United States District Court, E.D. New York
Smith Greig U.S. Securities and Exchange Commission Attorney
for Securities and Exchange Commission
Christopher B Mead London and Mead Attorney for Defendant
Jonathan S. Sack Curtis Brett Leitner Morvillo, Abramowitz,
Grand Iason & Anello P.C. Attorney for Defendant Schulman
MEMORANDUM & ORDER
M. Azrack United States District Judge
the Court is a motion filed by the non-party Securities and
Exchange Commission (the “SEC”) to quash
defendant Robert Schulman's Rule 17 subpoena. Schulman
requests production of a number of categories of documents
insofar as those documents had not already been produced by
the SEC to the United States Attorney's Office for the
Eastern District of New York. Among the requested documents
is an SEC Action Memorandum.
the exception of the requested Action Memorandum, the SEC has
represented that it has provided all non-privileged
responsive materials either to the United States
Attorney's Office or directly to Schulman. The SEC has
moved to quash Schulman's subpoena with respect to the
Action Memorandum, arguing that the memorandum is protected
by a number of legal privileges and that, even were it not
privileged, the memorandum would be inadmissible at trial and
is therefore not properly the subject of a Rule 17 subpoena.
In response, Schulman requested that the Court conduct an
in camera review of the Action Memorandum.
Court ordered the SEC to produce the Action Memorandum for
in camera review. After reviewing the Action
Memorandum, the Court grants the SEC's motion to quash.
reasons laid out below, the Court agrees with the SEC that
the Action Memorandum is protected by the attorney-client and
deliberative process privileges and by the work product
doctrine. The Court also concludes that the Action Memorandum
would be inadmissible at trial under Federal Rule of Evidence
403 and, therefore, is not properly the subject of a Rule 17
The Action Memorandum is Privileged in its Entirety
motion to quash, the SEC argues that the Action Memorandum is
protected by the attorney-client privilege, the deliberative
process privilege, the law enforcement privilege, and the
attorney work product doctrine. (SEC Mem. at 4-8 (ECF No.
92).) Schulman appears to concede that the memorandum is
protected by the work product doctrine. (Schulman Opp. at 10
n.3 (ECF No. 91).) In opposition to the SEC's motion to
quash, however, Schulman argues that the attorney-client and
deliberative process privileges do not apply to any factual
findings contained within the Action Memorandum and that the
memorandum is not subject to the law enforcement privilege.
(Id. at 4-7.) Because the Court finds that the
Action Memorandum is protected by both the attorney-client
and deliberative process privileges, it need not determine
whether it is also protected by the law enforcement
attorney-client privilege protects (1) communications between
a client and her attorney that (2) are intended to be, and in
fact were, kept confidential, (3) where those communications
are made for the purpose of obtaining or providing legal
advice. U.S. v. Mejia, 655 F.3d 126, 132 (2d Cir.
2011). Documents prepared by attorneys are protected only to
the extent that they are, in fact, communications made for
the purpose of obtaining or providing legal advice. That is,
the attorney-client privilege “extends only to
communications and not to facts.” Fed. Hous. Fin.
Agency v. UBS Americas Inc., No. 11-cv-5201, 2013 WL
1700923, at *1 (S.D.N.Y. Apr. 16, 2013) (quoting Upjohn
v. United States, 449 U.S. 383, 395 (1981)).
deliberative process privilege protects agency documents that
(1) are “predecisional” and (2) contain
deliberative material. Mr. & Mrs. B v. Bd. of Educ.
of Syosset Cent. Sch. Dist., 35 F.Supp.2d 224, 228
(E.D.N.Y. 1998) (quoting Hopkins v. U.S. Dep't of
Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)).
A document is “predecisional” where it is
“prepared in order to assist an agency decisionmaker in
arriving at his decision.” Id. A document
contains deliberative material if its content is
“related to the process by which policies are
argues that each privilege applies only to the portions of
the memorandum that either have the purpose of seeking or
providing legal advice or are deliberative in some way.
(Schulman Opp. at 4-5.) To the extent the Action Memorandum
contains factual findings, Schulman argues that those
findings are not protected by either privilege insofar as
they are “reasonably segregable” from the
portions of the memorandum that either provide legal advice
or are ...