Abu Dhabi Commercial Bank et al v. Morgan Stanley & Co. Incorporated et al

Filing 322

ORDER ON REPORT AND RECOMMENDATION NO. 14 DEFENDANTS' MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS ON PLAINTIFF SEI INVESTMENT COMPANY'S PRIVILEGE LOG THAT REFLECT COMMUNICATIONS WITH COLUMBIA MANAGEMENT ADVISERS for 319 Report and Recomm endations. The Court, having reviewed Report and Recommendation No. 14 of the Special Master (Docket No. 319), and having no objections from the Parties, hereby adopts Report and Recommendation No. 14, and further orders: SEI Investment Company' s ("SEI") claims of attorney-client privilege for those withheld documents subject to Defendants' Motion to Compel the Production of Documents on Plaintiff SEI Investment Company's Privilege Log that Reflect Communications with Co lumbia Management Advisers should be overruled, because any asserted privilege was waived by including any Columbia Management Advisers ("CMA") employees in those documents. SEI did not have a reasonable expectation of confidentiality under the circumstances, and the disclosures to or communications with CMA employees reflected in the documents reviewed by the Special Master in camera do not appear to have been necessary for SET to obtain informed legal advice and as further set forth in this order (Signed by Judge Shira A. Scheindlin on 10/7/2011) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ABU DHABI COMMERCIAL BANK,
KING COUNT'{, WASHINGTON
Together and On Behalf of All Others
Similarly Situated,

ORDER ON
REPORT AND RECOMMENDATION
NO. 14

DEFENDANTS' MOTION TO

COMPEL THE PRODUCTION OF

DOCUMENTS ON PLAINTIFF SEI

INVESTMENT CO~ANY'S

PRIVILEGE LOG TIMT REFLECT

COMMUNICATIONS WITH COLUMBIA

1vlANAGEMENT ADVISERS

Plaintiffs,

v.

Case No. 08 Civ. 7508 (SAS)

MORGAN STANLEY & CO.
INCORPO~\TED,MORGAN

STANLEY & CO. INTERNATIONAL
PLC, MOODY'S INVESTORS
SERVICE, INC., MOODY'S
INVESTORS SERVICE LTD.,
STANDARD AND POOR'S RATINGS
SERVICES and THE McGRAW HILL
CO~fPANIES, INC.,

r.=:~wr=:-=-

-::;:--====:=::;'1

uSOCSDNY
J)()Cl))L.1Wf

ELBCI'ItOMlCAUY FD..ED

,DOC /II:

------------~--DATE FIffiD:
J.!

Defendants.

SHIRA A. SCHEINDLIN, DISTRICT JUDGE:

The Court, having reviewed Report and Recommendation No. 14 of the Special Master (Docket
No.

3/9 ), and having received no objections from the Parties, hereby adopts Report and

Recommendation No. 14, and further ORDERS:
1.

SEl Investment Company's ("SE1") claims of attorney-client privilege for those
withheld documents subject to Defendants' Motion to Compel the Production of
Documents on Plaintiff SEI Investment Company's Privilege Log that Reflect
Communications with Columbia Management Advisers should be overruled, because
any asserted privilege was waived by including any Columbia Management Advisers

1

("eM.A.") employees in those documents. SEI did not have a reasonable expectation of
confidentiality under the circumstances, and the disclosures to or communications with
C1\1I\ employees reflected in the documents reviewed by the Special Master in camera do
not appear to have been necessary for SET to obtain informed legal advice.
2.

SEI's claims of work product protection for those withheld documents subject to
Defendants' Motion should be overruled, because SET has not demonstrated that any
of the documents were prepared in anticipation of litigation. Furthermore, the
documents at issue would likely have been created in essentially similar form
irrespective of litigation.

3.

The documents subject to production as a result of the overruling of the attorney-client
privilege and work product claims in Report and Recommendation No. 14 are those
that were created or received between January 1,2004 and June 30, 2009. This Order
includes those documents listed on the SET privilege log that was submitted to the
Special Master, as well as all attachments to such e-mail communications that have been
withheld on the basis of privilege or work product claims.

Dated:

OcJobif 1

,2011

2