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(N.D. Ga. 1997) (stating: “The authority to assert and waive the
corporation's attorney-client privilege follows the passage of
control of the corporation.” (citing Commodity Futures Trading
Commn. v. Weintraub, supra at 349)). As we understand
petitioners’ response to that argument, it is that the cited
caselaw does not apply because the “client” communicating with
the attorney here was not Surgery Center but was, collectively,
its members (i.e., its “partners”, including Moore). We have
already found that Kelly’s client was Surgery Center and
concluded that, in Georgia, a member of a limited liability
company is considered a person separate from the company. We
have also found that management of the company was out of the
hands of the members. As a member of Surgery Center, in light of
the facts before us, Moore enjoys no privilege (nor may she waive
any privilege) with respect to privileged communications between
Surgery Center and Kelly, its attorney. We conclude that, at the
present time, the authority to assert or waive Surgery Center’s
attorney-client privilege rests with New Management.
Has the privilege been waived?
Petitioners argue that any privilege Surgery Center may have
enjoyed with respect to the exhibits has been waived by Surgery
Center’s own actions. Among those actions, petitioners list
Moore’s receipt of the exhibits, the communication of the “gist”
of the exhibits to Surgery Center’s accountants (and from them to
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