Kashef v. BNP Paribas SA
- Alvin Hellerstein
- 1:16-cv-03228
- U.S. District Court · Southern District of New York
- 3
In Kashef v. BNP Paribas, Judge Willis ordered private review of disputed documents in the parties’ discovery disputes.
The plaintiffs and defendants in Kashef v. BNP Paribas S.A., particularly the defendants regarding the ten documents ordered submitted for the court’s private review.
What happened
Kashef v. BNP Paribas S.A. involves several discovery disputes between the plaintiffs and defendants. The plaintiffs argued that the defendants had waived privilege over certain documents, that the documents were not covered by attorney-client or work-product privilege, and that an exception for communications related to crime or fraud applied.
The court ruled that it was appropriate to review the documents privately, outside public view, before deciding the privilege issues. The documents included an internal disciplinary review, witness-interview memoranda, disclosures about transactions with sanctioned entities, and legal memoranda. The opinion does not decide whether the documents are privileged or must ultimately be produced.
Judge Jennifer E. Willis directed the defendants to provide ten specified documents to the court by May 2, 2022, for review. The documents could be pseudonymized as required by privacy laws.
The detailed version
- Kashef v. BNP Paribas SA · No. 1:16-cv-03228
- Alvin Hellerstein
- Apr. 19, 2022
Background
The court held a hearing on March 28, 2022, concerning outstanding discovery disputes. The parties were still briefing the underlying disputes, but the court requested letter motions addressing whether it should examine certain documents privately and outside public view.
The plaintiffs’ motions to compel raised three principal arguments: that the defendants waived privilege by disclosing the documents during a government investigation; that attorney-client privilege and work-product privilege did not cover the documents; and that the crime-fraud exception applied. The crime-fraud exception can remove privilege protection from communications connected to efforts to further a crime or fraud.
Analysis
The court agreed with the defendants that private review was not necessary to decide the waiver argument alone. But the plaintiffs also challenged whether the documents were privileged in the first place, an issue that depended to some extent on the documents’ contents. The court therefore found that private review was appropriate while the parties completed briefing on the discovery disputes.
The documents fell into four categories: an internal disciplinary review; witness-interview memoranda; disclosures concerning the defendants’ transactions with sanctioned entities; and legal memoranda that the plaintiffs argued were subject to the crime-fraud exception. The court would review the first three categories to determine whether attorney-client privilege or work-product privilege applied. It would also review the legal memoranda to determine whether the crime-fraud exception might require their production. The court stated that the defendants’ prior guilty plea to criminal conduct provided some factual basis for considering that exception.
Order
The court found that private review of the documents was appropriate. It instructed the defendants to provide documents listed at Entries 2, 7, 8, 9, 17, 18, 19, 20, 24, and 28 by May 2, 2022. The documents could be pseudonymized in accordance with applicable privacy laws. The opinion does not state a final ruling on whether the documents were privileged, whether privilege was waived, or whether the documents had to be produced.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.