## Facts

- Dennis Montgomery and the Montgomery Family Trust were members of eTreppid Technologies, LLC; Montgomery previously served in management.
- eTreppid developed and marketed software; the Montgomery Parties claimed ownership of copyrights in software and alleged eTreppid unlawfully used and sublicensed it.
- eTreppid asserted counterclaims alleging Montgomery deleted or destroyed software from company systems and took a complete copy for personal benefit, including alleged trade-secret misappropriation.
- During discovery, the Montgomery Parties sought communications between eTreppid and its attorneys; eTreppid withheld documents asserting attorney–client privilege.
- Montgomery argued he was a “joint client” of company counsel while he was a manager-member, so eTreppid could not withhold privileged communications created during that period.
- eTreppid argued it was the sole client; privilege belonged to the entity and could be asserted or waived only by current management, and Montgomery had been adverse to the company since 2006.
- eTreppid operated under operating agreements reflecting manager and management-committee governance and a corporate-style framework.

## Issues

1. Whether a former manager-member of an LLC is a joint client of LLC counsel such that the LLC cannot assert attorney–client privilege against him for communications created while he was in management.
2. Whether, for privilege purposes, an LLC with corporate-style governance should be treated like a corporation so that current management controls assertion and waiver of the entity’s privilege.
3. What discovery procedures should apply to the LLC’s privilege assertions (e.g., privilege log and potential in camera review).

## Decision

- The court held that eTreppid, as an entity, was the client for attorney–client privilege purposes.
- The court treated eTreppid as corporate-like for privilege analysis based on its governance structure and operating agreements.
- The court ruled that the attorney–client privilege belonged to eTreppid and was controlled by current management, not by a former manager-member now adverse to the company.
- The court rejected Montgomery’s joint-client theory and allowed eTreppid to withhold privileged communications from him.
- The court required eTreppid to provide a privilege log and indicated remaining disputes could be addressed through further briefing and, if necessary, in camera review.

## Legal Principles

- Attorney–client privilege protects confidential client–attorney communications made to obtain legal advice, including legal advice given in response.
- Only the privilege holder may waive the privilege.
- For organizational clients, the entity is the client; the privilege is held and controlled by those who manage the entity at the relevant time (current management in litigation settings).
- An LLC may be analyzed like a corporation for privilege purposes when its governance resembles corporate management structures; former managers or members generally cannot override current management’s privilege decisions, particularly when adverse to the entity.

## Conclusion

The court resolved a discovery dispute by holding that an LLC with corporate-style governance may assert the attorney–client privilege against a former manager-member seeking access to company counsel communications; the privilege belongs to the entity and is controlled by current management, subject to standard discovery safeguards such as a privilege log and potential in camera review.


Montgomery v. eTreppid Techs., LLC, 548 F. Supp. 2d 1175 (D. Nev. 2008)