Schoenmann ex rel. Estate of UCBH Holdings, Inc. v. Federal Deposit Insurance
7 F. Supp. 3d 1009
N.D. Cal.2014Background
- Trustee (chapter 7 for UCBH Holdings) sued FDIC-Receiver; Doreen Woo Ho was UCB/UCBH CEO during the relevant period.
- FDIC-Receiver served a third-party subpoena on Ms. Ho seeking communications and drafts of any declaration relating to the action.
- Trustee objected that the requested materials reflected Trustee/counsel work product and (later) asserted attorney-client privilege; Ms. Ho withheld 19 pages to avoid waiving Trustee privileges.
- FDIC-Receiver moved to compel production arguing waiver, Rule 612 applicability, and substantial need.
- Magistrate Judge denied the motion: the emails, declaration drafts, and signed declaration were work product; attorney-client privilege did not apply; FDIC-Receiver was barred from inquiring into the fact or subject matter of those communications but could examine underlying facts Ms. Ho provided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the communications and declaration drafts protected as attorney work product? | Trustee: communications, drafts, and signed declaration are counsel’s work product. | FDIC: Trustee waived protection by communicating with a third-party; Rule 612 permits discovery; FDIC has substantial need. | Held: Materials are work product; protection not overcome. |
| Is attorney-client privilege applicable to communications with former employee Ms. Ho? | Trustee: communications with former UCBH officer are privileged and timely asserted. | FDIC: Ms. Ho was not a client seeking legal advice; privilege does not apply and, if it did, FDIC has equal claim. | Held: Privilege does not apply because Ms. Ho was not a client seeking legal advice. |
| Did Trustee waive work-product or privilege by sharing drafts/communications with Ms. Ho? | Trustee: no waiver; withholding was to avoid waiver. | FDIC: sharing with third party amounts to waiver. | Held: No waiver of work-product protection. |
| Scope of permissible inquiry at trial/deposition about communications between Ms. Ho and Trustee/counsel | Trustee: preclude FDIC from inquiring into fact or subject-matter of those communications; alleges improper ex parte contacts. | FDIC: should be allowed to probe for bias and impeach witness. | Held: FDIC precluded from questioning about fact/subject-matter of protected communications, but may question Ms. Ho about underlying factual information she provided. |
Key Cases Cited
- In re Grand Jury Subpoena, 367 F.3d 900 (9th Cir.) (describing work-product protection)
- United States v. Richey, 632 F.3d 559 (9th Cir.) (work product doctrine scope)
- In re Convergent Tech. Second Half 1981 Sec. Litig., 122 F.R.D. 555 (N.D. Cal.) (waiver and protection of affidavit drafts)
- Intel Corp. v. VIA Tech., Inc., 204 F.R.D. 450 (N.D. Cal.) (declaration of non-party is work product until filed)
- Hickman v. Taylor, 329 U.S. 495 (U.S.) (distinguishing attorney work product from ordinary discovery)