The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Before the Court is the government's Motion  to compel production of documents from SBI USA, LLC and Nixon Peabody, LLC, and the government's Supplemental Motion  to compel production of documents from SBI USA, LLC. Of the hundreds of documents originally the subject of these Motions to compel, the defendant now only asserts privilege claims as to thirteen documents.*fn1 Furthermore, three additional documents*fn2 are being withheld by the defendant subject to privilege claims asserted by Xinhua Finance, which the Court will construe as being asserted by the defendant. Upon consideration of the government's Motion , third party Nixon Peabody's response , government's reply , government's Supplemental Motion , defendant's opposition , government's reply , defendant's additional response , government's supplemental memorandum of law , defendant's response , defendant's notice  of withdrawal of claims of privilege as to four documents subject to pending motion to compel, all ex parte filings regarding these motions, the applicable law, and the entire record in this case, the Court will GRANT the government's Motions as to the remaining documents withheld by the defendant pursuant to privilege claims.
The defendant in this criminal securities fraud case, Shelly S. Singhal, is the owner and Chairman of SBI USA, LLC, formerly an investment company with offices in Newport Beach, California. On April 27, 2010, the grand jury returned a three count Indictment in the instant case charging the defendant Singhal with conspiracy (18 U.S.C. § 371), mail fraud (18 U.S.C. § 1341), and securities fraud (15 U.S.C. §§ 78j(b) and 78f(f)) concerning his involvement in three alleged scalping schemes. On May 20, 2011, the grand jury returned a ten count Indictment in a separate case against Singhal and two others, Loretta Fredy Bush and Dennis Pelino, charging them with conspiracy (18 U.S.C. § 371), mail fraud (18 U.S.C. § 1341), and false statements (18 U.S.C. § 1001), concerning their involvement in an alleged scheme to defraud a publicly traded company, Xinhua Finance Limited ("Xinhua Finance"), through a series of undisclosed and disguised related-party transactions and insider trading of Xinhua Finance shares. Singhal allegedly used nominee companies, including Entree Capital, LLC ("Entree Capital"), Wiremill LLC ("Wiremill"), Bedford Proprietary Trading LLC ("Bedford"), Region 1 Partners LLC ("Region 1"), and Hyperion Investments Limited ("Hyperion"), to engage in the charged fraud schemes.
The government contends that Singhal used nominees, principally Robert Brown, to engage in the alleged fraud. According to the government, Brown-Singhal's former attorney and business partner-was both an owner and manager of several nominee companies. Brown allegedly assisted Singhal in perpetrating the alleged scalping transactions by transferring funds and concealing the source of funds used to promote the stocks at issue. Brown also allegedly assisted Singhal in perpetrating the alleged scheme involving Xinhua Finance in part by transferring funds and preparing false and back-dated documents. After the FBI began to investigate Brown, Brown pled guilty to obstruction of justice, agreed to cooperate with federal authorities in their continuing investigation, and turned over to the government a variety of materials related to these schemes.
The instant motion revolves around assertions of privilege by SBI over a number of documents whose production the government seeks to compel.*fn3 The government's original Motion to compel was filed on September 17, 2010, and a supplemental Motion to compel was filed on June 15, 2011. Of the hundreds of documents that SBI originally withheld on the basis of privilege, SBI has withdrawn its claims of privilege as to all but thirteen documents, which are the subject of this Memorandum Opinion.
The defendant also withholds three additional documents based on privilege claims asserted by Xinhua Finance. The government, however, has not moved to compel Xinhua Finance, and the defendant has responded to the government's Motion to compel SBI by expressing Xinhua Finance's privilege claims. As neither party has addressed the question of the defendant's authority to assert these privilege claims on behalf of Xinhua, the Court will treat these privilege claims as being properly asserted by the defendant and will consider them in this Memorandum Opinion as well.
II.LEGAL STANDARD: ATTORNEY-CLIENT PRIVILEGE
The defendant's privilege claims are all premised on variations of the law governing attorney-client privilege. A fundamental principle of criminal law is that the public "has a right to every man's evidence," but that right is "subject to except[ion] for those persons protected by a constitutional, common-law, or statutory privilege." In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007). One exception is the attorney-client privilege, which applies only if:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
In re Sealed Case, 737 F.2d 94, 98--99 (D.C. Cir. 1984). The Supreme Court has held that because the privilege obstructs the search for truth, courts should construe it narrowly. See, e.g., Fisher v. United States, 425 U.S. 391, 403 (1976). The party asserting the privilege bears the burden of "present[ing] to the court sufficient facts to establish the privilege." In re Sealed Case, 737 F.2d at 99.
The defendant's privilege claims over the documents that remain the subject of this Motion can be broken down into multiple ...