In re Duque, 90-2109-CIV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtATKINS, Senior
Citation134 BR 679
PartiesIn re Alberto DUQUE, Debtor.
Docket NumberNo. 90-2109-CIV.,90-2109-CIV.
Decision Date11 October 1991

134 B.R. 679 (1991)

In re Alberto DUQUE, Debtor.

No. 90-2109-CIV.

United States District Court, S.D. Florida.

October 11, 1991.

134 BR 680
134 BR 681
Robert A. Mark, Harold D. Moorefield, Jr., Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Benedict P. Kuehne, Sonnett Sale & Kuehne, P.A., Miami, Fla., for appellants

Manuel L. Dobrinsky and Roma W. Theus, II, Holland & Knight, Miami, Fla., for appellee.


ATKINS, Senior District Judge.

Appellants Benson Weintraub and Carlos Rodriguez appeal from a bankruptcy court order denying their motions to quash subpoenas duces tecum served upon them by appellee Paul Nordberg, bankruptcy trustee. The subpoenas seek information regarding appellants' criminal representation of debtor Alberto Duque for the purpose of locating funds owned or controlled by Duque to satisfy outstanding judgments filed against his estate. After carefully considering the initial and responsive briefs, appellants' pre- and post-argument notices of supplemental authority, oral argument, responsive memoranda, and relevant rules and caselaw, we are persuaded by two of appellants' arguments: that the bankruptcy court should have inquired into appellee's need for and the unavailability of the subpoenaed information as part of a determination of the subpoenas' reasonableness; and that the subpoena compliance procedure should be modified so as to require, prior to deposition, appellee to submit a list of deposition questions to appellants and the bankruptcy court to determine whether any of the testimonial or documentary information sought is privileged. Accordingly, the bankruptcy court's order denying appellants' motion to quash will be vacated and the case will be remanded to the bankruptcy court for proceedings consistent with this order.


This appeal involves subpoenas duces tecum served by appellee Paul Nordberg (appellee), bankruptcy trustee for Alberto Duque (Duque) and for entities that Duque controlled, on appellants Benson Weintraub and Carlos Rodriguez (collectively "appellants"). Appellants are lawyers who represent Duque solely in connection with his appeals from various criminal convictions. The subpoenas seek information such as testimony, engagement letters and evidence of payments for legal fees by or on behalf of Duque. While appellee claims that the sole purpose of the subpoena is to locate funds owned or controlled by Duque to satisfy outstanding judgments filed against his estate, appellants contend that appellee seeks the information also to determine whether Duque committed a fraud on the bankruptcy court by having legal fees paid by him or on his behalf without approval from the bankruptcy court.

Appellants moved to quash the subpoenas on the ground that they impermissibly infringe upon the attorney-client privilege,

134 BR 682
the work-product privilege, the fifth amendment privilege against self-incrimination, the sixth amendment right to counsel of choice and the ethical obligation to guard client confidences and secrets; appellants also argued that appellee should be required to show need for and unavailability of the information sought. The bankruptcy court disagreed and denied the motions to quash
The Court finds that appellants\' arguments are unpersuasive. The trustee, through his attorneys, is seeking to discover the assets of the debtor. Having stated a legitimate and proper purpose for service of the subpoena, the Court finds that the trustee\'s inquiry is legitimate and proper. In ruling on this Motion, the Court embraces the rationale of the Court\'s opinion in the case styled In Re: Grand Jury Proceedings (Rabin), 896 F.2d 1267 (11th Cir.1990). Vacated 1990 WL 20033 1990 U.S.App. Lexis 9982.
The Court further finds that records of an attorney concerning fee payments are not privileged and do not constitute a sufficient reason to invoke the "last link" exception. If such records contain confidential information, this information may be redacted by Weintraub and Rodriguez and the redacted copies submitted to the Court for an in camera inspection.
The Court rejects the Sixth Amendment argument set forth in the Motions to Quash. The Court finds that the Sixth Amendment argument is not ripe for adjudication at this time. The court also rejects the movant\'s argument based upon the Fifth Amendment. The Court finds that the Fifth Amendment is inapplicable in these circumstances, since the subpoena seeks to elicit no testimony from Duque.

Order Denying Motion to Quash at 1-2.

The court also set out the following procedure to protect any privileged material:

If the documents which have been ordered to be produced contain communicative information to which the deponents assert a claim of privilege, the law firm representing the deponents may redact the communicative materials from the documents and submit the original documents to the court for in camera inspection. Also, if at the deposition the trustee\'s counsel propounds questions to which the deponents assert a privilege, the deponents should make a clear and concise record of those questions for submission to the court for ruling. In this manner, the clear and concise record can be submitted to the court for ruling on the claims of privilege both concerning the testimony and the documents.

Id. at 2-3. The present appeal became ripe for resolution on April 26, 1991, upon receipt of appellants' reply to appellee's response concerning post-argument notice of supplemental authority.


Appellants essentially argue that the subpoenas duces tecum are facially improper because they reach too broadly and encompass protected documents. More specifically, appellants argue the following: that appellee should be required to demonstrate a need for the information and the unavailability of the information from another source; that the subpoenas intrude upon the above-described privileges, rights and obligations enjoyed by appellants and/or Duque; and that appellee should be required to produce a list of questions prior to deposition so that appellants may object and the bankruptcy court may make a determination of privileges prior to deposition. Appellant Weintraub additionally argues that he is an improper subpoena target because he is neither an officer nor record custodian of his law firm.

In response, appellee argues the following: that no need for or unavailability of the information sought need be demonstrated; that none of the information sought is protected; that appellants have waived the privileges with respect to at least some of the information; that appellants' failure to request an in camera hearing in the bankruptcy court waives the right to one on remand; that the subpoenas are not facially invalid; and that appellant Weintraub's subpoena is not misdirected.

134 BR 683

We review the bankruptcy court's factual findings for clear erroneousness, see United States v. Bay State Ambulance and Hosp. Rental Serv., Inc., 874 F.2d 20, 27 (1st Cir.1989), and legal determinations de novo, see In re Grand Jury Subpoena (Bierman), 765 F.2d 1014, 1018 (11th Cir. 1985), vacated in part, 788 F.2d 1511 (11th Cir.1986). With these standards in mind, we consider in turn the following questions: first, whether a showing of need or unavailability is required on appellee's part; second, whether the subpoena compliance procedure set out by the bankruptcy court is adequate to protect the interests involved; third, whether appellants' failure to request an in camera hearing in the bankruptcy court waives their right to one on remand; fourth, whether the subpoenas are facially invalid; and fifth, whether appellant Weintraub's subpoena is properly directed.

1. Inquiry into Need and Unavailability Required

We first consider whether the bankruptcy court erred by failing to inquire into the need for and unavailability of the information sought. In relevant part, the bankruptcy court determined that the purpose of the subpoena—to discover assets of the debtor — was legitimate and proper. Although we agree with the bankruptcy court's characterization of the subpoena's purpose, we conclude as a matter of law that the bankruptcy court's inquiry should not have ended there. The court also should have considered whether appellants' compliance with the subpoena would be "unreasonable and oppressive" within the meaning of Rule 45(b), Federal Rules of Civil Procedure; this consideration entails inquiry into the trustee's need for and the unavailability of the information sought. We base our conclusion on the relevant Bankruptcy Rules and Federal Rules of Civil Procedure as well as on significant differences between the issuance of subpoenas in the bankruptcy and grand jury contexts.

Rule 45(b), Federal Rules of Civil Procedure, authorizes a court to quash or modify an "unreasonable and oppressive" subpoena duces tecum. See Fed.R.Civ.P. 45(b). A determination of a subpoena's reasonableness requires the court to balance the interests served by complying with the subpoena against the interests served by quashing it. See Herron v. Blackford, 264 F.2d 723, 725 (5th Cir.1959) (holding that court should balance competing interests);1 In re National Trade Corp., 28 B.R. 872, 874 (Bankr.N.D.Ill. 1983) (balancing "the benefit of the information against the burden of production"). This balancing of benefits against burdens calls for the court to consider, inter alia, whether the information is necessary and unavailable from any other source. See In re Garcia, 76 B.R. 68, 69 (E.D.Pa.) (affirming denial of motion to quash in part because subpoenaed lawfirm records "relevant and not available from any other source") (emphasis added), aff'd, 838 F.2d 460 (3d Cir.1987); In re National Trade Corp., 28 B.R. at 875 (recognizing relevance of information...

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