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CAMPINAS FOUNDATION v. SIMONI

United States District Court, S.D. New York


November 18, 2004.

CAMPINAS FOUNDATION (a/k/a CAMPINAS STIFTUNG, VADUZ), Plaintiff,
v.
CARL SIMONI, ET AL., Defendants.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM and ORDER

In this action, plaintiff Campinas Foundation ("Campinas") seeks to recover approximately $1.6 million dollars that it caused to be transferred by wire to defendant SSP Capital Partners Limited ("SSP"). Campinas contends that it transferred the funds to SSP at the request of a person named Alberto Lensi ("Lensi"), the lone director of an entity known as Aviation Investors International Group, Ltd. ("AIIG"). Defendant Carl Simoni ("Simoni") was previously a director of AIIG.

A deposition was conducted of Lensi in connection with this action. The defendants contend that, during the deposition, objections were interposed to bar them from questioning Lensi about conversations he had with his counsel, Michael Johnson ("Johnson"), in the presence of the plaintiff's attorney, Jeffrey Wild ("Wild"), and Jerrold Rosen, Esq. ("Rosen"), the former general counsel to AIIG. Rosen is now a business associate of Lensi's. While being deposed, Lensi conceded that Wild does not represent him. However, Johnson explained on the record at the deposition that, based on the execution of a joint defense agreement by Johnson, Wild and counsel to various parties to litigation pending in New York and New Jersey against Simoni and entities alleged to be associated with him, the attorney-client privilege shielded from disclosure Lensi's conversations with Johnson, Wild, Rosen and any other party to the joint defense agreement, so as to safeguard their common litigation interest.

  The defendants also maintain that during the plaintiff's deposition, through its Fed.R. Civ. P. 30(b)(6) representative, Sabine Hoop ("Hoop"), they were similarly prevented from learning about discussions Hoop had, preparatory to appearing for the deposition, with Dr. Urs Wehinger, a Swiss attorney. Hoop testified at the deposition that Dr. Wehinger is neither her attorney nor Campinas' attorney, but does represent Heidi Eckes-Chantre ("Eckes-Chantre"), one of the parties involved in the pending actions noted above that also involve Simoni or an entity(ies) said to be associated with him. As counsel to Eckes-Chantre, Dr. Wehinger has joined the joint defense consortium that Johnson discussed on the record at Lensi's deposition. On the basis of Dr. Wehinger's status as a member of the joint defense consortium, Wild asserted the common interest privilege at Hoop's deposition to foreclose any inquiry by the defendants into the substance of Hoop's conversations with Dr. Wehinger.

  The defendants now seek an order from the Court that would permit them to resume the depositions of Lensi and Hoop and to obtain answers to the questions to which the objections, based on privilege, were heretofore asserted.

  The defendants also seek an order from the Court that would bar Rosen, prior to appearing for his own deposition, from examining the deposition testimony given previously in this action by Lensi, Simoni and Simoni's business associate, Karen Meyers ("Meyers"). The defendants have made a similar request that Michael Meisel, Esq. ("Meisel"), an attorney who represented AIIG during a previously held arbitration proceeding involving AIIG and Redwood Investment Corp., an entity that sought to intervene in the instant action, be prevented from reviewing the Simoni, Meyers and Lensi deposition transcripts prior to his own deposition in this action. The defendants maintain that such an order may be entered pursuant to Rule 615 of the Federal Rules of Evidence and, furthermore, that the order is needed to ensure that Rosen and Meisel do not tailor their deposition testimony based upon that which they glean from reading the transcripts of other deponents.

  For its part, Campinas opposes this application. It contends that the Simoni and Meyers depositions are subject to the parties' confidentiality agreement and that Rosen has agreed to be bound by the terms of that agreement. Therefore, according to the plaintiff, having pledged to abide by the parties' confidentiality agreement, perforce of the express language of that agreement, Rosen is permitted to review the subject transcripts. Campinas also contends that barring Meisel from having access to Lensi's deposition is unreasonable since Lensi is AIIG's director and Meisel represents AIIG.

  Attorney-Client Privilege/Common Interest Privilege

  "The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S. Ct. 2081, 2084 (1998). The privilege, designed to facilitate openness and full disclosure between the attorney and the client, shields from discovery advice given by the attorney as well as communications from the client to the attorney. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677 (1981). It permits a client to both refuse to disclose and prevent others from disclosing confidential communications between himself and his legal representative(s), made in pursuance of or in the facilitation of the provision of legal services to the client. See Mui v. Union of Needletrades, No. 97 Civ. 7270, 1998 WL 915901, at *3 (S.D.N.Y. Dec. 30, 1998); Arcuri v. Trump Taj Mahal Associates, 154 F.R.D. 97, 101 (D.N.J. 1994).

  The common interest privilege, sometimes referred to as the joint defense privilege, is "`an extension of the attorney-client privilege.'" United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) (quoting Waller v. Financial Corp. of America, 828 F.2d 579, 583 n. 7 [9th Cir. 1987]). The common interest privilege enables a client to share confidential information with the attorney for another person who shares a common legal interest with the client. However, "[t]he key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial." Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995). "[S]haring a desire to succeed in an action does not create a `common interest.'" Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 893 (S.D.N.Y. 1999).

  In the case at bar, counsel to the plaintiff claims that in multiple actions pending in New York and New Jersey, each of which, he maintains, arose from the same set of facts and circumstances, to wit, the repurchase of Simoni's shares in AIIG in September 2000, Eckes-Chantre and the entities in which she has an interest, including Campinas and AIIG, are seeking to recover millions of dollars they are alleged to have lost through payments made to Simoni and to entities controlled by him. The submissions made on behalf of the plaintiff, in opposition to the instant application by the defendants to resume the depositions of Lensi and Hoop, fail to identify the precise legal interest that is identical in and common to all of the actions referenced above that would warrant the Court in sustaining the attorney-client/common interest privilege objections that were asserted during the Lensi and Hoop depositions. The record before the Court appears to indicate that the interest common to all the pending actions is the desire by diverse litigants to succeed in recovering a sum of money from Simoni and entities alleged to be associated with him that, in the aggregate, exceeds one million dollars. However, the fact that the litigants share a desire to succeed in various civil actions does not mean that an identical legal interest is common to the various actions to which they are parties. Moreover, merely sharing a desire to succeed in various civil actions does not support the invocation of the common interest privilege to shield from disclosure statements that traditionally would not come within the ambit of the attorney-client privilege. See Shamis, supra, at 893. Since the burden is upon the plaintiff, as the party invoking the protection of the common interest privilege, to establish the facts upon which the claimed privilege is based, see von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), and, inasmuch as the Court finds that Campinas has failed to meet its burden, the Court concludes that the common interest privilege objections made to the various inquiries of Lensi and Hoop during their respective depositions cannot be sustained. The defendants must be given an opportunity to pursue the lines of inquiry that they were prevented from pursuing based upon the assertion of the attorney-client/common interest privilege.

  Access to Deposition Transcripts

  Rule 615 of the Federal Rules of Evidence provides the following:

  At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of that party's cause, or (4) a person authorized by a statute to be present. The defendants contend that Rule 615 of the Federal Rules of Evidence is applicable to pretrial deposition proceedings to the same extent that it applies at trials. In support of that view, the defendants have directed the Court to Marks v. Powell, 135 B.R. 344 (Bankr. E.D. Ark. 1991). Therefore, to ensure that Rosen's and Meisel's deposition testimony is not influenced by the deposition testimony given by Simoni, Meyers or Lensi, the defendants have asked that the Court bar Rosen and Meisel from reviewing the respective transcripts prior to their own depositions.

  The defendants' reliance upon Rule 615 of the Federal Rules of Evidence is misplaced. After Marks was decided in 1991, Fed.R.Civ. P. 30, which governs the conduct of depositions upon oral examination, was amended to make clear that Rule 615 of the Federal Rules of Evidence is not applicable to pretrial deposition proceedings. The amended rule provides that "[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence, except Rules 103 and 615." Fed.R. Civ. P. 30(c). The Advisory Committee Notes pertinent to Fed.R. Civ. P. 30 indicate that the relief the defendant seeks: barring potential deponents from reviewing the deposition transcripts generated during the oral examination of other witnesses, may be accomplished, if at all, by making an application to the Court pursuant to Fed.R. Civ. P. 26(c). Fed.R. Civ. P. 26(c) permits a court upon motion of the party or a person from whom discovery is sought, when good cause is shown, to "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (5) that discovery be conducted with no one present except persons designated by the court." Fed.R. Civ. P. 26(c)(5). Before a protective order may be issued by a court, the good cause requirement found in Fed.R. Civ. P. 26(c) places a burden "upon the movant to show the necessity of its issuance, [this] contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." In re Terra International, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (citations omitted).

  In the instant case, the defendants have expressed their concern that Rosen's and Meisel's testimony will be tailored based upon their reading of the transcripts generated during the depositions of Simoni, Meyers or Lensi. An allegation of potential collusion of testimony, without more, does not satisfy the "good cause" standard that must be met before a court would be warranted in issuing a protective order, pursuant to Fed.R.Civ. P. 26(c). See BCI Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154, 160 (N.D. Ala. 1986). Accordingly, the Court finds that an insufficient basis exists upon which to issue a protective order that would bar Rosen or Meisel from reviewing the deposition transcripts of Simoni, Meyers or Lensi prior to attending his own deposition.

  CONCLUSION

  For the reasons set forth above, the defendants' application that Lensi and Hoop be required to give responses to those questions that they did not answer during their respective depositions because of the invocation of the attorney-client/common interest privilege is granted, and the defendants' request that Rosen and Meisel be barred from reviewing the deposition transcripts of other witnesses prior to their own depositions, is denied.

  SO ORDERED.

20041118

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