Anwar et al v. Fairfield Greenwich Limited et al

Filing 855

ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Diane L. McGimsey dated 4/16/2012 re: We write on behalf ofthe Standard Chartered Defendants ("Standard Chartered" or the "Bank") in response to plaintiffs' April 12,2012 letter (i) renewing their already denied request to depose Richard Holmes, a Bank senior executive; and (ii) requesting a discovery conference to discuss plaintiffs' challenges to the sufficiency of Standard Chartered's February 27, 2012 privilege log (the "Log"). Plaintiffs' requests should be denied. ENDORSEMENT: Plaintiffs point to no new information that would cause the Court to reconsider its decision to preclude the deposition of Mr. Holmes. Standard Chartered's privilege log is in compliance with the Federal Rules and the Court sees no basis for overriding its assertion of work product. (Signed by Magistrate Judge Theodore H. Katz on 4/24/2012) (djc)

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April 16,2012
By Hand
The Honorable Theodore H. Katz,
United States Magistrate Judge,
Daniel Patrick Moynihan United States Courthouse,
500 Pearl Street,
New York, New York 10007-1312.
Re:

Anwar v. Fait/leld Greenwich Limited,
No. 09-CV -118 (VM) - Standard Chartered Cases

Dear Judge Katz:
We write on behalf of the Standard Chartered Defendants ("Standard
Chartered" or the "Bank") in response to plaintiffs' April 12,2012 letter (i) renewing
their already denied request to depose Richard Holmes, a Bank senior executive; and
(ii) requesting a discovery conference to discuss plaintiffs' challenges to the sufficiency
of Standard Chartered's February 27, 2012 privilege log (the "Log"). Plaintiffs'requests
should be denied.
Plaintiffs' Second Attempt To Depose Richard Holmes

Richard Holmes is the fonner President, Chainnan and Chief Executive
Officer of American Express Bank Limited ("AEBL"), and is currently the Chief
Executive Officer, UK and Europe, Standard Chartered Bank. As Standard Chartered
previously has described to Your Honor, Mr. Holmes was not involved in the due
diligence that was conducted on Fairfield Sentry Limited ("Fairfield Sentry") or the sales
of that fund to plaintiffs. Rather, Mr. Holmes's only involvement with the Fairfield
Sentry product was his attendance at a 2003 Product Approval Committee ("PAC")
meeting during which the Bank approved a fund of hedge funds product that included an
allocation to Fairfield Sentry, among many other funds. (See Standard Chartered's
February 27,2012 Letter to the Court, Dkt. 830.) For good reason therefore, this Court
has already rejected plaintiffs' request to depose Mr. Holmes.
Specifically, on March 7, 2012, the Court granted Standard Chartered's
motion for a protective order barring plaintiffs from deposing Mr. Holmes. Standard

The Honorable Theodore H. Katz

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Chartered had pointed out that, apart from Mr. Holmes, plaintiffs were planning to
deposejive other attendees of the 2003 PAC meeting. The Court granted the Bank's
motion, noting that "[t]here is no need to depose every person present at a meeting."
(Dkt. 830.) The Court ruled that plaintiffs could renew their request if"the other
deponents have insufficient knowledge." (Id.)
Plaintiffs do not assert that the other Standard Chartered witnesses they
have deposed have insufficient knowledge of the subjects on which they seek to depose
Mr. Holmes. Instead, plaintiffs describe the testimony provided by one such witness,
Robert Friedman, and then contend that they should be permitted to ask Mr. Holmes "to
explain his thinking in apparently concurring" with the views and testimony of
Mr. Friedman and other Standard Chartered witnesses. Plaintiffs' desire to solicit
"concurring"-in other words, duplicative-testimony is precisely what this Court
rejected on March 7.
Mr. Friedman was the head of the group that was responsible for
conducting due diligence on Fairfield Sentry. He answered all deposition questions put
to him about the 2003 PAC meeting at which Fairfield Sentry was discussed, and
plaintiffs do not contend or suggest that his knowledge is insufficient.
Mr. Friedman also testified at length about the Bank's employment of Sam
Perruchoud-the other topic on which plaintiffs seek to depose Mr. Holmes.
Mr. Perruchoud reported to Mr. Friedman. (Friedman Dep. at 20:4.) Mr. Friedman thus
was best positioned to testify regarding Mr. Perruchoud's employment by, and departure
from, the Bank. As Mr. Friedman testified at his deposition, he expressed dissatisfaction
with Mr. Perruchoud's performance to Mr. Holmes for reasons unrelated to Fairfield
Sentry or Madoff, and Mr. Holmes agreed with Mr. Friedman's assessment. (Friedman
Dep. at 250.) Again, Mr. Friedman answered all of the questions put to him regarding
Mr. Perruchoud, and plaintiffs identify no gap in Mr. Friedman's knowledge that
warrants deposing Mr. Holmes.

In short, plaintiffs' efforts yet again to depose Mr. Holmes are
unwarranted, harassing and should be denied.
Privilege Log Objections

Plaintiffs raise four challenges to the Log, each of which is without merit.
First, plaintiffs argue that the Log does not contain the detail required
under Local Rule 26.2(a)(2)(A). In support, plaintiffs assert "there is no indication of
who are the lawyers and who are the clients." This is incorrect. Lawyers are indicated

The Honorable Theodore H. Katz

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on the Log by the title "Esq.", and the Log identifies external counsel by providing their
law finn affiliation.

Second, plaintiffs suggest that the Log too broadly claims work product
over the committee minute entries of Standard Chartered PLC. Any concerns are
unfounded.
As Standard Chartered infonned plaintiffs, and as several witnesses have
testified, as soon as the news of the Madoff fraud broke, Standard Chartered immediately
began to make assessments regarding litigation risks and potential theories ofliability.
This work was undertaken at the direction of internal and external counsel, including
Sullivan & Cromwell LLP, and involved the collection and assessment ofinfonnation
relating to Fairfield Sentry. In addition to discussions among those directly tasked with
conducting such work, various committees of the Bank received updates on the work,
either through counselor a Bank employee working under the direction of counsel. The
purpose of those updates was to provide infonnation relating to the Bank's potential legal
liability and to discuss the advice of counsel concerning the Bank's investigation of the
Madoff fraud. The minutes identified on the Log as protected under the work-product
doctrine reflect infonnation "prepared or obtained because of the prospect of litigation,"
and are shielded from discovery. Newmarkets Partners, LLC v. Sal. Oppenheim Jr. &
Cie. SCA., 258 F.R.D. 95, 102 (S.D.N.Y. 2009) (Katz, M.J.).

Third, plaintiffs argue that Standard Chartered has conflated underlying
facts, which are discoverable, and privileged communications, which are not. This is
incorrect. No responsive underlying document has been withheld from plaintiffs on
grounds of privilege based on the Bank's review conducted after revelation ofMadoffs
fraud. Standard Chartered has produced to plaintiffs the underlying factual infonnation
that is relevant to their claims. What has been withheld-properly-is the Bank's own
collection, review and analysis of those documents in anticipation of litigation. The Bank
is not required to give plaintiffs compilations of infonnation made by legal counsel in
anticipation of litigation or copies of reports made to senior management based on such
compilations. Indeed, plaintiffs acknowledge, but then ignore, that fact work-product is
entitled to protection. (Plaintiffs' April 12 Letter at 2 (citing In re Grand Jury Subopena
Dated July 6, 1995,510 F.3d 180, 183-84 (2d Cir. 2007).)
Fourth, and finally, plaintiffs argue that the Log is insufficient because
Standard Chartered has not provided an affidavit setting forth the facts required to
establish the applicability of attorney-client privilege or work product. Plaintiffs misstate
the law. Where a privilege log supplies the infonnation required by the rules, a demand
for additional supporting infonnation is unjustified. See Currency Conversion Antitrust

The Honorable Theodore H. Katz

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Litig. V. Bank ofAm., N.A., MDL No. 1409 M-21-95,05 Civ. 7116 (WHP) (THK), 2010
U.S. Dist. LEXIS 117008, at *12 (S.D.N.Y. Nov. 3,2010).

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For the foregoing reasons, Standard Chartered respectfully requests that
plaintiffs' renewed request to depose Mr. Holmes and their request for a discovery
conference to challenge the sufficiency of Standard Chartered's privilege log be denied.
Respectfully submitted,

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Sharon L. Nelles

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UNITED STATES MAGlSTRATE JUDGE