In re Citibank August 11, 2020 Wire Transfers
- Jesse Furman
- 1:20-cv-06539
- U.S. District Court · Southern District of New York
- 2
In re Citibank Wire Transfers: Judge Furman ruled on document privileges and ordered production of factual portions of several documents.
Plaintiff, Defendants, and the three regulators asserting privileges over the Regulator Documents.
What happened
In In re Citibank August 11, 2020 Wire Transfers, the court reviewed documents that Plaintiff had withheld based on legal confidentiality protections, including protections for communications with lawyers and documents prepared for litigation.
The court ruled that three documents were protected and did not have to be produced. It ruled that six other documents were not protected by those doctrines because they were prepared for and sent to regulators. The court also had not reviewed certain later documents because the parties agreed they were outside the relevant date range.
Judge Jesse M. Furman ordered Plaintiff to confer with the regulators and produce the factual portions of nine identified documents by October 15, 2020, unless another protection applied. The parties were directed to address any remaining disputes in a joint letter by October 20, 2020.
The detailed version
- In re Citibank August 11, 2020 Wire Transfers · No. 1:20-cv-06539
- Jesse Furman
- Oct. 9, 2020
Background
The Court reviewed the “Regulator Documents” privately, without public disclosure of their contents. Plaintiff claimed that some documents were protected by the attorney-client privilege, which generally protects certain confidential communications between a lawyer and client, or by the work product doctrine, which generally protects materials prepared for litigation. Regulators also asserted their own privileges over some documents.
Privilege Rulings
The Court agreed that ECF Nos. 87-3, 87-4, and 87-6 were protected by either or both the attorney-client privilege and the work product doctrine. Those documents did not have to be produced on that basis. The Court also held that Plaintiff’s sharing of those documents with regulators did not eliminate the privilege, citing 12 U.S.C. § 1828(x).
The Court held that two groups of documents were not protected by either doctrine: ECF Nos. 87-1, 87-12, and 87-24, which were substantially similar to one another, and ECF Nos. 87-2, 87-13, and 87-25, which were also substantially similar. The Court reasoned that these documents were prepared for and sent to regulators, and Plaintiff had not identified authority allowing a document prepared for and sent to third parties to be withheld under the attorney-client privilege or work product doctrine.
Order
Considering the regulators’ assertions of privilege and the rule that the bank examination privilege does not protect factual material, the Court ordered Plaintiff to confer with the regulators and, by October 15, 2020, produce all factual portions of ECF Nos. 87-1, 87-2, 87-12, 87-13, 87-24, and 87-25. The Court also included ECF Nos. 87-5, 87-16, and 87-28, over which Plaintiff asserted no independent privilege. “Factual” was to have its ordinary meaning, unless a relevant portion was independently protected as Confidential Supervisory Information.
If Defendants still objected to redactions or documents withheld in full, they were to confer with Plaintiff and, if appropriate, the regulators, and file a joint letter proposing a way to resolve the remaining disputes by October 20, 2020. The Court stated that, without such a letter or another communication, it would assume the matter had been resolved without further court involvement. Any party or regulator disagreeing with this process was directed to confer and promptly seek appropriate relief. Plaintiff was also directed to serve the order by email on counsel for each of the three regulators asserting privileges over the documents by 5 p.m. on October 9, 2020.
The Court did not review privilege claims for ECF Nos. 87-7 through 87-11, 87-18 through 87-23, and 87-30 through 87-35 because those documents post-dated August 17, 2020, and Defendants had conceded that they were outside the parties’ agreed date range.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.