119 F.3d 143 (2nd Cir. 1997), 1543, Sarrio, S.A., Application of
|Docket Nº:||1543, Docket 95-9157.|
|Citation:||119 F.3d 143|
|Party Name:||In re APPLICATION OF SARRIO, S.A., for Assistance before Foreign Tribunal. CHASE MANHATTAN CORPORATION, Respondent-Appellee, Kuwait Investment Authority, Grupo Torras S.A., Torraspapel S.A., Torras Hostench London, Ltd., Movants-Appellees, v. SARRIO S.A., Applicant-Appellant.|
|Case Date:||July 15, 1997|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued May 28, 1996.
William R. Stein, Washington, DC (Alan G. Kashdan, Roberta Koss, Hughes, Hubbard & Reed, Washington, DC, of counsel), for Applicant-Appellant.
David Zaslowsky (Lawrence W. Newman, Baker & McKenzie, New York City, of counsel), for Movants-Appellees.
Before: VAN GRAAFEILAND, WALKER and LEVAL, Circuit Judges.
LEVAL, Circuit Judge:
Sarrio S.A. appeals from a protective order of the United States District Court for the Southern District of New York (Patterson, J.) denying discovery of certain documents subpoenaed from Chase Manhattan Bank, N.A. ("Chase"), in a proceeding instituted by Sarrio under 28 U.S.C. § 1782. The district court's view was that § 1782 permits discovery only of documents in the United States and that, where Chase had sent documents maintained abroad to the United States to be reviewed by counsel for determination whether they were required to be produced, the attorney-client privilege sheltered those documents from discovery under § 1782. Because on appeal Chase has withdrawn its assertion of attorney-client privilege, removing the basis upon which the district court quashed the subpoena, we remand to the district court for further proceedings to determine whether Sarrio is entitled, either upon its prior subpoena or under a new subpoena, to disclosure of the documents.
Sarrio is a Spanish company engaged in a contract dispute in the Spanish courts against the Kuwait Investment Authority ("KIA") and a group of KIA's subsidiaries, here collectively referred to as Grupo Torras. In the Spanish litigation, Sarrio is seeking to assert KIA's responsibility for a liability of its subsidiaries, in reliance on a theory akin to our doctrine of "piercing the corporate veil." In support of this effort, Sarrio asked Chase, a lender to Grupo Torras, to produce commercial agreements, which might reveal aspects of the relationship between KIA and Grupo Torras that could justify piercing the corporate veil. Chase is headquartered in New York City. In seeking Chase's production in New York, Sarrio proposed to rely on *145s 1782, which provides that a "district court of the district in which a person resides or is found may order him ... to produce a document ... for use in a proceeding in a foreign ... tribunal." 1
In February 1994, Sarrio's counsel notified Chase's New York counsel that Sarrio planned to apply to the United States District Court in the Southern District of New York for discovery of the documents under § 1782. Sarrio's counsel provided Chase with an informal draft of the proposed subpoena. It was apparent to Chase's counsel from the text of the draft subpoena that the requested documents related to transactions of Chase branches in England and Spain. Chase's counsel directed those branch offices to send the pertinent transaction files to New York so that he could examine and, if appropriate, produce the documents covered by the anticipated subpoena.
In April 1995, Sarrio's attorney wrote to Chase's counsel, inquiring about the documents. Chase's counsel replied on April 26 that he was in possession of documents covered by the draft subpoena and would produce them "upon receipt of a subpoena."
Sarrio then instituted a proceeding in the district court against Chase and Grupo Torras seeking permission to serve a subpoena on Chase under § 1782. The court granted permission on May 23, 1995, and Sarrio proceeded to serve its subpoena on Chase. The subpoena served differed from the previously delivered draft in that it sought only documents "located within the United States." 2
KIA and Grupo Torras moved for a protective order barring the disclosure. Chase also objected to the subpoena on various grounds, including
that it calls for the production of documents protected from discovery by reason of the attorney-client privilege. This request would call for documents that are only present in the United States for an attorney's review of the documents and could not have been in the United States otherwise and not subject to this subpoena.
The district court sustained Chase's claim of privilege. It ruled that Chase was not obligated to produce documents that were held abroad by Chase but delivered to New York to be reviewed by counsel. Sarrio appeals.
The district court found that Chase properly invoked the attorney-client privilege. The court reasoned that § 1782 authorizes discovery through United States courts only of materials found in the United States. Accordingly, Sarrio could not use § 1782 to obtain documents held by Chase in foreign countries. Because the documents came to the United States within reach of § 1782 only because Chase brought them here for review by its counsel so he could provide legal advice about compliance with a discovery demand,
the court ruled that the documents were protected by the attorney-client privilege. The court reasoned that, without exposing the client to otherwise unavailable discovery,
[a] lawyer should be able to provide advice to his client with respect to the potential discoverability of documents without having to travel to where the documents are located.... Public policy favors open and frank communications between a lawyer and his or her client and prompt review of a client's documents by a lawyer are a goal of federal discovery consonant with this policy.
In re Application of Sarrio SA, No. 9-372, 1995 WL 598988, at * 3 (S.D.N.Y. Oct. 11, 1995).
Assuming, without deciding, that the district court was correct that discovery under § 1782 may reach only evidence located in the United States, Chase had a substantial claim that the documents subpoenaed here were protected by the attorney-client privilege. The Supreme Court's discussion in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), seems to provide principled authority, although in dicta, for recognizing attorney-client privilege here. In Fisher, a taxpayer under investigation by the IRS transferred pertinent documents to his attorney for legal advice. The IRS issued process to the attorney for production of the documents, and the taxpayer sought to bar production on grounds of his Fifth Amendment privilege against self-incrimination. The Court held that the Fifth Amendment privilege did not apply because a demand for production directed to the taxpayer's attorney would not compel the taxpayer to incriminate himself. Id. at 414, 96 S.Ct. at 1582. The Court went on, however, to consider whether compelling production in these circumstances would violate the attorney-client privilege. The Court reasoned that "[t]he purpose of the privilege is to encourage clients to make full disclosure to their attorneys." Id. at 403, 96 S.Ct. at 1577. If discovery of documents could be obtained more easily from attorneys than from their clients, clients would hesitate to show their documents to their attorneys and "it would be difficult to obtain fully informed legal advice." Id. at 403, 96 S.Ct. at 1577. Accordingly, where documents...
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