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Wultz v. Bank of China Limited

United States District Court, Second Circuit

May 23, 2013

SHERYL WULTZ, individually, as personal representative of the Estate of Daniel Wultz, and as the natural guardian of plaintiff Abraham Leonard Wultz; YEKUTIEL WULTZ, individually, as personal representative of the Estate of Daniel Wultz, and as the natural guardian of plaintiff Abraham Leonard Wultz; AMANDA WULTZ; and ABRAHAM LEONARD WULTZ, minor, by his next friends and guardians Sheryl Wultz and Yekutiel Wultz, Plaintiffs,
v.
BANK OF CHINA LIMITED, Defendant.

Lee S. Wolosky, Esq., Steven I. Froot, Esq., Marilyn C. Kunstler, Esq. Jaime Sneider, Esq., Boies, Schiller & Flexner LLP New York, NY, for Plaintiffs.

Mitchell R. Berger, Esq., Patton Boggs LLP (DC), Washington, D.C., Zachary Carter, Esq., Lanier Saperstein, Esq., Neil McDonell, Esq., Eric Epstein, Esq., Daniel Goldberger, Esq., Dorsey & Whitney LLP, New York, NY, for Defendant.

OPINION & ORDER

SHIRA A. SCHEINDLIN, District Judge.

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;[1] and (2) motions for reconsideration of this Court's April 9, 2013 Opinion and Order ("April 9 Order") submitted by BOC and non-party the Office of the Comptroller of the Currency ("the OCC").[2]

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. Plaintiffs' Objection to Special Master's April 17 Decision

I assume the parties' familiarity with the background of the dispute over the Shurafa Investigative Files, which has already been described in previous opinions.[3] In accordance with this Court's April 17, 2013 Memorandum Opinion and Order ("April 17 Order"), the Special Master agreed to review BOC's redactions to a document that BOC had produced to plaintiffs under the title of the Shurafa Investigative Report."[4] The Special Master concluded that "the redactions that [BOC] made were appropriate."[5] Pursuant to Federal Rule of Civil Procedure 53(0(2), plaintiffs object to the Special Master's conclusion.[6]

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, [7] plaintiffs' objection is rejected and the Special Master's decision is adopted. Because of the sensitive nature of the privilege asserted by BOC, it would be inappropriate to offer a more detailed analysis. However, I provide two clarifications - including an order - based on non-confidential aspects of the sealed records:

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.[8]

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 Shurafa 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.[9] To the extent that BOC asserts the attorney-client or work product privileges over the materials in category (ii), BOC is ordered to produce to plaintiffs, by May 31, 2013, a standard privilege log of any withheld materials.[10]

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."[11] "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'"[12] "Typical grounds for reconsideration include an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'"[13] Yet, because "the purpose of Local Rule 6.3 is to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters, '"[14] the Rule must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court."[15] "[A] motion for reconsideration is not a substitute for [an] appeal."[16]

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.[17] The dispute over one category of materials, the Shurafa Investigative Files, has already been addressed above. Another category, consisting of general information related to BOC's SAR filing practices, is not contested in the OCC's or BOC's motions. If this general information has not already been ...


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