FILED
NOT FOR PUBLICATION
JAN 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: GERSON IRVING FOX, No. 16-55345
Debtor, D.C. No. 2:16-cv-00522-DMG
------------------------------
MEMORANDUM*
GERSON I. FOX, Individually and as
Trustee of the Gerson and Gertrude Fox
Family Trust; et al.,
Appellants,
v.
ELISSA MILLER, Chapter 7 Trustee,
Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted November 16, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: IKUTA and WATFORD, Circuit Judges,** and GETTLEMAN,*** District
Judge.**
Gerson, Gertrude, and Theodore Fox (the Fox parties) appeal from the
district court’s order denying their emergency motion to stay the bankruptcy
court’s January 14, 2016 order requiring the production of email correspondence
between Ted Fox and his parents’ lawyers, their motion to stay the bankruptcy
court’s order, and their motion for leave to appeal the order. We have jurisdiction
under 28 U.S.C. § 1292(a)(1) because the district court’s order was a denial of a
motion for an injunction.
The Fox parties did not demonstrate a likelihood of success in establishing
that the communications between Theodore Fox and his parents’ law firm on
behalf of his parents were privileged. See Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134
(9th Cir. 2011). Federal law applies to the Fox parties’ claim of privilege in
connection with the Rule 2004 examinations. Cf. United States v. Zolin, 491 U.S.
**
This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Watford was drawn
by lot to replace Judge Kozinski. Ninth Circuit General Order 3.2.h. Judge
Watford has read the briefs, reviewed the record, and listened to the oral argument.
*** The Honorable Robert W. Gettleman, United States District Judge for
the Northern District of Illinois, sitting by designation.
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554, 562 (1989); United States v. Bauer, 132 F.3d 504, 510 n.4 (9th Cir. 1997).
Even if there is a federal representative privilege when the client is “disabled or is
in some unique position requiring another to intervene between the client and
counsel,” and the intervention was “(1) related to the subject matter of the
underlying attorney-client relationship; (2) necessary to effectuate the
representation; and (3) could not have been communicated by the client herself,”
Dynamic Fin. Corp. v. Kipperman (In re N. Plaza, LLC), 395 B.R. 113, 124 (S.D.
Cal. 2008), the Fox parties have not shown it would be applicable here. There was
no evidence that Theodore Fox was necessary to effectuate the representation,
given that the record established that Gerson Fox was able to communicate orally
with counsel and to respond directly in critical legal situations, and his difficulties
extended only to the use of email.
Given the record before the bankruptcy court, there is no likelihood of
success in showing the bankruptcy court erred in ordering production of
communications to which Theodore Fox was a party. The bankruptcy court’s
denial of leave to file supplemental declarations regarding Ted Fox’s role as an
intermediary was not an abuse of discretion. See Johnson v. Neilson (In re
Slatkin), 525 F.3d 805, 810–11 (9th Cir. 2008).
AFFIRMED.
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