UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 3, 2006
UNITED STATES OF AMERICA,
ISHAN SHARIF KHWAJA, DEFENDANT.
The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
MEMORANDUM & ORDER
Defendant has asserted work product privilege with respect to two sets of documents seized by the Government from defendant's place of business. The Government objects to defendant's assertion of this privilege. For the reasons set forth below, I find that items 1 and 112 contained in defendant's privilege log are protected by the work product privilege.
In May 2005, the Government searched the premises of National Electronics, Inc., a corporation with which the defendant is affiliated. During the course of this search, the Government seized numerous documents. Thereafter, defendant was permitted to review the documents seized to determine whether any of the documents were subject to the attorney-client or work product privileges. After this review was complete, defendant, on November 7, 2005, submitted a detailed privilege log containing 115 numbered sets of documents. By letter dated November 30, 2005, the Government objected to the inclusion of items 1, 37, 38, 112, 113, 114 and 115 on defendant's privilege log. In response, defendant argued that each contested item had been prepared by a bookkeeper, Rana Rahimi, after her retention by defense counsel to assist in the analysis of defendant's business records. During the period in which Ms. Rahimi was assisting defense counsel (and prior thereto), Ms. Rahimi was employed as a bookkeeper by National Electronics.*fn1
This Court directed defendant to provide an affidavit from Ms. Rahimi explaining the circumstances surrounding the creation of the contested items. By letter dated December 18, 2005, defendant provided such an affidavit, as well as a declaration from the attorney who retained Ms. Rahimi. At the same time, defendant withdrew his claim of privilege with respect to items 37 and 38.*fn2
By letter dated December 21, 2005, I directed defendant to provide a more detailed affidavit from Ms. Rahimi, setting forth whether "each specific schedule . . . was prepared by Ms. Rahimi after she was retained by defense counsel, and for the sole purpose of assisting counsel in preparing [a] defense." By letter dated December 28, 2005, defendant provided a supplemental affidavit. In that letter, defendant withdrew his claim of privilege with respect to items 113, 114 and 115. Thus, only items 1 and 112 remain in dispute. *fn3
The defendant bases his assertion of privilege on United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). In Kovel, the Second Circuit found that the attorney-client privilege extended to communications between an accountant employed by a law firm and a client of that firm. Id. The court stated that "the privilege must include all . . . persons who act as [an] attorney's agents . . . . [as long as] the communication [is] made in confidence [and] for the purpose of obtaining legal advice from the lawyer." Id. at 921-22 (internal quotation omitted). The Kovel court also noted "that the privilege covers communications to non-lawyer employees with a menial or ministerial responsibility that involves relating communications to an attorney." Id. at 921 (internal quotation omitted). See also United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995) ("the privilege for communication with attorneys can extend to shield communications to others when the purpose of the communication is to assist the attorney in rendering advice to the client").
The work product privilege applies to material "'prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) . . .'" Fed. R. Civ. P. 26(b)(3). Disclosure of such materials may be compelled when the party seeking discovery make a showing of "substantial need" for the materials and that the party "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Id. However, "[d]ocuments prepared in the ordinary course of business . . . are not protected by work-product immunity." In re Copper Market Antitrust Litig., 200 F.R.D. 213, 221 (S.D.N.Y. 2001).
Here, Ms. Rahimi was directed by defense counsel to analyze transactions between National Electronics, Inc., various related entities, and those entities' customers and suppliers. (See Declaration of Robert J. Alter, Esq. ("Alter Dec."), dated Dec. 15, 2005, ¶¶ 3-4).*fn4 This analysis was requested as a result of an ongoing grand jury investigation into defendant's conduct. (Id. ¶ 3). Defense counsel sent Ms. Rahimi a letter dated January 28, 2005, which she then executed, confirming this arrangement. (See Alter Dec., Ex. A). Ms. Rahimi has attested that she prepared items 1 and 112 after she was engaged by defense counsel and that they were prepared for the sole purpose of assisting counsel in preparing a defense. (See Rahimi Affidavit, dated Dec. 28, 2005, ¶ 8).
Defendant has adequately demonstrated the application of the work product privilege. Ms. Rahimi was a "representative" of the defendant within the meaning of Rule 26(b)(3), and items 1 and 112 were prepared by her to assist in the representation of the defendant.*fn5
Therefore, the Government's objection to the inclusion of items 1 and 112 in defendant's privilege log are overruled.
For the reasons set forth above, I find that items 1 and 112 are protected by the work product privilege. The Clerk of the COurt is hereby directed to close this motion and remove it from my docket.