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United States District Court, Northern District of Illinois, E.D

May 28, 1982


The opinion of the court was delivered by: Getzendanner, District Judge.


Plaintiffs' Committee's motion to compel testimony by William J. Fitzpatrick raises the question of whether disclosure of documents and giving of testimony protected by the attorney-client privilege to the SEC in compliance with a subpoena constitutes a limited or a complete waiver of the privilege.

I have decided to apply the holding of The Permian Corporation v. United States, 665 F.2d 1214 (C.A.D.C. 1981), that voluntary disclosure of privileged documents and testimony to the SEC is a complete waiver of the attorney-client privilege.

In this case the disclosures to the SEC were voluntary in that, while the documents were produced pursuant to subpoena, the privilege could have been asserted and was not. The decision not to assert the privilege and to fully disclose all attorney-client communications involving Mr. Fitzpatrick was stated on the record by counsel for Loeb Rhoades & Co. and Mr. Fitzpatrick at the time of Mr. Fitzpatrick's testimony.*fn* No confidentiality was sought for the documents, despite a specific warning by the SEC that the documents may be covered by the Freedom of Information Act, and the documents subsequently were turned over by the SEC to Trustee Holland, one of the plaintiffs in these consolidated cases. No one was put on notice that the privilege was claimed by Loeb Rhoades until Mr. Fitzpatrick was deposed by Trustee Holland in these cases.

The cases which recognize a limited waiver based on public policy considerations of encouraging full cooperation with government agencies conducting investigations are rejected by me. They are also factually distinguishable. In this case, there were no specific documents prepared by independent outside counsel which directly related to the same issues being investigated by the SEC as in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978); Byrnes v. IDS Realty Trust, 85 F.R.D. 679 (S.D.N.Y. 1980); and In re Grand Jury Subpoena Dated July 13, 1979, 478 F. Supp. 368 (E.D.Wis. 1979). Here Mr. Fitzpatrick was both a corporate officer and in-house general counsel of Loeb Rhoades who was involved in the day-to-day business of Loeb Rhoades. He testified that it was difficult to separate his roles. He has already given a lengthy deposition (several thousands of pages) in these cases as a "fact witness." It is possible that other corporate officers, partners, or managerial personnel from Loeb Rhoades could have testified before the SEC with respect to the same facts to which Mr. Fitzpatrick testified without waiving any attorney-client privilege.

On the facts as I understand them, Loeb Rhoades probably could have fully cooperated and also maintained its privilege. (In any event, Loeb Rhoades chose to waive the privilege without negotiating with the SEC as to whether such waiver was necessary to what the SEC would consider "full cooperation.") That would not have been true, for example, in Diversified and Byrnes because of the nature of the investigative documents involved in those cases. Thus, the public policy consideration of encouraging cooperation with the SEC is not strong in this case.

The recent case of Teachers Insurance and Annuity Association of America v. Shamrock, 521 F. Supp. 638 (S.D.N.Y. 1981), holds that in the SEC context there is a limited waiver provided the right to assert the privilege in subsequent proceedings is specifically reserved at the time the disclosure is made. Such a rule still would permit clients to pick and choose those to whom disclosure could be made without incurring the penalty of loss of the privilege.

I agree with the opinion in The Permian Corporation v. United States, supra, that "the attorney-client privilege should be available only at the traditional price: a litigant who wishes to assert confidentiality must maintain genuine confidentiality." 665 F.2d at 1222.

Accordingly, the motion to compel is granted.

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