Wultz v. Bank of China Ltd.
Wultz v. Bank of China Ltd.
Opinion of the Court
OPINION & ORDER
This Order addresses two pending discovery disputes: (1) plaintiffs’ objection to the April 17, 2013 decision of Special Master Theodore H. Katz approving Bank of China, Ltd.’s (“BOC’s”) redactions to certain discovery documents;
For the reasons stated below, plaintiffs’ objection to the Special Master’s decision is rejected, and the OCC’s and BOC’s motions for reconsideration of the April 9 Order are denied.
I assume the parties’ familiarity with the background of the dispute over the Shurafa Investigative Files, which has already been described in previous opinions.
Based on a comparison of the unredacted and redacted versions of the documents in question, as well as a review of the sealed transcript of BOC’s ex parte hearing with the Special Master on April 17, 2013,
First, contrary to plaintiffs’ and this Court’s assumption, BOC’s internal investigation did not result in the preparation of a report. The testimony by BOC’s Rule 30(b)(6) designee John Beauchemin that gave rise to this mistaken assumption appears to have been part of a good faith attempt by BOC to answer plaintiffs’ questions without violating any laws.
Second, based on non-confidential aspects of BOC’s representations to the Special Master, there are only two categories of documents relating to the internal investigations that BOC conducted in response to plaintiffs’ January 23, 2008 demand letter: (i) the 1,473 pages of documents collected by Beauchemin and already produced by BOC with appropriate redactions; and (ii) other materials related to BOC’s internal investigations of Shura-fa and the Shurafa accounts, but not collected by Beauchemin.
Under the reasoning of prior orders, including the April 9 Order, the materials in category (ii) must be produced.
II. The OCC’s and BOC’s Motions for Reconsideration of this Court’s April 9 Order
“Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court.”
The OCC moves for reconsideration of this Court’s April 9 Order, which granted plaintiffs’ motion to compel BOC to produce four categories of requested documents, including certain non-public communications between BOC and the OCC.
... BOC’s periodic AML/CTF and other compliance communications [ (“BOC’s Communications”) ]. These communications concern periodic risk reports, self-analyses of BOC’s compliance systems, proposed actions and changes to BOC’s compliance procedures, and other communications that the OCC, having found deficiencies in BOC’s compliance function, required BOC to submit to the OCC over approximately seven years during the relevant period.
... OCC reports and communications [ (“OCC’s Communications”) ]. These documents include the OCC’s bank examination reports, evaluations of BOC policies and practices, recommendations to BOC, and other communications related to problems or deficiencies in BOC’s [Anti-Money Laundering and Counter-Terrorism Financing (“AML/CTF”)] compliance function.19
These categories of documents are the subject of the OCC’s and BOC’s motions for reconsideration. Specifically, the OCC, joined by BOC,
I address each of the OCC’s arguments in turn. First, the agency asserting the bank examination privilege “has the burden of establishing its applicability to the documents at issue.”
Indeed, even now, after this Court’s conclusion in the April 9 Order that the OCC failed to carry its burden, and after the OCC has had. the opportunity to submit two supplemental briefs, the OCC continues to refuse “to assert the bank examination privilege with respect to specific documents.”
Second, the OCC fails to cite any controlling decision contrary to the analysis of the OCC’s Touhy regulations in the April 9 Order. Instead, the OCC cites several mostly unreported decisions from district courts in other Circuits concluding that Touhy requests must be submitted not only for the production of materials in the possession of banking regulators, but also for the production of privately held materials over which a banking regulator may wish to assert the bank examination privilege.
Third, with regard to this Court’s weighing of the Franklin factors for overriding the bank examination privilege,
In sum, none of the OCC’s arguments support granting the OCC’s motion for reconsideration. The OCC’s and BOC’s motions for reconsideration are denied. The Clerk of Court is directed to close BOC’s and the OCC’s motions [Dkt. Nos. 248, 250].
SO ORDERED.
. See 4/25/13 Plaintiffs' Objection to the Special Master’s Decision Concerning Bank of China Ltd.’s Redactions of the Shurafa Investigative Report ("Plaintiffs’ Objection”); Ex. A ("Special Master Decision”) to 4/19/13 Letter from Lanier Saperstein, Counsel for BOC, to the Court; Fed. R.Civ.P. 53(f)(2) (procedure for objecting to master’s order).
. See AH'ilX'i Memorandum of Law in Support of Motion by Bank of China, Ltd[.] for Reconsideration of April 9 and April 17, 2013 Orders ("BOC Mem.”); 4/22/13 Non-Party Office of the Comptroller of the Currency's Memorandum in Support of Motion for Reconsideration ("OCC Mem.”).
. See Wultz v. Bank of China Ltd., 942 F.Supp.2d 452, 467-71, 2013 WL 1832186, at *9-10 (S.D.N.Y. 2013) (summarizing earlier opinions).
. See Wultz v. Bank of China Ltd., No. 11 Civ. 1266, 2013 WL 1788559, at *2 (S.D.N.Y. Apr. 17, 2013).
. Special Master Decision at 50-51.
. See Plaintiffs’ Objection at 1.
. See Special Master Decision at 50 (noting that the parties agreed that BOC would be given an ex parte hearing before the Special Master). The Special Master delivered a copy of the sealed transcript of the ex parte hearing to this Court’s chambers for in camera review.
. See Plaintiffs’ Objection at 1.
. At the same time, for reasons related to the sensitive privilege issues in this case and the language of this Court’s prior orders, BOC’s failure to produce these materials until now is not evidence of bad faith.
. BOC does not appear to assert any other privileges over the materials. If this is incorrect, however, and BOC does assert other privileges, such assertions should be brought to this Court’s attention immediately — if necessary, through ex parte communication with notice to plaintiffs, as in the case of BOC's ex pane communications with the Special Master.
. Virtual Solutions, LLC v. Microsoft Corp., 925 F.Supp.2d 550, 2013 WL 593764, at *14 (S.D.N.Y. 2013), reconsideration denied (Mar. 7, 2013) (citing Patterson v. United States, No. 04 Civ. 3140, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
. United States v. Blumenberg, 506 Fed.Appx. 53, 54 (2d Cir. 2012) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (alteration in original)).
. Gucci Am., Inc. v. Guess?, Inc., No. 09 Civ. 4373, 2011 WL 6326032, at *1 (S.D.N.Y. Dec. 16, 2011) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
. Medisim Ltd. v. BestMed LLC, No. 10 Civ. 2463, 2012 WL 1450420, at *1 (S.D.N.Y. Apr. 23, 2012) (quoting Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008)).
. United States v. Treacy, No. 08 Cr. 0366, 2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009) (quotation omitted).
. Scienton Techs., Inc. v. Computer Assocs. Intern. Inc., No. 04 Civ. 2652, 2013 WL 1856653, at *3 (E.D.N.Y. May 1, 2013) (quotation marks and citations omitted). Accord Massop v. United States Postal Serv., 493 Fed.Appx. 231, 232 (2d Cir. 2012) ("Finally, to the extent Massop was using the motion for reconsideration to challenge the merits of the district court's judgment, she was improperly using the motion as a substitute for appeal.") (citing Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) ("In no circumstances ... may a party use a Rule 60(b) motion as a substitute for an appeal it failed to take in a timely fashion.”)).
. See Wultz v. Bank of China Ltd., - F.R.D. -, -, -, -, 2013 WL 1453258, at *5, *11, *13 (S.D.N.Y. 2013).
. On April 11, 2013, this Court stayed the April 9 Order, except the order to produce the Shurafa Investigative Files, to allow BOC an opportunity to file the motion for reconsideration at issue in this Opinion. See Wultz, - F.R.D. at - (summarizing procedural background).
. Wultz, — F.R.D. at -.
. See BOC Mem. at 1 (adopting by reference the OCC’s arguments). To the extent that BOC offers arguments beyond those offered by the OCC, BOC's arguments concern the production of the Shurafa Investigative Files. See id.
. See OCC Mem. at 1-3.
. See id. at 4-6.
. Id. at 2, 6-9.
. Schreiber v. Society for Sav. Bancorp, Inc., 11 F.3d 217, 220 (D.C.Cir. 1993) (citing Friedman v. Bache Halsey Stuari Shields, Inc., 738 F.2d 1336, 1341 (D.C.Cir. 1984)). "If the agency can establish that a document is privileged merely by filing a conclusory affidavit ..., then the agency itself and not the court can determine the extent of the privilege. Surely something more is required.” Id.
. See OCC Mem. at 4 & n. 4.
. Wultz,— F.R.D. at-. 26. Wultz,
. See id. at —.
. OCC Mem. at 3-4 (emphasis added).
. Id. at 4.
. See id. at 4 (citing 12 C.F.R. § 4.32(b)(2)).
. See id. at 5 n. 5 (citing In re Countrywide Fin. Corp. Sec. Litig., No. 07 Civ. 5295, 2009 WL 5125089, at *2 (C.D.Cal. Dec. 28, 2009); F.D.I.C. v. Flagship Auto Ctr., Inc., No. 3:04 Civ. 7233, 2005 WL 1140678, at *5-6 (N.D.Ohio May 13, 2005); Union Planters Bank, N.A. v. Continental Cas. Co., No. 02 Civ. 2321, 2003 WL 23142200, at *7-8 (W.D.Tenn. Nov. 26, 2003); Raffa v. Wachovia Corp., 242 F.Supp.2d 1223, 1225 (M.D.Fla. 2002); American Sav. Bank v. Paine-webber Inc., 210 F.R.D. 721, 723 (D.Haw. 2001)).
. See Wultz, — F.R.D. at — - —,—.
. United States E.P.A. v. General Elec. Co., 197 F.3d 592, 597 (2d Cir. 1999), opinion amended on reh'g, 212 F.3d 689 (2d Cir. 2000).
. See Wultz, — F.R.D. at — - —.
. See id. at---(laying out the factors for determining whether “good cause” exists to override the bank examination privilege, as articulated in In re Franklin Nat'l Bank Sec. Litig., 478 F.Supp. 577, 583 (E.D.N.Y. 1979) (Weinstein, J.)),---(analyzing whether to override the bank examination privilege based on the factors articulated in Franklin).
. Blumenberg, 506 Fed.Appx. at 54 (quoting Shrader, 70 F.3d at 257 (alteration in original)).
. OCC Mem. at 8.
. See Wultz, — F.R.D. at —.
Reference
- Full Case Name
- Sheryl WULTZ, individually, as personal representative of the Estate of Daniel Wultz, and as the natural guardian of Abraham Leonard Wultz Yekutiel Wultz, individually, as personal representative of the Estate of Daniel Wultz, and as the natural guardian of Abraham Leonard Wultz Amanda Wultz and Abraham Leonard Wultz, minor, by his next friends and guardians Sheryl Wultz and Yekutiel Wultz v. BANK OF CHINA LIMITED
- Cited By
- 1 case
- Status
- Published