GOLDSTEIN v. FEDERAL DEPOSIT INSURANCE CORPORATION
MEMORANDUM AND OPINION. Signed by Magistrate Judge John M. Facciola on 5/23/13. (lcjmf1, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES R. GOLDSTEIN,
Chapter 7 Trustee for K Capital Corp.,
FEDERAL DEPOSIT INSURANCE
CORPORATION, Receiver of K Bank,
Misc. Action No. 13-306 (ABJ/JMF)
This case was referred to me for full case management. Currently pending and ready for
resolution is Plaintiff’s Motion to Quash Subpoena to Protiviti, Inc. [#1]. 1
Petitioner in this case, Charles Goldstein (“Petitioner-Trustee”), objects to a subpoena
duces tecum and ad testificandum issued by this Court to Protiviti, Inc (“Protiviti”). Protiviti is a
third party in an underlying bankruptcy dispute between petitioner-trustee and the Federal
Deposit Insurance Corporation (“FDIC”) currently pending in the District Court for the District
of Maryland. Defendant’s Memorandum (A) In Opposition to Plaintiff’s Motion to Quash
Subpoena Issued to Protiviti, Inc. and (B) In Support of Cross-Motion to Compel Discovery
Pursuant to the Subpoena [#7] at 3. That case concerns the relationship between and certain
loans made by K Bank, a state-charted bank, and its parent bank holding company, K Capital,
before K Bank was placed under receivership. Id.
The respondent, the FDIC, also filed Defendant’s Motion to Compel Compliance with
Subpoena to Protiviti, Inc. [#6]. Although it is not yet ripe for my review, the issues raised
therein are identical to those raised in petitioner-trustee’s motion to quash, and will therefore be
FACTS AND PROCEDURAL HISTORY
K Bank was a wholly-owned subsidiary of K Capital, and “K Capital’s principal asset
was its ownership interest in K Bank.” [#7] at 3. K Bank was placed into receivership in
November 2010, and the FDIC was appointed its receiver. Id. At the same time, the assets of K
Bank were sold to another bank, and documents related to K Bank’s loans were transferred to the
new bank. Id. at 4. K Capital filed for bankruptcy a few days later, and Mr. Goldstein was
appointed K Capital’s trustee. Id. The FDIC then transferred a large amount of documents to
Mr. Goldstein in his capacity as trustee. Id. On January 11, 2011, Mr. Goldstein submitted an
application to the bankruptcy court to employ Protiviti as “financial and tax advisors” to assist
the trustee with the management of K Capital’s estate. 2 [#7-2] at 1. In February 2011, Mr.
Goldstein, acting as trustee, filed a claim in the K Bank receivership proceedings, asserting that
K Bank and K Capital had issued the loans jointly, and that “any recoveries from the K Bank
loans should be treated pari passu between K Capital and K Bank.” [#7] at 5. The FDIC rejected
this claim, and in response, the trustee filed the underlying complaint against the FDIC. Id.
“Extensive discovery” has taken place in the district court in Maryland. Id. The subpoena
at issue was issued by the District Court for the District of Columbia in March of 2013. It
requests that a representative from Protiviti appear for a deposition and bring with him or her
various documents relating to Protiviti’s involvement in the trustee’s work on behalf of K
Capital. See Subpoena to Testify at a Deposition in a Civil Action [#1-3]. On April 1, 2013, the
petitioner brought the instant motion to quash. [#1]; [#7] at 6.
Mr. Goldstein, in addition to being the independent court-appointed trustee for K Capital, is
also the Managing Director of Protiviti. Id. at 9. However, he was appointed to serve as trustee
in his individual capacity, and although they worked together on behalf of K Capital after
Protiviti’s employment as Mr. Goldstein’s advisor, Mr. Goldstein and Protiviti performed
separate and distinct roles in the underlying litigation. In other words, Mr. Goldstein was not an
employee of Protiviti in his role as trustee of K Capital.
Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter involved in the
pending action.” Fed. R. Civ. P. 26(b)(1). However, if the discovery is sought through a
subpoena to a third party, and responding to the subpoena would “require disclosure of
privileged or other protected matter,” or “subject a person to undue burden,” the third party
may move to quash the subpoena under Rule 45. Fed. R. Civ. P. 45; see also In re Subpoena
Goldberg, 693 F. Supp. 2d 81, 83 (D.D.C. 2010). Although, in general, “a party [to a dispute] . .
. lacks standing to challenge a subpoena issued to a third party,” the party may do so on behalf of
the third party if there is a viable “claim of privilege, proprietary interest, or personal interest in
the subpoenaed matter.” Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 21 (D.D.C.
However, “the quashing of a subpoena is an extraordinary measure, and is usually
inappropriate absent extraordinary circumstances.” Flanagan v. Wyndham Intern. Inc., 231
F.R.D. 98, 102 (D.D.C. 2005) (citing, among others, Salter v. Upjohn Co., 593 F.2d 649, 651
(5th Cir. 1979)). Indeed, “a court should loathe to quash a subpoena if other protection of less
absolute character is possible.” Flanagan, 231 F.R.D. at 102. In the context of a subpoena duces
tecum, “this Court has previously expressed its preference that a deposition proceed and the
deponent assert her objections during the deposition, thus allowing the deposing party to develop
circumstantial facts in order to explore the propriety of the . . . objection.” Id. at 103 (internal
Petitioner-trustee asserts three arguments in favor of quashing the subpoena: 1) that the
subpoena constitutes an impermissible attempt to gain discovery from Protiviti that was already
precluded by the district court in the underlying action, 2) that the FDIC may not compel
testimony or documents from Protiviti because Protiviti assisted the petitioner–trustee in his
claim against the FDIC on behalf of K Capital, and therefore any information held by Protiviti is
protected by either the attorney-client or work product privileges or both ([#1-1] at 1-2), and 3)
that Protiviti was hired and used “solely for litigation support” and is therefore “akin to . . . a
non-testifying expert” who cannot be deposed. 3
Petitioner-trustee’s first argument applies only to the document production aspect of the
subpoena; his remaining arguments apply to the deposition aspect as well. I will address each
aspect of the subpoena, and the corresponding arguments, in turn.
The Subpoena Duces Tecum
Petitioner-trustee argues that the documents requested in the FDIC’s subpoena duces
tecum are identical to the documents requested in a motion to compel in the underlying litigation,
which was stricken by the district court because the FDIC did not timely object to the trustee’s
claims of privilege. [#1-1] at 8.
Petitioner-trustee asserts that he identified all the privileged communications between
trustee and Protiviti on a privilege log, and the FDIC was required, under local rules, to raise any
objections to that log within thirty days. Id. The FDIC did not respond within those thirty days,
Although the petitioner-trustee briefly asserts that the subpoena presents an undue burden to
Protiviti, by petitioner-trustee’s own admission, his “primary reason for filing the motion to
quash is to protect against disclosure of privileged and work product materials.” Plaintiff’s Reply
in Support of Motion to Quash Subpoena Issued to Protiviti, Inc. [#8] at 4 n.5. Nevertheless, I
will briefly touch on the burden issue in Section II.D, infra.
but instead filed a motion to compel four months later, seeking the same documents. Id. The
trustee filed a motion to strike the motion to compel, which was granted by Magistrate Judge
Gallagher on February 6, 2013. [#1-8] at 1. Magistrate Judge Gallagher held that, because no
reason was given for the four month delay between the delivery of plaintiff’s privilege log and
the filing of defendant’s motion to compel, the motion had to be stricken for failure to comply
with the local rules. Id.
Two months after Magistrate Judge Gallagher issued her opinion, the FDIC served the
subpoena at issue here. Both petitioner-trustee and Protiviti argue that the instant subpoena is
virtually identical to the discovery requested in the FDIC’s motion to compel. [#1-1] at 9;
Protiviti, Inc.’s Opposition to Defendant’s Motion to Compel Compliance with Subpoena [#10]
at 1-3. Petitioner-trustee, therefore, argues that the subpoena at issue here is an impermissible
attempt by the defendant to get out from under an unfavorable discovery limitation already in
place. [#1-1] at 8.
The FDIC counters that the district court’s order did not address the “substance” of the
requested information and did not prohibit the FDIC from requesting that information from
Protiviti. [#7] at 17. Although both of these arguments are technically true, they miss the point.
I agree with the petitioner-trustee that, if the documents requested in the motion to compel are
identical to the documents requested in the subpoena, it would violate the principles of comity
for me to circumvent Magistrate Judge Gallagher’s order denying production of those
documents, regardless of whether her grounds were procedural or substantive.
In a different, but related context, courts have held that Rule 45 subpoenas are subject to
the same discovery deadlines and orders as any other type of discovery. See Ghandi v. Police
Dep’t of City of Detroit, 747 F.2d 338, 354-55 (6th Cir. 1984); Wantanobe Realty Corp. v. City
of New York, 159 Fed Appx. 235, 240 n.2 (2d Cir. 2005). Indeed, a “Rule 45 [subpoena] . . .
should not be used to obtain pretrial production of documents or things . . . from a party in
circumvention of discovery rules or orders.” 7-34 Moore’s Federal Practice – Civil § 34.02
(2013). If a discovery deadline has passed, “a party may not employ a subpoena to obtain
materials from a third party that could have been procured during the discovery period.” 9-45
Moore’s Federal Practice – Civil § 45.03. See also “Relation of Rule 45 to the Discovery
Rules,” 9A Fed. Prac. & Proc. Civ. § 2452 (3d ed.) (“Parties should not be allowed to employ a
subpoena after a discovery deadline to obtain materials from third parties that could have been
produced before discovery.”).
If a Rule 45 subpoena cannot be used to escape from a scheduling-related discovery
order, it certainly cannot be used to escape from another procedural discovery order, such as an
order finding that a motion to compel the very same documents must be stricken. To hold
otherwise would open up an avenue for litigants to get around unfavorable holdings by the
district court. I am disinclined to permit such a work-around, when it is clear that the FDIC
could have objected to the trustee’s privilege log within the time allotted under the local rules,
and did not provide good cause—either to Judge Gallagher or to me—for why it did not do so.
Accordingly, to the extent that responding to the subpoena duces tecum would require
production of documents already identified on the trustee’s privilege log, the subpoena must be
quashed. However, given that Defendant’s First Set of Requests to Plaintiff Charles R.
Goldstein for the Production of Documents and Things [#10-1] is directed towards the trustee
and asks for only four, albeit broad, categories of documents, and the subpoena duces tecum is
directed towards Protiviti and lists 22 categories of documents, there may be some documents
responsive to the latter that are not precluded by Judge Gallagher’s order regarding the former.
I will therefore order that, if there are such documents, petitioner-trustee identify them
and assert any claim of privilege in a privilege log that complies with the requirement of Fed. R.
Civ. P. 26(5)(A)(ii), i.e., that the description of the withheld document be sufficient in itself “to
enable other parties to assess the claim.” Id. I have expressed my impatience with privilege log
entries that do not meet this requirement. Chevron Corp. v. Weinberg Group, 286 F.R.D. 95, 101
(D.D.C. 2012). Counsel are advised that any log entry that fails to meet this requirement will be
disregarded and the claim of privilege rejected.
Alternatively, I encourage the parties to meet and confer regarding whether a protective
order under Federal Rule of Evidence 502(d) may suffice to protect the privileged information.
Such an order would allow the parties to go forward with discovery without waiving any claim
of privilege over a particular document. See F.R.E. 502(d) (“A Federal court may order that the
privilege or protection is not waived by disclosure connected with the litigation pending before
the court. . .”); D’Onofrio v. SFX Sports Group Inc., 256 F.R.D. 277, 278-79 (D.D.C. 2009)
(internal citations omitted). If the parties are able to agree on a 502(d) order, they may submit it
for my approval, and no privilege log is necessary. I also note that the use of Rule 502(d) may
allow the FDIC to review more documents and obtain the information it seeks via that avenue,
rather than through a long and arduous deposition. This approach would necessarily reduce the
number of topics the deposition would have to cover.
If the parties cannot agree on a 502(d) order, however, the privilege log should be
submitted to me within three weeks of the issuance of this opinion. I will then review the log
and rule individually on any claims of privilege.
The Subpoena Ad Testificandum
I will now move on to address the various arguments put forth by petitioner-trustee in
favor of quashing the subpoena ad testificandum, which, to my knowledge, is not subject to any
prior orders from the Maryland district court. 4
Non-Testifying Expert Protection
Petitioner-trustee’s first argument in favor of quashing the subpoena ad testificandum is
that Protiviti was hired in anticipation of litigation, and thus should be treated as a “nontestifying expert” that is exempt from testifying under Rule 26(4)(d) of the Federal Rules of Civil
Procedure. This rule protects from disclosure by interrogatories or at a deposition the opinions
held and the facts known by an expert retained in anticipation of litigation or for trial
preparation, but who is not expected to testify at trial. It is clear that Protiviti was never expected
to be called to testify at trial, but, after that, the parties dispute the applicability of this Rule to
As the FDIC correctly points out, the application submitted by the petitioner to the
bankruptcy court in Maryland requests the appointment of Protiviti to serve “as financial and tax
advisors to the Trustee.” [#7-2] at 1. The application goes on to state that “as financial and tax
advisors to the Trustee, Protiviti will be engaged to” assist the Trustee in a number of ways,
The FDIC reads petitioner-trustee’s motion to quash as asserting that Protiviti may not be
deposed because the trustee and Protiviti are “one and the same,” in that the trustee is employed
by Protiviti outside of the scope of his appointment as trustee of K Capital. [#7] at 9. The FDIC
believes petitioner-trustee to be arguing that, because the trustee was already deposed, a
deposition of Protiviti would allow the FDIC to essentially depose the trustee twice. This comes
from petitioner-trustee’s statement that a deposition of Protiviti would be “an improper end-run
attempt to depose Mr. Goldstein again.” [#1-1] at 2. To the extent that petitioner-trustee is
asserting such an argument, it is clear that the trustee and Protiviti are not one and the same for
purposes of the underlying litigation, as the trustee was appointed independent of his
employment by Protiviti, and Protiviti was hired as a consultant later on. I see no procedural
order in the underlying litigation that would absolutely preclude the deposition of Protiviti under
the subpoena issued by this court.
including: to supervise “the liquidation of the Debtor’s loan portfolio;” to “evaluate pre-petition
transactions undertaken by the Debtor;” to “evaluate possible tax assets;” to “prepare necessary
tax returns;” and more. [#7-2] at 3. Among this list, Trustee also includes the responsibility of
Protiviti to “assist in the prosecution of potential adversary actions.” Id. It would appear,
therefore, on the basis of this list, that Protiviti was hired for a number of reasons, which
included – but were not limited to – assistance with potential future litigation.
The protections to which Protiviti is entitled by virtue of its employment by the trustee
are unclear. Under Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure, “a party may not,
by interrogatories or deposition, discover facts known or opinions held by an expert who has
been retained or specifically employed by another party in anticipation of litigation.” Fed. R.
Civ. P. 26(b)(4)(D) (emphasis added). Whether Protiviti is entitled to such protection, however,
depends on the language emphasized above. If a consultant is not employed specifically or
solely for the purposes of assistance in litigation – and, instead, wears many other hats
throughout his relationship with the attorney or client in a case – then that consultant may be
“retained or specifically employed” in anticipation of litigation as to one aspect of his
responsibilities, but not as to others. Thus, the privilege against disclosure conferred by the Rule
may pertain only to certain topics of the intended deposition. It therefore is necessary to
commence the deposition and rule on the applicability of this privilege on a question by question
Even if Protiviti is not treated as a non-testifying expert, and therefore cannot claim
immunity from testifying on that ground, the petitioner-trustee also argues that the deposition is
improper because the attorney-client relationship extends to the attorney’s consultant in this
situation, and any deposition of Protiviti would require revealing confidential communications
between the trustee and his attorney. [#1-1] at 7.
Ordinarily, the presence of a third party during a discussion between a client and his
attorney would defeat any claim that such discussions were protected by the attorney-client
privilege. However, petitioner-trustee claims that communications where a third party nonlawyer is present are still protected by the attorney-client privilege if the third party’s presence or
participation was “necessary, or at last [sic] highly useful, for the effective consultation between
the client and the lawyer.” Id. at 8 (citing In re Kovel, 296 F.2d 918, 922 (2d Cir. 1961)).
Under precedent from this Court and the Court of Appeals for this circuit, if a consultant
is so intertwined with the attorney in a case, such that he is providing assistance in developing
litigation and legal strategies in a manner similar to multiple attorneys working on a case at a law
firm, the attorney-client privilege extends to those consultants. See Trustees of Elec. Workers
Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 8 (D.D.C. 2010);
Fed. Trade Comm’n v. GlaxoSmithKlein, 294 F.3d 141, 147-48 (D.C. Cir. 2002). However, the
attorney-client privilege is a limited one, and it does not apply to every communication. As I
have said in other opinions, the “fundamental question” is whether “the communication [was]
made for the purpose of securing either an opinion on law, legal services, or assistance in some
legal proceeding.” United States v. Motorola, No. 94-CIV-2331, 1999 WL 552553 (D.D.C. May
28, 1999), quoted in Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 3 (D.D.C. 2004)
(citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). Also relevant is “whether the
client reasonably intended the attorney to keep the communication confidential.” Id. (citing In re
Ampicillin Antitrust Litigation, 81 F.R.D. 377, 389 (D.D.C. 1978)).
The petitioner-trustee has sworn under oath, via affidavit, that Protiviti’s assistance with
the case was necessary or highly useful for the effective consultation between the trustee and his
attorney. Declaration of Charles R. Goldstein, [#1-7] at 2 (“Protiviti’s assistance was highly
useful in my communications with counsel regarding the prosecution of the FDIC-R
Litigation.”). Mr. Goldstein is therefore rightly concerned that the deposition of Protiviti or
disclosure of documents in Protiviti’s possession may reveal confidential communications
between Mr. Goldstein, his attorney, and Protiviti.
This possibility, however, does not mean that Protiviti should be insulated from
deposition full stop. Instead, it indicates that Protiviti may have genuine, valid objections to
some of the deposition topics or document requests. Accordingly, this is not a proper ground for
quashing the subpoena ad testificandum, but rather a reason for objecting to certain questions on
a case by case basis, as questions implicating privileged conversations arise.
Work Product Privilege
The petitioner-trustee also argues that Protiviti cannot be forced to testify about the
deposition topics noticed because each topic would require disclosure of petitioner-trustee’s
attorney’s work product, which is not discoverable under Rule 26(b)(3)(A). [#1-1] at 4-7. Rule
26(b)(3)(A) protects from disclosure documents and other tangible items “prepared in
anticipation of litigation or for trial by or for another party or its representative,” to include a
party’s consultant. Fed. R. Civ. P. 26(b)(3)(A); see also U.S. ex rel. Westrick v. Second Chance
Body Armor, Inc., 288 F.R.D. 222, 225 (D.D.C. 2012). Petitioner-trustee worries that
responding to the subpoena would necessarily require disclosure of the mental impressions,
conclusions or legal theories of the petitioner-trustee and his attorneys. [#1-1] at 5.
It is possible that Protiviti has documents or information responsive to FDIC’s subpoena
that fall within the protection of the work product doctrine. The mental impressions and legal
conclusions of an attorney concerning litigation “are never to be disclosed.” Banks, 222 F.R.D.
at 3. As I have stated in other recent cases, however, there is a distinction between “opinion
work product, “which is never discoverable, and factual work product,” which is discoverable
when a party shows that it “has a substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.” Chevron Corp., 286
F.R.D. at 99 (citing Fed. R. Civ. P. 26(b)(3)(A)(iii)).
I find that the FDIC has made a substantial showing that it needs at least some of the
information it requests in order to adequately defend itself in the Maryland case. When asked in
his deposition about facts that are central to the case, the petitioner-trustee, Mr. Goldstein, was
unable to answer the questions, and instead suggested that staff from Protiviti may know more
because they were the ones who worked on certain issues. [#7] at 12.
Furthermore, the deposition topics noticed in the subpoena are numerous and broad, and
the briefings on the instant motion do not go into detail sufficient enough for me to conclude that
absolutely no non-privileged information could be produced by Protiviti in response to the
subpoena. The FDIC suggests that Protiviti would agree with me on this point because, at least
at first, it did not oppose production or testifying wholesale, but rather requested that the scope of
the subpoena be narrowed. [#7] at 3. However, Protiviti has since filed an opposition to the
defendant’s motion to compel, arguing that defendant is seeking discovery here that has already
been barred in Maryland, and is thus abusing the subpoena process to get around another judge’s
order. [#10] at 1-3.
Accordingly, I find that the work product privilege is not sufficient grounds for quashing
the subpoena ad testificandum. Instead, as with the attorney-client privilege, the petitionertrustee may assert claims of privilege on a question by question basis.
Finally, the petitioner-trustee makes a short statement that complying with the subpoena
would be unduly burdensome for Protiviti, because Protiviti “would be required to incur the time
and cost of searching for and assembling all litigation support materials,” which would “divert
Protiviti’s time and resources from litigation and other matters for the trustee” and that it would
also take quite a bit of time for the trustee and his counsel to review each document for claims of
privilege. Plaintiff’s Reply in Support of Motion to Quash Subpoena Issued to Protiviti, Inc. [#8]
at 4 n.5. Although this argument is largely directed to the subpoena duces tecum, Protiviti would
also need to spend time sifting through and reviewing relevant documents to prepare for its
deposition. The burden such work would create, however, is not sufficient to quash the
First, in his opening brief, petitioner-trustee tells the court that he already “identified his
privileged communications with Protiviti on a Privilege Log supplied to the Defendant.” [#1-1]
at 8. This seems to indicate that much of the work of reviewing and identifying relevant
documents and claims of privilege has already been done. Additionally, as noted by the
respondent, Protiviti may seek compensation for the time it takes to comply with the subpoena,
so it will not be burdened financially. [#7] at 9. Although this will certainly take time, petitionertrustee has not convinced me that complying will create undue burden for Protiviti under Rule
45. Accordingly, the motion to quash will not be granted on this ground.
Given the complex relationship between petitioner-trustee and Protiviti, resolution of this
motion is not easy. Protiviti is likely in possession of some documents which reveal
communications from client to attorney that were intended to be confidential. It is likewise more
likely than not to be in possession of work product that contains the opinions or mental processes
of trustee and his counsel. I do not doubt that there will be questions, falling under the broad
deposition categories provided by the FDIC, which Protiviti will not be able to answer without
revealing confidential communications or work product. On the other hand, the subpoena as
written is broad enough that I can imagine many other responsive answers which do not fall
under either the attorney-client or work product privileges. It is therefore hard to say, given my
limited involvement with the case, whether there is information known to Protiviti that is
responsive to the subpoena but outside of any privilege. With this uncertainty, quashing the
subpoena in its entirety is improper.
We will therefore proceed as follows. I will grant in part the petitioner-trustee’s motion
to quash the subpoena duces tecum, insofar as it requests the same documents responsive to the
FDIC’s first set of requests for documents. I will deny it, however, as to any documents that
were not previously identified on Mr. Goldstein’s privilege log. I will also deny the motion to
quash as to the subpoena ad testificandum. However, to protect petitioner-trustee’s genuine
claims of privilege, I will order that 1) any documents responsive to the subpoena that were not
identified on Mr. Goldstein’s original privilege log, be identified on a privilege log along with
any privilege claimed, and filed with the Court, unless the parties agree in advance to a 502(d)
order; and 2) that the parties contact my chambers to schedule a mutually agreeable time in
which to hold Protiviti’s deposition at the U.S. District Court for the District of Columbia so that
I may rule immediately on any genuine claims of privilege asserted during the deposition. I will
not sit in on the entire deposition, but I will make myself available to resolve any privilege
disputes as they arise.
An Order accompanies this Opinion.
Digitally signed by John M.
DN: c=US, st=DC, l=Washington,
ourts.gov, o=United States
District Court for the District of
Columbia, cn=John M. Facciola
Date: 2013.05.23 15:29:57 -04'00'
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
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