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Loftin v. Bande

June 16, 2009

PETER T. LOFTIN, ET AL., PLAINTIFFS,
v.
ANDRES BANDE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

The motion to compel now before the Court is related to proceedings underway in the U.S. District Court for the Southern District of New York, In re Flag Telecom Holdings, Ltd. Securities Litigation, Civ.A.No. 02-3400 (the "Underlying Action"). The Underlying Action is a securities class action against certain former officers and directors of Flag Telecom Holdings, Ltd., and Citigroup Global Markets Inc. The law firm Gibson, Dunn & Crutcher ("defendant" or "Gibson Dunn") previously represented Flag in several capacities, and plaintiffs served a subpoena on Gibson Dunn on April 16, 2006, seeking the production of documents related to the Underlying Action. Over the next two years, Gibson Dunn produced two "privilege logs,"*fn1 and plaintiffs and Gibson Dunn have argued over the adequacy of those logs as well as Gibson Dunn's document production.

Plaintiffs filed this motion on July 24, 2008. After the motion was fully briefed, on October 17, 2008 this Court ordered Gibson Dunn to produce sixteen documents for in camera review. On November 11, 2008, the parties filed a joint motion to stay ruling on plaintiffs' motion because of an anticipated ruling in the Underlying Action. This Court granted the motion to stay, and then granted a joint motion to continue the stay on January 29, 2009. On May 29, 2009, the parties filed a status report advising the Court that rulings in the Underlying Action had not mooted plaintiffs' motion before this Court.

The analysis that follows does not address every document contained in the privilege logs or specifically identified by the parties in their briefing. The privilege logs describe over 800 documents and plaintiffs identify 125 documents as problematic in their briefs. Instead, the Court's analysis addresses in detail the sixteen documents it reviewed in camera. It is the Court's hope -- indeed, its expectation -- that, through application of this analysis to other contested documents, the parties will resolve their remaining discovery disputes.

ANALYSIS

Plaintiffs raise three arguments in their motion: (1) the privilege logs are insufficient under the Federal Rules of Civil Procedure; (2) Gibson Dunn overreaches with its claims of attorney-client privilege; and (3) Gibson Dunn has improperly withheld documents under the attorney work product doctrine.

I. Adequacy of the Privilege Log

Plaintiffs take issue with the privilege logs in their entirety, arguing that their descriptions are too cursory under the Federal Rules of Civil Procedure. Under Rule 45(d)(2)(a), a party invoking a privilege must "describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim." Privilege logs must "state the basis upon which the privilege is claimed, state the subject matter, number of pages, author, date created, and the identity of all persons to whom the original or any copies of the document were shown or provided." Director of OTS v. Ernst & Young, 795 F. Supp. 7, 11-12 (D.D.C. 1992) (internal ellipsis omitted). Of the sixteen documents the Court ordered defendant to produce for in camera inspection, the Privilege Log and the Supplemental Log provide adequate descriptions for eleven documents. See Document Nos. 84, 128, 250, 267, 276, 303, 356, 367, 464, 698, and 802.

The remaining five descriptions, however, are insufficient. The descriptions for Document Nos. 403 and 490 are insufficient because they do not specify the subject matter of the teleconferences. The description for Document No. 431 is insufficient because it does not identify all of the known participants in the teleconferences. Similarly, the description for Document No. 521 is insufficient because it never identifies the memorandum recipient by name. Finally, the description for Document No. 762 is insufficient because it simply refers to "revised redlines" or "draft agreements." This sparse description does not adequately describe the subject matter of those drafts.

But these descriptions, while inadequate, do not result in a wholesale forfeiture of defendant's claim of privilege, as plaintiffs claim. Rather, plaintiffs should identify other entries on the Privilege Log or Supplemental Log that they believe are similarly deficient and defendant should supply the missing information.

II. Attorney-Client Privilege and Attorney Work Product

Most of the documents plaintiffs seek involve communications from an attorney. See Plaintiffs' Memorandum in Support of Its Motion to Compel ("Pls. Mem.") at 17 n.24. Plaintiffs contend that, in the D.C. Circuit, communications from an attorney are only privileged if they "disclose[] a confidential communication from the client." Id. at 18 (citing Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 3 (D.D.C. 2004)). In plaintiffs' view, thirteen of the sixteen documents the Court ordered defendant to produce for in camera inspection are not privileged under the law of this Circuit because they are not adequately tied to a confidential client communication. See Document Nos. 84, 128, 250, 276, 303, 356, 367, 403, 431, 464, 490, 521, and 762.

Attorney-client privilege is not quite as narrow as plaintiffs would have it. To be sure, Banks provides that "[t]he attorney-client privilege also protects communications from the attorney to the client but only insofar as the attorney's communication discloses a confidential communication from the client." Banks, 222 F.R.D. at 3. But a long line of cases in the D.C. Circuit -- including the case Banks relies on for this proposition, Brinton v. Dep't of State, 636 F.2d 600 (D.C. Cir. 1980) -- demonstrate that Banks does not accurately convey the Circuit's approach to attorney communications. Brinton held that "when the attorney communicates to the client, the privilege applies only if the communication 'is based on confidential information provided by the client.'" 636 F.2d at 603-04 (quoting Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977)) (emphasis added); see also In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (holding that unsolicited "advice prompted by the client's disclosures" could be privileged because privilege applies to attorney communications "'based, in part at least, upon a confidential communication to the lawyer from the client.'" (quoting Brinton, 636 F.2d at 603-04 (emphasis in original))).

With these principles in mind, the Court has reviewed Document Nos. 84, 128, 250, 276, 303, 356, 367, 403, 431, 464, 490, 521, and 762. All these documents are attorney communications of advice based in part on a confidential client ...


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