Opinion
Adv. Proc. No.: 06-2208 (MBK).
April 21, 2008
Lisa Bonsall, Esq. McCarter English, LLP, Newark, NJ.
Robert Donovan, Esq. McElroy, Deutsch, Mulvaney Carpenter, LLP Newark, NJ.
Counselors:
The Court has reviewed the arguments and submissions in the above referenced adversary proceeding and issues the following ruling:
The court has jurisdiction over this contested matter under 28 U.S.C. §§ 1334(a) and 157(a) and the Standing Order of the United States District Court dated July 10, 1984 referring all bankruptcy cases to the bankruptcy court. The following constitutes the Court's findings of fact and conclusions of law as required by Fed.R.Bankr.P. 7052.
This matter is before the Court by way of Mr. Donovan's April 1st request, on behalf of the Chapter 7 Trustee, that the Court direct GECC to produce the draft letter of engagement with Indian counsel, Little Company. Counsel for GECC contends that the engagement letter is subject to the attorney-client privilege and, in lieu of providing the document in response to a discovery request, served upon Trustee's counsel a response to an interrogatory in which GECC disclosed the nature and dates of the retention, as well as the attorneys involved. The Court directed an in camera review of the document, together with written submissions relative to the assertion of any privilege.
It is generally recognized that the communication of factual information is not protected by the attorney-client privilege. For example, reports reflecting the status of litigation and containing purely factual information are not privileged. See Women's InterArt Ctr., Inc. v. N.Y.C. Econ. Dev., 223 F.R.D. 156, 160 (S.D.N.Y. 2004) (status report with handwritten edit notes containing only factual background information were not protected). Similarly, fee agreements or retainer agreements generally are not privileged. See, e.g., In re Semel, 411 F.2d 195, 197 (3d Cir. 1969) ("In the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship."); Nat'l Union Fire Ins. Co. of Pittsburgh v. Aetna Cas. Surety Co., 384 F.2d 316, 317 n. 4 (D.C. Cir. 1967) (fact of attorney-client relationship and reason for its existence generally are not privileged); Finol v. Finol, 869 So.2d 666 (Fla.Dist.Ct.App. 2004) (billing information that does not reveal mental impressions and opinions of counsel is not privileged); P. B. Marina, Ltd. P'ship v. Logrande, 136 F.R.D. 50, 55 (E.D.N.Y. 1991) (request to pay fees and attached statement of fees was not privileged). The identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege. However, correspondence, bills, ledgers, statements, and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege. Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999) (quoting Clarke v. American Commerce National Bank, 974 F.2d 127, 129 (9th Cir. 1992)) (internal quotations and citations omitted); see also In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000).
As to requests for retainer agreements, these documents may contain discoverable information, as well as confidential communications which are covered by the attorney-client privilege. In United States v. Osborn, 409 F.Supp. 406, 411 (D.Or. 1975), the court stated that fees paid for legal work and the general nature of legal work performed do not constitute a confidential communication, but that specific descriptions of services necessarily intrude upon the area of confidential communications. The Court has reviewed the draft engagement letter and determined that a portion of the documents discloses more than merely the general purpose of the retention, and in fact reveals specific areas of concern and anticipated issues for further research and/or action. Accordingly, the Court has redacted, sua sponte, the document in order to ensure that disclosure does not impair GECC's rights with regard to the attorney-client privilege. The redacted documents is enclosed herewith.
(on the stationery of Little Co.) SRM/ June _____, 2006 General Electric Capital Corporation C/o. DLA Piper Rudnick Gray Cary US LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 U.S.A Tel.: 001 312 368 4046 Dear Sirs,Re: Letter of Engagement
We are pleased to act for General Electric Capital Corporation, U.S.A. (hereinafter referred to as "GE") to advise on the Indian laws relating to the creation of the security interests by the present shareholders of Vanguard Group of Companies in favour of GE and restructuring of the Indian subsidiaries of Vanguard Group of Companies (collectively the "Project"). This Letter of Engagement confirms the terms and conditions under which this Firm will provide legal advices to GE on the Project.Scope of Services in respect of the Project
The scope of our services includes advising on the Indian legal issues arising out of:
(i) _____ (ii) _____ (iii) _____ (iv) _____ (v) _____ (vi) review, negotiation and execution of the contractual documents between the parties; and (vii) advice on the incidental and ancillary legal issues from time to time. We request you to note the following: (1) _____ (2) We will not undertake any financial, accounting, taxation, technical, marketing, strategic or environmental due diligence. Fees and DisbursementsWe propose to charge our fee on hourly rate basis as follows:
US$200 per hour for partner's time
US$100 per hour for associate's time
Out of pocket expenses and disbursements such as traveling, photocopying, telephone, fax, courier charges etc. which will be separately billed at actuals.
GE agrees to forthwith pay our fees and disbursements upon receipt by it of our bill of costs.
Confidentiality
We undertake to maintain confidentiality on all matters relating to the Project.
Termination
GE may terminate our services and representation at any time upon prior written notice of fifteen working days subject to the payment of our fees and expenses incurred up to date. We reserve the right to withdraw from representing GE, if among other things, any act or circumstances arise that would, in our view, render our continuing representation unlawful, unethical, conflicting or inconsistent with the terms of this Letter of Engagement or for failure to pay our fees and expenses.
Please sign and return a duplicate of this letter to confirm that you agree and accept these terms and conditions.
Yours faithfully, We accept Little Co. For General Electric Capital Corporation _______________ Sandeep Mehta General Counsel Partner (on the stationery of Little Co.) SRM/ June ___, 2006 General Electric Capital Corporation C/o. DLA Piper Rudnick Gray Cary US LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 U.S.A Tel.: 001 312 368 4046 Dear Sirs,Re: Letter of Engagement
We are pleased to act for General Electric Capital Corporation, U.S.A. (hereinafter referred to as "GE") to advise on the Indian laws relating to the creation of the security interests by the present shareholders of Vanguard Group of Companies in favour of GE and restructuring of the Indian subsidiaries of Vanguard Group of Companies (collectively the "Project"). This Letter of Engagement confirms the terms and conditions under which this Firm will provide legal advices to GE on the Project.Scope of Services in respect of the Project
The scope of our services includes advising on the Indian legal issues arising out of:
(i) _____ (ii) _____ (iii) _____ (iv) _____ (v) _____ (vi) review, negotiation and execution of the contractual documents between the parties; and (vii) advice on the incidental and ancillary legal issues from time to time. We request you to note the following: (1) _____ (2) We will not undertake any financial, accounting, taxation, technical, marketing, strategic or environmental due diligence. Fees and DisbursementsWe propose to charge our fee on hourly rate basis as follows:
US$200 per hour for partner's time
US$100 per hour for associate's time
Out of pocket expenses and disbursements such as traveling, photocopying, telephone, fax, courier charges etc. which will be separately billed at actuals.
GE agrees to forthwith pay our fees and disbursements upon receipt by it of our bill of costs.
Confidentiality
We undertake to maintain confidentiality on all matters relating to the Project.
Termination
GE may terminate our services and representation at any time upon prior written notice of fifteen working days subject to the payment of our fees and expenses incurred up to date. We reserve the right to withdraw from representing GE, if among other things, any act or circumstances arise that would, in our view, render our continuing representation unlawful, unethical, conflicting or inconsistent with the terms of this Letter of Engagement or for failure to pay our fees and expenses.
Please sign and return a duplicate of this letter to confirm that you agree and accept these terms and conditions.
Yours faithfully, We accept Little Co. For General Electric Capital Corporation _______________ Sandeep Mehta General Counsel PartnerNOTICE OF JUDGMENT OR ORDER Pursuant to Fed.R.Bankr.P. 9022
Please be advised that on April 21, 2008, the court entered the following judgment or order on the court's docket in the above-captioned case:Document Number: 125 — 115
Opinion (related document:[115] Document filed by Counter-Defendant Charles A. Stanziale, Plaintiff Charles A. Stanziale). The following parties were served: Lisa Bonsall, Attorney for GECC; Robert Donovan, Attoreny for the Trustee. Signed on 4/21/2008. (Attachments: # (1) Exhibit A). (slf,)
Parties may review the order by accessing it through PACER or the court's electronic case filing system (CM/ECF). Public terminals for viewing are also available at the courthouse in each vicinage.