Paribas v. The Bank of New York Trust Company, N.A.

Filing 47

OPINION AND ORDER: No later than ten days from the date of this Order, Paribas is to produce the following documents listed herein to counsel for defendant. (Signed by Magistrate Judge Henry B. Pitman on 6/5/2013) Copies Mailed By Chambers. (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
BNP PARIBAS,

:
Plaintiff,

THE BANK OF NEW YORK TRUST
COMPANY, N.A.,

11 Civ. 350 (PGG)(HBP)

:

-against-

:

OPINION AND
ORDER

:
:

Defendant.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

I write to resolve a dispute between the parties
concerning certain documents that plaintiff is withholding on the
bases of the attorney-client privilege and the work-product
doctrine.

The documents in issue all relate to a May 11, 2011

Letter from MBIA Insurance Company ("MBIA") to The Bank of New
York Trust Company, N.A. ("BONY") that is annexed to the Amended
Complaint as Exhibit C (the "MBIA Letter").

For the reasons set

forth below, I conclude that, with a few exceptions described in
more detail below, the documents in issue must be produced.

II.

Facts

The facts that give rise to this action are set forth
in detail in the Opinion of the Honorable Paul G. Gardephe,
United States District Judge, dated March 28, 2012 (Docket Item
25), granting in part and denying in part defendant's motion to
dismiss.

I recite the facts here only to the extent necessary

for an understanding of the dispute before me.
Plaintiff, BNP Paribas ("Paribas"), purchased certificates issued by the Flagstar Home Equity Loan Trust, of which
defendant, BONY, is the trustee.

If certain conditions occurred,

purchasers of the trust certificates were entitled to receive
payments from an insurance policy BONY had purchased from MBIA.
The certificates were issued in different classes.

This action

arises from a dispute as to how the payments from MBIA should be
allocated among the classes of trust certificate holders.
Paribas claims that the insurance payments should be
distributed pro rata among all certificate holders.

BONY has

been distributing the insurance payments sequentially such that
certificate holders with a higher priority are fully paid before
certificate holders with a lower priority receive any payment.
BONY, not MBIA, controls how insurance payments are allocated
among certificate holders, and the amount of MBIA's liability is

2

not affected by the manner of allocation.

Neither Paribas nor

BONY has asserted any claims against MBIA, and the record does
not even suggest that claims against MBIA have ever been contemplated by anyone.
The present dispute arises out of a letter annexed as
Exhibit C to Paribas' Amended Complaint (Docket Item 15) -- the
MBIA Letter.

The MBIA Letter is dated May 11, 2011 -- the same

day the amended complaint was filed -- and was sent by Brian
Hynes, a Director of MBIA, to Robert E. Bailey, a Managing
Director and Senior Managing Counsel of BONY.

In substance, the

MBIA Letter sets forth MBIA's belief that BONY's understanding of
the appropriate method for distributing insurance payments is
incorrect and that the insurance payments should be distributed
on a pro rata basis rather than sequentially.

In short, MBIA's

letter asserts that Paribas' interpretation of the manner in
which insurance payments should be allocated is correct and that
BONY's interpretation is incorrect.
During the course of discovery, BONY learned that there
were documents in the possession of Paribas and its counsel
concerning the MBIA Letter that had not been produced in discovery.

In addition, these documents had not been listed on

Paribas' privilege log as a result of the parties' agreement that
documents created after the commencement of the lawsuit need not
3

be logged.

BONY sought production of the documents concerning

the MBIA Letter, and Paribas refused.

The parties raised their

dispute in a March 11, 2013 joint letter to Judge Gardephe who
subsequently referred the matter to me for resolution.

I heard

oral argument on April 9, 2013, and directed Paribas to prepare
an index of the documents withheld and to submit the documents to
me for in camera review.
they consist of:

Twenty-five documents are in issue;

(1) emails between Paribas' counsel and MBIA

concerning the dispute between Paribas and BONY and the MBIA
Letter, (2) emails between Paribas' outside counsel and its inhouse counsel concerning discussions with MBIA or the MBIA
Letter, (3) emails substantially internal to Paribas describing
the status of discussions between Paribas' outside counsel and
MBIA, (4) emails substantially internal to Paribas describing the
status of the action or the MBIA Letter and (5) emails transmitting a draft amended complaint.

4

III.

Analysis

A.

The Attorney-Client Privilege
Privilege and Work-Product
Doctrine: General Principles

1.

The Attorney-Client Privilege

The elements of the attorney-client privilege are well
settled:
"The [attorney-client] privilege applies only if (1)
the asserted holder of the privilege is or sought to
become a client; (2) the person to whom communication
was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by
the client."
Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160
F.R.D. 437, 441 (S.D.N.Y. 1995) (Francis, M.J.), quoting United
States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59 (D.
Mass. 1950) (Wyzanski, D.J.); see United States v. Davis, 131
F.R.D. 391, 398 (S.D.N.Y. 1990) (Conboy, D.J.).

The privilege

"exists to protect not only the giving of professional advice to
those who can act on it but also the giving of information to the
lawyer to enable him to give sound and informed advice."
5

Upjohn

Co. v. United States, 449 U.S. 383, 390 (1981).

Therefore, "[i]t

is now [also] well established that the privilege attaches not
only to communications by the client to the attorney, but also to
advice rendered by the attorney to the client, at least to the
extent that such advice may reflect confidential information
conveyed by the client."

Bank Brussels Lambert v. Credit

Lyonnais (Suisse) S.A., supra, 160 F.R.D. at 441–42; see also
O'Brien v. Bd. of Educ., 86 F.R.D. 548, 549 (S.D.N.Y. 1980)
(Leval, then D.J., now Cir. J.); SCM Corp. v. Xerox Corp., 70
F.R.D. 508, 520–22 (D. Conn.), appeal dismissed, 534 F.2d 1031
(2d Cir. 1976).
"'[T]he burden is on a party claiming the protection of
a privilege to establish those facts that are the essential
elements of the privileged relationship.'"

von Bulow by

Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), quoting
In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224
(2d Cir. 1984).

Thus, "the party seeking to invoke the privilege

must establish all elements of the privilege."

Bowne of N.Y.

City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993)
(Dolinger, M.J.) (collecting cases).

In addition, courts "con-

strue the privilege narrowly because it renders relevant information undiscoverable" and "apply it 'only where necessary to
achieve its purpose.'"

In re Cnty. of Erie, 473 F.3d 413, 418
6

(2d Cir. 2007), quoting Fisher v. United States, 425 U.S. 391,
403 (1976).

2.

The Work-Product Doctrine

The work-product doctrine arises out of the realization
that
[i]n performing his various duties . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel. . . . This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and
intangible ways -- aptly though roughly termed . . . as
the "Work product of the lawyer." Were such materials
open to opposing counsel on mere demand, much of what
is now put down in writing would remain unwritten. An
attorney's thoughts, heretofore inviolate, would not be
his own. Inefficiency, unfairness and sharp practices
would inevitably develop in the giving of legal advice
and in the preparation of cases for trial. The effect
on the legal profession would be demoralizing. And the
interests of the clients and the cause of justice would
be poorly served.
Hickman v. Taylor, 329 U.S. 495, 510–11 (1947); see also United
States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (stating
that work-product doctrine "is intended to preserve a zone of
privacy in which a lawyer can prepare and develop legal theories
and strategy 'with an eye toward litigation,' free from unnecessary intrusion by his adversaries," quoting Hickman v. Taylor,
supra, 329 U.S. at 511).

7

A claim of work-product has three elements:

"[t]he

material must (1) be a document or a tangible thing, (2) that was
prepared in anticipation of litigation, and (3) was prepared by
or for a party, or by or for his representative."

In re Grand

Jury Subpoenas dated Dec. 18, 1981 & Jan. 4, 1982, 561 F. Supp.
1247, 1257 (E.D.N.Y. 1982); see Bice v. Robb, 07 Civ. 2214 (PAC),
2010 WL 5373904 at *1 (S.D.N.Y. Dec. 22, 2010) (Crotty, D.J.),
aff'd, 2013 WL 535783 (2d Cir. 2013) (summary order); Adamowicz
v. I.R.S., 552 F. Supp. 2d 355, 365 (S.D.N.Y. 2008) (Preska,
D.J.).
If the proponent succeeds in establishing these elements, the burden then shifts to the party seeking discovery of
work-product material to show substantial need for the material
and an inability to obtain its substantial equivalent from
another source without undue hardship.

Weinhold v. Witte Heavy

Lift, Inc., 90 Civ. 2096 (PKL), 1994 WL 132392, at *3 (S.D.N.Y.
Apr. 11, 1994) (Leisure, D.J.); accord Kent Corp. v. N.L.R.B.,
530 F.2d 612, 623–24 (5th Cir. 1976).

However, "while factual

materials falling within the scope of the doctrine may generally
be discovered upon a showing of 'substantial need,' attorney
mental impressions are more rigorously protected from discovery[.]"

In re Leslie Fay Cos. Sec. Litig., 161 F.R.D. 274, 279

(S.D.N.Y. 1995) (Conner, D.J.); accord In re Grand Jury Subpoena
8

Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) ("[O]pinion
work product . . . is entitled to greater protection than fact
work product."); The Shinnecock Indian Nation v. Kempthorne, 652
F. Supp. 2d 345, 367 (E.D.N.Y. 2009) ("[E]ven in those cases in
which courts have held that selective or partial disclosure has
impliedly waived the privilege, courts have been reluctant to
hold that implied waiver of non-opinion work product extends to
opinion work product."); In re Kidder Peabody Sec. Litig., 168
F.R.D. 459, 473 (S.D.N.Y. 1996) (Dolinger, M.J.) (limiting
work-product waiver to purely factual materials, leaving protected "core attorney mental processes").

3.

"At Issue" Waiver

Both the attorney-client privilege and the protection
afforded by the work-product may be waived if the holder of the
privilege or protection makes affirmative use of the protected
material and fairness requires additional disclosure.
Generally, "[c]ourts have found waiver by implication when a client testifies concerning portions of the
attorney-client communication, . . . when a client
places the attorney-client relationship directly at
issue, . . . and when a client asserts reliance on an
attorney's advice as an element of a claim or defense .
. . ." Sedco Int'l S.A. v. Cory, 683 F.2d 1201, 1206
(8th Cir. 1982). The key to a finding of implied
waiver in the third instance is some showing by the
party arguing for a waiver that the opposing party

9

relies on the privileged communication as a claim or
defense or as an element of a claim or defense.
In re Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008).
"'[W]hether fairness requires disclosure . . . is best decided on
a case by case basis, and depends primarily on the specific
context in which the privilege is asserted.'"

John Doe Co. v.

United States, 350 F.3d 299, 302 (2d Cir. 2003), quoting In re
Grand Jury Proceedings, 219 F.3d 175, 183 (2d Cir. 2000); accord
In re Sims, 534 F.3d 117, 131-32 (2d Cir. 2008).
The protection afforded by the work-product doctrine is
also subject to waiver when the a party makes testimonial use of
work-product materials.

For example, in United States v. Nobles,

422 U.S. 225 (1975), the defendant in a bank robbery case had
attempted to impeach the testimony of prosecution eye witnesses
by calling an investigator retained by the defendant to testify
concerning statements the witnesses had made to the investigator
prior to trial.

422 U.S. at 227-29.

Specifically, the defense

sought to introduce testimony from the investigator that one
witness had told the investigator that "'all blacks looked alike'
to him;" the witness had denied making the statement when crossexamined about it.

422 U.S. at 228.

The trial court ruled that

if the investigator testified concerning statements made by the
witness, the relevant section of the investigator's reports of

10

the interview would have to be produced at the conclusion of the
investigator's testimony.

422 U.S. at 228.

Defense counsel

advised the court that he would not intend produce any of the
report, and the trial court precluded the investigator's testimony.

422 U.S. at 229.
The Supreme Court affirmed the conviction, finding that

the admission of testimony from the investigator concerning his
interviews of the witness would result in a waiver of work
product protection with respect to his reports concerning those
interviews.
The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to
adduce the testimony of the investigator and contrast
his recollection of the contested statements with that
of the prosecution's witnesses. Respondent, by electing to present the investigator as a witness, waived
the privilege with respect to matters covered in his
testimony.14 Respondent can no more advance the
work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect
to testify in his own behalf and thereafter assert his
Fifth Amendment privilege to resist cross-examination
on matters reasonably related to those brought out in
direct examination. See, e.g., McGautha v. California,
402 U.S. 183, 215 (1971).
__________
14

What constitutes a waiver with respect to
work-product materials depends, of course, upon the
circumstances. Counsel necessarily makes use throughout trial of the notes, documents, and other internal
materials prepared to present adequately his client's
case, and often relies on them in examining witnesses.
11

When so used, there normally is no waiver.
But where,
as here, counsel attempts to make a testimonial use of
these materials the normal rules of evidence come into
play with respect to cross-examination and production
of documents.
422 U.S. at 239-40 (second internal footnote omitted).

The

Shinnecock Indian Nation v. Kempthorne, supra, 652 F. Supp. 2d at
365 ("[A]n examination of cases on waiver of the attorney work
product privilege indicates that courts generally permit discovery of work product based on implied or subject-matter waiver
only where the privileged communications have affirmatively been
put at issue or when the defendant seeks to exploit the doctrine
for a purpose inconsistent with the privilege, such as for the
unilateral testimonial use of privileged communications." (collecting cases)); Mfg. Admin. & Mgmt. Sys., Inc. v. ICT Grp.,
Inc., 212 F.R.D. 110, 113 (E.D.N.Y. 2002) ("Precluding discovery
of work product [when a party makes evidentiary use of its
substance at trial] could inhibit cross-examination and stilt the
truth-finding process, because, for example, the opposing party
would be prevented from illustrating any inconsistencies between
the proffered testimony and certain pretrial statements contained
in the work product.

Under these circumstances, the work product

protection is 'waived' and the work product is therefore
discoverable."); Alpex Computer Corp. v. Nintendo Co., Ltd., 86
Civ. 1749 (KMW), 1994 WL 330381 at *2 (S.D.N.Y. 1994) (Wood,
12

D.J.) ("Testimonial use of material otherwise protected by the
attorney-client privilege or the work product privilege results
in 'subject matter waiver' of material related to the testimony
and necessary to proper evaluation of it.").

B.

Application of the
Foregoing Principles
to the Documents in Issue

Paribas has submitted twenty-five documents relating to
the MBIA Letter for in camera review.

In general, the documents

are extremely relevant to an understanding of how the MBIA Letter
came into existence, and a fact finder could conclude that the
origin of the MBIA Letter has a substantial impact on the weight
to be accorded the MBIA Letter.
I shall first determine which documents, if any, are
entitled to the attorney-client privilege or work-product protection.

I shall then determine whether Paribas has waived the

privilege or protection.

Unfortunately, Paribas has not identi-

fied which privilege or protection applies to which documents.

I

am, therefore, forced to guess at what privilege or protection
might be applicable to each document.
Most of these documents are email chains, and there is
duplication among the documents.

Documents 1, 2, 4, 5, 8, 9, 10,

11, 14, 16, 17, 21 and 22 are email chains that are entirely
13

contained within other documents.

Because these documents are

duplicative of other documents, they need not be addressed
separately.
Some emails within an email chain are not covered by
the same privilege or protection as the other emails within the
chain.

Thus, each email must be addressed individually.

In

order to accomplish this, I shall refer to each individual email
by the number of the document within which it is found and an
alphabetic suffix reflecting the position of each email within
the chain.

For example, because each email chain is in reverse

chronological order, Document 3a refers to the most recent (or
last in time) email contained in Document 3, Document 3b refers
to the second most recent (or second to last in time) email
contained in Document 3, etc.

Where a document consists of a

single email, such as documents 24 and 25, the alphabetic suffix
is omitted.

For clarity, I have included the date and time of

each email in addition to the alphanumeric identifier described
above.
With one exception -- Document 25 -- I find that none
of the documents are protected by the attorney-client privilege.
Except for Document 25, none are confidential communications from
Paribas to its counsel made for the purpose of securing legal
advice, and none are communications of legal advice from Paribas'
14

counsel to Paribas that reflect a client confidence.

The commu-

nications between counsel and client are primarily in the nature
of status reports, describing events occurring in the litigation
and events comprising trial preparation.
The following constitutes my rulings as to the applicability of the attorney-client privilege ("a-c") and work-product
doctrine ("w-p") with respect to each of the emails in issue:
3a
05/06/11
7:14 pm

no w-p

3b
05/06/11
1:04 pm

w-p; description of counsel's trial preparation;
no opinion w-p

3c
05/06/11
12:58 pm

w-p; communication with prospective witness; no
opinion w-p

6a1
05/08/11
10:13 pm

w-p (draft complaint); description of counsel's
trial preparation; no opinion w-p

7b2
05/08/11
6:12 pm

w-p (draft complaint); description of counsel's
trial preparation; no opinion w-p;

12a
05/10/11
8:14 pm

w-p; description of counsel's trial preparation;
no opinion w-p

1

The remaining emails comprising Document 6 are contained in
Document 12.
2

The remaining emails comprising Document 7 are contained in
Document 12.
15

12b
05/10/11
1:28 pm

opinion w-p in last two sentences of first
paragraph; balance is unprotected status report;
no other w-p

12c
05/09/11
12:41 pm

w-p; description of counsel's trial preparation;
no opinion w-p

12d
05/09/11
10:39 am

party w-p

12e
05/08/11
6:12 pm

w-p; description of counsel's trial preparation;
no opinion w-p

12f
05/06/11
4:36 pm

w-p; description of counsel's trial preparation;
no opinion w-p

12g
04/27/11
6:13 pm

primarily a neutral status report; opinion w-p
in: (1) second paragraph, second and third
sentences; (2) third paragraph, last line from
"as" through "be" and (3) fourth paragraph, second
sentence

12h
attachment
to 12e

w-p (draft of MBIA Letter); no opinion w-p

13a3
05/10/11
2:38 pm

w-p; no opinion w-p

15a4
05/10/11
4:31 pm

w-p; no opinion w-p

3

The remaining emails comprising Document 13 are contained
in Document 18.
4

The remaining emails comprising Document 15 are contained
in Document 18.
16

18a
05/11/11
9:23 am

w-p; no opinion w-p

18b
05/10/11
9:56 pm

w-p; no opinion w-p

18c
05/10/11
7:58 pm

w-p; no opinion w-p

18d
05/10/11
7:57 pm

w-p; no opinion w-p

18e
05/10/11
4:27 pm

w-p; no opinion w-p

18f
05/10/11
3:00 pm

w-p; no opinion w-p

18g
05/10/11
1:07 pm

w-p; no opinion w-p

18h
05/10/11
10:43 am

w-p; no opinion w-p

18i
05/06/11
12:58 pm

w-p; no opinion w-p

19
05/11/11
10:38 am

w-p; no opinion w-p

17

20a5
5/11/11
10:56 am

w-p; no opinion w-p

23a
05/11/11
3:04 pm

w-p; no opinion w-p

23b
05/11/11
2:53 pm

w-p; no opinion w-p

23c
05/11/11
2:42 pm

w-p; no opinion w-p

23d
05/11/11
10:38 am

w-p; no opinion w-p

24
05/11/11
03:49 pm

w-p; no opinion w-p

25
05/11/11
10:04 pm

a-c; w-p; opinion w-p in: (1) first paragraph,
fourth and fifth sentences and (2) second
paragraph, second and third sentences; attached
draft complaint is w-p
The next issue is whether Paribas has made unilateral

testimonial use of the MBIA Letter and, if so, to what extent
does that use operate as a waiver of work-product protection.
Although I have not found any case containing a universal definition of testimonial use, the cases seem to suggest that
testimonial use of a statement or document occurs when its

5

The remaining emails comprising Document 20 are contained
in Document 23.
18

contents are asserted for the truth of the matter asserted
therein.

See Nat'l Immigration Project of the Nat'l Lawyers

Guild v. United States Dep't of Homeland Sec., 842 F. Supp. 2d at
720, 725-26 (S.D.N.Y. 2012) (Rakoff, D.J.) testimonial use of
work-product in appellate argument waives work-product); see also
In re Steinhardt Partners, L.P., 9 F.3d 230, 234-35 (2d Cir.
1993) (disclosure of counsel's memo to SEC in an effort to
discourage commencement of enforcement action constitutes testimonial use); Granite Partners, L.P. v. Bear Stearns & Co. Inc.,
184 F.R.D. 49, 54 (S.D.N.Y. 1999) (Sweet, D.J.) ("The work
product privilege is waived when a party to a lawsuit uses it in
an unfair way that is inconsistent with the principles underlying
the doctrine of privilege.

It is well settled that waiver may be

imposed when the privilege-holder has attempted to use the
privilege as both 'sword' and 'shield.'" (internal quotation
marks and citation omitted)); In re Kidder Peabody Sec. Litig.,
supra, 168 F.R.D. at 473 (concluding that an affirmative use of a
report and, by implication, the underlying witness interview
statements, triggered a waiver of the privilege); Coleco Indus.,
Inc. v. Universal City Studios, Inc., 110 F.R.D. 688, 691
(S.D.N.Y. 1986) (Sweet, D.J.) ("Kroft's affidavit and attached
work product were proffered as a 'testimonial use' of materials
otherwise privileged.

Fairness requires that discovery not be
19

limited only to those documents which have selectively been
disclosed.").
Paribas has affirmatively used the MBIA letter as
evidence of the correctness of its interpretation of the manner
in which insurance proceeds should be distributed.

It not only

annexed the MBIA Letter to the Amended Complaint and referred to
it in Paragraph 36 thereof, Paribas also cited the MBIA Letter in
its opposition to BONY's motion to dismiss the Amended Complaint
(BNP Paribas's Memorandum of Law in Opposition to Bank of New
York Mellon's Motion to Dismiss, dated June 8, 2011 (Docket Item
21), at 7-8).

Judge Gardephe also relied, in part, on the MBIA

Letter in denying, in part, BONY's motion to dismiss (Order dated
March 28, 2012 (Docket Item 25) at 31).

Given Paribas' affirma-

tive conduct in putting the MBIA Letter before the Court and
Judge Gardephe's actual reliance on it, I conclude that Paribas
has made testimonial use of the MBIA Letter.
Having made testimonial use of the MBIA Letter, I
conclude that Paribas has waived work-product protection with
respect to the documents in issue except for (1) the opinion
work-product identified above and (2) drafts of the amended
complaint.

Paribas proffers the MBIA Letter as independent

corroboration of the correctness of its position, and the documents in issue could bear substantially on the weight to be
20

attributed to the MBIA Letter.

To permit Paribas to rely on the

MBIA Letter while withholding evidence concerning its origin
creates a serious risk of leaving the fact finder with a misimpression concerning how and why the MBIA Letter came into existence.

As a matter of fairness, I conclude that non-opinion

work-product concerning the MBIA Letter should be produced.
Drafts of the Amended Complaint need not be produced
because, as drafts, they are work product, Bush Dev. Corp. v.
Harbour Place Assoc., 632 F. Supp. 1359, 1363 (E.D. Va. 1986),
and they do not relate to the circumstances surrounding the
creation of the MBIA Letter.

IV.

Conclusion

Accordingly, no later than ten days from the date of
this Order, Paribas is to produce the following documents to
counsel for defendant:

Document

Portion to
Be Produced

3a
05/06/11
7:14 pm

all

3b
05/06/11
1:04 pm

all

21

3c
05/06/11
12:58 pm

all

6a
05/08/11
10:13 pm

all except draft complaint

7b
05/08/11
6:12 pm

all

12a
05/10/11
8:14 pm

all

12b
05/10/11
1:28 pm

all except for last two sentences of first
paragraph

12c
05/09/11
12:41 pm

all

12d
05/09/11
10:39 am

all

12e
05/08/11
6:12 pm

all

12f
05/06/11
4:36 pm

all

12g
04/27/11
6:13 pm

all except (1) second paragraph, second and third
sentences; (2) third paragraph, last line from
"as" through "be" and (3) fourth paragraph, second
sentence

12h
attachment
to 12e

all

22

13a
05/10/11
2:38 pm

all

15a
05/10/11
4:31 pm

all

18a
05/11/11
9:23 am

all

18b
05/10/11
9:56 pm

all

18c
05/10/11
7:58 pm

all

18d
05/10/11
7:57 pm

all

18e
05/10/11
4:27 pm

all

18f
05/10/11
3:00 pm

all

18g
05/10/11
1:07 pm

all

18h
05/10/11
10:43 am

all

18i
05/06/11
12:58 pm

all

23

all

19
05/11/11
10:38 am
20a
5/11/11
10:56 am

all

23a
05/11/11
3:04 pm

all

23b
05/11/11
2:53 pm

all

23c
05/11/11
2:42 pm

all

23d
05/11/11
10:38 am

all

24
05/11/11
03:49 pm

all

25
05/11/11
10:04 pm

none

Dated: New York, New York
June 5, 2013
SO ORDERED

lLPIT~ ~~

HENRY
United States Magistrate Judge

24

Copies transmitted to:

Jonathan Pickhardt, Esq.

Rex Lee, Esq.

Quinn Emanuel Urquhart

& Sullivan, LLP
51 Madison Avenue
New York, New York 10010
Steven G. Brody, Esq.
Robert C. Stillwell, Esq.
Bingham McCutchen LLP
399 Park Avenue
New York, New York 10022

25