Bonacasa v. Standard Chartered PLC

Background

The opinion addresses plaintiffs’ motion to compel Standard Chartered Bank to produce unredacted versions of 25 redacted or withheld documents for the court’s private review and to produce all nonprivileged communications. The cases concern allegations that Standard Chartered PLC and Standard Chartered Bank aided terrorist attacks that killed or injured U.S. soldiers in Afghanistan from 2013 to 2016 by providing banking services to the Fatima Group, a Pakistani-based fertilizer company. The opinion states that these are allegations; the discovery ruling did not decide their truth.

The challenged documents fell into two groups. The first consisted of 19 emails and draft internal reports from 2012 and 2013 concerning Donna Daniels’s advice about the U.S. Department of Defense’s Joint Improvised Explosive Device Defeat Organization’s inquiry into Fatima and Standard Chartered’s relationship with Fatima. The second consisted of six emails from 2019 and 2020 concerning the bank’s response to articles in the Daily Mail and Mail on Sunday, including communications involving attorneys Jonathan Rothberg and Scott Corrigan.

Legal standards

Attorney-client privilege protects confidential communications between a client and a lawyer made to obtain or provide legal advice. The party asserting the privilege must establish that the communication was between client and counsel, was intended to remain confidential and was kept confidential, and was made for the purpose of obtaining or providing legal advice. The court applies a predominant-purpose test, meaning legal advice need not be the only purpose, but it must be a significant purpose of the communication.

The attorney work-product doctrine provides limited protection for documents prepared because of anticipated litigation that reveal mental impressions, conclusions, opinions, or legal theories. Documents prepared in the ordinary course of business, or in substantially the same form regardless of litigation, are not protected on that basis.

Court’s analysis

For the 2012–2013 materials, the court concluded that Standard Chartered’s internal review and decision-making about Fatima involved both business and legal considerations. The fact that the ultimate decision was substantially a business decision did not prevent particular communications from being privileged if their predominant purpose was to obtain or provide legal advice.

The court found the redacted statements in Exhibit A-01 protected by attorney-client privilege because Daniels provided legal advice about strategy after the December 2012 meeting with the Defense Department organization and about the Fatima relationship.

For Exhibits A-02, A-04, A-05, A-18, and A-19, the court found that some redactions reflected legal advice, but others did not. It ordered production of specified nonlegal material in A-02, A-05, and A-18. The court did not require production of the draft reports in A-03, A-13, and A-17 because later versions, including final versions, had been produced and the drafts were therefore duplicative for purposes of the request.

The court found the redacted statements in Exhibits A-06 through A-12 and A-16 privileged. It found the redactions in A-14 and A-15 unprotected because they concerned whether drafts were acceptable or whether requested changes had been incorporated, rather than legal advice. Those exhibits had to be produced without redactions.

For Exhibits A-20 through A-25, the court found the redacted statements protected by attorney-client privilege. The communications involved legal advice about responding to the news articles, the bank’s internal review of Fatima and Julian Knight, and legal risks associated with the response. The court also found that Exhibits A-20 and A-25 contained protected work product because they were created because of Knight’s related lawsuit and reflected an attorney’s mental impressions and opinions.

Disposition

The court granted in part and denied in part plaintiffs’ motion to compel production of the 25 challenged documents. Standard Chartered was ordered to produce specified unredacted portions of Exhibits A-02, A-05, and A-18, and to produce Exhibits A-14 and A-15 with no redactions. The court denied the request for Exhibits A-01, A-03, A-04, A-06 through A-13, A-16, A-17, and A-19 through A-25 because those materials were privileged, protected work product, or duplicative. Judge Edgardo Ramos also directed the Clerk of Court to terminate Doc. 65.