Federal Housing Finance Agency as Conservator for the Federal National Mortgage Association et al v. UBS Americas Inc. et al
Filing
249
MEMORANDUM OPINION & ORDER denying discovery of privileged witness statements. (Signed by Judge Denise L. Cote on 11/9/12) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FEDERAL HOUSING FINANCE AGENCY,
Plaintiff,
-v-
UBS AMERICAS INC., et al.,
Defendantsi
And other FHFA cases.
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MEMORANDUM OPINION
& ORDER
DENISE COTE, District Judge:
Through their Joint Submission of November 5, 2012,
defendants seek the witness statements for the 46 interviews of
present and former Freddie Mac directors, officers, and
employees described in a Special Litigation Committee Report
("Report").
The Report was filed in support of a motion to
dismiss derivative claims against Freddie Mac in In re Federal
Home Loan Mort. Corp. Derivative Litig., No. 08 Civ. 773
(LMB/TCB)
(E.D. Va.).
The witness statements are privileged,
but in letters of November 6 and 8 from FHFA, and of November 8
from the defendants, the parties dispute whether the FHFA waived
its right to protect the privileged witness statements by filing
the Report in the Virginia action.
The defendants contend that the filing of the Report waived
the privilege with respect to the witness statements because the
filing of the Report was voluntary and made with the intent to
benefit the FHFA in the Virginia action.
The defendants point
out that the FHFA succeeded in its effort to obtain dismissal of
the Virginia action.
The defendants' application fails for two reasons.
First,
the witness statements are privileged, and remain so despite the
voluntary filing of the Report.
449 U.S. 383, 399 (1981).
Upjohn Co. v. United States,
In Upjohn, a company voluntarily
submitted a report to the SEC disclosing questionable payments.
The company declined to produce the written questionnaires it
had sent to its managers of foreign affiliates and the memoranda
and notes of interviews it conducted with its officers and
employees, all of which the company had used to prepare the
report, on the ground that the documents were privileged.
at 387-88.
Id.
The Supreme Court agreed that the documents remained
protected by the attorney client privilege, and to the extent
they were not, by the work product privilege.
Id. at 397, 399.
That reasoning applies with equal force here.
Secondly, FHFA has not impliedly waived the privilege.
has not relied in this case on the witness statements or the
privileged communications captured in those statements to
2
It
support its claims.
Rules which result in the waiver of
privileged communications must be "formulated with caution."
In
re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (attorney
client privilege).
A party impliedly waives the privilege when
it "relies on the privileged communication as a claim or defense
or as an element of a claim or defense.
Id.
A party must place
the "matter at issue so as to cause forfeiture of privilege by
reason of unfairness" to its adversary.
Id. at 229.
This the
FHFA has not done.
Dated:
New York, New York
November 9, 2012
United Sates District Judge
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