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Securities and Exchange Commission v. Coldicutt

United States District Court, C.D. California

June 8, 2017

SECURITIES AND EXCHANGE COMMISSION
v.
ANDREW T.E. COLDICUTT

          Present: The Honorable CHRISTINA A. SNYDER

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) - ORDER TO SHOW CAUSE WHY AN ORDER COMPELLING COMPLIANCE WITH INVESTIGATIVE SUBPOENAS SHOULD NOT BE ISSUED (Dkt. 8, filed May 11, 2017)

         The Court finds this motion appropriate for decision without oral argument. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing date of June 12, 2017 is vacated, and the matter is hereby taken under submission.

         I. INTRODUCTION & BACKGROUND

         In May 2016, the Securities and Exchange Commission (“SEC”) initiated an investigation to determine whether respondent Andrew T.E. Coldicutt and others may have prepared company registration statements for initial public offerings (“IPOs”) and other documents that falsely described the companies' business and identities of their management. Dkt. 1-1 (“App.”) at 1. The SEC sought business and financial records from Coldicutt and the Law Office of Andrew Coldicutt (collectively, “respondents”), including: Coldicutt's communications with specific entities that he assisted in their IPOs and issuance of stock certificates; his engagement letters for those services; his bank records and attorney trust account records; and Rule 144 opinion letters that he drafted. Id. at 1-2; dkt. 1-2, Declaration of Roberto A. Tercero (“Tercero Decl.”) ¶¶ 6-10.

         On September 2, 2016, in response to the SEC's subpoenas, respondents produced 263 documents and a privilege log that listed 1, 539 documents as responsive to the subpoenas, identifying 1, 276 of those documents as privileged. App at 2; Tercero Decl. ¶ 19 & Ex. 10. For each document listed in the privilege log, respondents provided the following information: a document name, the Bates number range and number of pages, and whether the document was responsive or privileged. Tercero Decl. Ex. 10.

         On December 15, 2016, the SEC sent respondents a letter requesting an amended privilege log for each document that identified: (1) the author; (2) the date; (3) the subject matter; (4) the name of the person who possesses the item or the last person known to have it; (5) the names of everyone who ever had the item or a copy of it, and names of everyone who was told of the item's contents; (6) the reason for not producing the item; and (7) the specific request in the subpoena to which the document relates. Tercero Decl. Ex. 11. Respondents failed to provide an amended privilege log. App. at 8-9.

         On May 4, 2017, the Securities and Exchange Commission (“SEC”) filed an application for an order to show cause why an order compelling compliance with investigative subpoenas should not be issued. See generally App. The SEC seeks to compel respondents to produce an amended privilege log. Id. at 2.

         On May 8, 2017, the Court issued an order to show cause why an order compelling compliance with the SEC's investigative subpoenas should not be issued. Dkt. 8. Respondents filed an opposition on May 31, 2017, dkt. 13 (“Opp'n”), and the SEC filed a reply on June 5, 2017, dkt. 14. (“Reply).

         Having carefully considered the parties' arguments, the Court finds and concludes as follows.

         II. DISCUSSION

         “[T]he requisite detail for inclusion in a privilege log consists of [1] a description of responsive material withheld, [2] the identity and position of its author, [3] the date it was written, [4] the identity and position of all addressees and recipients, [5] the material's present location, [6] and specific reasons for its being withheld, including the privilege invoked and grounds thereof.” Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650-51 (E.D. Cal. 2010); see also Fed.R.Civ.P. 26(b)(5)(A)(ii) (“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”). The Court finds, and respondents do not dispute, that respondents' current privilege log does not satisfy these requirements.

         However, respondents argue that they are not required to provide an amended privilege log that includes such details for four reasons: (1) a more detailed privilege log would violate Coldicutt's clients' Fifth Amendment privilege against self-incrimination;[1](2) the attorney-client privilege precludes respondents from disclosing any additional information about the documents designated as “privileged”; (3) the duty of client confidentiality under California ethics rules precludes respondents from disclosing client confidences and secrets; and (4) the common-interest privilege protects the documents at issue because Coldicutt entered into a joint defense agreement with other parties involved in the SEC's investigation. See generally Opp'n. The Court addresses these arguments in turn.

         First, respondents argue that they may withhold the information sought by the SEC pursuant to the Fifth Amendment rights of Coldicutt's clients. Ordinarily, the Fifth Amendment privilege against self-incrimination is personal and may not be asserted on another's behalf. “The Fifth Amendment privilege ‘adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence, but not from its production.' The Constitution explicitly prohibits compelling an accused to bear witness ...


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