Firefighters' Retirement System et al v. Citco Group Limited et al

Filing 660

RULING AND ORDER granting in part and denying in part 589 MOTION to Compel Production of Arbitrage and Leveraged Liquidation Committee Minutes. Signed by Magistrate Judge Erin Wilder-Doomes on 5/10/2018. (SGO)

IIUNITED 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
Before the court is the Citco Defendants’ Motion to Compel Production of Arbitrage and
Leveraged Liquidation Committee Minutes (the “Motion to Compel”)1 filed by 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”).

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.2 For the reasons set forth herein, the Motion to Compel is DENIED IN PART AND
GRANTED IN PART.
I.

Background
On March 1, 2013, Plaintiffs filed suit against 23 defendants, including the Citco

Defendants, asserting claims under the Louisiana Securities Act and Louisiana Unfair Trade
Practices Act, as well as third party beneficiary, unjust enrichment, breach of contract, negligent
misrepresentation, and general tort claims.3 Plaintiffs’ claims arise from a $100 million investment
loss. In April of 2008, the Louisiana Funds purchased 100,000 Series N Shares offered and issued

1

R. Doc. 589.

2

R. Doc. 623.

3

R. Doc. 1-3.

1

by FIA Leveraged Fund (“Leveraged”) for $100 million.4 After a series of investment transactions
initiated by Leveraged, in March of 2011, Plaintiffs sought to redeem their Series N shares. 5
Ultimately, the shares went unredeemed and Plaintiffs determined that the investment was illiquid
and, thus, the N shares, for which there was no market, were valueless.6
The Citco Defendants explain that “[i]n 2012, the Plaintiffs forced Leveraged and
Arbitrage into liquidation in the Cayman Islands and Ernst & Young (‘EY’) was appointed as the
‘Joint Official Liquidators’ (‘JOLs’) of the Leveraged and Arbitrage funds, which is the Cayman
Islands equivalent of a bankruptcy trustee.”7 The Citco Defendants explain that “[a]s part of the
liquidation process, a ‘liquidation committee’ for creditors of both Leveraged and Arbitrage was
formed to coordinate the liquidation process with the JOLs. The liquidation committees – on
which Plaintiffs (and others) sat – met several times from 2012 through 2017 to discuss liquidation
and other related matters relevant to Leveraged and Arbitrage.”8 Both in their Motion to Compel,
as well as in previous status conferences with the court, the Citco Defendants assert that the
Leveraged Liquidation Committee meeting minutes and the Arbitrage Liquidation Committee
meeting minutes (collectively, the “Liquidation Committee Minutes” or “Minutes”) are relevant
to issue of, inter alia, Plaintiffs’ damages.9

4

R. Doc. 1-3, ¶ 34. Leveraged was a feeder fund which Plaintiffs allege was formed primarily to invest in a master
fund, Fletcher Income Arbitrage, Ltd. R. Doc. 1-3, ¶ 10.
5

R. Doc. 1-3, ¶ 41.

6

R. Doc. 1-3, ¶¶ 34-45 & 18.

R. Doc. 589-1, pp. 1-2. See also, R. Doc. 1 (Notice of Removal), ¶ 8, n. 1 (“On January 31, 2012, Plaintiffs filed a
winding up petition against the Leveraged Fund in the Grand Court of the Cayman Islands (the ‘Cayman Court’). By
order dated April 18, 2012, the Cayman Court appointed Roy Bailey and Robin Lee McMahon, each of Ernst &
Young, Ltd., as Joint Official Liquidators of the Leveraged Fund. The liquidation proceedings of the Leveraged Fund,
including the expenses of the Joint Official Liquidators, as funded by Plaintiffs.”).
7

8

R. Doc. 589-1, p. 2.

9

R. Doc. 554, p. 5, R. Doc. 589-1, p. 2.

2

Plaintiffs do not contest the relevancy of the Liquidation Committee Minutes and have
previously produced Minutes pre-dating February 1, 2013. During a March 6, 2018 status
conference, the Citco Defendants raised the issue of Plaintiffs’ production of only some of the
Liquidation Committee Minutes. At that conference, counsel for the Citco Defendants argued that
the Liquidation Committee Minutes would be relevant to the issue of Plaintiffs’ damages and that
the minutes were not privileged because they were prepared by third parties (the JOLs).10
Following those arguments, counsel for Plaintiffs asserted that “[a]s long as [counsel for Citco
Defendants] believes that they’re relevant to this case and based upon that stipulation, we’ll
produce them.”11
Thereafter, Plaintiffs produced Liquidation Meeting Minutes dated between March 14,
2013 and January 11, 2017 with certain portions of each redacted.12 Plaintiffs contend that the
redacted portions of these Minutes are protected by the work product doctrine. Although Plaintiffs
previously produced Liquidation Committee Minutes pre-dating February 1, 2013, Plaintiffs
explain that they “retained Campbells [a separate law firm], not Preis Gordon [Plaintiffs’ counsel
in these proceedings], to perform work in connection with the Cayman liquidations concerning the
matters discussed at the pre-2013 meetings,” and “[t]he Louisiana Funds retained Preis Gordon in
February 2013 to pursue a private right of action independent of the liquidation proceedings.” 13
Plaintiffs assert that the redactions currently at issue “contain the mental impressions of Preis

10

R. Doc. 594 (transcript of March 6, 2018 status conference), pp. 71:12-72:20.

11

R. Doc. 594, p. 73:5-7. On March 21, 2018, in response to a joint letter request from the parties, the court granted
a limited extension of time through March 28, 2018 to meet and confer regarding Plaintiffs’ production of the meeting
minutes with what the Citco Defendants considered to be “substantial portions” redacted. R. Doc. 572.
12

In their instant Motion to Compel, the Citco Defendants complain that Plaintiffs had not yet provided a privilege
log. In conjunction with Plaintiffs’ opposition, Plaintiffs attach a privilege log which logs 16 redacted sets of Minutes
dated from March 14, 2013 to January 11, 2017. R. Doc. 623-1.
13

R. Doc. 623, p. 6.

3

Gordon attorneys, Phillip Preis and Charles Gordon, discussing this current claim vis a vis the
liquidation committee’s claims”14 and that “liquidation committee meetings routinely discuss the
legal advice and mental impressions of attorneys about potential and filed claims.”15
The Citco Defendants argue that unredacted versions of the Minutes should be produced
because: (1) Plaintiffs waived any protection they may have asserted by way of their previous
responses to these discovery requests; (2) the minutes cannot be work product because they were
not prepared in anticipation of litigation (they were instead prepared during liquidation
proceedings) and were not prepared by Plaintiffs or Plaintiffs’ representative (because the JOL
represented all creditors, not just Plaintiffs); and (3) even if the minutes could be considered work
product and such protection had not been waived, the Citco Defendants have a substantial need for
the documents and cannot, without undue hardship, obtain their substantial equivalent by other
means.
II.

Law and Analysis
A. Work Product Protection & Sufficiency of Plaintiffs’ Privilege Log
The work product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil

Procedure. “Ordinarily, 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.).”16 “A determination of
whether such materials were prepared in anticipation of litigation depends primarily on the reason

R. Doc. 623, p. 4. See also, R. Doc. 623, p. 5 (“The redactions also contain statements made by the JOLs to Preis
Gordon attorneys discussing the feasibility of claims coordination with the JOLs.”).
14

15

R. Doc. 623, pp. 4-5.

16

FRCP 26(b)(3)(A).

4

or purpose for creating them.”17 “The Fifth Circuit…requires that the ‘primary motivating purpose
behind the creation of the document was to aid in possible future litigation.”18 “To determine the
primary motivation for the creation of a document, courts look to a variety of factors, including,
‘the retention of counsel and his involvement in the generation of the document and whether it was
routine practice to prepare that type of document or whether the document was instead prepared
in response to a particular circumstance.’”19 “Materials assembled in the ordinary course of
business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation
purposes are not under the qualified immunity provided by” the work product doctrine.20 “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.”21
Ambiguities with respect to whether the elements of a privilege claim have been met are
construed against the proponent of the privilege.22 Once the privilege is established, the burden

17

Landry v. Georgia Gulf Corp., Civil Action No. 97-1164, 2001 WL 36286141, at * 4 (M.D. La. Feb. 26, 2001)
(citing Piatkowski v. Abdon Callais Offshore, L.L.C., 2000 WL 1145825 at 2 (E.D.La.2000); Beal v. Treasure Chest
Casino, 1999 WL 461970 at 3 (E.D.La.1999)).
18

Cantu v. Titlemax, Inc., No. 5:14-cv-628, 2015 WL 5944258, at * 3 (W.D. Tex. Oct. 9, 2015) (citing In re Kaiser
Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th
Cir. 1981)).
19

Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013) (citing Elec. Data Sys.
Corp. v. Steingraber, 2003 WL 21653414 at *5 (E.D. Tex. July 9, 2003)).
Fed.R.Civ.P. 26(b)(3), advisory committee’s note to 1970 amendment. See also, U.S. v. Louisiana, 2015 WL
4619561, at *5 (M.D. La. July 31, 2015) (citing U.S. v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982) (privilege does
not protect “materials assembled in the ordinary course of business, or pursuant to public requirements”); Blockbuster
Entertainment Corp. v. McComb Video, Inc., Civ. A. 90-209, 145 FRD 402, 403 (M.D. La. Oct. 16, 1992) (“Excluded
from work product immunity are materials assembled in the ordinary course of business, or pursuant to public
requirements unrelated to litigation….[T]he general rule is that litigation need not necessarily be imminent as long as
the primary motivating purpose behind the creation of the document was to aid in possible future litigation.”).
20

21

Colony Ins. Co. v. NJC Enterprises, LLC, Civil Action No. 09-763, 2013 WL 1335737, at *2 (M.D. La. April 1,
2013). See also, Landry, 2001 WL 36286141, at * 4 (internal citations omitted).
22

Equal Employment Opportunity Commission v. BDO USA, LLP, 876 F.3d 690, 695 (5th Cir. Nov. 16, 2017).

5

shifts to the party seeking the documents to prove an applicable exception.23 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.24
“[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.”25 “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.”26 “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.”27 “The party claiming the privilege must ‘describe those documents to the
best of its ability without revealing the information privileged.’”28

23

Id.

24

Emphasis added.

25

BDO, 876 F.3d at 697 (internal citations omitted).

26

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).
27

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, 2005).
28

Id.

6

The Citco Defendants argue that the Liquidation Committee Minutes were assembled
pursuant to the regulatory requirements applicable to liquidation committee proceedings and that
liquidation itself is not equivalent to litigation.29 In response, Plaintiffs contend that the redacted
portions of the Liquidation Committee Minutes reflect Plaintiffs’ counsel’s mental impressions
(regarding the coordination and interaction of claims brought by the JOLs and separately by the
Plaintiffs).
In conjunction with their opposition to the Motion to Compel, Plaintiffs attach a privilege
log describing redactions to 16 sets of Liquidation Committee Minutes.30 Plaintiffs also provide
a list identifying each individual who participated in each committee meeting.31 It appears that the
individuals participating in the meetings reflected on the privilege log represent the JOLs, Fletcher
Income Alpha Funds, or the Louisiana Funds. Per the privilege log, the redactions at issue include
“communication authored for the purpose of confidentially discussing specific litigation claims
and assignments of litigation claims;” “description of discussion regarding litigation claims held
individually and collectively including potential rights of action, potential defenses, and general
terms of agreement between the parties regarding potential pooling of litigation claims;” and “legal
advice and engagement of Reid Collins Tsai to represent JOLs concerning clawback claims and
counsel’s analysis of claims and mental impressions regarding same.”32 The descriptions also

29

R. Doc. 589-1, pp. 6-7 (citing U.S. v. Naegele, Crim. Action 05-151, 468 F.Supp.165, 173 (D.C.C. Jan. 4, 2007)
(“This bankruptcy filing was not itself ‘litigation’ in anticipation of which protected attorney work product can be
created.”); In re Holley Performance Products, Inc., 457 B.R. 598, 600 (W.D. Ky Sept. 29, 2011) (“The documents
were, however, apparently prepared in anticipation of the claims process in the bankruptcy case. The existence of a
bankruptcy case does not necessarily equate to litigation.”)).
30

R. Doc. 623-1.

31

Id.

32

R. Doc. 623-1.

7

include specific references to this particular litigation, claims against Citco, and indicate in some
instances that Plaintiffs’ counsel in this litigation provided litigation strategy and legal advice. 33
In opposition to the Motion to Compel, Plaintiffs assert that the redacted portions of the
Minutes involve “Preis Gordon’s mental impressions of this instant claim…”34 and “contain
statements made by the JOLs to Preis Gordon attorneys discussing the feasibility of claims
coordination with the JOLs.”35 Plaintiffs contend that “Citco’s latest Motion to Compel targets
the heart of the work product doctrine in seeking production of material that clearly reflects the
mental impressions of Preis Gordon attorneys in the throes of this instant litigation.”36 For all but
two of the entries listed on Plaintiffs’ privilege log, an attorney for Preis Gordon (the law firm
representing Plaintiffs in this action) participated. However, entries with the “PG ID” of 14 & 17
do not include any attorney from Preis Gordon. The description regarding the redactions in 14 is
“minutes reflecting legal analysis of and strategy concerning settlement of clawback claim,
analysis of claims filed against estates.”37 The description regarding the redactions in 17 is
“minutes contain description of work product made by JOLs including analysis of subscription
and redemption transactions; analysis of strategy concerning clawback settlement and counsel’s

See, R. Doc. 623-1 (“description of legal strategy by JOLs in anticipation of litigation against Citco;” “discussion
relating to potential legal claims concerning Fletcher International Partners LTD (FIP) and Citco;” “legal advice and
mental impressions of PP relating to the pending claim in the Middle District of Louisiana including proposed
litigation strategy concerning claims against Citco, Skadden, and Grant Thornton;” and “legal advice by PP re Citco
litigation in the Middle District of Louisiana.”). “PP” is Phillip Preis, counsel for the Plaintiffs in this case.
33

R. Doc. 623, p. 1. See also, R. Doc. 623, p. 2 (“Louisiana Funds timely produced the Leveraged and Arbitrage
Liquidation Committee minutes post February 1, 2013 – with redactions…on March 20, 2018, with a privilege log
identifying the redacted portions of Preis Gordon’s mental impressions in the context of the liquidation proceeding
and other litigations outside of the liquidation proceeding.”); p. 3 (noting “the Louisiana Funds’ litigation counsel,
Preis Gordon, mental impressions were mentioned” in the redacted documents and that “the mental impressions and
discussions of Preis Gordon have been redacted.”); p. 4 (“The redactions…contain the mental impressions of Preis
Gordon attorneys, Phillip Preis and Charles Gordon, discussing this current claim vis a vis the liquidation committee’s
claims.”).
34

35

R. Doc. 623, p. 5.

36

R. Doc. 623, p. 5.

37

R. Doc. 623-1, p. 7.

8

mental impressions and strategy re same.” Neither of these descriptions indicate that these
particular redactions include the mental impressions of Preis Gordon attorneys or statements made
by the JOLs to Preis Gordon attorneys (especially since it appears that no Preis Gordon attorneys
were present during these two meetings). Accordingly, for these two documents only, the
undersigned finds that Plaintiffs have not met their burden of establishing, via their descriptions
set forth on the privilege log, that the redacted portions of PD ID 14 and 17 are attorney opinion
work product.38 With respect to documents PG ID 14 and 17, Plaintiffs shall produce these
documents without redactions within fourteen (14) days of this Ruling and Order.
With respect to the remaining documents identified on Plaintiffs’ privilege log, although
the undersigned agrees that generally, the Minutes themselves do not appear to be prepared in
anticipation of this litigation, the court finds that Plaintiffs have established that the redacted
portions themselves were in anticipation of litigation. With respect to the second necessary
component for work product protection, i.e., whether the Minutes were prepared by Plaintiffs or
Plaintiffs’ representative, although it appears that the Minutes were compiled by the JOLs, the
redacted portions are, based on Plaintiffs’ counsel’s representations, reflections of Plaintiffs’
counsel’s litigation strategy. Accordingly, as to the remaining documents identified on the
privilege log, i.e., the documents other than PG ID 14 and 17, the undersigned proceeds with a
consideration of whether Plaintiffs have waived protection over the redacted portions and whether
the documents (without redactions) should otherwise be produced.

While Campbells also represented Plaintiffs, Plaintiffs have explained that “[t]he Louisiana Funds retained
Campbells, not Preis Gordon, to perform work in connection with the Cayman liquidations concerning the matters
discussed at the pre-2013 meetings that were previously produced.” R. Doc. 623, p. 6. The undersigned considers
the liquidation proceedings to be separate from litigation. Plaintiffs have previously produced such minutes pre-dating
February 1, 2013 and the descriptions of the redactions for these two meetings do not indicate that any discussion of
counsel’s litigation strategy or mental impressions was discussed.
38

9

B. Waiver
The Citco Defendants argue that “Plaintiffs conceded to the court six months ago that
communications between Plaintiffs and the JOLs are not protected by the work product doctrine.
Plaintiffs have thus waived the opportunity to now assert work product protection.”39 In support
of their waiver argument, the Citco Defendants rely on the disposition of a previously filed Motion
to Compel production of communications between Plaintiffs and E&Y (the “September 2017
Motion to Compel”)40 as well as Plaintiffs’ counsel’s statements during a March 6, 2018 status
conference.
The Citco Defendants have the burden of proving waiver of work product immunity.41 The
Fifth Circuit has explained:
The work product privilege is very different from the attorney-client
privilege. The attorney-client privilege exists to protect confidential
communications and to protect the attorney-client relationship and
is waived by disclosure of confidential communications to third
parties. The work product privilege, however, does not exist to
protect a confidential relationship but to promote the adversary
system by safeguarding the fruits of an attorney’s trial preparations
from the discovery attempts of an opponent. Therefore, the mere
voluntary disclosure to a third person is insufficient in itself to waive
the work product privilege. This circuit has held, however, that the
work product privilege is waived when the attorney requests the
witness to disclose the information or when the attorney discloses
the information to the court voluntarily or makes no objection when
it is offered.42

39

R. Doc. 589-1, p. 5.

40

R. Doc. 455.

41

BASF Corp. v. Man Diesel & Turbo North America, Inc., Civil Action NO. 13-42, 2015 WL 542247, at * 4, n. 8
(citing Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 379 n. 10 (5th Cir. 2010) (“The work product doctrine
differs from the attorney-client privilege in that non-waiver need not be proven to invoke work product immunity.”).
42

Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989) (internal citations omitted).

10

Even where this court has found other objections to discovery waived based on a parties’
failure to timely assert such objections, this court has not found waiver of any potential privileges
or immunities.43
1.

The September 2017 Motion to Compel

The Citco Defendants contend that Plaintiffs waived any work product protection of the
Liquidation Committee Minutes based on Plaintiffs’ response to the September 2017 Motion to
Compel. On September 21, 2017, the Citco Defendants moved to compel production of, inter alia,
169 documents reflecting communications between Plaintiffs and E&Y after E&Y was appointed
to serve as the JOL in Leveraged’s Cayman Islands liquidation proceeding. 44 In that Motion to
Compel, the Citco Defendants argued that communications dated between April 20, 2012 and
January 29, 2013 between Plaintiffs and E&Y were not subject to attorney-client privilege, work
product protection, or a “common interest” privilege.45 The Citco Defendants asserted that
because the JOL was not acting as Plaintiffs’ lawyer, the communications were not in “anticipation
of litigation,” and because E&Y was not a “representative” of Plaintiffs, the protections asserted

43

Baxter v. Anderson, Civil Action No. 16-142, 2016 WL 4443178, at * 5 n. 4 (M.D. La. Aug. 19, 2016) (granting in
part an unopposed motion to compel more complete discovery responses and ordering plaintiff to provide complete
responses to discovery requests, “without further objection (with the exception of any objections pertaining to any
applicable privileged and/or immunities)….”) (citing In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s
a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts,
objections thereto are waived.”); B&S Equip. Co. v. Truckla Servs., Inc., 2011 WL 2637289, at *6 (E.D. La. July 6,
2011) (finding waiver of all objections to “discovery requests based on relevance, unduly burdensome, over broad, or
any other objection not grounded on the attorney client or the work product privilege.”)). “Courts have found that,
pursuant to Rule 26(b)(5) which concerns withholding information on the basis of privilege, the failure to timely object
on the basis of privilege does not result in an automatic waiver.” B&S Equip., 2011 WL 2637289, at * 5 (citing
Applied Systems, Inc. v. Northern Ins. Co. of New York, No. 97 C 1565, 1997 WL 639235, at *2 (N.D. Ill. Oct. 7,
1997)). “’Rather, a waiver of privilege is a serious sanction reserved for cases of unjustified delay, inexcusable
conduct, bad faith, or other flagrant violations.’” Id. “Thus, a party’s failure to assert privilege will not necessarily
short circuit his or her efforts to preserve the confidentiality of a privileged document. Therefore, the circumstances
surrounding the objections must be weighed in order to determine whether the documents should be produced or kept
outside of the scope of discovery.” Id.
44

R. Doc. 455.

45

See, R. Doc. 455-1, Appendix A.

11

by Plaintiffs were inapplicable.46 In response to the September 2017 Motion to Compel, Plaintiffs
asserted that they had “produced to Citco any communications where Ernst & Young was either
an author or recipient” such that the Motion to Compel was moot.47 During an October 24, 2017
status conference, counsel for the Citco Defendants confirmed that Plaintiffs had produced the
documents at issue in the September 2017 Motion to Compel and that the Motion was moot.48
The undersigned recognizes that the documents placed at issue by the Citco Defendants’
September 2017 Motion to Compel, like the documents at issue in the instant Motion to Compel,
involve communications with E&Y in its capacity as the Joint Official Liquidator. However (and
notwithstanding the fact that the undersigned did not rule on the substance of the September 2017
Motion to Compel based on the parties’ representations that the Motion was moot), the
undersigned notes that the documents at issue in the September 2017 Motion to Compel addressed
a different time period (April 20, 2012 to January 29, 2013 versus March 14, 2013 to January 11,
2017).49 Further, the privilege log associated with the September 2017 Motion to Compel did not
provide the same level of detail regarding the descriptions of withheld documents50 and did not,
based on the descriptions contained on that privilege log, involve the mental impressions of
Plaintiff’s counsel.51 Accordingly, the undersigned does not find the history regarding the

See, R. Doc. 455-3, p. 2 (“To the contrary, E&Y was the Cayman Islands equivalent of a bankruptcy trustee with
fiduciary duties to all creditors of Leveraged’s estate – not just Plaintiffs – and thus was charged with pursuing claims
belonging to Leveraged for the benefit of all such creditors.”).
46

47

R. Doc. 459.

48

R. Doc. 479, p. 5:2-9. Plaintiffs produced these documents with some portions of certain email chains redacted
based on the assertion of attorney-client privilege. R. Doc. 459, p. 2.
49

Plaintiffs concede that they produced liquidation committee meeting minutes prior to February 1, 2013. R. Doc.
623, p. 2.
See, R. Doc. 455-1 (describing withheld documents as “email re NY Bankruptcy Proceeding of FILB;” “Email
authored by Ernst & Young to LA Funds et al re conference call”).
50

Presumably, this is because, as stated by Plaintiffs, the “Louisiana Funds formally retained Preis Gordon on
February 25, 2013” (i.e., after the date of the documents placed at issue by the Citco Defendants’ September 2017
51

12

September 2017 Motion to Compel, including Plaintiffs’ subsequent production of documents in
response to that Motion to Compel, determinative of the issue of whether Plaintiffs waived work
product protection over the Liquidation Committee Minutes at issue here.52
2.

Statements During the March 6, 2018 Status Conference

As noted above, the Citco Defendants raised the issue of Plaintiffs’ production of only
some of the Liquidation Committee Minutes during a March 6, 2018 status conference. During
that conference, counsel for Plaintiffs agreed to produce the Liquidation Committee Minutes, and
did not raise any potential issues regarding work product protection.53 Plaintiffs’ counsel’s
statement during the March 2018 status conference presents a close question on the issue of waiver
(in that it appears counsel voluntarily agreed to produce the Minutes). A review of the transcript
of that status conference reveals that Plaintiffs’ counsel agreed to produce the Liquidation
Committee Minutes dated after February 1, 2013 without any indication that such Minutes may
contain protected work product. 54 Indeed, Plaintiffs’ counsel presented absolutely no objection to
production of the Minutes at the March 2018 status conference and did not state that such Minutes

Motion to Compel). R. Doc. 623, p. 3. The undersigned notes that the documents sought in the September 2017
Motion to Compel were also for a time period before this suit was filed.
52

During the September 11, 2017 status conference, and prior to granting the Citco Defendants leave to file the
September 2017 Motion to Compel, the undersigned noted that it appeared Plaintiffs would have a difficult time
establishing that communications between Plaintiffs and the JOL were privileged. See, R. Doc. 456, p. 25:11-15. The
court noted that Plaintiffs would have “an uphill battle” because the undersigned did not see how communications
with E&Y would be privileged. R. Doc. 456, p. 25:21-23. However, because counsel were arguing this issue without
the undersigned having the benefit of any specific information, the court allowed the parties an opportunity to brief
the issue. As explained herein, the resulting September 2017 Motion to Compel addressed different documents
withheld pursuant to a different privilege log. With respect to only the documents at issue in the instant Motion to
Compel, the undersigned finds that Plaintiffs have met their burden of establishing that the redacted portions were
properly withheld from production.
Plaintiffs’ counsel stated “[a]s long as [counsel for Citco Defendants] believes that they’re [the meeting minutes]
relevant to this case and based upon that stipulation, we’ll produce them.” R. Doc. 594, p. 73:5-7. On March 21,
2018, in response to a joint letter request from the parties, the court granted a limited extension of time through March
28, 2018 to meet and confer regarding Plaintiffs’ production of the meeting minutes with what the Citco Defendants
considered to be “substantial portions” redacted. R. Doc. 572.
53

54

Plaintiffs filed their Petition for Damages in state court on March 1, 2013. R. Doc. 1-3.

13

would be produced with redactions. Notwithstanding Plaintiffs’ lack of objection at the March
2018 conference, Plaintiffs’ counsel now argues in opposition to the Motion to Compel that the
redacted portions of these documents are “opinion work product” that “receives special, enhanced
protection from disclosure and is arguably immune from a ‘substantial need’ standard.”55
Plaintiffs’ counsel explained at the May 7, 2018 status conference that Plaintiffs did not have a
complete set of the Minutes and were not aware there was a potential work product issue until the
Minutes were reviewed in connection with production to the Citco Defendants.
While the court finds Plaintiffs’ counsel’s statements during the March 2018 status
conference verge on waiver, the court is reluctant to require production of unredacted versions of
the Liquidation Committee Minutes in light of Plaintiffs’ assertion that these documents contain
opinion work product, the fact that Plaintiffs have produced the Minutes (albeit in redacted form)
in arguable compliance with their March 2018 representations, and given the detail contained in
the privilege log with regard to these portions of the Minutes which satisfies the court that the
redacted portions do reflect mental impressions of counsel regarding anticipated and actual
litigation.
3.

Participation by Third Parties During the Committee Meetings

Here, although the court considers representatives of the JOL and Alpha to be third parties
present at the Liquidation Committee meetings, the Fifth Circuit has explained that the presence
of a third party does not necessarily waive work product protection. 56 Instead, the court must
consider whether such disclosure was made in a way as to “substantially increase” the possibility

55

R. Doc. 623, p. 8.

56

Shields, 864 F.2d at 382.

14

for Plaintiffs’ adversary to obtain the information.57 Plaintiffs aver that “the parties participating
in the liquidation committee minutes maintained an expectation of privacy….”58 In support,
Plaintiffs attach the declaration of Claire Loebell, an executive director of EY Cayman Ltd., who
was appointed as one of the two JOLs of Leveraged and Arbitrage. 59 Ms. Loebell asserts in her
Declaration that “[l]egal matters often dominate the agenda for liquidation committee meetings
because litigation claims are frequently an insolvent company’s most valuable asset” and that she
expects “that discussions at committee meetings about legal matters, proprietary information, and
personal information about investors or creditors will remain confidential.”60 For some of the
redacted documents, it appears that only representatives of E & Y and Plaintiffs were present. For
others, representatives of E & Y, Plaintiffs, and Fletcher Income Alpha Funds were present. In
either event, the privilege log indicates that attendance during these meetings was more restricted
than intimated by the Citco Defendants. Although the court recognizes that there is some inherent
tension between a JOL and a particular creditor (because the JOL must consider the interests of all
creditors), the court finds that disclosure to the JOLs or others participating in the Liquidation

See also, Ecuadorian Plaintiffs v. Cevron Corp., 619 F.3d 373, 378 (5th Cir. 2010) (“Although work product
immunity is not automatically waived by disclosure of protected material to third parties, disclosure does waive
protection if it ‘has substantially increased the opportunities for potential adversaries to obtain the information.’”)
(citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (3d ed.2010)).
57

58

R. Doc. 623, p. 7.

59

R. Doc. 623-3, ¶ 1.

R. Doc. 623-3, ¶ 4. See also, R. Doc. 623-3, ¶ 5 (“As a routine matter at liquidation committee meetings, the JOLs
summarize legal advice they have received and discuss highly sensitive matters involving legal strategy. JOLs discuss
critical decisions, such as whether to file a lawsuit, the strengths and weaknesses of potential or filed claims, how to
structure payment arrangements with counsel, whether to seek a settlement, and if a settlement is desirable, what
should be the desired parameters for settlement. These decisions, and the JOLs’ views about these matters, are all
shaped by the confidential legal advice rendered by legal counsel to the JOLs and counsel’s opinions and conclusions.
Frank and detailed discussions of legal matters are so important to the operation of the liquidation committee that the
committee may hire its own counsel, paid as an expense of the liquidation.”).
60

15

Committee Meetings does not substantially increase the likelihood that the same information
would be disclosed to defendants in this action.61
C. Substantial Need
In their Motion to Compel, the Citco Defendants do not explain with any detail what
substantial need they have for the specific information they believe to be contained in the redacted
portions of the Liquidation Committee Minutes. However, during the March 2018 conference,
counsel for the Citco Defendants explained as follows:
So there are a lot of things in those minutes that are going to be
relevant. For instance, you, you highlighted the holder claim. You
also – there’s also the issue of damages…to the extent the Leveraged
and Arbitrage liquidation committees are having discussions about
assets that are still in the Funds, assets that have been recovered from
the Funds, assets that could be recovered from the Funds, to the
extent they’re fighting over whose claims this, this is. Because we
have made a direct and derivative argument that some of these
claims are more properly brought by the Leveraged and Arbitrage
Funds.
So there are a lot of things that are being discussed in the ordinary
course of the liquidation committees about assets and recoveries and
claims that, that would be highly relevant here and even the absence
of such discussions would be highly relevant here. Because if, if
people are foregoing recoveries of assets that might exist, we’re
entitled to know that as well.62

See, In re National Liquidators, Inc., No. C-2-94-1066, 182 B.R. 186, 192 (S.D. Ohio April 18, 1995) (“By
eliminating the per se bar to dual representation in 1984, Congress implicitly determined that the inherent tension
between a committee and one of its creditors, standing alone, was immaterial and any conflict too theoretical to warrant
being classified as an adverse interest. That is, merely the remote potential for dispute, strife, discord, or difference
between a committee and one of its creditors does not give rise to any conflict of interest or appearance of impropriety
that would bar an attorney from representing both parties.”); In re The Circle K Corporation, Nos. 96 Civ. 5801, 96
Civ. 6479, 1997 WL 31197, at * 10 (S.D.N.Y. Jan. 28, 1997) (explaining that “[w]ork product is not necessarily
waived by disclosure to a non-client. Rather, voluntary disclosure of work product to an adversary, or disclosure in
such a manner that it is likely to be revealed to an adversary, waives the privilege as to other parties” and finding that
disclosure of creditor’s committee work product to creditor did not waive work product protection because creditor
“was not an adversary, or opposing party…[and] had the same basic goal as the Committee and its counsel in these
proceedings: ensuring that the debenture holders received some distribution under the plan.”).
61

62

R. Doc. 594, pp. 71:12-72:5.

16

The court agrees that the Liquidation Committee Minutes are relevant to the issue of Plaintiffs’
damages. However, while the Citco Defendants assert they have a substantial need for the
documents at issue and cannot obtain the substantial equivalent of the redacted information via
other means,63 the court agrees with Plaintiffs that the structure of Rule 26 protects opinion work
product almost absolutely.64
“‘Opinion’ work product...which conveys the ‘mental impressions, conclusions, opinions,
or legal theories of an attorney or other representative,’ has been accorded almost absolute
protection from discovery by some courts.”65 “Opinion work product generally includes ‘such
items as an attorney’s legal strategy, his intended lines of proof, his evaluation of the strengths and
weaknesses of his case, and the inferences he draws from interviews of witnesses.’”66 While
opinion work product may become subject to disclosure if “‘mental impressions are at issue in a
case and the need for the material is compelling,’”67 the Citco Defendants have not established that
Plaintiffs’ counsel’s mental impressions are at issue in this case (as they would arguably be in a
bad faith insurance settlement matter, for example). Further, courts in this Circuit consistently
view waiver of work product protection narrowly.68

R. Doc. 589-1, pp. 7-8 (“By failing to assert any privilege over these documents until after the close of fact discovery,
Plaintiffs have effectively barred the Citco Defendants from obtaining these documents at all and have left us with no
other avenues from which we could seek this information.”). Presumably, to the extent other parties have filed suit
against the Funds, information regarding those suits could be obtained via review of documents in the public record.
63

Fed. R. Civ. P. 26(b)(3)(B) (“If the court orders discovery of these materials, it must protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning
the litigation.”).
64

65

Conoco, Inc. v. Boh Bros. Constr. Co., 191 FRD 107, 118 (W.D. La. 1998) (citing Thomas v. General Motors Corp.,
174 FRD 386, 388 (E.D. Tex. 1997); Spotck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985); In re International Systems and
Controls Corp. Securities Litigation,693 F.2d 1235, 1240 (5th Cir. 1982)).
66

Lassere v. Carroll, Civil Action No. 13-5430, 2014 WL 7139138, at * 5 (E.D. La. Dec. 15, 2014) (citations omitted).

67

Conoco Inc. v. Boh Bros. Const. Co., 191 F.R.D. 107, 118 (W.D. La. 1998) (citing Holmgren v. State Farm Mutual
Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.1992) (opinion work product discoverable in bad faith insurance settlement
case because in such case “mental impressions are at issue...and the need for the material is compelling.”).
68

See, Varel v. Banc One Capital Partners, Inc., No. 93–1614–, 1997 WL 86457, at *3 (N.D. Tex. Feb. 25, 1997)
(“In light of the distinctive purpose underlying the work-product doctrine, a general subject-matter waiver of work-

17

D. Fees and Costs
In addition to seeking to compel production of unredacted versions of the Liquidation
Committee Minutes, the Citco Defendants also request an award of costs associated with filing the
Motion to Compel “given that this is now the third time that the Citco Defendants have had to
come to this Court seeking to compel production of communications between Plaintiffs and the
JOLs, which includes the liquidation committee minutes….”69 Because the undersigned denies
the Citco Defendants’ Motion to Compel, it also denies the Citco Defendants’ request for fees and
costs.70
III.

Conclusion
For the reasons set forth herein, the Citco Defendants’ Motion to Compel Production of

Arbitrage and Leveraged Liquidation Committee Minutes (the “Motion to Compel”)71 is DENIED
IN PART AND GRANTED IN PART.
With respect to entries with the “PG ID” of 14 & 17 only, the Motion to Compel is
GRANTED. The court ORDERS Plaintiffs to produce these documents without redactions within
fourteen (14) days of this Ruling and Order.

product immunity is warranted only when the facts relevant to a narrow issue are in dispute and have been disclosed
in such a way that it would be unfair to deny the other party access to other facts relevant to the same subject matter.”).
Compare, Cantu v. TitleMax, Inc., 5:14-CV-628, 2015 WL 5944258 (W.D. Tex. Oct. 9, 2015) (finding letter sent as
part of a financial audit was not subject to work product protection because primary purpose was not in anticipation
of litigation and that, even if protected, defendant waived work product protection based on failure to assert work
product protection over specific document in five iterations of a privilege log and despite two opportunities to brief
the issue).
69

R. Doc. 589-1, p. 3.

See, Fed. R. Civ. P. 37(a)(5)(A) (“If the motion is granted--or if the disclosure or requested discovery is provided
after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.”).
70

71

R. Doc. 589.

18

With respect to the remaining documents set forth on the privilege log72 the Motion to
Compel is DENIED.
Signed in Baton Rouge, Louisiana, on May 10, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

72

R. Doc. 623-1.

19