
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In sum, Plaintiffs ask this Court to allow testimony on all communications between
Thomasson and Deo based on what appears to be the allegations of the Third Amended
Complaint. Indeed, Plaintiffs cite directly to the operative complaint. (See ECF No. 398 at 1
(citing to ECF No. 316).) “[T]he allegations in [a] complaint cannot suffice to establish probable
cause to believe that a fraud was perpetrated.” Eletson Holdings Inc. v. Levona Holdings Ltd.,
No. 23-CV-7331 (LJL), 2025 WL 2688216, at *2 (S.D.N.Y. Sept. 19, 2025) (finding enough
evidence to move forward with an in-camera review) (quoting Conopco, Inc. v. Wein, No. 05-
CV-09899 (RJH)(THK), 2007 WL 1859757, at *8 (S.D.N.Y. June 28, 2007)) (finding the
opposite). The Court does not find probable cause to proceed to the next step of an “in-camera
review” of any documents to invoke the crime-fraud exception. 9 See Sony Elecs., Inc. v.
Soundview Techs., Inc., 217 F.R.D. 104, 113 (D. Conn. 2002) (“Mere allegations of a crime or
fraud cannot defeat a claim of privilege; prima facie evidence that the crime or fraud has some
foundation in fact is required to invoke the exception.”) More is needed.
In Conopco, Inc., the plaintiff commenced the action for claims of RICO and fraud
alleging that the defendant, various entities, and her counsel, a named defendant Moskowitz
cause the fraudulent scheme. 2007 WL 1859757, at *1. Moskowitz withheld documents based
on the attorney-client privilege, which plaintiff argued inter alia, that the fraud-crime exception
applied. Id. at *2, 4. The Court found that based on the evidence presented to the Court, the
plaintiff failed to meet the required burden. Importantly, as here, the Court wrote that plaintiff’s
references to the complaints, “in support of its position, the allegations in the Complaint cannot
9 Plaintiffs also include in their moving papers that “[w]hile Thomasson would not agree that the crime-
fraud exception applied, the parties agreed that a special master and/or forensic examiner be appointed to
conduct an in camera review, although Thomasson insists that any such costs should be borne by
Plaintiffs, while Plaintiffs submit that the costs should be borne equally between the Plaintiffs and the
Deo Defendants.” (ECF No. 398 at 4.) However, based on this Court’s ruling, this portion is moot.
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suffice to establish probable cause to believe that a fraud was perpetrated. Otherwise, through the
mere allegation of fraud in a complaint, a party could use the crime-fraud exception to wholly
swallow the attorney-client privilege.” Id. at *8. In addition, the only other evidence presented
was “to one deposition in which a former employee testified that Defendants used bogus names,”
but “former deposition testimony is inadequate to meet Conopco's burden in establishing the
applicability of the exception.” Id.
In addition, the court in Sony Elecs., Inc. also found that allegations are not enough to
pierce privilege. 217 F.R.D. 104, 112–13. There, the Court on a motion to compel disagreed with
the defendant that a party need only “establish a prima facie likelihood that a … conspiracy
existed.” Id. at 112. The defendant relied on the Court’s denial of a motion to dismiss constituted
prima facie evidence of a crime, which the Court found meritless, and ruled that enough was pled
to survive a motion to dismiss. Id. at 112-13. Thus, without more, the Court held the crime-fraud
exception was not met and did not amount to a crime. Id. at 113.
Similarly here, there is nothing before the Court to suggest probable cause exists. Mere
allegations in the Third Amended Complaint do not satisfy the burden to invade the attorney-
client privilege between Deo and Thomasson. At oral argument, Plaintiffs argue that the
movement of “Libertas Funds” is sufficient to establish probable cause. (See ECF No. 410.) The
Court disagrees. Notwithstanding having conducted extensive “paper” discovery along with
countless depositions, there is a paucity of evidence on this motion to support a probable cause
finding to eviscerate the privilege here..
Accordingly, Plaintiffs’ Motion to Compel testimony based on the crime-fraud exception
(ECF No. 398) is denied.
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CONCLUSION
For the reasons stated, Plaintiffs’ Motions to Compel (ECF Nos. 392, 418) are
GRANTED, and Plaintiffs’ Motion to Compel (ECF No. 398) is DENIED. In accordance with
this Order, Plaintiffs may re-depose Merckling and Blankenship as to the communications on
August 3. The parties are reminded that all discovery is to be completed by March 31, 2026.
(See Electronic Order dated February 22, 2026.)
Dated: Central Islip, New York
March 4, 2026
S O 	O R D E R E D:
/S/James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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