Tobacco Documents Online

Not Reported in F. Supp. (Cite as: 1996 WL 170121 (D.D.C.)) FIRST AMERICAN CORP., et aL, Plaintiffs, V. Shet7t Zayed Bin Sultan AL-NAHYAN, et al., Defendants. No. 96-MS-25 (JHG/PJA), 96-MS-24. United States District Court, District of Columbia. March 26, 1996. MEMORANDUM ORDER ATTRIDGE, United States Magistrate Judge. *1 In this " miscellaneous case" non-parties Janis, Schuelke & Wechsler ("JS&W") and E. Lawrence Barcella, Jr: move to quash subpoenas duces tecum served on them by the First American Corporation and First American Bankshares (collectively "First American") plaintiffs in C.A. 93-1309 seeking production of documents relating to legal services they provided the Bank of Credit and Commerce International SA, Bank of Credit.and Commerce International (Overseas) Limited, BCCI Holdings (Luxemburg) SA, International Credit and Investment Company (Overseas Limited), ICIC Apex Holdings Limited, ICIC Holdings Limited, ICIC Investments Limited and parents, subsidiaries etc. as well as officers, directors, employees etc. ( hereinafter "BCCI entities"). Background In the related civil action ( CA 93-1309), First American charged 30 defendants including Clark M. Clifford and Robert A. Altman with violations of Racketeer Influenced Cotxupt Organizations Act ("RICO," 18 U.S.C. § 1962), common law fraud, breach of fiduciary duty, reckless and negligent misconduct, and civil conspiracy. The plaintiffs' in C.A. 93-1309 allege that the defendants in that case assisted BCCI in acquiring illegally a large percentage of ownership interest in First American and then failed to take prompt steps to protect First American's financial interests despite knowledge of BCCI's wrongdoing and pending financial collapse. Opp'n at 37. Clifford was the C' an of First American Corporation from 1981 to August 1991 and was the Chairman of First American Bankshares from 1982 through August 1991. Compl. C.A. 93-1309 at 142. Clifford was also Page 1 the Managing Director of CCAI and CCAH. [FN1] Robert Altman was a Director and President of First American Corporation from 1981 to August 1991, and an officer of CCAI and CCAH. Both Clifford and Akman were legal counsel to BCCI and the record shareholders of FGB/CCAH. See 93-1309, slip op. at 7. The non-party movants, Janis, Schuelke & Wechsler are former lawyers for Bank of Credit and Commerce International (Overseas) Ltd. Opp'n at 1. They represented BCCI in "multiple criminal, congressional and regulatory investigations into BCCps affairs" from October 1988 to July 5, 1991, the date on which the BCCI entities were seized by banking regulators. Id. During the course of its BCCI representation, JS&W accumulated forty-one boxes of documents consisting of communications with its BCCI clients, communications with other law firms which also represented BCCI entities during the relevant time period, and communications with fums representing individual co- defendants in the Tampa litigation and New York investigation. JW&S also provided legal services to First American from the mid-1980s to 1993. JS&W Mot. at 3. That representation "primarily involved cooperat(ing) with the Office of the United States Attorney for the District of Columbia relating to matters under investigation by that office." JS&W asserts it 'did not provide legal services to either First American or the BCCI entities with regard to the acquisition of First American by foreign investors " and that its representation of First American and BCCI, although encompassing almost a decade, "was ... limited in scope, and ....... unrelated to such matters as the acquisition of the National Bank of Georgia, that it is highly unlikely that JS&W files contain any relevant information. " JS&W Mot. at 5. *2 The other non-party movant, E. Lawrence Barcella, Jr. began his representation of the Bank of Credit and Commerce International S.A. in October 1988 in conjunction with the return of an indictment by a federal grand jury in Tampa, Florida. Although his representation continued until early 1991, its intensity tapered off following the entry of a guilty plea by the Bank in early 1991. The documents generated during this time filled over sixty-six storage boxes. These documents followed Mr. Barcella during his various changes of law fums. [FN2] Copr. © West 1998 No Claim to Orig. U.S. Govt. Works

Not Reported in F. Supp. (Cite as: 1996 WL 170121, s2 (D.D.C.)) In addition to the grounds relied upon by JS&W, Barcella also contends the documents sought are subject to the joint defense privilege since they were "obtained or created pursuant to joint defense agreements." Barcella Mot. at 3. The plaintiffs initially sought documents relating to services performed as counsel for former clients BCCI and First American. Opp'n at 2. However, they have dropped their request for First American client files and are only seeking BCCI entity client files. JS&W Mot. at 7 n.5, and Opp'n at 20. Motions to Quash First American's subpoena seeks: 1. All documents, including but not limited to attorney work product, created or received by E. Lawrence Barcella, Jr., Laxalt Washington, and/or JS&W in connection with, referring or relating to legal services [provided for] BCCI, ICIC or any of their affiliates, including []any criminal or regulatory investigations of BCCI or ICIC. 2. All documents which reflect, refer or relate to communications between Barcella, Laxalt Washington, and/or JS&W and any of Clark M. Clifford, Robert A. Altman, J. Griffin Lesher, or any other parmer, or employee, representative or agent of law firm Clifford & Warnke referring or relating to BCCI, ICIC or any of First American Companies. 3. All client files [of JS&W only] including but not limited to attorney work product, created or received by you in connection with, or otherwise referring or relating to, your representation of any of the First American Companies. Documents previously produced need not be produced in response to this request. JS&W,'s Mot. at Exh. 1; Barcella's Mot. at Exh. 1. In response, the non- party movants assert the attorney-client, attorney work product and joint defense privileges, as well as the oft invoked claims of irrelevancy aud undue burdensomeness. Discussion First American contends that the movants' claims of privilege have been mooted by waiver of the privileges by counsel for the court-appointed fiduciaries. The letter accompanying the subpoena duces tecum Page 2 signed by Mr. Michael Nussbaum, "United States Counsel to the Court Appointed Fiduciaries of BCCI Holdings," [FN3] states: On behalf of our clients [the Court Appointed Fiduciaries of BCCI Holdingsj, you are hereby authorized to make available to First American and its counsel for review and copying all files relating to services performed by JANIS, SCHUELKE & WECHSLER for or at the request of or which was billed to, the BCCI Group, as specified in the enclosed duces tecum. We would appreciate your cooperation in complying promptly and responsively with the subpoena." *3 JS&W Mot. at Exh. 1. Attached to First American's opposition to the motion to quash is an affidavit by Mr. Nussbaum which states he has the Fiduciaries' "authorization to waive the attomey-cliem privilege and work product protection and (directs the movants) to release documents which may otherwise be protected from disclosure...." Opp'n at Exh. 3 at 3 (emphasis added). Mr. Nussbaum stated that his client BCCI has a"clear interest" in the production of the documents and the outcome in this case. [FN4] And to further emphasize his authority, Mr. Nussbaum related he had previously waived BCCI's attomey-cliem and work product privileges in 1992 in connection with a plea agreement negotiated with the Department of Justice on BCCI's behalf. Opp'n at Esh. 3 at 2-3. Nevertheless, the non-parties contend they may not produce the requested documents without a"clear instmction" from their client waiving the attorney client privilege. Reply at 9. They allege that the letter attached to the subpoenas was not explicit enough. However, they do acknowledge " that the Court Appointed Fiduciaries of the BCCI entities possess the authority to waive the attorney-cliem privilege on behalf of those entifles." JS&W Mot. at 8. The combination of Nussbaum's letter, Nussbaum's affidavit, BCCI's interests and JS&W's acknowledgment of the Fiduciaries's authority leaves no room for ambiguity on the boundaries of the waiver. The Court finds a"clear instruction" exists to the movants. The attomey-client privilege has been waived by the BCCI entities and this unlimited waiver applies to both of the movants. The non-party movants also assert the work product privilege protects the documents from disclosure. Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works

Not Reported in F.Supp. (Cite as: 1996 WL 170121, *3 (D.D.C.)) The definitive opinion in this jurisdiction on both the attorney-client and work product privileges is found in In re Sealed Case, 676 F2d. 793 (D.C.Cir. 1982). There, as here, documents were sought from a corporation's lawyer by a non-client. The court ruled that the work product privilege belongs to the attorney as well as the client. And, to the extent that their interests do not conflict, attorneys are entitled to claim the work product privilege to protect their own interests even if the privilege has been waived by the client. Id. at 809 n.56. The work product privilege generally encompasses two categories or tiers of information. The first tier concerns "fact" work product. Whereas the second tier involves "opinion" work product which enjoys a "more absolute" protection [FN5J since one of its purposes "is to protect the work of the attorney from disclosure for the benefit of the attorney." In Re Special September 1978 Grand Jury, 640 F.2d. 49, 63 (7th. Cir. 1980). "Fact" work product is discoverable "upon a showing that the party seeking discovery has substantial need of the material in preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalem of the materials by other means." Fed. R. Civ. P26(b)(3). On the other band, "opinion" work product which includes the mental impressions, conclusions, or legal theories of an attorney enjoys absolute protection from disclosure. Id. *4 In the related civil action, the First American plaintiffs seek to recover substantial sums of money from defendants closely connected with the BCCI entities. First American represents that two of those defendants, Clark Clifford and Robert Altman, on their own behalf and on behalf of the BCCI entities, worked closely with the non-party movants in matters directly related to their claims against Clifford and Altman and others; that Clifford and Altmatt caused BCCI to retain the movants to represent the BCCI entities and that Clifford and Altman were personally responsible for coordinating and supervising counsel retained by them for BCCI "in connection with a federal grand jury investigation in Tampa, Florida, a congressional investigation, a New York State grand jury investigation [as well as] associated regulatory proceedings" [FN6j and that the information learned by the movants was in preparation for or in anticipation of litigation. Page 3 First American has made a showing of substantial need for the "fact" work product possessed by the movants. Moreover, it appears, and the movants do not contend otherwise, that the substantial equivalent cannot be obtained from other sources. Although the movants allege that the documents they possess are irrelevant, the Court agrees with First American that given the nature and extent of the movants' representation it is highly likely that the material they possess is relevant or may lead to the discovery of other relevant material. I am not unmindful that compliance with the subpoenas may impose a burden upon the movants, however, the issue is not whether compliance creates a burden but rather whether that burden is unduly. The issue of undue burden "is, of course, a matter to be decided in the light of the circumstances of the case Northrup Corp. v. McDonnell Douglas Corp., 751 F2d. 395, 403 D.C. Cir. 1984). See also Fed. R. Civ. P.26(b)(1). The Court is not persuaded that the movants' burden outweighs First American's need for the information sought. A substantial screening of the documents can be made by paralegals in view of the holdings of this memorandum which presumably will greatly reduce the amount of attorney time required for document review in order to comply with the subpoenas. Lastly, the movants contend that the documents are protected from disclosure by reason of the joint defense privilege. This privilege protects communications between two or more parties and their respective counsel if they are engaged in a joint defense effort. In Re Sealed Case, 29 F.3d 715, 719 a5 (D.C. Cir. 1994)(citation omitted). It encompasses matters that would ordinarily be protected by the attorney-client and/or work product privileges were it not for the fact that more than one client and his attorney are engaged in a joint defense effort. It permits a client to disclose information to his attorney in the presence of joimt parties and their counsel without waiving the attomey-client privilege and precludes joint parties and their counsel from disclosing confidential information learned as a consequence of the joint defense. However, one party having waived his own privilege has no standing to assert the privilege on behave of another party. See id. at 715. In these proceedings the BCCI entities, whom the movants represented, have waived any and all privileges. Moreover, First American asserts that counsel for all the other concerned parties to the joint defense agreement have or are in the process of Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works

Not Reported in F.Supp. (Cite as: 1996 WL 170121, *4 (D.D.C.)) providing the subpoenaed documents. And, by virtue of this conduct the other attorneys have impliedly waived any work product privilege as it may relate to the subpoenaed material. Conclusion *5 Upon consideration of the motions to quash [1 7[1 ], the opposition, the reply and the entire record, it is this 26th day of March, 1996: ORDERED that Janis, Schuelke & Wechsler's motion to quash is denied in part and granted in part. All documents, except opinion work product documents, shall be produced in compliance with the subpoena. FURTHER ORDERED that E. Lawrence Barcella, Jr.'s motion to quash is denied in part and granted in part. All documents, except opinion work product documents, shall be produced in compliance with the subpoena. FURTHER ORDERED that the plaaintiffs shall compensate the movants for all reasonable expenses related to the production. FURTHER ORDERED that the parties are to bear their own costs incurred with this motion. FN1. First American Corporation ("FAC") was a privately-held holding company which was owned by Page 4 Credit and Commerce American Investment, B.V. ("CCAI"), a Netherlands corporation which was wholly owned by Credit and Commerce American Holdings, N.V. ("CCAH"). CCAI transferred the stock of FAC to the Trustee of FAC, who is now the sole stockholder of FAC. See 93- 1309, slip op. at 3 (Aug. 25, 1995). FN2. Mr. Barcella contends, and First American does not challenge his contention that certain files contaioing BCCI material were lost or misplaced by storage companies during the moves. FN3. Opp'n at Exh. 3 FN4. Mr. Nussbaum's affidavit dated January 30, 1996, at paragraph 9 states: BCCI has a clear interest in the outcome of this case. Not only are the CouR Appointed Fiduciaries entitled to receive significant proceeds from any distribution available as a consequence of the liquidation of First American and its affiliates, but they have their own proceeding pending against Messrs. Clifford and Altman to which the subpoenaed documents are relevant. See BCCI Holdings (Luxembourg), S.A., et. al. v. Clifford, et al., Civil No. 94-1461 (JHG) (D.D.C. filed July 1, 1994). FNS. Id. at 811. FN6. Opp'n. at 7. END OF DOCUMENT Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works