Wultz v. Bank of China Ltd.
304 F.R.D. 384
S.D.N.Y.2015Background
- Plaintiffs allege Bank of China assisted a terrorist operative, based on a 2006 Tel Aviv bombing, by executing transfers for Shurafa.
- Plaintiffs seek production of documents from BOC’s 2008 investigations prompted by a demand letter from plaintiffs’ counsel.
- BOC asserts the documents are protected by attorney-client privilege and work product doctrine.
- Initial 2008 Demand Letter alleged BOC’s knowledge and assistance to Shurafa, including an account at Guangzhou.
- BOC-NY and BOC-HO conducted multi-jurisdictional investigations in New York and China, with various personnel involved (not all attorneys).
- BOC ultimately retained external U.S. counsel and produced multiple reports; plaintiffs moved to compel production of privilege-logged documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents on privilege log are attorney-client communications | Wultz contends documents are not communications with counsel and thus not privileged. | BOC claims the documents relate to an internal investigation directed to obtain legal advice and are privileged. | Privilege not shown; no direct attorney-client communications or direction shown. |
| Whether documents are protected by the work product doctrine | Documents should be discoverable; not prepared in anticipation of litigation in essentially similar form otherwise. | Documents were prepared in anticipation of litigation and for counsel's use. | BOC failed to prove materials would not have been created in essentially similar form absent litigation; work product protection denied. |
| Application of federal common law to attorney-client privilege in this fact pattern | Privilege should shield communications and related materials under federal law. | Privilege scope should extend to communications between client and attorney and their agents. | Court narrowly construes privilege; materials here do not show communication to counsel or direction by counsel; privilege not established. |
Key Cases Cited
- United States v. Mejia, 655 F.3d 126 (2d Cir. 2011) (attorney-client privilege requires confidential communications for legal advice)
- United States v. Ghavami, 882 F. Supp. 2d 532 (S.D.N.Y. 2012) (addresses scope of privilege and non-communications material)
- In re Cnty. of Erie, 473 F.3d 413 (2d Cir. 2007) (standard for attorney-client privilege elements and waivers)
- Ackert, 169 F.3d 136 (2d Cir. 1999) (privilege protects communications to obtain legal advice)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (corporate employee disclosures to counsel for legal advice under corporate direction)
- In re Kellogg Brown & Root Inc., 756 F.3d 754 (D.C. Cir. 2014) (internal investigation directed to obtain legal advice can be privileged)
- In re Grand Jury Subpoenas Dated Jan. 4, 1984, 750 F.2d 223 (2d Cir. 1984) (burden on asserting privilege and need to show essential elements)
- In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379 (2d Cir. 2003) (work product protection requires anticipation of litigation and documents by representative)