Bonacasa v. Standard Chartered PLC

Background

Standard Chartered Bank asked the Court to compel the plaintiffs to produce an unredacted version of a document titled “Notes on Call with Rob Greenway.” Plaintiffs’ counsel prepared the four-page document after a March 15, 2024 call with Robert Greenway, a former Defense Intelligence Agency employee. During the call, counsel discussed a prior conversation with Lieutenant General Michael Barbero and asked Greenway about that conversation and sales by the Pakistani fertilizer company Fatima in provinces near Afghanistan.

The plaintiffs later subpoenaed Greenway for a deposition but agreed to question him through written deposition questions under Federal Rule of Civil Procedure 31. Their questions referred to portions of the March 15 call. At Standard Chartered’s request, the plaintiffs produced a version of the notes with three small redactions. Standard Chartered disputed whether the redactions were protected and whether any remaining portions had to be produced.

Legal standard

Federal Rule of Civil Procedure 26(b)(3) gives limited protection from discovery to documents prepared because of expected litigation that reveal an attorney’s mental impressions, conclusions, opinions, or legal theories. Documents prepared in the ordinary course of business, or documents that would have been created in essentially the same form even without the litigation, are not protected. A party seeking protected factual work product may sometimes overcome the protection by showing substantial need, but material reflecting an attorney’s core mental impressions and legal strategy receives stronger protection.

Court’s analysis

After reviewing the unredacted notes privately, the Court determined that all three redacted portions were privileged and protected work product. The first redaction followed attorney Gary Osen’s statement that he had spoken with Barbero and reflected the attorney’s opinions and impressions about the record. The second followed attorney Andrew Lichtman’s statement about Barbero and reflected attorney opinions about a witness. The third, which followed Greenway’s response, reflected attorney legal strategy.

The Court rejected Standard Chartered’s argument that the notes were only transcript-style records of a nonprivileged call with a third party. The Court explained that lawyer notes from a witness interview may contain both facts and the lawyers’ mental impressions, and that the redactions here protected the latter.

The Court also rejected Standard Chartered’s concern that the redactions created a misleading or incomplete account of what Greenway had been told. The plaintiffs had produced the four pages with only three short redactions, and the Court found that the redactions did not omit key context, present only a favorable view, or impair Standard Chartered’s ability to cross-examine Greenway.

The Court further held that the plaintiffs had not waived work-product protection by disclosing information to Greenway. It stated that protection is waived only when disclosure to a third party substantially increases the risk that an adversary will obtain the material. The Court found that the notes showed the plaintiffs viewed Greenway as an ally and engaged with him on the basis of a shared interest in protecting U.S. servicemembers and addressing networks supporting terrorist groups.

Finally, the Court found that Standard Chartered had not shown a substantial and highly persuasive need for the protected material. Standard Chartered had reviewed the plaintiffs’ direct and redirect questions for Greenway’s written deposition and had served cross and recross questions, giving it an opportunity to examine Greenway about factual matters in the notes. The Court also noted that Standard Chartered would have an opportunity to depose Barbero.

Disposition

The Court denied Standard Chartered’s request to compel the plaintiffs to produce an unredacted version of the notes. The order did not require the plaintiffs to remove any of the three redactions.