Firefighters' Retirement System et al v. Citco Group Limited et al
Filing
515
RULING AND ORDER granting in part and denying in part 483 Motion to Compel Production of Documents Withheld Pursuant to Plaintiffs' Privilege Log. IT IS ORDERED that Firefighters Retirement System, Municipal Employees Retirement System of Loui siana and New Orleans Firefighters Pension & Relief Fund shall, within fourteen (14) days from the date of this Ruling and Order, either: (1) remove items corresponding to log entry numbers 979, 2231, 2582, 3033, 3086, and 3389 from their privilege log and produce those documents or (2) revise log entry numbers 979, 2231, 2582, 3033, 3086, and 3389 to adequately state the privilege asserted. Signed by Magistrate Judge Erin Wilder-Doomes on 01/08/2018. (EWD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FIREFIGHTERS’ RETIREMENT
SYSTEM, ET AL.
CIVIL ACTION
VERSUS
13-373-SDD-EWD
CITCO GROUP LIMITED, ET AL.
RULING AND ORDER ON MOTION TO COMPEL PRODUCTION OF DOCUMENTS
WITHHELD PURSUANT TO PLAINTIFFS’ PRIVILEGE LOG
Before the court is a Motion to Compel Production of Documents Withheld Pursuant to
Plaintiffs’ Privilege Log (the “Motion to Compel”) filed by defendants, Citco Technology
Management, Inc. (“CTM”), Citco Banking Corporation N.V. (“Citco Banking”), Citco Fund
Services (Cayman Islands) Limited (“CFS Cayman”), and The Citco Group Limited (“Citco
Group”) (collectively, the “Citco Defendants”).1 Plaintiffs, Firefighters’ Retirement System
(“FRS”), Municipal Employees’ Retirement System of Louisiana (“MERS”), and New Orleans
Firefighters’ Pension & Relief Fund (“NOFF”) (collectively, “Plaintiffs”), have filed an
Opposition to the Motion to Compel.2 For the reasons set forth herein, the Motion to Compel is
GRANTED IN PART AND DENIED IN PART.
I.
Background
By their instant Motion to Compel,3 the Citco Defendants originally asked this court to
compel production of certain documents listed on Plaintiffs’ privilege log. The Citco Defendants
classified documents to be compelled into three exhibits4 and argued that Plaintiffs should either
1
R. Doc. 483.
2
R. Doc. 496.
3
R. Doc. 483.
4
The original Exhibit A consisted of entries which the Citco Defendants contended were insufficient to establish
privilege because they contained either a generic name (“NOFF Employee” or “LA Funds”) or nothing at all in the
author and/or recipient field. R. Doc. 483-3. The original Exhibit B identified documents that the Citco Defendants
1
be ordered to produce “the documents for which they are unable or unwilling to provide adequate
descriptions or, in the alternative, to submit a revised privilege log….”5 In response to the Motion
to Compel, Plaintiffs filed an opposition asserting that they: (1) produced 46 documents “either
prior to or concurrent with the filing of this motion,” (2) produced 22 redacted documents; and (3)
of the remaining 91 documents at issue “to the extent possible,” sent revised entries to the Citco
Defendants on November 20, 2017.6
Plaintiffs asserted that all of the redacted portions of
documents on their privilege log, and the 91 remaining documents were “privileged because the
document is between an employee of the Louisiana Funds and the indicated attorneys which either
seek or give legal advice or opinions directly related to the Fletcher litigation.”7 In conjunction
with their opposition, Plaintiffs provided charts setting out Plaintiffs’ employees as well as
attorneys employed by Campbells or Diamond McCarthy.8
The Motion to Compel was discussed during the December 12, 2017 status conference.
During the conference, counsel for the Citco Defendants stated that after reviewing Plaintiffs’ most
recent revisions to Plaintiffs’ privilege log, the Citco Defendants believed the descriptions for
asserted did not indicate whether the withheld document reflected a request for the provision of legal advice or was
created in anticipation of litigation (as examples, the Citco Defendants asserted that entries such as “email re draft
minutes,” “email re: public records request,” and “handwritten notes re Fletcher conference call” were inadequate and
did not convey whether the document was prepared in anticipation of litigation or was made for the purpose of
obtaining legal advice). R. Doc. 483-4. Finally, original Exhibit C consisted of entries with descriptions that the Citco
Defendants argued were so generic that they did not adequately disclose the nature of the document withheld. R. Doc.
484-5.
5
R. Doc. 483-1, p. 7.
6
R. Doc. 496, pp. 1-2.
7
Within their opposition to the Motion to Compel, Plaintiffs provided charts showing the names of Plaintiffs’
employees and attorneys (along with the firm employing the attorney). R. Doc. 496 pp. 5-7.
8
R. Doc. 496, pp. 5-6. Plaintiffs explained in their opposition that “Campbells is a Cayman Islands law firm that was
retained by the Louisiana Funds on October 10, 2011 in connection with the Louisiana Funds’ attempts to redeem its
investment in Leveraged. Diamond McCarthy is a New York law firm retained by the Louisiana Funds on August
27, 2012, in connection with the Fletcher bankruptcy proceedings in New York.” R. Doc. 496, p. 6. In addition to
these two law firms, Plaintiffs also identified other law firms and attorneys which provided legal services to one or all
of the Plaintiffs. R. Doc. 496, pp. 6-7.
2
approximately 15-25 of the entries were still deficient. The Citco Defendants agreed to send a
letter to Plaintiffs’ counsel on December 13, 2017 setting forth the entries which the Citco
Defendants believed to be deficient, and Plaintiffs were to revise those entries or inform the Citco
Defendants that no further revisions would be made by Friday, December 15, 2017. The court
ordered the parties to submit a joint letter on December 18, 2017 setting out the entries on
Plaintiffs’ privilege log that are still at issue. On December 18, 2017, the parties submitted the
requested letter.9 Rather than clarifying which entries were still at issue, the December 18, 2017
correspondence only muddied the waters because the parties “disagree[d] about what entries
remain at issue.” While the Citco Defendants submitted a new Exhibit A setting out 19 entries
purportedly at issue, Plaintiffs contended that only three of those entries remained contested.
On December 20, 2017, the undersigned issued a Notice and Order explaining that because
the new Exhibit A supplements and modifies the Citco Defendants’ Motion to Compel, all entries
as set forth in R. Doc. 507, Exhibit A were considered to still be at issue.10 In the Notice and
Order, the court requested additional information in order to rule on the Motion to Compel.
Specifically, the court explained that the entries still at issue referenced “Mourant” or
“Mouvant,”11 “MTBA,” and “UCBI.” Other entries improperly listed the author as “LA Funds”
or “NOFF employee.” See, XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., Civil Action No.
12-2071, 2014 WL 295053, ay * 6 (E.D. La. Jan. 27, 2014) (ordering defendant to either produce
documents or provide a supplemental log as to 12 entries that identified only entities in the “to”
9
R. Doc. 507.
10
R. Doc. 508.
11
One of the log entries states that this is a “third party lawfirm.” R. Doc. 507, Exhibit A. As noted above, in
opposition to Defendants’ Motion to Compel, Plaintiffs submitted a list of attorneys and law firms that performed
work for Plaintiffs; however, “Mourant” and/or “Mouvant” was not included on that list and therefore it was unclear
whether this law firm was representing one of the Plaintiffs or an unrelated third party.
3
and “from” column); Chemtech Royalty Associates, L.P. v. U.S., Civil Action Nos. 05-944, 06258, 07-405, 2009 WL 854358, at * 5 (M.D. La. March 30, 2009) (finding privilege log that, inter
alia, listed the author of certain documents as “‘Dow Chemical Company,’ which is an entity and
not an individual” was insufficient and requiring plaintiff to provide a revised privilege log).
Accordingly, the court ordered Plaintiffs to submit a revised Exhibit A that explained all acronyms
used therein (including “MTBA” and “UCBI”) as well as the role of “Mourant”/“Mouvant” and
which revised, if possible, entries naming “LA Funds” or “NOFF employee” as author.12
On December 29, 2017, Plaintiffs submitted their revised log.13 By cover letter attached
to that revised log, Plaintiffs explained that “‘MBTA’ is the Massachusetts Bay Transportation
Retirement Fund” and asserted that MBTA, along with FRS, MERS, and NOFF were the “ultimate
victims of this fraud.”14 Plaintiffs further explained that “UCBI is United Community Banks, Inc.
and Mourant Ozannes is the Cayman law firm who represented the Fletcher entities in the spring
of 2012 (after the Louisiana Funds had hired Campbells). Specifically, Plaintiffs hired Campbells
to communicate directly with Mourant Ozannes as opposing counsel.”15 Finally, Plaintiffs
explained that “[a]s to the entries where a document was authored by “LA Funds,” the document
was created jointly by Steven Stockstill, Bob Rust, and Ritchie Hampton. The redacted portion of
the document describes the contents of conversations held by one of the three gentlemen, if not all
three as representatives of their organizations.”16 As set forth in Plaintiffs’ December 29, 2017
submission, log entry numbers 979, 1180, 1184, 1220, 1726, 1985, 2231, 2508, 2518, 2582, 2601,
12
R. Doc. 508.
13
R. Doc. 511. The December 29, 2017 revised log refers to MBTA rather than MTBA.
14
R. Doc. 511, p. 2 n. 2.
15
R. Doc. 511, p. 2.
16
R. Doc. 511, p. 2. Per Plaintiffs’ chart, Mr. Stockstill is employed by FRS, Mr. Rust is employed by MERS, and
Mr. Hampton is employed by NOFF. R. Doc. 496, p. 5.
4
2756, 3004, 3025, 3028, 3033, 3386, 3389, and 3392 remain at issue by the Citco Defendants’
Motion to Compel.17 Plaintiffs have claimed both the attorney client and work product privileges
protect certain documents (or portions of documents) from disclosure.18
II.
Law and Analysis
A. Legal Standards
i. Attorney Client Privilege
Rule 501 of the Federal Rules of Evidence requires a federal court sitting in diversity to
apply the appropriate state’s law concerning the scope and application of the claimed attorneyclient privilege. The Louisiana Code of Evidence states:
A client has a privilege to refuse to disclose, and to prevent another
person from disclosing, a confidential communication ... made for
the purpose of facilitating the rendition of professional legal services
to the client, as well as the perceptions, observations, and the like,
of the mental, emotional, or physical condition of the client in
connection with such a communication....
La. Code Evid. art. 506(B). Under Louisiana law, the party asserting the privilege has the burden
of proving its applicability. Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1143 (La.
Sept. 9, 1987).
In Equal Employment Opportunity Commission v. BDO USA, LLP, 2017 WL 5494237 (5th
Cir. Nov. 16, 2017), the Fifth Circuit left the initial determination regarding whether the privilege
log was sufficient to the district court on remand, and set forth some general rules regarding the
assertion of privilege. The court explained that “[f]or a communication to be protected under the
privilege, the proponent ‘must prove: (1) that he made a confidential communication; (2) to a
17
These entries are reproduced later in this Ruling and Order.
18
The Exhibit A attached to the parties’ joint December 18, 2017 submission included a column indicating the
privilege claimed for each log entry. See, R. Doc. 507. The most recent revision of Plaintiffs’ privilege log does not
include this column, and the undersigned has assumed that the information regarding what privilege has been claimed
as set forth in the December 18, 2017 chart is correct.
5
lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal
services, or assistance in some legal proceeding.’” Id. at * 3 (citing United States v. Robinson, 121
F.3d 971, 974 (5th Cir. 1997)). See also, Swoboda v. Manders, 2016 WL 2930962, at * 5, n. 41
(M.D. La. May 19, 2016) (recognizing that not all communications between an attorney and his
client are privileged, “‘[f]or example, no privilege attaches when an attorney performs
investigative work in the capacity of an insurance claims adjuster, rather than as a lawyer.’”) (citing
In re Allen, 106 F.3d 582, 602 (4th Cir. 1997)); U.S. v. Davis, 636 F.2d 1028, 1043 (5th Cir. 1981)
(explaining that work papers produced by an attorney in the course of preparing client’s tax returns
were not privileged “because although preparation of tax returns by itself may require some
knowledge of the law, it is primarily an accounting service. Communications relating to that
service should therefore not be privileged, even though performed by a lawyer.”). Likewise, the
attorney client privilege does not extend to materials assembled in the ordinary course of business,
or which provide purely factual data. See, U.S. v. Louisiana, Civil Action No. 11-470, 2015 WL
4619561, at * 5 (M.D. La. July 31, 2015).19
ii. Work Product Privilege
Pursuant to Fed. R. Civ. P. 26(b)(3)(A), “[o]rdinarily, a party may not discover documents
and tangible things that are prepared in anticipation of litigation or for trial by or for another party
or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer,
or agent.)” (emphasis added). However, such materials may be discovered if “(i) they are
19
As set forth above, Louisiana law must govern the court’s determination regarding the applicability of the attorney
client privilege. However, this court has explained that federal law is instructive, “given the ‘federal common law
and Louisiana statutory law are materially similar concerning the attorney-client privilege.’” Forever Green Athletic
Fields, Inc. v. Babcock Law Firm, LLC, Civil Action No. 11-633, 2014 WL 29451, at * 6, n. 7 (M.D. La. Jan. 3, 2014)
(citing Akins v. Worley Catastrophe Response, LLC, No. 12–2401, 2013 WL 796095, at *11 (E.D. La. March 4, 2013);
Soriano v. Treasure Chest Casino, Inc., No. 95–3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996) (federal
“common law and Louisiana statutory law are materially similar in this case in regards to attorney-client privilege”)).
6
otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need
for the materials to prepare its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.” Id. “The party who is seeking the protection of the work-product
doctrine has the burden of proving that the documents were prepared in anticipation of litigation.”
Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013).
“It is not dispositive that some documents were not prepared by attorneys. Rule 26(b)(3)
protects from discovery documents prepared by a party’s agent, as long as they are prepared in
anticipation of litigation.” Naquin v. UNOCAL Corp., 2002 WL 1837838, at *7 (E.D. La. Aug.
12, 2002). See also, Southern Scrap Metal Co. v. Fleming, 2003 WL 21474516, at * 6 (E.D. La.
June 18, 2003) (“The [work product] doctrine protects not only materials prepared by a party, but
also materials prepared by a co-party, or representative of a party, including attorneys, consultants,
agents, or investigators.”); Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2
(M.D. La. April 1, 2013) (same). However, “[t]he work-product doctrine does not protect
materials assembled in the ordinary course of business, pursuant to regulatory requirements, or for
other non-litigation purposes.” Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at
*2 (M.D. La. April 1, 2013). While “[w]ork product protection extends to documents and tangible
things that are prepared in anticipation of litigation by a party or its representative, [the privilege]
does not extend to the underlying relevant facts or to documents assembled in the ordinary course
of business.” Williams v. United States Environmental Services, LLC, 2016 WL 617447, at *4
(M.D. La. Feb. 16, 2016).
B. Sufficiency of Plaintiffs’ Privilege Log
The party claiming the privilege bears the burden of proof, and this is a highly fact-specific
inquiry. BDO, 2017 WL 5494237, at * 3. Ambiguities with respect to whether the elements of a
7
privilege claim have been met are construed against the proponent of the privilege. Id. Once the
privilege is established, the burden shifts to the party seeking the documents to prove an applicable
exception. Id. Pursuant to Local Civil Rule 26(c):
A party withholding information claimed privileged or otherwise
protected must submit a privilege log that contains at least the
following information: name of the document, electronically stored
information, or tangible things; description of the document,
electronically stored information, or tangible thing, which
description must include each requisite element of the privilege
or protection asserted; date; author(s); recipient(s); and nature of
the privilege.
Emphasis added. “[A] privilege log’s description of each document and its contents must provide
sufficient information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim”
and “courts have stated that simply describing a lawyer’s advice as ‘legal,’ without more, is
conclusory and insufficient to carry out the proponent’s burden of establishing attorney-client
privilege.” Id. (internal citations omitted). “The standard for testing the adequacy of the privilege
log is whether, as to each document, the entry sets forth facts that ‘would suffice to establish each
element of the privilege or immunity that is claimed.’ The focus is on the specific descriptive
portion of the log, and ‘not on conclusory invocations of the privilege or work-product rule, since
the burden of the party withholding documents cannot be discharged by mere conclusory’
assertions. Chemtech Royalty Associates, L.P. v. U.S., Civil Action Nos. 05-944, 06-258, 07-405,
2009 WL 854358, at * 3 (M.D. La. March 30, 2009) (internal citations omitted). See also, U.S. v.
Louisiana, Civil Action No. 11-470, 2015 WL 2453719, at * 1 (M.D. La. May 22, 2015) (same).
“Objections based on the attorney client privilege or work product doctrine “can only be sustained
if they are both properly asserted and the facts supporting the privileges are established by the
evidence, not merely declared by lawyer argument.” U.S. v. Louisiana, 2015 WL 2453719, at * 2
(citing Estate of Manship v. U.S., Civil Action No. 04-91, 232 F.R.D. 552, 561 (M.D. La. Dec. 8,
8
2005). “The party claiming the privilege must ‘describe those documents to the best of its ability
without revealing the information privileged.’” Id.
Citco agrees that “[a] privilege log must include sufficient information to enable the other
party to assess the claim of privilege over otherwise discoverable documents that are being
withheld on the basis of privilege.”20 Citco contends that a privilege log must identify basic
information, including the date, author, recipients, and nature of the privilege, and should describe
the subject matter with enough specificity so that the claim of privilege can be evaluated.
Following additional discussion between the parties, and as explained above, the undersigned
considers the nineteen entries set forth in R. Doc. 507, Exhibit A to be at issue.
i. Log Entry Numbers 1180, 1184, 1220, 1726, 1985, 2508, 2518, 2601,
2756, and 3392 Are Sufficient to Establish Attorney-Client Privilege
Over the Withheld Communications
Based on the undersigned’s review of the Plaintiffs’ most recent revised privilege log, the
undersigned finds that log entry numbers 1180, 1184, 1220, 1726, 1985, 2508, 2518, 2601, 2756,
and 3392 are sufficiently descriptive to establish that the underlying documents (or portions
thereof) are protected by the attorney client privilege. These log entries are as follows:
20
R. Doc. 483-1, p. 2.
9
ID
Document Description
Author
Recipient
CC
1180
Email attaching redacted
draft of Joint Liquidator/
Louisiana Funds Funding
Agreement containing
edits and analysis of the
edits made by Outside
Counsel to the three funds,
directly to clients without
third party presence; PG
ID 1184/ PG ID 1220 are
duplicates. Unredacted
portion of email contains a
question from attorney to
client "do you have any
comments on the message
below?"
Alistair
Walters
Steven
Stockstill;
Bob Rust;
Richard
Hampton
Kelli
Chandler,
Guy Cowan
1184
Email attaching draft of
Joint Liquidator/ Louisiana
Funds Funding Agreement
containing edits and
analysis of the edits made
by Outside Counsel to the
three funds, directly to
clients without third party
presence; PG ID 1184 is a
duplicate.
Alistair
Walters
Steven
Stockstill;
Bob Rust;
Richard
Hampton
Guy
Cowan;
Kelli
Chandler
Attorney
Client;
Work
Product
1220
Email attaching draft of
Joint Liquidator/ Louisiana
Funds Funding Agreement
containing edits and
analysis of the edits made
by Outside Counsel to the
three funds, directly to
clients without third party
presence as evident from
the redacted portion
produced.
Alistair
Walters
Steven
Stockstill;
Bob Rust;
Richard
Hampton
Kelli
Chandler,
Guy Cowan
Attorney
Client;
Work
Product
10
Other
Participants
Alistair
Walters;
Steven
Stockstill; Bob
Rust; Richard
Hampton; Guy
Cowan; Kelli
Chandler
Privilege
Claimed
Attorney
Client
1726
Email re discussions with
Massachusetts Bay
Transportation Retirement
Fund as a creditor of
Arbitrage and LA Funds
attorney analysis of the
same included; client
comments included; no
third party included in
discussions as evident
from redacted document
produced. Of the five
pages produced, 1/2 page
redacted.
Richard
Hampton
Steven
Stockstill;
Bob Rust;
Alistair
Walters
Kelli
Chandler,
Guy Cowan
Attorney
Client;
Work
Product
1985
Email containing inquiry
about E&Y Joint
Liquidators to LA funds
atty and inquiry from
client to LA Fund atty re
additional redemptions;
Redacted portion of
document evidences
communication made
between LA Fund attorney
and client with no third
party participation
Alistair
Walters
Steven
Stockstill;
Bob Rust;
Richard
Hampton
Kelli
Chandler,
Guy Cowan
Attorney
Client
2508
Alistair Walters, LA
Funds' attorney, email to
Louisiana Funds with
advice to LA Funds
relating to other pension
fund investment in
Arbitrage vis a vis LA
Funds investment in
Leveraged
Steven
Stockstill
Alistair
Walters
Bob Rust,
Guy Cowan
Attorney
Client;
Work
Product
11
2518
FRS Internal Email
relating to Fletcher
Litigation authored to LA
Funds attorneys evaluating
Kelli Chandler theory of
distribution; Chandler
theory of distribution has
been produced to Citco;
Stockstill inquiry about
Kelli's theory forwarded
for purposes of seeking
advice and input to Kelli
and LA Funds attorneys is
redacted for privileged.
Steven
Stockstill
Kelli
Chandler
Bob Rust,
Richard
Hampton,
Alistair
Walters,
Guy
Cowan,
Marc Parrot
Attorney
Client;
Work
Product
2601
Email about the meeting
between LA Fund
attorney, representative of
FRS, and Mourant (third
party law firm); The email
is specifically between LA
Funds and FRS regarding
preparation of Stockstill in
advance of the meeting.
Communication made
between LA Funds and
attorneys with no third
party participation.
Steven
Stockstill
Alistair
Walters, Bob
Rust,
Richard
Hampton
Guy
Cowan,
Kelli
Chandler
Attorney
Client;
Work
Product
2756
Email about meeting with
Massachusetts Bay
Transportation Retirement
Fund on Arbitrage
liquidation and litigation.
Email is between LA
Funds attorney and client
and contains attorney
advice re impact on
potential partnerships in
recovery litigation efforts;
redacted portion of
document evidences no
third party participation
during the redacted portion
of the communication
Steven
Stockstill
Alistair
Walters,
Richard
Hampton,
Bob Rust
Kelli
Chandler,
Guy Cowan
12
Douglas Pepe,
Gregory
Joseph,
Richard
Thomas, Roc
McMahon,
Claire Loebell,
FRS Trustees
Attorney
Client;
Work
Product
3392
Handwritten notes re
conference call with LA
Funds and Alistair;
Majority of the 2 page
document is redacted. LA
Funds inform Alistair that
LA Funds have spoken
with Liquidators
(potential); Alistair offers
opinion re same including
re options of winding
down; Discussion between
attorney and client re
Campbells memorandum
previously submitted to
Louisiana Funds; and Joint
Committee discussing
litigation and Campbells
negotiating outcome on
behalf of LA Funds
Richard
Hampton
Alistair
Walters, Guy
Cowan, Steven
Stockstill, Bob
Rust
Attorney
Client;
Work
Product
The documents corresponding with log entry numbers 1180, 1184, 1220, 1726, 1985, 2508, 2518,
2601, and 2756 were either authored by or received by Plaintiffs’ attorney(s), and include
sufficiently detailed substantive descriptions. The descriptions are not conclusory and instead
provide enough detail to determine the nature of the advice sought. With respect to log entry
number 3392 (which was authored by Mr. Hampton, an employee of NOFF, and which lists certain
of Plaintiffs’ attorneys as “other participants”), the undersigned finds that the description set forth
in Plaintiffs’ revised privilege log sufficient to establish that the underlying documents reflect
notes of confidential communications between Mr. Hampton and counsel for the purpose of
seeking or rendering legal advice.
13
ii. Log Entry Numbers 3004, 3025, and 3028 Are Sufficient to Establish
Work Product Over the Withheld Documents
Log entry numbers 3004, 3025, and 3028 provide:
ID
Document Description
Author
Recipient
3004
Fletcher Timeline
11/23/11 - 1/10/12
detailing communication
and recommendation of
attorneys; unredacted
portion of document
produced to Citco
identifies who the
Louisiana Funds
contacted, which Law firm
was Contacted, and if
information was received,
who authored the
information; the
information redacted is in
anticipation of litigation
December 2011
LA Funds
(Stockstill,
Rust,
Hampton)
Kean Miller,
Campbells
Privilege
Claimed
Work
Product
3025
Litigation Timeline;
Handwritten Notes
transcribed detailing
communication of Alistair
Walters and Guy Cowan
analysis re third party
pension fund claims;
Unredacted portion of
document evidences the
individuals present during
the meeting are client and
attorneys only and if not
specifically attorney
advice, the document is
unredacted.
Richard
Hampton
Kean Miller,
Campbells
Work
Product
14
CC
Other
Participants
3028
Litigation Timeline;
Handwritten Notes
transcribed detailing
communication and earlier
draft of Alistair Walters
and Guy Cowan analysis
re third party pension fund
claims; Unredacted portion
of document evidences the
individuals present during
the meeting are client and
attorneys only and if not
specifically attorney
Richard
Hampton
Work
Product
The undersigned finds that log entry numbers 3004, 3025, and 3028 are sufficiently
detailed to establish that the underlying documents were prepared in anticipation of litigation.
These descriptions each reflect that Mr. Hampton took handwritten notes regarding Plaintiffs’
attorneys’ recommendations, communications, and analysis of litigation. Additionally, although
apparently not claimed by Plaintiffs, to the extent these handwritten notes reflect Mr. Hampton’s
communications with Plaintiffs’ attorneys for the purpose of obtaining or seeking legal advice (as
the descriptions indicate), then these notes would also appear to be protected by the attorney client
privilege.
15
iii. Log Entry Numbers 979, 2231, and 2582 Are Insufficient to Establish
Attorney-Client Privilege Over the Withheld Communications
Log entry numbers 979, 2231, and 2582 provide:
ID
Document Description
Author
Recipient
CC
979
41 Page Document
Produced; 2 of the 41
pages contain redactions.
Handwritten notes
memorializing internal
discussion between
Alistair (outside counsel)
and Steven Stockstill
(FRS) re Fletcher litigation
and meeting results/to do
list
Alistair
Walters
Steven
Stockstill
Guy
Manning
2231
Client authored
communication
transmitted to LA Fund
Attorney(s) in advance of
Mourant call (attorneys to
Fletcher) regarding matters
on the agenda; Redacted
portion produced
evidences the
communication made
directly between Louisiana
Funds and their attorneys
Richard
Hampton
Alistair
Walters,
Steven
Stockstill,
Bob Rust
Kelli
Chandler,
Guy Cowan
2582
Email re LA Funds
attorney's preparation and
includes inquiry to client
re documentation
Steven
Stockstill
Gregory
Joseph,
Alistair
Walters
Other
Participants
Privilege
Claimed
Attorney
Client
Attorney
Client
Attorney
Client
With respect to log entry number 2582, Plaintiffs’ revised description only provides “[e]mail re
LA Funds attorney’s preparation and includes inquiry to client re documentation.” Similarly, the
description for log entry number 979 is “[h]andwritten notes memorializing internal discussion
between Alistair (outside counsel) and Steven Stockstill (FRS) re Fletcher litigation and meeting
results/to do list.” Plaintiffs claim the underlying documents corresponding to log entries 2582
and 979 are protected from disclosure by the attorney client privilege. However, the undersigned
16
finds that the descriptions of these documents do not provide any substantive description regarding
the withheld information and that, as currently drafted, these two entries are insufficient to carry
Plaintiffs’ burden of establishing that the underlying documents (or redacted portions thereof) are
protected by the attorney client privilege.21 While log entry 2231 includes a more substantive
description, that description – reflecting communications transmitted in advance of a call between
Plaintiffs’ and Fletcher’s attorneys “regarding matters on the agenda” – does not, without more,
suggest to the undersigned that the communication was for the purpose of obtaining legal advice.
iv. The Remaining Log Entries Related to Timelines and/or Handwritten
Notes (Entries 3033, 3386, and 3389) Are Insufficient to Establish
Attorney Client or Work Product Privilege22
The remaining entries on Plaintiffs’ revised privilege log, numbers 3033, 3386, and 3389
are described as “timelines” and/or “handwritten notes:”
ID
Document Description
Author
3033
Litigation Timeline;
Handwritten Notes
transcribed detailing
communication and
recommendations of
attorneys; Note, of the two
pages, 1/10th of 1 page is
redacted when it is noted
that Campbells explains
the Silo Chart authored by
Campbells
Recipient
Richard
Hampton
CC
Other
Participants
Privilege
Claimed
Work
Product
21
The undersigned notes that Plaintiffs’ previous description corresponding with log entry number 2582 (“email re
outside counsel preparation, including outside counsel’s inquiry to client re documents provided to the SEC and ruling
of the Chief Justice”), R. Doc. 507, was more detailed than the current entry.
22
As explained above, the undersigned finds log entry numbers 3004, 3025, 3028, and 3392 sufficiently detailed to
establish privilege.
17
3386
Handwritten notes re
conference call with Joint
Liquidators and Mourant,
Alistair and Joint
Committee re Appeal of
Wind Up Petition, MBTA
Pension Funds; Analysis
of Delaware Law re
Majority Shareholders
Role in FILB Resignation
Richard
Hampton
3389
Handwritten notes re
Fletcher evaluation of
settlement and analysis of
information needed in
Funds prior to ascertaining
settlement options re
UCBI; 3 statements
redacted in anticipation of
litigation and settlement,
remainder of document
produced
Alistair
Walters,
Steven
Stockstill, Bob
Rust, Kelli
Chandler
Richard
Hampton
Attorney
Client;
Work
Product
Attorney
Client;
Work
Product
Plaintiffs claim the underlying documents (or redacted portions of these documents) corresponding
to these log entries are protected by the work product and/or attorney client privilege. Log entry
number 3033 is described as notes “detailing communications and recommendations of attorneys;”
however, the entry does not indicate which attorneys were involved in the communications or
recommendation, or the substantive topic of such communications or recommendations.23 Log
entry numbers 3386 and 3389 are described as “handwritten notes.” It appears that Plaintiffs have
completely withheld the document corresponding to log entry number 3386. The description of
that document appearing on Plaintiffs’ most recent log is “[h]andwritten notes re conference call
with Joint Liquidators and Mourant, Alistair, and Joint Committee re Appeal of Wind Up Petition,
MBTA Pension Funds; Analysis of Delaware Law re Majority Shareholders Role in FILB
23
The description for log entry 3033 is similar to, but less detailed than, the descriptions for log entry numbers 3025
and 3028 which also related to “Litigation Timeline; Handwritten Notes” and which are sufficiently detailed.
18
Resignation.” Plaintiffs have explained that Mourant was opposing counsel representing Fletcher.
Accordingly, it would seem at least some of the notes contained in that document do not reflect
confidential communications. Further, the identity of the “joint liquidators” and “joint committee”
is not clear from log entry 3386 and suggests that communications contained therein may not have
been confidential.
Similarly, the undersigned finds Plaintiffs’ description of the document
reflected in log entry 3389 insufficient to allow a determination regarding whether the document
is privileged. That document is described as “[h]andwritten notes re Fletcher evaluation of
settlement and analysis of information needed in Funds prior to ascertaining settlement options re
UCBI; 3 statements redacted in anticipation of litigation and settlement, remainder of document
produced.” Plaintiffs claim this document is protected by the attorney client and work product
privilege; however, the only individual listed on the log for this entry is Mr. Hampton (as the
author), and the description indicates the document relates to a “Fletcher evaluation of settlement.”
It is not clear how notes taken by Mr. Hampton regarding an opposing party’s evaluation of
settlement would be privileged.
C. The Undersigned Will Allow Plaintiffs a Short Time Period in which to Revise
Deficient Entries or Produce Documents
For the reasons set forth above, the undersigned is unable to determine the sufficiency of
Plaintiffs’ most recent privilege log with respect to entry numbers 979, 2231, 2582, 3033, 3086,
and 3389. “[T]he majority approach by courts, when confronted by a privilege log that is
technically deficient and that does not appear to have been prepared in bad faith, is to allow the
party who submitted the log a short opportunity to amend the log prior to imposing the drastic
remedy of waiver.” Cashman Equipment Corp. v. Rozel Operating Co., Civil Action 08-363, 2009
WL 2487984, at * 2 (M.D. La. Aug. 11, 2009) (collecting cases); see also, Chemtech, 2009 WL
854358, at * 5 (requiring plaintiff to provide a revised privilege log and noting “[a]t this juncture,
19
the court will not order that any of the 379 documents be produced, and will not conduct an in
camera review of the documents. Obviously, such a log will require some work, but an in camera
inspection of 379 documents is no substitute for an informative log.”). Although Plaintiffs have
had multiple opportunities to revise their log entries, the Citco Defendants’ Motion to Compel is
GRANTED IN PART. Plaintiffs are ORDERED to, within fourteen (14) days from the date of
this Ruling and Order, either: (1) remove items corresponding to log entry numbers 979, 2231,
2582, 3033, 3086, and 3389 from their privilege log and produce those documents, or (2) revise
these entries on the log further.
IV.
Conclusion
For the reasons set forth herein, the Motion to Compel Production of Documents Withheld
Pursuant to Plaintiffs’ Privilege Log (the “Motion to Compel”)24 filed by defendants, Citco
Technology Management, Inc. (“CTM”), Citco Banking Corporation N.V. (“Citco Banking”),
Citco Fund Services (Cayman Islands) Limited (“CFS Cayman”), and The Citco Group Limited
(“Citco Group”) (collectively, the “Citco Defendants”) is GRANTED IN PART AND DENIED
IN PART.
24
R. Doc. 483.
20
IT IS ORDERED that Plaintiffs, Firefighters’ Retirement System (“FRS”), Municipal
Employees’ Retirement System of Louisiana (“MERS”), and New Orleans Firefighters’ Pension
& Relief Fund (“NOFF”) (collectively, “Plaintiffs”) shall, within fourteen (14) days from the date
of this Ruling and Order, either: (1) remove items corresponding to log entry numbers 979, 2231,
2582, 3033, 3086, and 3389 from their privilege log and produce those documents, or (2) revise
these entries on the log further.
Signed in Baton Rouge, Louisiana, on January 8, 2018.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
21
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