66 F. Supp. 3d 406
S.D.N.Y.2014Background
- Plaintiffs are (former) customers who sued BNYM over alleged fictitious FX rates; the Groom Memo is a legal memorandum prepared by BNYM’s outside counsel about ERISA compliance for BNYM’s standing‑instruction FX business.
- BNYM’s employee circulated the Groom Memo (June–July 2009) to several pension plan investment managers (including Robeco) asking them to confirm they could comply and warning of indemnity obligations.
- Years later Robeco produced a document containing the Groom Memo to BNYM; BNYM produced an unredacted copy to Plaintiffs in 2014, then clawed it back as privileged.
- Plaintiffs moved to compel production of the Robeco document unredacted, arguing BNYM waived privilege by sharing the memo with third parties and that the memo is not work product.
- BNYM invoked attorney‑client privilege, the work‑product doctrine, and the common interest doctrine to justify non‑disclosure.
- The court reviewed the memo in camera and had to decide whether the common interest doctrine preserved privilege despite dissemination to the investment managers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney‑client privilege was waived by sharing the Groom Memo with third‑party investment managers | Sharing to non‑clients forfeited privilege; no common legal strategy existed | Disclosure was to parties sharing a common legal interest (ERISA compliance), so no waiver under the common interest doctrine | No waiver — common interest doctrine applied and privilege preserved |
| Whether the common interest doctrine covers disclosure to the pension plan’s investment managers | The memo’s disclaimer and BNYM’s indemnity demand show commercial, not legal, sharing — doctrine inapplicable | Disclosure aimed at securing ERISA compliance among parties with aligned legal interests; doctrine applies | Applied — court finds the managers shared an identifiable legal interest in ERISA compliance |
| Whether a joint defense agreement or pending litigation was required for common interest protection | Common interest requires identical legal strategy or pending litigation; absent here | Common interest can exist outside formal joint defense or pending litigation when parties share concrete legal interest | Not required — court accepts common interest protection absent litigation or formal agreement given regulatory compliance context |
| Whether the Groom Memo is protected by work product doctrine | Plaintiffs: memo not prepared in connection with active or contemplated litigation, so not work product | BNYM: asserted work product but court deemed the question moot after resolving privilege via common interest | Court did not decide work product — ruling on privilege made work product dispute academic |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (corporate privilege scope and need for broad attorney–client communications for regulatory compliance)
- In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (privilege belongs to the client and waiver rules)
- In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (discussing waiver and scope of attorney‑client privilege)
- Trammel v. United States, 445 U.S. 40 (U.S. 1980) (principles underlying the privilege)
- Fisher v. United States, 425 U.S. 391 (U.S. 1976) (privilege purpose: encourage full client disclosure to counsel)