Department of Economic Development v. Arthur Andersen & Co.

139 F.R.D. 295, 1991 U.S. Dist. LEXIS 14914
CourtDistrict Court, S.D. New York
DecidedOctober 18, 1991
DocketNo. 85 Civ. 1292(CES)
StatusPublished
Cited by26 cases

This text of 139 F.R.D. 295 (Department of Economic Development v. Arthur Andersen & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Economic Development v. Arthur Andersen & Co., 139 F.R.D. 295, 1991 U.S. Dist. LEXIS 14914 (S.D.N.Y. 1991).

Opinion

MEMORANDUM DECISION

STEWART, District Judge:

Defendants move pursuant to Rules 34 and 37 of the Federal Rules of Civil Procedure seeking an order directing plaintiff to produce certain documents. Plaintiff has withheld the requested documents claiming executive privilege as well as attorney-client and work product privileges.

FACTS

Plaintiff Department of Economic Development (“DED”), a department of the British Government, brings this action seeking $500,000,000 in RICO treble damages against defendants Arthur Anderson & Co. (USA), Arthur Anderson & Co. (Republic of Ireland) and Arthur Anderson & Co. (United Kingdom) (hereinafter collectively “AA”). This action arises out of the British Government’s 1978 investment in DeLo-rean Motor Cars Limited (DMCL), a Belfast-based company headed by John DeLo-rean.

DED’s predecessors in interest, the Northern Ireland Development Agency (“NIDA”) and the Department of Commerce (“DOC”) are agencies of the British Government empowered to extend loans and grants to businesses to promote the industrial development of Northern Ireland. NIDA and DOC entered into a contract (the “Master Agreement”) with various corporations controlled by John DeLo-rean to manufacture a sports car in Dun-murry, Northern Ireland. Pursuant to the Master Agreement, NIDA and DOC agreed, inter alia, to purchase all of the 17,757,000 preferred shares of DMCL stock. NIDA and DOC also agreed to extend a variety of grants, loans, and loan guarantees. The DeLorean Motor Company (“DMC”) undertook to provide financial statements to NIDA and DOC encompassing DMC and its subsidiaries, including DMCL.1 AA, as DMC’s auditors, prepared reports certifying these statements.

During 1981-82, amid allegations of mismanagement and fraud, the various DeLo-rean corporations began to collapse. In 1982, DMCL was placed in receivership, and DMC filed a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. In 1983, the Chapter 11 proceeding was converted into a Chapter 7 liquidation proceeding.

In the wake of DMCL’s collapse, the British Government commenced a negligence action against AA in the High Court [298]*298in London. The U.K. action was subsequently stayed.

In February of 1985 this action was filed.2 Basically, DED’s complains that DMC’s financial statements were false and misleading and that by certifying these statements AA substantially assisted De-Lorean and others in the execution of a fraudulent scheme to siphon money from DMC and DMCL.

On September 14, 1988 AA served upon DED AA’s first request for production of documents. DED has withheld the requested documents claiming executive privilege as well as attorney-client and work product privileges.

DISCUSSION

AA argues that in order to sue in this court, DED must make full disclosure of all relevant documents as provided by U.S. Law, irrespective of any executive privilege claim. Alternatively, AA argues that DED’s claims of executive privilege should be rejected as lacking basis in fact and as substantively and procedurally defective as a matter of law. Further, AA argues that DED’s claims of attorney-client and work product privileges must be rejected as similarly flawed. Finally, AA argues that documents in the possession of the Metropolitan Police Force also must be produced. DED MUST MAKE FULL DISCLOSURE AS PROVIDED BY U.S. LAW

A foreign sovereign, appearing as a plaintiff in a court of the United States, must subject itself to .United States discovery procedures. Compagnie Francaise d’Assurance Pour Le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 32 (S.D.N.Y.1984) (citing Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 134 & n. 2, 58 S.Ct. 785, 790 & n. 2, 82 L.Ed. 1224 (1938)); see also Ghana Supply Comm’n v. New England Power Company, 83 F.R.D. 586 (D.Mass.1979) (by instituting civil action in a United States court, foreign sovereign waived any privilege it otherwise had to prevent disclosure of relevant information sought by defendant). To permit DED to evade their discovery responsibilities would unfairly disadvantage the defendants. See Compag-nie Francaise, 105 F.R.D. at 32.

When a plaintiff files an action it may be said that he automatically waives certain privileges by “implied intention.” See Peck v. United States, 522 F.Supp. 245, 246 (S.D.N.Y.1981). This is true even when the plaintiff is a governmental entity. See United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958) (“The government as a litigant is, of course, subject to the rules of discovery.”); See also McCormick, Evidence § 109 (3d ed. 1984). “By invoking the court’s aid by bringing suit, the government seems clearly to waive any claim of executive immunity____ [T]he government as plaintiff in a civil action [may not] proceed affirmatively against a defendant while at the same time’ seeking under the guise of privilege to deprive the defendant of evidence useful to the defense of the action.” Id. (footnotes omitted).

Even when applying a balancing approach, rather than the above theory of automatic waiver, we find that DED must disclose the relevant documents. The most significant factors to be considered when deciding whether a government must disclose otherwise privileged information include: (1) the relevance of the evidence sought to be protected; (2) the availability of other evidence; (3) the seriousness of the litigation and the issues involved; (4) the role of the government in the litigation (5) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable; (6) the societal interest of accurate judicial fact finding; and (7) the public interest in opening for scrutiny the government’s decision making process. See In re Franklin Nat’l Bank Securities Litigation, 478 F.Supp. 577, 582-83 (E.D.N.Y.1979); United States v. Hooker Chem. & Plastics Corp., 123 F.R.D. 3, 12 (W.D.N.Y.1988); Burke v. New York City Police Dep’t, 115 [299]*299F.R.D. 220, 232 (S.D.N.Y.1987). When balancing these factors “[t]he federal interest in full development of the facts should be given the greatest weight____” Skibo v. City of New York, 109 F.R.D. 58, , 61 (E.D.N.Y.1985). Further, in evaluating the procedural fairness of ordering disclosure, the role of the government as plaintiff is instrumental to the determination of whether governmental claims of privilege must give way. Hooker Chem., 123 F.R.D. at 11-12.

When balancing the interests in this case, it is useful to recall that there is a strict order of confidentiality which has been in place in this case since the outset. Therefore, the concerns regarding public disclosure of this material are significantly minimized.3 After an in camera review of many of the documents in question, it is clear that this material is relevant to the defendants.4 Additionally, the British Government’s position as plaintiff in this case tips the balance of interests in favor of disclosure of the documents.

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Cite This Page — Counsel Stack

Bluebook (online)
139 F.R.D. 295, 1991 U.S. Dist. LEXIS 14914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-economic-development-v-arthur-andersen-co-nysd-1991.