Overview
On June 15, 2022, the District Court for the Southern District of New York dealt a blow to former Citigroup Inc. (Citi) trader Rohan Ramchandani in his malicious prosecution lawsuit against his former employer.[1] Magistrate Judge Stewart D. Aaron denied Ramchandani’s motion to compel Citi to produce attorney notes of DOJ meetings and other privileged and protected documents because Ramchandani failed to show that he could not obtain the substantial equivalent of the protected documents from sources other than attorney memoranda without undue hardship.
Background
Ramchandani’s lawsuit originates from 2013 investigations by the DOJ and the United Kingdom’s Financial Conduct Authority (FCA) into the alleged manipulation of foreign exchange rates in the foreign exchange spot market. Ramchandani was the former European head of Citibank’s foreign exchange spot market trading desk during the relevant time period.
Citi initiated its own internal investigation soon after, represented by outside counsel from Cleary Gottlieb Steen & Hamilton LLP (Cleary). As part of the investigation, counsel interviewed Ramchandani in early 2014 about his trading activities and Bloomberg chat communications. A few weeks after the interview, Citi suspended, and eventually terminated, Ramchandani.
In 2017, Ramchandani was indicted alongside two traders from other financial institutions for using a Bloomberg chatroom to fix foreign exchange rates. A federal jury acquitted Ramchandani in 2018.
Ramchandani then filed a malicious prosecution suit against Citi, alleging that his former employer cooperated with regulators as part of a scheme to deflect the blame for any wrongdoing onto him. According to the complaint, Citi’s outside counsel assisted DOJ by identifying incriminating Bloomberg chats and misrepresenting the meaning of the chatroom communications, which were often written in complex trading parlance, leading Ramchandani to be indicted, and ultimately acquitted, of colluding to affect daily benchmark rates.
The court ordered Citi to provide a document-by-document privilege log, including Cleary’s notes and memoranda of discussions with the DOJ. Ramchandani identified 50 documents to the court for in camera review that were withheld on the basis of attorney-client privilege and work product doctrine. He subsequently filed a motion to compel those documents.
Legal Standard
New York Law provides a statutory protection for attorney-client communications. The privilege applies if the communication was made “for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.”[2] Disclosure to a non-counsel third party can waive the privilege.
Under federal law,[3] the work product doctrine is broader than the attorney-client privilege. It protects fact work product, which covers factual material, and opinion work product, which covers “mental impressions, conclusions, opinions, or legal theories.”[4] To assert the doctrine, a party must show that the material was prepared in anticipation of litigation. An exception exists where the opposing party shows (i) a substantial need for the materials and (ii) cannot without undue hardship obtain a substantial equivalent by other means. However, a showing of substantial need and undue hardship may not be enough to set aside the presumptive immunity of opinion work product from disclosure.[5]
The Court’s Analysis and Holding
The court analyzed four categories of documents that Ramchandani sought to compel: (1) attorney memoranda and emails of Citi’s meetings with DOJ; (2) communications between legal counsel and Citi’s public relations personnel; (3) documents concerning Ramchandani’s suspension and termination; and (4) annotated copies of Ramchandani’s chatroom communications.
Memoranda and Emails
The court determined that the memoranda and emails of Citi’s meetings with DOJ were prepared in anticipation of litigation and were protected work product.[6] Although Ramchandani demonstrated a substantial need for the documents—given that the case turned on what information Citi provided to the DOJ—the court found that Ramchandani failed to show that he could not obtain substantially equivalent information without undue hardship.[7]
The court relied on five reasons for finding a lack of undue hardship.[8] First, Ramchandani already received DOJ’s notes of its meetings with Cleary. Second, he had an opportunity to ask a DOJ witness about the DOJ meetings with Cleary at a deposition and failed to do so. Third, Ramchandani still had the opportunity to depose someone at Cleary as to what occurred at the meeting. Fourth, Cleary offered Ramchandani’s counsel an oral proffer about the DOJ meetings in a related OCC action. And fifth, Ramchandani’s counsel had a written OCC stipulation about the DOJ meetings; he is also permitted to ask questions about the stipulation at the Cleary deposition. Because Ramchandani either already had substantially equivalent information or has and had opportunities to acquire that information, the work product doctrine exception was unavailable to him and the memoranda and emails remain protected from disclosure.
Communications with Citi’s Public Relations Personnel
Counsel’s communications with Citi’s public relations personnel were held to be protected by the attorney-client privilege.[9] Ramchandani alleged that the public relations communications were not legal advice, but rather intended to “facilitate the scapegoating scheme.”[10] The court recognized that public relations advice was still legal advice where the legal ramifications of the communications were material factors in developing them. Thus, the majority of the communications were held to be protected from disclosure because they reflected communications made for the purpose of providing legal advice.[11]
Documents Concerning Suspension and Termination
Documents that discussed Ramchandani’s suspension and termination were similarly held to be protected by the attorney-client privilege.[12] Ramchandani claimed that Citi was attempting to shield documents related to the suspension and termination “under a cloak of privilege.”[13] Regardless of motivation, the district court found that the majority of the documents were privileged because the emails reflected communications made for the purpose of rendering legal advice.
Annotated Bloomberg Chats
The court held that Cleary’s annotations of Ramchandani’s Bloomberg chatroom history were also protected under the work product doctrine. During it’s in camera review, the court noted that Cleary discussed and “walked through” these annotations of the Bloomberg chats with DOJ.[14] The court subsequently issued an order to show cause why any privilege or work product protection associated with the chats had not been waived. In briefing, Citi asserted that the chats were (i) mental impressions made in preparation for the DOJ meeting; (ii) the attorneys did not use each annotation verbatim; and (iii) the attorneys also used internal annotations with longer analyses and mental impressions to guide the discussions with DOJ. Persuaded by Citi’s reasoning, the court found that the annotated chats were opinion work product and entitled to heightened protection.[15] Central to its holding was the court’s observation that the chats were not actually shown during the meeting, but rather, used to guide Cleary’s presentations.
Endnotes
[1] Ramchandani v. Citibank Nat’l Ass’n., No. 1:19-cv-09124, 2022 WL 2156225 (S.D.N.Y. June 15, 2022)
[2] Id. at *4 (citing Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 593 (1989)).
[3] For all actions in federal courts, federal law generally governs the applicability of the work-product doctrine. Id. at *5.
[4] Id. at *5 (citing In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007).
[5] Id. at *5.
[6] Id. at *6, 7.
[7] Id.
[8] Id.
[9] Id. at *7.
[10] Id. at *7.
[11] However, a few documents were ordered to be produced because the documents either transmitted newspapers articles, or inadvertently copied Ramchandani via email, triggering the “third party” waiver of attorney-client privilege. Id. at *8.
[12] Id.
[13] Id.
[14] Id. at *9.
[15] Id.
