Securities & Exchange Commission v. Beacon Hill Asset Management LLC

231 F.R.D. 134, 2004 U.S. Dist. LEXIS 15031
CourtDistrict Court, S.D. New York
DecidedAugust 3, 2004
DocketNo. 02CIV8855(LAK)(HBP)
StatusPublished
Cited by23 cases

This text of 231 F.R.D. 134 (Securities & Exchange Commission v. Beacon Hill Asset Management LLC) 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
Securities & Exchange Commission v. Beacon Hill Asset Management LLC, 231 F.R.D. 134, 2004 U.S. Dist. LEXIS 15031 (S.D.N.Y. 2004).

Opinion

OPINION AND ORDER

PITMAN, United States Magistrate Judge.

I. Introduction

This is an enforcement action in which the Securities and Exchange Commission (“SEC”) alleges numerous violations of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a et seq. The matter has been referred to me to resolve certain, specific discovery disputes.

Currently before me is the SEC’s motion to compel the production of documents withheld by defendant Beacon Hill Asset Management LLC (“BH”) on the basis of the attorney-client privilege and work-product protection. For the reasons set forth below, the SEC’s motion is granted in part and denied in part.

II. Facts

A. Events Giving Rise to the Present Action

At all times relevant, BH was the investment manager of three hedge funds — Bristol Fund, Ltd., Safe Harbor Fund, LLP and Milestone Plus partners, L.P. — and a master fund through which BH conducted the trades of the three “feeder funds” (Declaration of David Kagan-Kans, Esq., dated December 24,2003 (“Kagan-Kans Deck”), ¶ 2). According to BH’s counsel, due to the drastic decline in mortgage rates during the summer of 2002, BH began to have concerns in September 2002 regarding the value of its portfolio, and in late September 2002 it compared its valuation of its portfolio against prices provided by a third party, Interactive Data Corporation (“IDC”) (Declaration of John D. Tortorella, Esq., dated January 6, 2004 (“Tortorella Deck”), ¶ 2). “This analysis, completed on or about September 26, 2002 put [BH] in fear of imminent litigation” (Tor-torella Deck ¶ 2).

In addition, during September 2002, BH was engaged in discussions with Bear Stearns & Co., Inc. (“Bear Stearns”) in an [137]*137effort to obtain financing; Bear Stearns was the prime broker through which BH traded (Kagan-Kans Decl. ¶ 3; Tortorella Deck ¶ 3). As part of these discussions, BH represented to Bear Stearns that the net asset value of its portfolio was $756 million (Kagan-Kans Deck ¶ 3). Bear Stearns subsequently prepared its own analysis of BH’s portfolio which disclosed a value approximately $500 million lower than that claimed by BH; Bear Stearns provided this analysis to BH on or about October 1, 2002 (Kagan-Kans Deck ¶¶ 4, 11; see Tortorella Deck ¶ 3). BH subsequently attempted to reconcile Bear Stearns’ valuation with its own, and BH provided this analysis to the SEC on October 3, 2002 (Kagan-Kans Deck ¶¶ 4 — 5; Tortorella Deck ¶ 4).

According to BH’s counsel, “Between September 26 and October 8, [BH] performed a variety of quantitative analyses to determine whether there had been a loss in the Master Fund in September 2002. The analyses performed were clearly undertaken in anticipation of litigation” (Tortorella Deck ¶ 5). BH does not attempt to identify which documents on its indices of with-held documents are in this category, nor does it provide any specific information regarding the preparation of any of the analyses. BH does not identify who performed each analysis, what instructions were given to the individuals who prepared those analyses, nor does it indicate where those instructions originated. In addition, BH provides no information regarding whether the analyses prepared between September 26 and October 8 were different in any respect from the valuation analyses BH would ordinarily perform. It appears that BH routinely performed month-end valuation analyses of its portfolio (see Kagan-Kans Deck ¶ 6).

BH retained the firm of Milbank, Tweed, Hadley & McCloy LLC (“Milbank”) as its litigation counsel on October 6, 2002 (Torto-rella Deck ¶ 6). Two days later, on October 8, 2002, BH reported to its investors that it had suffered losses estimated at 25% during the month of September (Kagan-Kans Deck ¶ 2; Tortorella Deck ¶ 8). On the following day, Bear Stearns contacted the SEC and advised that Bear Stearns believed BH had understated the amount of its loss (Tortorella Deck ¶ 8). On Monday, October 11, 2002, the SEC commenced its investigation of BH (Tortorella Deck ¶ 10). Although BH represented to the SEC that it was willing to meet with the SEC and make a presentation concerning the value of its portfolio, that meeting never took place (Kagan-Kans Deck ¶ 9; Tortorella Deck ¶ 10).

BH retained Andrew Davidson & Co., Inc. (“Davidson”) on October 15, 2002 to serve as a consultant regarding valuation issues. BH prepared an unspecified number of valuations between October 15, and October 28, 2002 to assist Davidson (Tortorella Deck ¶ 11).

One week after its initial public announcement regarding its losses, BH made a second announcement on October 17, 2002, stating that its losses were even greater than previously thought. This announcement stated, in pertinent part:

Using a combination of Interactive Data Corporation (IDC) prices, valuations from our prime broker and dealer quotations, we have calculated that as of September 30, 2002, the Fund had losses of approximately 54% from the reported [net asset value] as of August 31, 2002. Utilizing these inputs, the analysis of the portfolio reflects that a portion of the Fund’s losses occurred prior to August 31, 2002. These losses are already reflected in the loss figure described above.
In the current environment, we believe that its in the best interest of the Fund and its investors for the Fund to move towards an orderly liquidation of its portfolio over approximately the next six months and termination of the Fund thereafter. ...

(Exhibit G to the Memorandum of Plaintiff Securities and Exchange Commission in Support of Motion to Compel Certain Documents that Defendant Beacon Hill Asset Management Claims to Be Privileged, dated December 24, 2003 (“SEC Opening Memo”)).

B. Proceedings to Date and the Present Dispute

The SEC commenced this action on November 7, 2002, alleging violations of the [138]*138federal securities laws and seeking injunctive and other relief.

On November 5, 2003, the Honorable Lewis A. Kaplan, United States District Judge, to whom this matter is assigned, ordered BH to produce its index of documents withheld on the ground of privilege no later than November 19, 2003. By that date BH provided the SEC with four indices listing more than 3,000 documents.

In the present motion, the SEC challenges BH’s with-holding of four categories of documents: (1) documents generated after September 26, 2002 regarding the repricing of BH’s portfolio; (2) allegedly privileged documents that the SEC argues are not described in sufficient detail; (3) documents that are attachments to communications with counsel and that do not appear to be independently privileged, and (4) documents that were disseminated to third parties in a manner that operates as a waiver of the attorney-client privilege or work-product protection.

III. Analysis

A. General Principals

Before addressing the specific arguments made by the SEC, it will be helpful to review the general principals applicable to assertions of the attorney-client privilege and work-product protection.

1. Attorney-Client Privilege

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231 F.R.D. 134, 2004 U.S. Dist. LEXIS 15031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-beacon-hill-asset-management-llc-nysd-2004.