Emails key as StayinFront sues Kiwi executive

US District Court Judge has ruled the emails have to be produced because the former executive vice-president used a lay adviser rather than a lawyer

Customer relationship management software vendor StayinFront is suing a former Kiwi executive vice-president for punitive damages, after he instituted grievance proceedings against the company with the Employment Relations Authority.

But, in a surprising development, a US federal court has ordered the executive, Warren Tobin, to turn over emails he exchanged with his legal adviser in the local case, ruling they are not covered by lawyer-client privilege.

US District Court Judge Stanley Chesler has ruled the emails have to be produced because Tobin used a lay adviser rather than a lawyer to put his case to the New Zealand Employment Relations Authority.

Under New Zealand law, lay advisers enjoy the same privilege as lawyers before the Authority, but the US court decided not to recognise this.

Tobin, now managing director of Auckland-based wireless and mobile applications company Altaine, declined to discuss the substance of the US or New Zealand actions as both are continuing. He says, however, that he has a “significant grievance” after working for the company for 16 years.

“I initiated the grievance because I felt strongly about it, but it’s been really difficult to have this US thing over my head for a couple of years.”

Tobin says he is complying with court’s ruling on the emails, but there is nothing particularly incriminating in them. He describes the New Zealand case as “wide-ranging” and says that a lot of detail will emerge in court.

The emails were exchanged with lay adviser Matthew Young, of Auckland-based Employment Associates.

Young, Tobin and Employment Associates are all being sued by StayinFront, according to US legal website Law.com.

However, Companies Office records show Employment Associates was struck off in 2005.

According to Law.com, Tobin filed a court action in New Jersey, to enforce his rights under a stock purchase and severance agreement.

That case was settled in 2004. Subsequently, Tobin filed a wrongful dismissal case with the New Zealand Employment Relations Authority. It was there that he was represented by lay adviser Young, as allowed under New Zealand law.

In August 2005, StayinFront and associated company NAP sued Tobin, Young and Employment Associates, claiming Tobin breached a covenant he had made not to sue when he brought the employment case in New Zealand. They also argue Young and his company induced Tobin to bring the action, which amounts to tortious interference with a contract.

The companies are pursuing punitive damages against the defendants.

Judge Chesler also dismissed claims for another type of privilege, called work-product privilege, finding that the recalcitrance, wilful non-compliance and disregard for the rules and authority of the court shown by the defendants justified him compelling the two to produce the emails.

Tobin says the Law.com report is based on the US case, which, in turn, is all about what StayinFront presented to the court.

He was not represented there and has not made any submissions. He says the aim of the US case is to stop him proceeding against StayinFront in New Zealand.

Tobin was executive vice-president of sales for StayinFront, which was created in 2000 through the merger of local CRM developer Great Elk and US vendor Windsoft.

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Tags crmemailcourtgrievance

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