Oliver and Company et al v. Zamber et al

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].
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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
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