Anwar et al v. Fairfield Greenwich Limited et al

Filing 1126

ENDORSED LETTER: addressed to Judge Victor Marrero from Jorge A. Mestre dated 4/29/2013 re: Counsel for Plaintiff write to supplement our April 23, 2013 letter to the Court requesting that the clerk not immediately file the two Declarations of Sebastian Gonzalez (dated February 17, 2012 and August 22, 2012), which were attached as Exhibit A to Headway's April 22, 2013 letter REQUESTING a pre-motion conference regarding a motion for leave to amend. As we stated in our April 23rd letter, Headway promptly made this request after counsel for the Standard Chartered Defendants (the "Bank") informed us that the Bank wanted to designate the declarations as confidential pursuant to February 4, 2011 Stipulation and Order Governing Confidentiality of Discovery Material (the "Confidentiality Order"). Because the Confidentiality Order applies only to "discovery material" that is "confidential," and the declarations are neither, we advised counsel for the bank that we object and would oppose any attempt by the Bank to designate the declarations as confidential. That said, we agreed to inform the Court of the dispute and request that Exhibit A to Headway's April 22, 2013 letter not be entered into the public record until the parties have briefed the Bank's designation request, and the Court has had a chance to 'evaluate it. However, we want it to be abundantly clear, even before any briefing occurs -if the Court feels it is even called for -that the declarations are neither discovery material nor confidential, and that, in any event, the documents are not the Bank's documents. Thus, the Bank has no standing whatsoever to claim that they should be designated as confidential. Under the Confidentiality Order, the Bank has no standing to designate Headway's documents as confidential. The Confidentiality Order states that "the designation of Discovery Material) as "Confidential" for the purpose of this Stipulation ENDORSEMENT: The parties are directed to address the matter set forth above to Magistrate Judge Frank Maas, to whom this action has been referred for supervision. So Ordered. (Signed by Judge Victor Marrero on 4/30/2013) (js)

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From: Rivero Mestre

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RIVERO MESTRE
April 29,2013

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Honorable Victor Marrero
United States District Judge
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007-1312

Re:

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Anwar, et aL v. Fairfield Greenwich Limited, et aL,
09.cv-118(~)(11lJr)

Dear Judge Marrero:
I write on behalf of Plaintiff Headway Investment Corp. to suppJement our April
23, 2013 letter to the Court requesting that the clerk not immediately file the two
Declarations of Sebastian Gonzalez (dated February 17,2012 and August 22, 2012),
which were attached as Exhibit A to Headway's April 22, 2013 letter requestillg a pre­
motion conference regarding a motion for leave to amend. As we stated in our April 23rd
letter, Headway promptly made this request after counsel for the Standard Chartered
Defendants (the "Bank") informed us that the Bank wanted to designate the declarations
as confidential pursuant to February 4,2011 Stipulation and Order Governing
Confidentiality of Discovery Material (the "Confidentiality Order"). Because the
Confidentiality Order applies only to "discovery material" that is "confidential," and the
declarations are neither, we advised counsel fbr the bank that we object and would
oppose any attempt by the Bank to designate the declarations as confidential. That said,
we agreed to inform the Court ofthe dispute and request that Exhibit A to Headway's
April 22, 2013 letter not be entered into the public record until the parties have briefed
the Bank's designation request, and the Court has had a ch~mce to 'evaluate it. However,
we want it to be abundantly clear, even before any briefing occurs - if the Court feels it is
even called for - that the declarations are neither discovery material nor confidential, and
that, in any event, the documents are not the Bank's documents. Thus, the Bank has no
standing whatsoever to claim that they should be designated as confidential.

Under the Confidentiality Order, the Bank has no standing to designate
Headway's do<:uments as confidential. The Confidentiality Order states that "the
designation of Discovery Material) as "Confidential" for the purpose of this Stipulation
I "Discovery Material" is defwed as "aJl initial disclosure'S, documents, testimony, e",hibits, interrogatory
answers, responses to request for admissions., end any other written, recorded, transcribed or graphic matter
or data or anything produced by any Party or non-party to the Standard Chartered Cases, and any copies
thereof and all information contained therein." Confidentiality Order at ~ 1.

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and Order may be made only by the Producing Party . .. ," Confidentiality Order at ~ 3.
The dec1arations attached as Exhibit A are not the Bank's documents, nor were they
produced by the Bank. 2 This alone ends the discussion.
Second, by its own terms, the Confidentiality Order does not apply to the
declarations, because they are not "discovery material," as defined by the Order. They
were not "produced in discovery" by any party, and their attachment to Headway's April
23rd letter is not any form of"production."
Third, even if the declarations were "discovery material," they are not
"contldential," as defined by the Order. They do not contain (1) non-public., proprietary,
commercially, or personally sensitive financial information, (2) material that requires the
protections provided for in the Confidentiality Order to prevent unreasonable rumoyance,
expense. embarrassment, disadvantage or prejudice to Wly person or entity, or (3)
personally identifying information of an individual. Confidentiality Order at 12.

Finally, even if the declarations had been "discovery materials" that Headway had
"produced," they would not have been "confidential" because of the mere tact that they
contain testimony which contradicts the Bank's contention that it did not know, and could
not have known that Fairfield Sentry and Sigma were a fraud. The fact that the
declarations contain facts that are harmful to the Bank does not make them confidential.
Testimony that causes legal "prejudice" to the other side's position is what litigants are
obliged to present, and the confidentiality order cannot be used to protect documents
simply because they contain facts that will be harmful to a non-producing party.

If the Court requires further briefing on the matter, Headway will provide it.
Meanwhile, Headway objects to the Bank's attempt to designate any of Headway's
documents as confidentiaL Headway requests that the Court deny the Bank's attempted
confidentiality designation and allow the declarations to be filed in the public docket.
Headway reserves all rights. including those arising fTOm the Confidentiality Order.

The declarations were freely given by a former Bank employee. Headway has an absolute right to speak
with former Bank employees. and obtain their declaralions, so long as they are not represented by the
Bank's counse t, and the matter!> discussed do not relate to subjects protected by the attorney-c lient
privilege. Muriel Siebert & Co. )'. Intuit inc., 8 N.Y.3d 506, 511 (2007); Reynoso v. Greyrro/ds Park
2

Manor, Inc.• 659 So. 2d 1156,1164 (Fla. 3d DCA 1995). Both conditions are satistied here.

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