DECISION AND ORDER
On July 8, 2013, Mаgistrate Judge Frank Maas, to whom this case was referred for supervision of pretrial proceedings, issued a discovery order (the “Order”), a copy of which is attached and incorporated to this Decision and Order, granting a request by Plaintiffs to compel testimony by Renger Boonstra (“Boonstra”), an unlicensed in-house lawyer at Cit-co Bank Nederland, and overruling claims of attorney-client privilege by defendants The Citco Group Ltd., Citco Fund Services (Europe) B.V., Citco (Canada) Inc., Citco Global Custody N.V., Citco Bank Nederland N.V. Dublin Branch, and Citco Fund Services (Bermuda) Ltd. (collectively, the “Citco Defendants” or “Citco”). See An-war v. Fairfield Greenwich Ltd. (“Discovery Order”), -— F.R.D.-, No. 09 Civ. 0118,
Before the Court are the objections of the Citco Defendants, filed pursuant to Federal Rule of Civil Procedure 72(a), to the Order. The relevant facts and prior proceedings are discussed in Magistrate Judge Maas’s decision, familiarity with which is assumed. See Discovery Order, — F.R.D. at-,
I. STANDARD OF REVIEW
A district court evaluating a magistrate judge’s .order with respect to a matter not dispositive of a claim or defense may adopt the magistrate judge’s findings and conclusions as long as the factual and legal bases supporting the ruling are not clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Thomas v. Arn,
“Magistrate judges are given broad latitude in resolving discovery disputes, including questions of privilege.” Grass,
II. DISCUSSION
The Court has reviewed the Order, the Citco Defendants’ objections (Dkt. Nos. 1160, 1198), and Plaintiffs’ rеsponse to the objections (Pis.’ Mem. of Law in Opp’n to the Citco Defs.’ Rule 72(a) Objections to Magistrate Judge Maas’ July 8, 2013 Disc. Order, filed under seal, see Dkt. No. 1182), as well as the documents accompanying the parties’ submissions regarding this matter and the amicus letter submitted on behalf of the Association of Corporate Counsel (Dkt. No. 1194).
A. CHOICE OF LAW ANALYSIS
In granting Plaintiffs’ motion to compel Boonstra’s testimony, Magistrate Judge Maas properly rejected Citco’s privilеge assertions under United States and Dutch law. See Discovery Order, — F.R.D. at -,
Judge Maas properly stated the applicable legal standard for determining which country’s law to apply to a privilege dispute involving foreign attorney-client communications. See Discovery Order, — F.R.D. at-,
Judge Maas’s ruling was not clearly erroneous in finding that Boonstra’s communications could touch base with either the United States or the Netherlands and that the result would be the same in either case.
At the same time, the Court finds that Magistrate Judge Maas could correctly conclude, under the “communications relating to foreign legal proceedings or foreign law” prong of the Gucci I test, the communications touched base with the Netherlands. See, e.g., id. (“... I was asked to provide (and, in response, rendered) legal advice ... with respect to the terms, obligations and provisions of [several legal agreements]' — each of which is governed by Dutch law.”). Furthermore, Magistrate Judge Maas could correctly
B. PRIVILEGE ANALYSIS
The Court does not find clearly erroneous or contrary to law the Magistrate Judge’s ruling that if indeed the communications at issue touched base with the United States and therefore United States law governs privilege, the communications with Boonstra are not privileged and must be disclosed to Plaintiffs. The general rule under United States law is that only communications between a represented party and that party’s licensed attorneys are subject to attorney-client privilege. See, e.g., Wultz v. Bank of China Ltd.,
The parties here agree that Boonstra is not a licensed attorney. See Deckers Deck ¶ 9; Pis.’ Mem. at 1. The Citco Defendants, however, contend that the communications between Boonstra and Citco are privileged because, even though Boonstra was unlicensed, Citco had a “reasonable belief’ that Boonstra was its attorney. As Magistrate Judge Maas properly stated, “[n]otwithstanding the general rule that the attorney client privilege applies only to licensed attorneys, courts have found communications with non-attorneys to be privileged in limited circumstances in which the client ‘reasonably] believe[s] that the person to whom the communications were made was in fact an attorney.’ ” Discovery Order, — F.R.D. at-,
Magistrate Judge Maas adequately distinguished the facts of Gucci II, concerning an attorney who had been previously admitted to the bar but whose bar mem
Nor does the Court find clearly erroneous or contrary to law the Magistrate Judge’s ruling that if, in the alternative, the communications at issue touch base with the Netherlands and therefore Dutch law governs privilege, the communications with Boonstra are still not privilеged and nonetheless must be disclosed to Plaintiffs. In objecting to the Order, the Citco Defendants acknowledge that “it is true that The Netherlands does not recognize as privileged communications between a Dutch company and its unlicensed in-house legal counsel.” Deckers Decl. ¶ 9. Notwithstanding such admission, Citco essentially argues that the documents sought are protected from discovery not as the result of attorney-client privilege, but rather, on the basis that Dutch law provides only for “severely restricted” document discovery. See Dkt. No. 1198 at 3; Deckers Decl. ¶ 9 (“Under Dutch law, ... there is no general obligation for parties to disclose unspecified documents for purposes of what is known in Common Law jurisdictions as discovery.”) (emphasis in original); id. ¶ 10 (“Compulsory document disclosure is available in The Netherlands, but only under very limited circumstances ... ”) (emphasis in original). The Court has considered these arguments and finds them unpersuasive for the same reasons that they failed to convince Magistrate Judge Maas. The Court finds that the Order was not clearly erroneous or contrary to law in determining that the documents should be disclosed.
Plaintiffs argue сredibly that the Netherlands does, in fact, have an active document production culture which creates the possibility that documents between a corporation and unlicensed, in-house counsel will have to be disclosed. See Eijsbouts Decl. ¶ 7; Koppenol-Laforce Decl. ¶ 56. Plaintiffs support their assertion with Netherlands statutes and cases that demonstrate a developed procedure for requesting and ordering document production on vast quantities of documents covering broad time periods and subjects. See Koppenol-Laforce Decl. ¶¶ 20-25, 39-44 (citing numerous articles and statutes). In addition, Plaintiffs present articles to the Court, including a piece written by Citco’s expert, Michel Deckers, and his law partner, which confirm that document production is an accepted part of litigation in the Netherlands. See, e.g., Michel Deckers & Berth Brouwer, Country Q & A: The Netherlands, in 1 Dispute Resolution Handbook
A variety of provisions of the Dutch Code of Civil Proceedings (“DCCP”) and Dutch Civil Code (“DCC”) require doсument disclosure in specific situations. See Koppenol-Laforce Decl. ¶¶ 21-24 (listing specific provisions of the DCC and DCCP compelling document disclosure). The general rule stated in the DCCP is that “[a]ny person with a legitimate interest may demand inspection, copies or extracts of certain documents concerning a legal relationship in which he or his predеcessors is involved from any person who has such documents in his control or possession.” Article 843a(l) DCCP; see Koppenol-Laforce Decl. ¶25. Furthermore, a party who does not comply with a court’s document production order is subject to monetary penalties. See Art. 611a DCCP; Koppenol-Laforce Decl. ¶ 27. In such an instance, the court is entitled to draw advеrse inferences against the non-complying party. See Art. 22 DCCP; Koppenol-Laforce Decl. ¶ 26.
Indeed, Dutch law allows wide-ranging document disclosure. The DCCP requires that the party seeking disclosure describe its request with “sufficient clarity” but does not necessitate detailed identification of the name, date, or contents of requested documents. See Art. 843a; Koppenol-Laforce Decl. ¶ 37. In keeping with this requirement, Dutch courts have ordered production of broad categories, such as “minutes of various board meetings,” Pry-ford, InvJCenter Parcs N.V., [Dist. Ct. Rotterdam], 3 Oct. 1996, JOR 1996, 122 ¶ 5.10-5.11 (Neth.), “all documents regarding plaintiffs contractual relations with the ... company, suppliers, or the defendant,” Jonkman/Dekker, [Dist. Ct. Groningen], 22 Nov. 2002, NJ 2003, 102 ¶ 6 (Neth.), and “all correspondence,” Theodoor Gilissen Bankiers, 2012:BW9244, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 26 Oct. 2012, NJ 2013, 220 ¶ 3.8.2 (Neth.). Moreover, document production is not strictly limited by quantity or time period. See Koppenol-Laforce Decl. ¶¶ 45-46.
Defendants contend that pre-trial discovery is not allowed in the Netherlands, citing the Netherlands accession to Article 23 of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1972 (“Article 23”) to support its position. Deckers Decl. ¶ 9. However, although Article 23 permits the Netherlands to disregard Hague Requests from foreign countries seeking “pre-trial” discovery from a person in the Netherlands, id., the meaning of the phrase “pre-trial” in that context differs from its use in the American legal system. The Supreme Court of the Netherlands dispelled confusion over the definition of the American phrase “pre-trial” by clarifying that, in the Netherlands, “pre-trial” means the time before a proceeding is commenced. See Kilbarr Corp./Holland, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 11 March 1994, NJ 1995 (Neth.), 3 ¶ 3.4; Koppenol-Laforce Decl. ¶¶ 32-33. Thus, the text of Article 23 should not be construed to suggest that
In light of the extensive evidence mentioned above, Magistrate Judge Maas could correctly conclude that Dutch law provides for document disclosure in an active case. Plaintiffs have compellingly demonstrated that an environment of regular and extensive unprivileged document production exists in the Netherlands. Therefore, the Court is not persuaded that in discrediting Citco’s claims that Dutch discovery rules are much more limited than those of the United States, with the result Citco seeks that Boonstra’s communications would be protected from disclosure, Magistrate Judge Maas’s ruling was clearly erroneous or contrary to law.
For the reasons stated above and on basis of the authority cited by Magistrate Judge Maas, the Court dismisses the Citco Defendants’ objections to the Order.
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the objections of defendants The Citcо Group Ltd., Citco Fund Services (Europe) B.V., Citco (Canada) Inc., Citco Global Custody N.V., Citco Bank Nederland N.Y. Dublin Branch, and Citco Fund Services (Bermuda) Ltd. to the Discovery Order of Magistrate Judge Maas dated July 8, 2013 (Dkt. No. 1160) are DENIED and that Order is AFFIRMED.
SO ORDERED.
Notes
. The Court received Plaintiffs’ letter (Dkt. No. 1202) in response to the September 18, 2013 amicus letter and the Citco Defendants’ reply brief, as well as the Citco Defendants' letter dated October 11, 2013 in response to Plaintiffs’ letter. The Court notes that Plaintiffs’ letter is a sur-reply filed without permission of the Court and does not identify new controlling law, and therefore will not be considered. See Indiv. Practices of U.S. Dist. Ct. J. Victor Marrero, S.D.N.Y., at 3 ("Sur-reply memoranda will not be accepted without pri- or permission of the Court and then only in the rare instances in which new controlling law is promulgated after the filing of the reply papers.”). Additionally, the Court received and considered letters from Plaintiffs and the Citco Defendants, dated October 28, 2013 and November 4, 2013, respectively, concerning Judge Scheindlin’s recent opinion in Wultz v. Bank of China Ltd..,
. Magistrate Judge Maas stated that "Mr. Boonstra’s communications likely ‘touch base' with the United Statеs because they are related to legal issues arising out of the Citco Defendants' role in the administration of key feeder funds involved in the Madoff scheme.” Discovery Order,-F.R.D. at-,