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MSF Holding Ltd. v. Fiduciary Trust Company International


November 10, 2005


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


Currently before the court is a motion for a protective order seeking the return of documents inadvertently disclosed. The first question is whether the two e-mails inadvertently disclosed by counsel for Fiduciary Trust Company International's ("FTC") to counsel for MSF Holdings Ltd. ("MSF") are attorney work product. The second question is whether inadvertent disclosure of these e-mails waived any work product protection. Because the e-mails do not constitute work product, there is no need to reach the second issue.


During the Spring of 2002, MSF claimed rights to enforce a $250,000.00 letter of credit issued by FTC to Philips Medical Systems B.V. FTC's documentation of the original issuance of the letter is unavailable because FTC's records were destroyed in the attack on the World Trade Center on September 11, 2001. (Affidavit of Susan Garcia dated Aug 26, 2005 ("Garcia Aff."), ¶ 4). FTC hesitated in honoring the letter, which was allegedly issued by a now deceased officer of the corporation and for which FTC lacked documentation. (Garcia Aff., ¶¶ 5-7). Seeking to enforce rights the letter allegedly granted, counsel for MSF asserted that FTC was "in breach of its obligations" and threatened to "proceed accordingly" if the letter was not honored. (Garcia Aff., ¶ 6).

In June 2002, a representative of MSF presented the letter of credit to Susan Garcia, Senior Vice President and Deputy Corporate Counsel for FTC. (Garcia Aff., ¶ 1). Ms. Garcia responded by issuing written instructions for MSF to proceed to secure honor and payment on the letter. (Email of Susan Garcia to Jonathan Bloom dated Aug. 6, 2005, attached as Exh. 3 to Declaration of Donna C. Hammel dated August 24, 2005). She also took steps to uncover the history of the letter and the collateral backing it.

At issue are two e-mails that Ms. Garcia sent to agents of FTC as part of her internal investigations. In the e-mails, she inquired into the circumstances of the cancellation of a similar letter of credit and the release of the collateral that backed it. She also sought information on whether FTC's insurance would cover payment.


In any motion for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure, the moving party bears the burden of establishing the facts supporting its claim that the requested information is immune from discovery. Collens v. City of New York, 222 F.R.D. 249, 253 (2d Cir. 2004)(noting that policy interest in broad discovery requires party opposing discovery to bear burden of showing that information should not be discovered); RMED International, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587, 2003 WL 41996, at *2 (S.D.N.Y. Jan. 6, 2003). FTC has not met its burden of establishing these facts.

To prevail, FTC would be required to show not only that the document was prepared in anticipation of litigation, but also that it would not otherwise have been prepared in a substantially similar form. United States v. Adlman, 134 F.3d 1194, 1198 (2d Cir. 1998)(work product protection applies only to documents "prepared 'because of' existing or expected litigation"); Gulf Islands Leasing, Inc. v. Bombardier Capital, Inc., 215 F.R.D. 466, 474-76 (S.D.N.Y. 2003); SR International Business Insurance Co. Ltd. v. World Trade Center Properties LLC, No. 01 Civ. 9291, 2002 WL 1455346, at *3 (S.D.N.Y. July 03, 2002). This rule is intended to distinguish material that is truly attorney work product from that which would be created in the normal course of business.

While FTC claims that the e-mail was prepared in anticipation of litigation, it has not presented any facts or made any argument to show that the information would not have been prepared in the same or a substantially similar form without the threat of litigation. The e-mails are primarily concerned with locating the collateral that backs the letter of credit and determining if an insurance policy will cover the expense. The e-mails were written and sent for the purpose of investigating FTC's records to determine if it would honor the letter of credit. When presented with a letter of credit, a financial institution would normally investigate the circumstances surrounding its issuance and determine whether to honor it.

That Ms. Garcia has a law degree and also serves as deputy general counsel does not alter this analysis. See In re Kidder Peabody Securities Litigation, 168 F.R.D. 459, 465 (S.D.N.Y. 1996) (investigative report authorized by outside counsel not work product where prepared for business purposes); Cooper-Rutter Associates, Inc. v. Anchor National Life Insurance Co., 168 A.D.2d 663, 563 N.Y.S.2d 491 (2d Dep't 1990)(finding communications prepared by a corporate agent with both business and legal responsibilities were "not primarily of a legal character"). FTC has not persuaded me that Ms. Garcia did anything different than what she would normally do when presented with a letter of credit without documentation. The information detailed is not the sort that would be sought only because litigation was anticipated. Because FTC has not met its burden to show that the information would not have been prepared without the threat of litigation, its motion for a protective order is denied.




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