MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	166	
Docket:	   BCD-15-363	
Argued:	   May	4,	2016	
Decided:	  November	8,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               HARRIS	MANAGEMENT,	INC.,	et	al.	
                                            	
                                           v.	
                                            	
                                   PAUL	COULOMBE	et	al.	
	
	
SAUFLEY,	C.J.	

         [¶1]	 	 Paul	 Coulombe	 and	 two	 LLCs	 under	 his	 control—PGC1,	 LLC,	 and	

PGC2,	 LLC1—appeal	 from	 discovery	 orders	 entered	 in	 the	 Business	 and	

Consumer	 Docket	 (Murphy,	 J.)	 that	 required	 the	 disclosure	 of	 specific	

communications	 over	 the	 assertion	 that	 those	 communications	 were	

protected	by	the	attorney-client	privilege.		Coulombe	contends	that	the	court	

erred	 in	 determining	 that	 (A)	 Coulombe’s	 communications	 with	 his	 attorney	

that	 included	 a	 third	 party	 were	 not	 privileged	 and	 (B)	 the	 crime-fraud	

exception	 to	 the	 attorney-client	 privilege	 applied	 to	 allow	 the	 disclosure	 of	

other	 communications	 between	 Coulombe	 and	 counsel.	 	 We	 affirm	 the	




    1	 	 According	 to	 the	 complaint,	 TPI,	 LLC,	 is	 the	 sole	 member	 of	 PGC1	 and	 PGC2,	 and	 the	 sole	

member	of	TPI	is	the	Paul	G.	Coulombe	Trust,	of	which	Coulombe	is	a	trustee	and	beneficiary.	
2	

judgment	 except	 with	 respect	 to	 one	 communication	 that	 we	 conclude	 the	

trial	court	must	consider	further	on	remand.	

                                        I.		BACKGROUND	

	        [¶2]		In	January	2014,	Harris	Management,	Inc.,	and	JJR	Associates,	LLC	

(collectively,	“Harris”),	filed	a	complaint	against	Coulombe,	PGC1,	and	PGC2	in	

the	 Superior	 Court	 (Sagadahoc	 County).	 	 Although	 Coulombe	 and	 his	 LLCs	

removed	the	case	to	federal	court	based	on	diversity	jurisdiction,	the	United	

States	 District	 Court	 for	 the	 District	 of	 Maine	 (Singal,	 J.)	 concluded	 that	

diversity	was	lacking	and	granted	Harris’s	motion	to	remand	the	matter	to	the	

Superior	 Court.	 	 The	 parties	 then	 successfully	 applied	 to	 have	 the	 case	

transferred	to	the	Business	and	Consumer	Docket.			

	        [¶3]	 	 As	 amended	 effective	 March	 11,	 2015,	 Harris’s	 complaint	 alleged	

seven	 causes	 of	 action	 arising	 primarily	 from	 allegations	 that,	 in	 January,	

February,	and	March	2013,	Coulombe	had	misrepresented	his	commitment	to	

hire	Harris	Management,	owned	and	operated	by	Jeffrey	Harris,	to	manage	the	

golf	course	at	the	Boothbay	Country	Club,	which	Coulombe	was	preparing	to	

purchase	 at	 auction.	 	 Harris	 alleged	 that	 Coulombe	 made	 these	

misrepresentations	in	an	effort	to	obtain	nearby	property	from	JJR	Associates2	


     2		According	to	the	complaint,	JJR	Associates	has	three	members—Jeffrey	Harris,	his	brother,	and	

his	father.	
                                                                                         3	

at	 a	 discount,	 to	 prevent	 Harris	 from	 purchasing	 the	 Club	 itself,	 and	 to	 have	

Harris	assist	in	initially	setting	up	the	golf	course.		Harris	alleged	the	following	

causes	of	action:	(I)	fraudulent	inducement,	(II)	fraudulent	misrepresentation,	

(III)	negligent	 misrepresentation,	 (IV)	 breach	 of	 contract,	 (V)	 promissory	

estoppel,	(VI)	unjust	enrichment,	and	(VII)	quantum	meruit.			

      [¶4]		Relevant	here,	Harris	alleged	that	Coulombe,	with	assistance	from	

his	 attorneys,	 Hawley	 Strait	 and	 John	 Carpenter,	 was	 secretly	 seeking	 a	

different	golf	course	manager	while	Coulombe	was	simultaneously	reassuring	

Harris	that	Harris	was	to	manage	the	golf	course.		Harris	alleged	that	it	did	not	

learn	 until	 March	 2013—after	 ceasing	 independent	 efforts	 to	 purchase	 the	

Club,	selling	nearby	JJR	property	to	Coulombe	at	a	discount,	and	beginning	to	

manage	 Coulombe’s	 golf	 course	 after	 Coulombe	 purchased	 the	 Club—that	

someone	else,	Dan	Hourihan,	would	be	hired	as	the	manager	of	the	course.	

	     [¶5]	 	 In	 April	 2015,	 the	 parties	 provided	 notices	 to	 the	 court	 of	

discovery	 disputes	 that	 required	 court	 resolution.	 	 The	 court	 (Murphy,	 J.)	

requested	 memoranda	 on	 the	 issue	 now	 on	 appeal—the	 applicability	 of	 the	

attorney-client	 privilege,	 see	 M.R.	 Evid.	 502,	 to	 Coulombe’s	 communications	

with	 his	 attorneys,	 some	 of	 which	 also	 included	 Coulombe’s	 business	

associates.	 	 One	 such	 business	 associate	 was	 John	 Suczynski,	 a	 previous	
4	

long-time	 employee	 of	 Coulombe’s	 former	 company	 who	 was	 later	 hired	 by	

PGC2	 to	 be	 the	 general	 manager	 of	 the	 new	 Club.	 	 The	 parties	 filed	

memoranda	with	voluminous	exhibits.			

	     [¶6]		Harris	argued	that	it	was	entitled	to	discover	the	communications	

because	 the	 crime-fraud	 exception	 to	 attorney-client	 privilege	 applied.	 	 See	

M.R.	Evid.	502(d)(1).		Harris	further	argued	that	Coulombe’s	communications	

involving	 both	 counsel	 and	 Suczynski	 were	 not	 privileged	 because	 the	

inclusion	of	Suczynski,	who	was	not	a	representative	of	Coulombe	during	the	

relevant	time,	destroyed	the	privilege.			

	     [¶7]	 	 Coulombe	 and	 his	 LLCs	 argued	 that	 the	 crime-fraud	 exception	

cannot	apply	because	Harris	failed	to	establish	a	necessary	element	of	fraud—

that	 Harris,	 led	 by	 an	 experienced	 businessperson	 who	 had	 the	 advice	 of	

counsel,	 justifiably	 relied	 on	 Coulombe’s	 representations.	 	 Coulombe	 and	 the	

LLCs	 further	 argued	 that	 the	 communications	 involving	 Suczynski	 were	

privileged	 because	 Suczynski	 was	 a	 representative	 of	 Coulombe	 or	 his	

businesses	in	speaking	with	counsel.			

      [¶8]	 	 The	 parties’	 exhibits	 included	 an	 affidavit	 from	 Coulombe	

explaining	 Suczynski’s	 role	 in	 working	 with	 and	 for	 Coulombe;	 the	 parties’	

privilege	logs;	and	some	communications	among	Coulombe,	Harris,	Suczynski,	
                                                                                         5	

Hourihan,	 Carpenter,	 Strait,	 and	 Stephen	 Malcom,	 the	 president	 of	 the	

Knickerbocker	Group—an	architecture	and	construction	firm	alleged	to	have	

done	 business	 with	 Coulombe—from	 before	 and	 after	 Coulombe	 purchased	

the	Club.	

	     [¶9]		The	court	entered	an	order	on	July	1,	2015,	providing,	in	relevant	

part,	 that	 Coulombe	 must	 permit	 Harris	 to	 discover	 the	 communications	

among	Coulombe,	his	counsel,	and	Suczynski.		The	court	found	that,	although	

Coulombe	and	Suczynski	had	worked	together	for	many	years,	“Suczynski	did	

not	become	involved	with	Coulombe’s	golf	course	deal	until	March	of	2013,”	

with	 his	 role	 becoming	 much	 more	 clear	 after	 the	 terms	 of	 his	 employment	

were	negotiated	on	March	14,	2013.		The	court	found	that,	because	no	terms	

of	employment	had	been	decided	before	that	date,	and	because	there	was	no	

other	evidence	that	Suczynski	had	authority	before	March	14,	2013,	to	make	

decisions	 as	 a	 representative	 of	 Coulombe	 or	 his	 companies,	 the	

communications	 among	 Coulombe,	 Suczynski,	 and	 Coulombe’s	 attorneys	

before	 that	 date	 were	 not	 subject	 to	 the	 attorney-client	 privilege.	 	 The	 court	

ordered	 that	 other	 communications	 that	 were	 solely	 between	 Coulombe	 and	

his	counsel,	identified	as	privileged,	would	be	reviewed	in	camera.			
6	

         [¶10]		In	early	September	2015,	the	court	ruled	that	specified	items	that	

it	 had	 reviewed	 in	 camera	 were	 discoverable	 because	 the	 crime-fraud	

exception	 to	 the	 attorney-client	 privilege	 applied.	 	 Exercising	 caution	

regarding	 the	 release	 of	 those	 documents	 pending	 the	 possibility	 of	 appeal,	

the	 court	 noted	 that	 it	 was	 “reluctant	 to	 make	 specific	 reference	 to	 the	

documents”	 that	 persuaded	 it	 of	 the	 exception’s	 applicability	 because	 of	 the	

possibility	 that	 Coulombe	 and	 his	 LLCs	would	 appeal	 before	 disclosure.	 	 The	

court	 found	 that	 the	 crime-fraud	 exception	 applied	 because	 there	 was	

sufficient	 evidence	 that	 (a)	Coulombe	 had	 intentionally	 kept	 his	 plans	 for	

management	 secret	 from	 Harris	 until	 he	 had	 completed	 transactions	 that	

benefitted	 Coulombe	 and	 were	 detrimental	 to	 Harris,	 and	 (b)	 the	

attorney-client	communications	at	issue	were	intended	to	facilitate	or	conceal	

this	activity.			

         [¶11]	 	 Coulombe	 appeals	 from	 both	 of	 the	 court’s	 decisions	 requiring	

the	disclosure	of	communications.3			




     3		Although	Harris	argues	that	the	appeal	from	the	July	2015	order	should	be	dismissed	because	

no	 final	 judgment	 has	 been	 entered,	 we	 consider	 the	 interlocutory	 appeal	 because	 the	 order	
requiring	the	disclosure	of	potentially	privileged	information	here	produces	“a	result	that	cannot	be	
undone	on	direct	appeal	following	a	final	judgment,”	and	therefore	the	death	knell	exception	to	the	
final	judgment	rule	applies.		In	re	Motion	to	Quash	Bar	Counsel	Subpoena,	2009	ME	104,	¶	11,	982	
A.2d	330.	
   	
                                                                                                             7	

                                            II.		DISCUSSION	

        [¶12]		The	issues	raised	on	appeal	are:	(A)	whether	Coulombe	made	the	

necessary	showing	that	Suczynski	was	a	“representative”	of	him	or	one	of	the	

LLCs	 such	 that	 the	 attorney-client	 privilege	 remained	 intact	 despite	

Suczynski’s	inclusion	in	communications,	and	(B)	the	extent	to	which	proof	of	

the	elements	of	fraud	is	necessary	for	the	fraud	component	of	the	crime-fraud	

exception	 to	 apply.	 	 These	 issues	 require	 us	 to	 review	 the	 court’s	 factual	

findings	 as	 well	 as	 its	 interpretation	 of	 legal	 standards,	 see	 In	 re	 Motion	 to	

Quash	 Bar	 Counsel	 Subpoena,	 2009	 ME	 104,	 ¶¶	 18-20,	 982	 A.2d	 330,	 and	 to	

review	 the	 “court’s	 determination	 of	 whether	 the	 crime-fraud	 exception	

applies	to	disputed	documents	for	an	abuse	of	discretion,”	Bd.	of	Overseers	of	

the	 Bar	 v.	Warren,	 2011	 ME	 124,	 ¶	 23,	 34	 A.3d	 1103.	 	 We	 review	 the	 legal	

issues	 regarding	 the	 nature	 and	 scope	 of	 the	 privilege	 and	 the	 crime-fraud	

exception	 de	 novo	 and	 review	 the	 factual	 findings	 for	 clear	 error.4	 	 See	 In	 re	

Motion	to	Quash	Bar	Counsel	Subpoena,	2009	ME	104,	¶	20,	982	A.2d	330.		“A	

finding	 of	 fact	 is	 clearly	 erroneous	 if	 there	 is	 no	 competent	 evidence	 in	 the	

record	 to	 support	 it;	 if	 the	 fact-finder	 clearly	 misapprehends	 the	 meaning	 of	

the	 evidence;	 or	 if	 the	 finding	 is	 so	 contrary	 to	 the	 credible	 evidence	 that	 it	

   4		Because	there	is	no	final	judgment,	a	motion	for	findings	of	fact	and	conclusions	of	law	was	not	

necessary	 to	 prevent	 the	 assumption	 of	 all	 necessary	 findings	 that	 have	 evidentiary	 support.	 	 See	
M.R.	Civ.	P.	52;	cf.	Lyons	v.	Baptist	Sch.	of	Christian	Training,	2002	ME	137,	¶	13,	804	A.2d	364.	
8	

does	not	represent	the	truth	and	right	of	the	case.”		Young	v.	Lagasse,	2016	ME	

96,	¶	8,	143	A.3d	131	(quotation	marks	omitted).	

       [¶13]		“[W]hen	the	party	with	the	burden	of	proof	is	appealing	.	.	.	the	

appellant	must	show	that	the	evidence	compels	a	contrary	finding.”		Id.		Here,	

Coulombe	and	his	LLCs	bore	the	burden	of	establishing	the	applicability	of	the	

privilege	by	a	preponderance	of	the	evidence.		See	Pierce	v.	Grove	Mfg.	Co.,	576	

A.2d	196,	199	(Me.	1990);	see	also	MapleWood	Partners,	L.P.	v.	Indian	Harbor	

Ins.	 Co.,	 295	 F.R.D.	 550,	 592	 (S.D.	 Fla.	 2013);	 PSE	 Consulting,	 Inc.	 v.	 Frank	

Mercede	&	Sons,	Inc.,	838	A.2d	135,	167	(Conn.	2004).		Harris,	in	turn,	bore	the	

burden	 of	 establishing	 the	 applicability	 of	 the	 crime-fraud	 exception	 to	 the	

attorney-client	privilege	by	a	preponderance	of	the	evidence.		See	In	re	Motion	

to	Quash	Bar	Counsel	Subpoena,	2009	ME	104,	¶	19,	982	A.2d	330.	

A.	    Attorney-Client	Privilege	and	Communications	Involving	a	Third	Party	

	      [¶14]	 	 We	 are	 guided	 in	 our	 analysis	 by	 the	 language	 and	 purpose	 of	

Rule	 502.	 	 “A	 client	 has	 a	 privilege	 to	 refuse	 to	 disclose,	 and	 to	 prevent	 any	

other	person	from	disclosing,	the	contents	of	any	confidential	communication	

[b]etween	 the	 client	 or	 client’s	 representative	 and	 the	 client’s	 lawyer	 .	 .	 .	 .”		

M.R.	Evid.	502(b)(1).		For	purposes	of	M.R.	Evid.	502,	a	“‘representative	of	the	

client’	 is	 a	 person	 who	 has	 authority	 on	 behalf	 of	 the	 client	 to:	 (A)	 Obtain	
                                                                                                                 9	

professional	 legal	 services;	 or	 (B)	Act	 on	 advice	 rendered	 as	 part	 of	

professional	 legal	 services.”	 	 M.R.	 Evid.	 502(a)(2).	 	 We	 discuss	 the	 legal	

meaning	 of	 the	 term	 “representative	 of	 the	 client”	 and	 the	 court’s	 findings	

about	Suczynski.	

         1.       What	Is	a	“Representative	of	the	Client”?	

	        [¶15]	 	 Coulombe	 argues	 that	 communications	 in	 which	 his	 attorney	

included	Suczynski	are	privileged	because	Suczynski	was	an	employee	and	a	

representative	 of	 Coulombe	 and	 his	 LLCs,	 and	 therefore	 the	 attorney-client	

seal	was	not	broken.		The	Advisers’	Note	to	former	M.R.	Evid.	502	(February	2,	

1976)5	provides	that,	to	be	a	“representative”	of	a	client,	a	person	must	be	in	

the	“control	group”	of	the	client:	

           Subsection	 (a)(2)	 defines	 “representative	 of	 the	 client”	 as	
    one	having	authority	to	obtain	legal	services	and	to	act	on	advice	
    rendered	 pursuant	 thereto	 on	 behalf	 of	 the	 client.	 	 This	 is	 an	
    adoption	 of	 the	 so-called	 “control	 group”	 test.	 	 It	 narrows	 the	
    privilege,	 confining	 it	 to	 communications	 by	 persons	 of	 sufficient	
    authority	 to	 make	 decisions	 for	 the	 client.	 	 It	 would	 not	 protect	
    communications	from	lower-level	employees	to	lawyers	to	enable	
    them	to	advise	a	decision-making	superior.	
    	
(Emphasis	added.)		After	considering	whether	to	abandon	the	“control	group”	

test	following	the	decision	of	the	Supreme	Court	of	the	United	States	in	Upjohn	



    5	 	 The	 Maine	 Rules	 of	 Evidence	 were	 restyled	 effective	 January	 1,	 2015.	 	 The	 restyling	 did	 not	

affect	the	meaning	of	M.R.	Evid.	502.		See	M.R.	Evid.	502,	Maine	Restyling	Note	(November	2014).	
10	

Co.	 v.	 United	 States,	 449	 U.S.	 383	 (1981),6	 the	 Advisory	 Committee	 on	 the	

Maine	 Rules	 of	 Evidence	 “recommended	 retention	 of	 the	 control	 group	 test	

without	 change.”	 	 M.R.	 Evid.	 502,	 Advisory	 Committee	 Note	 (Feb.	 1,	 1983).		

The	 still-applicable	 control	 group	 test	 therefore	 includes	 as	 corporate	

representatives	 only	 “those	 officers,	 usually	 top	 management,	 who	 play	 a	

substantial	 role	 in	 deciding	 and	 directing	 the	 corporation’s	 response	 to	 the	

legal	advice	given,”	United	States	v.	Upjohn	Co.,	600	F.2d	1223,	1226	(6th	Cir.	

1979),	 rev’d,	 449	 U.S.	 383,	 and	 other	 individuals	 who	 have	 “sufficient	

authority	to	make	decisions	for	the	client,”	Advisers’	Note	to	former	M.R.	Evid.	

502	(Feb.	2,	1976).	

       2.      Findings	Regarding	Suczynski’s	Role	

       [¶16]	 	 According	to	 Coulombe’s	 affidavit,	 Suczynski’s	 role	 with	 respect	

to	Coulombe	and	his	LLCs	was	initially	as	“a	trusted	advisor”	and	later	as	the	

general	manager	of	the	Club.		Coulombe	authorized	Suczynski	to	speak	to	his	

lawyers,	 and	 Suczynski	 “in	 many	 instances	 was	 authorized	 to	 act	 on	

[Coulombe’s]	 behalf	 with	 respect	 to	 information	 and	 advice	 received	 from	



   6		The	Court	held	that	the	attorney-client	privilege	set	forth	in	the	Federal	Rules	of	Evidence	may	

extend	 to	 communications	 with	 counsel	 by	 corporate	 employees	 outside	 the	 “control	 group”	 of	
people	who	play	a	substantial	role	in	deciding	and	directing	the	corporate	response	to	legal	advice.		
Upjohn	Co.	v.	United	States,	449	U.S.	383,	395-97	(1981).		Thus,	federal	courts	must	determine,	on	a	
case-by-case	basis,	whether	the	privilege	extends	to	specific	internal	communications	with	counsel,	
which	may	have	taken	place	at	the	direction	of	corporate	superiors.		Id.	at	396-97.	
                                                                                       11	

[Coulombe’s]	lawyers.”		Suczynski	also	“participate[d]	in	the	decision-making	

regarding	 the	 golf	 course.”	 	 The	 affidavit	 did	 not	 specify	 what	 matters	

Suczynski	had	been	authorized	to	act	on	or	indicate	when	or	how	Coulombe	

had	given	him	such	authorization.	

      [¶17]	 	 As	 the	 court	 found,	 there	 is	 no	 evidence	 that,	 before	 March	 14,	

2013,	Suczynski	had	been	expressly	hired	by	Coulombe	or	either	LLC,	or	was	a	

member	of	either	LLC.		The	affidavit	submitted	does	not	demonstrate	that	he	

undertook	 or	 directed	 any	 specific	 action	 on	 behalf	 of	 either	 LLC.	 	 Given	 the	

limited	facts	set	forth	in	Coulombe’s	conclusory	affidavit,	the	court	did	not	err	

in	determining	 that	 Coulombe	had	 failed	 to	 establish,	 by	 a	 preponderance	of	

the	 evidence,	 the	 existence	 of	 a	 privilege	 for	 communications	 that	 included	

Suczynski	 before	 Suczynski	 was	 hired	 as	 manager	 of	 the	 Club	 on	 March	 14,	

2013.		See	M.R.	Evid.	502(a)(2).		The	court	was	not	compelled	to	find,	for	that	

initial	 period	 of	 time,	 that	 Suczynski	 was	 Coulombe’s	 legally	 authorized	

personal	representative,	imbued	with	the	authority	to	make	decisions	related	

to	 Coulombe’s	 legal	 services,	 or	 that	 Suczynski	 was	 in	 the	 “control	 group”	 of	

either	 of	 Coulombe’s	 LLCs.	 	 See	 id.;	 Advisers’	 Note	 to	 former	 M.R.	 Evid.	 502	

(Feb.	2,	1976).	
12	

B.	    Necessity	to	Prove	the	Elements	of	Fraud	for	the	Fraud	Exception	to	the	
       Attorney-Client	Privilege	to	Apply	
	
	      [¶18]	 	 We	 turn	 then	 to	 the	 application	 of	 the	 crime-fraud	 exception.		

Preliminarily,	 we	 note	 that	 the	 process	 employed	 by	 the	 court	 to	 assess	 the	

applicability	 of	 the	 crime-fraud	 exception	 was	 prompt	 and	 effective.	 	 The	

parties	do	not	dispute	the	process	or	the	propriety	of	the	court’s	decision	to	

undertake	in	camera	review	 of	attorney-client	communications	based	on	the	

evidence	 presented,	 which	 met	 the	 standard	 of	 establishing	 a	 “reasonable	

belief	 that	 in	 camera	 review	 may	 yield	 evidence	 that	 establishes	 the	 [crime-

fraud]	 exception’s	 applicability.”	 	 United	 States	 v.	 Zolin,	 491	 U.S.	 554,	 574-75	

(1989).			

       [¶19]	 	 Rather,	 the	 argument	 on	 appeal	 concerns	 whether	 the	 court	

erred	 in	 its	 substantive	 application	 of	 the	 law	 in	 ordering	 disclosure	 after	 in	

camera	review.		Specifically,	Coulombe	and	his	LLCs	argue	that	all	elements	of	

fraud	 must	 be	 present—and	 established	 by	 a	 preponderance	 of	 the	

evidence—for	 the	 crime-fraud	 exception	 to	 apply,	 and	 that	 the	 evidence	 is	

insufficient	to	show	that	Harris’s	reliance	on	Coulombe’s	representations	was	

justifiable.			
                                                                                         13	

	      [¶20]	 	 We	 first	 summarize	 the	 existing	 law	 of	 attorney-client	 privilege	

and	 the	 crime-fraud	 exception	 to	 the	 privilege,	 and	 next	 review	 the	

applicability	of	the	exception	in	the	matter	before	us.	

       1.	    Law	of	Attorney-Client	Privilege	

	      [¶21]	 	 The	 attorney-client	 privilege	 is	 a	 venerable	 privilege,	 well	

established	 in	 the	 law	 and	 available	 to	 individuals,	 corporations,	 and	 other	

entities.		See	M.R.	Evid.	502(a)(1);	In	re	Motion	to	Quash	Bar	Counsel	Subpoena,	

2009	 ME	 104,	 ¶	 13,	 982	 A.2d	 330.	 	 When	 relied	 on	 by	 businesspeople	 and	

corporate	 entities,	 the	 privilege	 serves	 the	 public	 benefit	 of	 encouraging	 full	

and	 candid	 communication	 with	 counsel,	 and	 enabling	 compliance	 with	

business-related	 laws	 and	 regulations.	 	 See	 In	 re	 Regents	 of	 Univ.	 of	 Cal.,	 101	

F.3d	1386,	1390-91	(Fed.	Cir.	1996).	

       [¶22]		“The	attorney-client	privilege	.	.	.	is	the	oldest	of	the	privileges	for	

confidential	 communications	 known	 to	 the	 common	 law.”	 	 In	 re	 Motion	 to	

Quash	 Bar	 Counsel	 Subpoena,	 2009	 ME	 104,	 ¶	 13,	 982	 A.2d	 330	 (quotation	

marks	 omitted).	 	 The	 privilege	 is	 designed	 “to	 encourage	 full	 and	 frank	

communication	 between	 attorneys	 and	 their	 clients	 and	 thereby	 promote	

broader	 public	 interests	 in	 the	 observance	 of	 law	 and	 administration	 of	

justice.”		Id.	(quotation	marks	omitted).		“To	fulfill	that	purpose,	clients	must	
14	

be	 free	 to	 make	 full	 disclosure	 to	 their	 attorneys	 of	 past	 wrongdoings.”	 	 Id.	

(quotation	marks	omitted).		This	salutary	purpose	is	critical.	

       [¶23]	 	 The	 public	 policies	 served	 by	 the	 attorney-client	 privilege	 must	

be	 counterbalanced,	 however,	 with	 the	 “broader	 public	 interests	 in	 the	

observance	 of	 law	 and	 administration	 of	 justice”	 served	 by	 the	 crime-fraud	

exception	to	the	attorney-client	privilege.		Id.	¶	14	(quotation	marks	omitted).		

That	exception	allows	the	disclosure	of	otherwise	privileged	communications	

by	 a	 party	 who	 consults	 with	 an	 attorney	 in	 order	 to	 facilitate	 the	 party’s	

commission	or	concealment	of	“ongoing	or	future	wrongdoing.”		Id.	

       [¶24]		The	party	asserting	the	existence	of	the	attorney-client	privilege	

has	the	initial	burden	of	demonstrating	its	applicability.		See	Pierce,	576	A.2d	

at	199.		An	opposing	party	seeking	to	show	that	the	crime-fraud	exception	to	

the	 attorney-client	 privilege	 applies	 then	 has	 the	 burden	 to	 prove,	 by	 a	

preponderance	 of	 the	 evidence,	 that	 (1)	 “the	 client	 was	 engaged	 in	 (or	 was	

planning)	 criminal	 or	 fraudulent	 activity	 when	 the	 attorney-client	

communications	 took	 place”	 and	 (2)	 “the	 communications	 were	 intended	 by	

the	 client	 to	 facilitate	 or	 conceal	 the	 criminal	 or	 fraudulent	 activity.”	 	 In	 re	

Motion	to	Quash	Bar	Counsel	Subpoena,	2009	ME	104,	¶¶	18,	19,	982	A.2d	330	

(quotation	marks	omitted).		When	these	elements	are	met,	the	exception	will	
                                                                                                            15	

apply	whether	or	not	the	attorney	is	aware	of	the	client’s	purpose	to	use	the	

attorney	in	furtherance	of	a	fraud.		See	id.	¶	17.		The	focus	of	the	inquiry	is	on	

the	actions	and	motivations	of	the	client.		Id.	

         2.	     Applicability	of	the	Crime-Fraud	Exception	

	        [¶25]	 	 To	 analyze	 the	 issues	 that	 Coulombe	 raises	 with	 respect	 to	 the	

crime-fraud	 exception,	 we	 (a)	 review	 de	 novo	 the	 legal	 question	 of	 whether	

every	 element	 of	 a	 completed	 fraud	 must	 be	 demonstrated	 for	 “fraudulent	

activity”	 to	 have	 been	 engaged	 in	 or	 planned,	 and	 (b)	 review	 for	 clear	 error	

the	 court’s	 findings	 of	 fact	 regarding	 the	 elements	 of	 the	 crime-fraud	

exception	 and	 determine	 whether	 the	 court	 abused	 its	 discretion	 in	 its	

ultimate	order	requiring	disclosure.	

                 a.	     Extent	of	Proof	of	Elements	of	Fraud	

         [¶26]		Before	reviewing	the	court’s	actions,	we	must	determine	whether	

a	party	seeking	the	application	of	the	crime-fraud	exception	is	legally	required	

to	 establish	 actual,	 justifiable	 reliance	 on	 the	 client’s	 representations.7		


    7	
    	 To	 prevail	 in	 a	 cause	 of	 action	 for	 fraud,	 a	 party	 must	 prove	 five	 elements	 by	 clear	 and	
convincing	evidence:	
           	
       (1)	A	party	made	a	false	representation,	
       	
       (2)	The	representation	was	of	a	material	fact,	
       	
       (3)	 The	 representation	 was	 made	 with	 knowledge	 of	 its	 falsity	 or	 in	 reckless	
       disregard	of	whether	it	was	true	or	false,	
16	

Neither	 we	 nor	 the	 courts	 of	 Massachusetts—the	 other	 jurisdiction	 that	

applies	 the	 standard	 of	 proof	 by	 a	 preponderance	 of	 the	 evidence	 for	 the	

crime-fraud	exception	to	apply,	see	In	re	A	Grand	Jury	Investigation,	772	N.E.2d	

9,	21-22	(Mass.	2002)	(citing	Purcell	v.	Dist.	Attorney	for	the	Suffolk	Dist.,	676	

N.E.2d	 436,	 439	 (Mass.	 1997))—have	 directly	 addressed	 this	 issue.	 	 Other	

jurisdictions,	however,	that	require	only	a	prima	facie	showing	that	the	crime-

fraud	 exception	 applies,	 have	 addressed	 the	 question.8	 	 For	 instance,	 the	

United	States	Court	of	Appeals	for	the	D.C.	Circuit	has	held	that	a	prima	facie	

showing	 of	 misconduct—not	 full	 proof	 of	 a	 realized	 crime	 or	 fraud—is	

contemplated	 for	 overcoming	 the	 privilege:	 “Communications	 otherwise	

protected	 by	 the	 attorney-client	 privilege	 are	 not	 protected	 if	 the	

communications	 are	 made	 in	 furtherance	 of	 a	 crime,	 fraud,	 or	 other	


        	
        (4)	The	representation	was	made	for	the	purpose	of	inducing	another	party	to	act	in	
        reliance	upon	it,	and	
        	
        (5)	The	other	party	justifiably	relied	upon	the	representation	as	true	and	acted	upon	
        it	to	the	party’s	damage.	
	
Barr	v.	Dyke,	2012	ME	108,	¶	16,	49	A.3d	1280	(emphasis	omitted).	
	
   8	 	 See,	 e.g.,	 In	 re	 Berkley	 &	 Co.,	 629	 F.2d	 548,	 553	 (8th	 Cir.	 1980)	 (holding	 that	 prima	 facie	

evidence	 of	 a	 realized	 crime	 or	 fraud	 is	 not	 necessary	 to	 overcome	 the	 privilege);	 see	 also	 In	 re	
Grand	 Jury	 Subpoena	 Duces	 Tecum,	 731	 F.2d	 1032,	 1039	 (2d	 Cir.	 1984)	 (holding	 that	 “the	 client	
need	 not	 have	 succeeded	 in	 his	 criminal	 or	 fraudulent	 scheme	 for	 the	 exception	 to	 apply”);	 In	 re	
USA	 Waste	 Mgmt.	 Res.,	 L.L.C.,	 387	 S.W.3d	 92,	 98	 (Tex.	 App.	 2012)	 (“A	 party	 who	 asserts	 the	
crime/fraud	exception	must	show:	(1)	a	prima	facie	case	of	the	 contemplated	crime	or	fraud;	and	
(2)	a	nexus	between	the	communications	at	issue	and	the	crime	or	fraud.”	(emphasis	added)).	
   	
                                                                                                        17	

misconduct.”		In	re	Sealed	Case,	754	F.2d	395,	399	(D.C.	Cir.	1985)	(emphasis	

added).	 	 The	 court	 held	 that	 a	 party	 asserting	 the	 exception	 must	 provide	

“evidence	that	if	believed	by	the	trier	of	fact	would	establish	the	elements	of	

an	 ongoing	 or	 imminent	 crime	 or	 fraud,”	 without	 the	 requirement	 that	 the	

party	prove	all	elements	of	a	completed	crime	or	fraud.		Id.	

        [¶27]		The	Supreme	Court	of	Alaska	similarly	“decline[d]	to	accept	[the]	

argument	 that	 ‘crime	 or	 fraud’	 should	 be	 narrowly	 defined,	 and	 h[e]ld	 that	

services	sought	by	a	client	from	an	attorney	in	aid	of	any	crime	or	a	bad	faith	

breach	 of	 a	 duty	 are	 not	 protected	 by	 the	 attorney-client	 privilege.”	 	 Cent.	

Constr.	 Co.	 v.	 Home	 Indem.	 Co.,	 794	 P.2d	 595,	 598	 (Alaska	 1990)	 (emphasis	

omitted).		“Deception	and	deceit	in	any	form	universally	connote	fraud.		Public	

policy	demands	that	the	fraud	exception	to	the	attorney-client	privilege	.	.	.	be	

given	the	broadest	interpretation.”		Id.	(quotation	marks	omitted).		“The	policy	

of	 promoting	 the	 administration	 of	 justice	 would	 not	 be	 well	 served	 by	

permitting	 services	 sought	 in	 aid	 of	 misconduct	 to	 be	 cloaked	 in	 the	

attorney-client	privilege.”		Id.9	



   9		See	also	Official	Comm.	of	Unsecured	Creditors	of	St.	Johnsbury	Trucking	Co.	v.	Bankers	Tr.	Co.	(In	

re	St.	Johnsbury	Trucking	Co.),	184	B.R.	446,	456	(Bankr.	D.	Vt.	1995)	(“Precedent	and	authority	also	
recognize	that	not	just	technical	crimes	or	frauds	are	excluded	from	the	attorney-client	privilege.	.	.	.	
[C]ommunications	 in	 furtherance	 of	 some	 sufficiently	 malignant	 purpose	 will	 not	 be	 protected.”);	
Fellerman	 v.	 Bradley,	 493	 A.2d	 1239,	 1245	 (N.J.	 1985)	 (giving	 the	 term	 “fraud”	 an	 “expansive	
reading”);	Volcanic	Gardens	Mgmt.	Co.	v.	Paxson,	847	S.W.2d	343,	347	(Tex.	App.	1993)	(“[A]lthough	
18	

	       [¶28]		In	this	context,	fraud	must	be	understood	broadly	“as	[a]	generic	

term,	 embracing	 all	 multifarious	 means	 which	 human	 ingenuity	 can	 devise,	

and	which	are	resorted	to	by	one	individual	to	get	advantage	over	another	by	

false	 suggestions	 or	 by	 suppression	 of	 truth,	 and	 includes	 all	 surprise,	 trick,	

cunning	 dissembling,	 and	 any	 unfair	 way	 by	 which	 another	 is	 cheated.”		

Volcanic	 Gardens	 Mgmt.	 Co.	 v.	 Paxson,	 847	 S.W.2d	 343,	 347	 (Tex.	 App.	 1993)	

(quotation	marks	omitted).10		“From	early	on	in	speaking	of	the	crime/fraud	

exception,	 courts	 did	 not	 and	 still	 do	 not	 limit	 the	 exception	 to	 prosecutable	

crimes	 or	 to	 criminal	 and	 civil	 frauds,”	 I	 Edna	 Selan	 Epstein,	 Attorney-Client	

Privilege	and		the	Work-Product	Doctrine	§	1.V.B.13	(5th	ed.	2012),	and	“there	

has	 been	 a	 gradual,	 but	 steady	 expansion	 of	 the	 scope	 of	 the	 exception,”	

Edward	J.	Imwinkelried,	The	New	Wigmore:	Evidentiary	Privileges	§	6.13.2.d.1	

at	 966	 (2002);	 see	 also	 I	 Epstein	 §	1.V.B.13	 (“[T]here	 is	 no	 doubt	 that	 courts	

are	 recognizing	 a	 wider	 range	 of	 improper	 behavior”	 that	 will	 “vitiate	 the	

availability	of	the	attorney-client	privilege.”).	


the	‘fraud’	referred	to	in	the	exception	certainly	includes	common	law	fraud	and	criminal	fraud,	it	is	
much	broader	than	that.”	(footnote	omitted)).	
    	
    10	 	 Some	 courts	 have	 applied	 a	 stricter	 interpretation	 of	 the	 crime-fraud	 exception	 in	 patent	

infringement	cases,	reasoning	that	each	of	the	elements	“must	be	established	by	at	least	prima	facie	
evidence,”	Union	Carbide	Corp.	v.	Dow	Chem.	Co.,	619	F.	Supp.	1036,	1052	(D.	Del.	1985)—a	standard	
of	 proof	 that	 differs	 from	 ours.	 	 See	 also	 Research	 Corp.	 v.	 Gourmet’s	 Delight	 Mushroom	 Co.,	 560	
F.	Supp.	 811,	 820	 (E.D.	 Pa.	 1983)	 (requiring,	 in	 a	 patent	 infringement	 case,	 a	 showing	 of	 a	 prima	
facie	 case	 of	 fraud	 because	 “for	 the	 privilege	 to	 take	 flight,	 unlawful	 conduct,	 not	 mere	 inequity,	
must	be	demonstrated.”).	
                                                                                                        19	

	       [¶29]	 	 Ultimately,	 in	 determining	 what	 must	 be	 proved	 for	 the	

crime-fraud	exception	to	apply	in	Maine,	we	must	balance	the	need	for	clients	

to	 have	 the	 protection	 of	 privileged	 communications	 with	 their	 attorneys	 in	

order	 to	 obtain	 effective	 representation	 regarding	 current	 legal	 concerns	 or	

any	past	wrongdoing,	against	the	need	to	prevent	attorneys	in	the	honorable	

practice	of	law	from	being	used	to	perpetrate	ongoing	or	future	wrongdoing.		

Striking	 the	 proper	 balance	 is	 critical	 in	 assuring	 that	 attorneys	 can	 serve	

their	clients	effectively	without	having	their	legal	services	used	for	fraudulent	

or	criminal	purposes.	

	       [¶30]	 	 In	 order	 to	 strike	 that	 balance,	 and	 to	 maintain	 the	 high	

standards	of	the	legal	profession,	the	focus	in	determining	whether	the	fraud	

portion	of	the	crime-fraud	exception	applies	must	be	on	the	elements	within	

the	control	of	the	client	that	involve	either	the	engagement	in	or	the	planning	

of	 a	 fraud.	 	 Because	 proof	 of	 planned	 fraudulent	 activity	 can	 result	 in	 the	

exception	 being	 applied,	 fraudulent	 activity	 may,	 for	 purposes	 of	 the	

crime-fraud	 exception	 to	 attorney-client	 privilege,	 be	 activity	 that,	 although	

deceptive	and	fraudulent,	falls	short	of	the	fully	realized	civil	tort	of	fraud.11	


   11		At	this	stage	in	the	proceedings,	the	sufficiency	of	the	evidence	to	prove	fraud	is	not	before	

the	court.		Rather,	the	sufficiency	of	the	evidence	of	Harris’s	claims	of	fraudulent	inducement	and	
fraudulent	 misrepresentation	 will	 be	 resolved	 separately,	 after	 discovery	 is	 complete,	 either	
through	 a	 dispositive	 motion	 or	 through	 a	 trial	 at	 which	 the	 standard	 of	 proof	 by	 clear	 and	
20	

         [¶31]	 	 Although	 proof	 of	 the	 complete	 tort	 is	 not	 necessary	 for	 the	

exception	to	apply,	a	party	seeking	to	establish	that	a	client	was	engaged	in	or	

planning	 fraudulent	 activity	 must	 offer	 evidence	 of	 the	 client’s	 intention	 and	

expectation	 that	 the	 party	 alleging	 injury	 would	 rely	 on	 the	 client’s	

misrepresentations,	omissions,	or	other	deceptive	actions.		See	In	re	Motion	to	

Quash	 Bar	 Counsel	 Subpoena,	 2009	 ME	 104,	 ¶	18,	 982	 A.2d	 330;	 In	 re	 Sealed	

Case,	754	F.2d	at	399;	Cent.	Constr.	Co.,	794	P.2d	at	598.		Without	proof	of	the	

intention	 and	 expectation	 of	 reliance,	 the	 client’s	 engagement	 in	 or	 planning	

for	“fraudulent	activity,”	In	re	Motion	to	Quash	Bar	Counsel	Subpoena,	2009	ME	

104,	 ¶	18,	 982	 A.2d	 330,	 which	 requires	 intentional	 deception,	 cannot	 be	

established.		See	Cent.	Constr.	Co.,	794	P.2d	at	598.		To	require	proof,	however,	

of	actual,	justifiable	reliance	both	places	the	cart	before	the	horse	and	misses	

the	point	of	the	crime-fraud	exception—to	allow	discovery	of	a	client’s	use	of	

an	attorney’s	services	in	the	planning	or	concealment	of	fraudulent	activity.	

         [¶32]		Here,	the	court’s	findings	demonstrate	that	it	applied	the	proper	

legal	 test.	 	 It	 found,	 for	 purposes	 of	 the	 discovery	 motion,	 that	 Harris	 had	

convincing	evidence	will	be	applied.		See	Barr,	2012	ME	108,	¶	16,	49	A.3d	1280;	cf.	BP	Alaska	Expl.,	
Inc.	v.	Superior	Court,	199	Cal.	App.	3d	1240,	1262-63	(1988)	(holding	that	a	court	is	“not	reviewing	
the	 merits	 of	 a	 fraud	 cause	 of	 action”	 but	 is	 instead	 “reviewing	 the	 merits	 of	 a	 discovery	 order	 to	
determine	 if	 [a	 party]	 will	 have	 access	 to	 communications	 between	 [the	 opposing	 party]	 and	 its	
attorneys	to	aid	[the	party]	in	proving	its	causes	of	action.”).		Because	the	question	at	this	stage	is	
not	whether	Harris	can	prove	the	tort	of	fraud,	we	need	not	address	(1)	whether	a	false	promise	of	
future	performance	can	constitute	a	fraud	or	(2)	whether	the	evidence	presented	would	establish	
the	element	of	justifiable	reliance	by	clear	and	convincing	evidence.			
                                                                                     21	

demonstrated	 by	 a	 preponderance	 of	 the	 evidence	 that	 (a)	 Coulombe	 was	

engaged	 in	 or	 planning	 fraudulent	 activity	 when	 the	 attorney-client	

communications	took	place	and	(b)	Coulombe’s	communications	with	counsel	

were	intended	by	him	to	facilitate	or	conceal	the	fraudulent	activity.		See	In	re	

Motion	to	Quash	Bar	Counsel	Subpoena,	2009	ME	104,	¶¶	18,	19,	982	A.2d	330.		

In	doing	so,	the	court	made	findings	about	the	nature	of	Coulombe’s	actions,	

his	intentions,	and	his	expectation	of	reliance	by	Harris.		Specifically,	the	court	

found	 that	 the	 documents	 it	 concluded	 fell	 within	 the	 crime-fraud	 exception	

“corroborate	 or	 buttress	 the	 Plaintiffs’	 claims	 that	 Defendants	 intentionally	

kept	 Plaintiff	 Harris	 in	 the	 dark	 about	 their	 actual	 plans	 for	 management	 of	

the	 [Club]	 long	 enough	 to	 complete	 certain	 transactions	 which	 were	 to	 the	

benefit	 of	 the	 Defendants	 and	 to	 the	 detriment	 of	 Plaintiff	 Harris.”	 	 Having	

determined	that	the	court	applied	the	proper	legal	standard,	we	now	review	

the	court’s	factual	findings	for	clear	error.		See	id.	¶	20.	

             b.	    Review	of	Factual	Findings	

      [¶33]	 	 We	 separately	 review	 the	 court’s	 findings	 with	 respect	 to	 each	

element	 required	 for	 the	 crime-fraud	 exception	 to	 the	 attorney-client	

privilege	to	apply.	
22	

                    (1)	   Client’s	 Involvement	 In,	 or	 Planning	 For,	 Fraudulent	
                           Activity	
                     	
      [¶34]	 	 In	 the	 materials	 provided	 to	 the	 court,	 there	 is	 evidence	 that,	 if	

believed,	 could	 demonstrate	 that,	 during	 a	 time	 when	 Coulombe	 did	 not	

intend	 to	 hire	 Harris	 to	 manage	 the	 golf	 course,	 Coulombe	 took	 actions	 to	

convince	 Harris	 that	 it	 would	 be	 hired	 in	 order	 to	 prevent	 Harris	 from	

competing	to	purchase	the	club,	induce	JJR	to	sell	property	for	a	reduced	price,	

and	 induce	 Harris	 to	 assist	 Coulombe	 in	 getting	 work	 on	 the	 golf	 course	

started.	 	 Specifically,	 there	 is	 evidence	 that,	 during	 the	 time	 when	 Coulombe	

was	communicating	with	counsel,	he	communicated	to	others	an	intention	not	

to	hire	Harris	as	golf	course	manager	but	also	(1)	proposed	a	specific	rate	of	

pay	to	Harris	if	Harris	agreed	to	manage	the	course:	“You	get	5%	of	gross	if	I	

don’t	make	money	and	8%	if	I	do	make	money”;	(2)	reassured	Jeffrey	Harris,	

“It’s	 done	 and	 you’re	 my	 guy,”	 when	 Harris’s	 counsel	 pressed	 for	 a	 written	

management	 agreement	 before	 land	 transactions	 occurred;	 (3)	purchased	

JJR’s	 nearby	 property	 for	 less	 than	 Jeffrey	 Harris’s	 initial	 minimum	 offering	

price;	 and	 (4)	had	 Harris	 begin	 work	 to	 get	 the	 golf	 course	 in	 order	 in	

February	and	early	March	2013.	

      [¶35]	 	 This	 evidence	 was	 sufficient	 to	 support	 the	 court’s	

discovery-related	 finding	 that,	 during	 the	 time	 when	 Coulombe	 was	
                                                                                        23	

exchanging	 the	 identified	 communications	 with	 his	 legal	 counsel,	 Coulombe	

was	 engaged	 in	 or	 planning	 fraudulent	 activity	 that	 was	 expected	 and	

intended	 to	 induce	 Harris’s	 reliance.	 	 See	 id.	 ¶¶	 18,	 20.	 	 The	 court	 did	 not	

commit	clear	error	in	making	this	finding.		The	next	question	is	whether	there	

is	 sufficient	 evidence	 in	 these	 communications	 that	 Coulombe	 intended	 to	

facilitate	or	conceal	this	fraudulent	activity	through	his	communications	with	

counsel.	

                     (2)	   Client’s	 Intention	 to	 Facilitate	 or	 Conceal	 the	
                            Fraudulent	 Activity	 Through	 the	 Communications	
                            with	Counsel	
	
	      [¶36]	 	 After	 the	 court	 reviewed	 in	 camera	 a	 collection	 of	 Coulombe’s	

communications	 with	 counsel	 related	 to	 the	 purchase	 of	 the	 Club	 at	 auction,	

the	 purchase	 of	 JJR’s	 properties,	 and	 the	 management	 of	 the	 golf	 course,	 it	

entered	 a	 specifically	 tailored	 order	 directing	 the	 release	 of	 identified	

communications.	 	 When	 viewed	 along	 with	 the	 materials	 that	 Harris	 had	

already	 submitted,	 the	 court	 did	 not	 commit	 clear	 error	 in	 finding	 by	 a	

preponderance	 of	 the	 evidence	 that	 the	 identified	 communications	 with	

counsel	 demonstrated	 Coulombe’s	 purpose	 to	 use	 counsel	 to	 facilitate	 or	

conceal	 his	 deception	 of	 Harris	 through	 fraudulent	 activity.	 	 In	 particular,	

these	 specific	 communications	 shed	 light	 on	 Coulombe’s	 planning	 and	 the	
24	

timing	 of	 his	 communications	 to	 Jeffrey	 Harris	 and	 his	 other	 legal	 and	

business	 associates	 about	 his	 intentions.	 	 The	 court	 did	 not	 abuse	 its	

discretion	 in	 ordering	 the	 release	 of	 specific	 communications	 between	

Coulombe	and	his	attorneys.		See	Warren,	2011	ME	124,	¶	23,	34	A.3d	1103.	

      [¶37]		There	is	one	possible	exception	to	our	decision	affirming	the	trial	

court’s	 determination,	 however.	 	 Although	 Coulombe	 does	 not	 specifically	

argue	 that	 any	 particular	 pages	 of	 the	 materials	 submitted	 for	 the	 court’s	

review	 were	 improperly	 included	 in	 the	 court’s	 disclosure	 order,	 one	 email	

exchange	appears	to	be	unrelated	to	Coulombe’s	dealings	with	Harris	and	may	

have	 been	 inadvertently	 ordered	 disclosed.	 	 We	 therefore	 remand	 for	 the	

court	 to	 clarify	 whether	 it	 intended	 to	 include	 that	 email	 exchange,	 which	

appears	at	pages	15626	through	15633	of	the	materials	submitted	for	review,	

in	its	order	requiring	disclosure.	

      [¶38]	 	 Accordingly,	 with	 the	 exception	 of	 those	 pages,	 which	 the	 court	

will	reconsider	on	remand,	we	affirm	the	court’s	judgment.	

      The	entry	is:	

                   Judgment	affirmed,	except	with	respect	to	pages	
                   15626	 to	 15633	 of	 the	 documents	 reviewed	 in	
                   camera.	 	 Remanded	 for	 the	 court	 to	 determine	
                   whether	 the	 crime-fraud	 exception	 applies	 to	
                   those	pages.	
                                                                           25	

	
	     	      	      	     	       	
	
On	the	briefs:	
	
      Paul	 McDonald,	 Esq.,	 and	 Eben	 M.	 Albert,	 Esq.,	 Bernstein	
      Shur,	 Portland,	 for	 appellants	 Paul	 Coulombe,	 PGC1,	 LLC,	
      and	PGC2,	LLC	
      	
      James	D.	Poliquin,	Esq.,	Benjamin	N.	Donahue,	Esq.,	Norman	
      Hanson	 &	 DeTroy,	 LLC,	 Portland,	 for	 appellees	 Harris	
      Management,	Inc.,	and	JJR	Associates,	LLC	
	
	
At	oral	argument:	
	
      Eben	 M.	 Albert,	 Esq.,	 for	 appellants	 Paul	 Coulombe,	 PGC1,	
      LLC,	and	PGC2,	LLC	
      	
      James	 D.	 Poliquin,	 Esq.,	 for	 appellees	 Harris	 Management,	
      Inc.,	and	JJR	Associates,	LLC	
	
	
	
Business	and	Consumer	Docket	docket	number	CV-2014-60	
FOR	CLERK	REFERENCE	ONLY	
         	
