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Syncora Guarantee Inc. v. Emc Mortgage Corp.

United States District Court, Ninth Circuit

June 10, 2013

SYNCORA GUARANTEE INC., formerly known as XL CAPITAL ASSURANCE, INC., Plaintiff,
v.
EMC MORTGAGE CORP., Defendant.

ORDER COMPELLING PRODUCTION OF DOCUMENTS

SUSAN ILLSTON, District Judge.

As part of discovery in an action in the Southern District of New York, plaintiff Syncora Guarantee Inc. moves this Court to compel production of documents held by third party GreenPoint Mortgage Funding, Inc. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing scheduled for June 14, 2013. After considering the parties' arguments, the Court GRANTS plaintiff's motion, for the reasons set forth below.

BACKGROUND

The underlying action in this case, Syncora Guarantee Inc. v. EMC Mortgage Corp., No. 09-CV-3106 (S.D.N.Y. filed March 31, 2009), involves an alleged breach of contract for the securitization of mortgages. EMC sponsored, and Syncora insured, the transaction at issue, whereby approximately 10, 000 mortgage loans were sold to a trust. The loans were originated by GreenPoint. Syncora alleges that EMC breached express representations and warrantees attesting to specific attributes and the quality of the GreenPoint loans, including that GreenPoint did not commit fraud, error, omission, misrepresentation, or negligence in the origination of the loans, and the origination methodology confirmed that the borrower had the ability and willingness to pay.

In many of the loans GreenPoint has originated, the sales contracts included provisions requiring GreenPoint to repurchase the loans, such as when GreenPoint breached its warranties. When it received these repurchase demands, the GreenPoint Representations and Warranties ("R&W") department would investigate and analyze these demands. In 2009, Syncora issued a subpoena to GreenPoint that sought the production of, inter alia, documents related to GreenPoint's analysis of the repurchase demands. GreenPoint has produced some of these documents, but contends that others are properly redacted or withheld on the basis of attorney-client privilege. Syncora does not challenge the privilege designation for documents created by or sent directly to GreenPoint counsel. However, it disputes the privilege designation of approximately 1, 800 other documents that were created by non-attorneys and not sent directly to attorneys, arguing that they are not privileged because they concern regular business operations. GreenPoint argues that these documents are privileged because they were created at the direction of and in response to requests by in-house counsel, and were eventually used by attorneys to generate legal advice.

LEGAL STANDARD

Pursuant to Rule 26, a party is entitled to any discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense, " including any discovery that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). "The Federal Rules of Civil Procedure create a broad right of discovery' because wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth.'" Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995) (quoting Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir.1993)).

In an action brought to federal court under diversity jurisdiction, the attorney-client privilege is governed by the state law otherwise applicable to the case. Fed.R.Evid. 501. To determine which state law is applicable, "the federal court applies the choice-of-law rules of the forum state." Paracor Fin., Inc. v. GE Capital Corp., 96 F.3d 1151, 1164 (9th Cir. 1996). Under California choice of law rules, the court must apply a "government interest" analysis. Hurtado v. Superior Court, 11 Cal.3d 574, 579-80 (1974). This is "an analysis of the respective interests of the states involved." Id. First, the court must determine whether the law in the two states differs; if it does differ, then the court must determine if both states have an interest in the application of the law ( i.e., whether there is a "true conflict" between the states); if there is no true conflict, then the court applies the law of the only interested state; if there is a true conflict, then the court must determine which state has the greater interest, and must apply that state's laws. Liew v. Official Receiver & Liquidator, 685 F.2d 1192, 1195-96 (9th Cir.1982).

DISCUSSION

I. California's Privilege Law

Under California law, the attorney-client privilege "authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client." Cal. Evid. Code § 954. "Confidential communication" is defined as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence... to further the interest of the client... or the accomplishment of the purpose for which the lawyer is consulted..." Cal. Evid. Code § 952. The party claiming attorney-client privilege "shoulders the burden of showing the evidence it seeks to suppress falls within the terms of an applicable statute." HLC Properties Ltd. v. Superior Court, 35 Cal.4th 54, 59-60 (2005).

In a corporate setting, the attorney-client privilege may extend to communications involving middle- and lower-level employees. See Upjohn Co. v. United States, 449 U.S. 383, 391 (1981). However, "otherwise routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is copied in' on correspondence or memoranda." Zurich Am. Ins. Co. v. Superior Court, 155 Cal.App.4th 1485, 1504 (2007). Additionally, "the attorney-client privilege is inapplicable where the attorney merely acts as a negotiator for the client, gives business advice or otherwise acts as a business agent." Id. (quotations and citations omitted).

GreenPoint argues that these communications were not made in the ordinary course of business, but instead were made at the direction of legal counsel for the purposes of providing legal advice to management. It explains that, prior to August 2007, its R&W department would review repurchase demands and negotiate a resolution based on business concerns, such as maintaining relationships. Decl. of Rose Medina ("Medina Decl.") ¶¶ 5-8. But in August 2007, it ceased originating residential mortgage loans, and therefore made the decision to only repurchase loans that it was contractually obligated to. Id. ¶¶ 10-11. Thus, GreenPoint argues, in August 2007 the analysis of the repurchase demands changed from a business decision to a legal analysis. The R&W department undertook all of the investigations concerning the repurchase demands with the oversight and at the direction of the legal department, which then incorporated the analysis into its legal advice. Id. ¶¶ 14-17.

GreenPoint has failed to demonstrate that the analysis undertaken by the R&W department was not part of the general business of the company. Both before and after August 2007, it was the general business of the R&W department to analyze repurchase demands. Merely because they changed their business strategy regarding these repurchase demands, an entire ...


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