Magistrate Judge Gorenstein

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In an opinion this week, Magistrate Judge Gorenstein ruled that sharing attorney-client privileged communications with an outside public relations firm resulted in a waiver of the attorney-client privilege.  The plaintiff, Universal Standard, a manufacturer of “size-inclusive” clothing, filed a complaint against Target alleging trademark infringement.  After discovery, Target filed a motion asking the court to find that certain emails involving the plaintiff and its outside public relations firm, BrandLink, had been inappropriately listed on the plaintiff’s privilege log.

The court held that none of the exceptions for applying the attorney-client privilege to third-party communications were appropriate.  First, the court held that the communications with the PR firm were not “necessary” for outside’s counsel representation:
Continue Reading Magistrate Judge Gorenstein: Attorney-Client Communications That Include Outside PR Firm Are Not Privileged

In an opinion yesterday, Magistrate Judge Gorenstein rejected the Bank of China’s attempt to withhold from discovery documents that the bank claimed were privileged because they relate to “Suspicious Activity Reports” (or SARs) that financial institutions must file with regulators to alert them of suspicious customer behavior. Federal regulations state that “any information that would reveal the existence of a SAR” is generally confidential.  The bank established a process for investigating suspicious conduct, and the culmination of the process is a committee vote as to whether or not to file a SAR.  According to the bank, “documents produced at each step of this process are protected by the SAR privilege since they result from the implementation of BOC’s policies and procedures for the filing of SARs.” Judge Gorenstein disagreed.
Continue Reading Judge Gorenstein Rejects Broad Version of Bank Privilege to Withhold Documents Related to “Suspicious Activity Reports”

In an opinion today, Judge Scheindlin ruled that Bank Hapoalim, a non-party Israeli bank, was required to produce a Rule 30(b)(6) witness to testify about information originating in Israel:

Even if Hapoalim is a non-party witness and all of the documents or knowledgeable persons are in Jerusalem, compliance with the 30(b)(6) subpoena is not

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In an opinion today, Magistrate Judge Gorenstein quashed a Rule 30(b)(6) subpoena that Bank of China (“BOC”) served on the New York branch of the Israeli bank Hapoalim concerning events in Israel, because the subpoena would have required a witness within the Rule 45 jurisdictional territory to gather information from witnesses outside the territory:
Continue Reading Judge Gorenstein Rules That Nonparty Receiving Rule 30(b)(6) Subpoena Need Not “Educate” Local Witness With Information Outside Jurisdiction