4:25-cv-00132•Oliver and Company et al v. Zamber et al
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION OLIVER AND COMPANY, et al., ) ) Plaintiffs, ) ) vs. ) Case No. 4:25-cv-00132-MTS ) DR. RONALD ZAMBER, et al., ) ) Defendants. ) MEMORANDUM AND ORDER This matter is before the Court on Plaintiffs’ Motion to Compel. Doc. [246]. Plaintiffs seek the production of eleven “voicemails, emails, and a letter” that Interested Party Husch Blackwell LLP (“Husch Blackwell”) has withheld as privileged in response to Plaintiffs’ subpoena duces tecum. Doc. [247] at 3; Doc. [247-2]. All eleven communications fall within a two-week period after Plaintiffs sent a Demand Letter to both Defendant Michael Cosby—a Husch Blackwell partner—and Husch Blackwell’s general counsel. Doc. [247] at 3. According to its privilege log, Husch Blackwell claims “common interest and intra-firm attorney-client privilege” as to all eleven entries. Doc. [247-3]. Plaintiffs assert that privilege does not apply to these communications and, even if it did, Defendant Cosby waived privilege during his deposition. Doc. [247] at 5–8. In its opposition brief, Husch Blackwell reasserts privilege, Doc. [250] at 8–13, disputes Defendant Cosby’s waiver, id. at 13–15, and contends that the relevant communications are outside the scope of discovery, id. at 15–16 (citing Fed. R. Civ. P. 26(b)(1)). Following an informal discovery conference pertaining to this dispute, Husch Blackwell delivered a copy of the relevant documents to the Court for in camera review. Doc. [239]. Case: 4:25-cv-00132-MTS Doc. #: 257 Filed: 01/28/26 Page: 1 of 2 PageID #: <pageID>
- 2 - Upon careful consideration of the relevant briefing and a review of the challenged communications in camera, the Court finds that Husch Blackwell has met its burden to demonstrate that attorney-client privilege applies to these communications. See State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004) (allocating the burden of proof). The Court concludes that the eleven communications fall within the scope of attorney-client privilege as asserted in Husch Blackwell’s privilege log. See State ex rel. Koster v. Cain, 383 S.W.3d 105, 116 (Mo. Ct. App. 2012) (setting forth the elements of attorney-client privilege); see also Jacobson Warehouse Co. v. Schnuck Mkts., Inc., 13 F.4th 659, 676 (8th Cir. 2021) (applying Missouri law and setting forth the elements of attorney- client privilege in the corporate context). Nor does it appear that Defendant Cosby waived privilege during his deposition, if he could even do so. See State ex rel. Behrendt v. Neill, 337 S.W.3d 727, 729–30 (Mo. Ct. App. 2011) (finding no attorney-client privilege waiver after “answering opposing counsel’s deposition questions, because a waiver extorted under cross- examination is not voluntary” (citation omitted)). Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel, Doc. [246], is DENIED. Dated this 28th day of January 2026. MATTHEW T. SCHELP UNITED STATES DISTRICT JUDGE Case: 4:25-cv-00132-MTS Doc. #: 257 Filed: 01/28/26 Page: 2 of 2 PageID #: <pageID>
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