United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
(IN CHAMBERS) - ORDER TO SHOW CAUSE WHY AN ORDER COMPELLING
COMPLIANCE WITH INVESTIGATIVE SUBPOENAS SHOULD NOT BE ISSUED
(Dkt. 8, filed May 11, 2017)
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.
INTRODUCTION & BACKGROUND
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.”) ¶¶
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.
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.
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.
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).
carefully considered the parties' arguments, the Court
finds and concludes as follows.
requisite detail for inclusion in a privilege log consists of
 a description of responsive material withheld,  the
identity and position of its author,  the date it was
written,  the identity and position of all addressees and
recipients,  the material's present location,  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.
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;(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.
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 ...