An energy company that provided confidential records to the Justice Department as part of a criminal investigation could now be forced to turn the records over to a former employee, who has been indicted for allegedly conspiring to manipulate the price of natural gas.
Lawyers for the Oklahoma-based Williams Co. say the records given to Justice are protected under work-product doctrine and should not be released to the defendant, Scott Thompson. Some of the records have already been given to Thompson’s lawyers. Counsel for Williams Co., Gibson, Dunn & Crutcher partner Andrew Tulumello, is fighting to protect attorney notes, among other documents.
But the U.S. Court of Appeals for the D.C. Circuit today said Thompson is entitled at least to a hearing in U.S. District Court for the District of Columbia to determine whether any of the withheld records are material to his defense. A three-judge panel ruled unanimously to remand the case to the trial court.
For the Williams Co., the ruling was favorable because the court determined that the company, as a third-party, has standing to challenge a discovery order in a criminal case in which the company is not a party.
Last year, U.S. District Judge Richard Leon said at a hearing the “public policy interest weighs in favor, strongly in favor of” Thompson receiving all the Williams Co. documents that were turned over to Justice. Leon must now decide the extent to which the documents are material to Thompson’s defense.
Thompson’s lawyer, Philip Inglima, co-chair of Crowell & Moring's white collar and securities litigation group in D.C., says he is “confident we will get the documents we are entitled to based on this opinion.”
Inglima argued in February that Williams officials voluntarily turned over the documents to the Justice Department, waiving any privilege. Lawyers for Williams Co. said the company produced under coercion—the threat of an indictment. Judge Judith Rogers and Senior Judges Laurence Silberman and Harry Edwards left unexplored the coercion claim in today’s 17-page opinion.
Williams Co. entered a deferred prosecution agreement with the Justice Department in 2006 amid the federal investigation of the California energy crisis. Williams officials admitted its traders reported false data to a monthly gas market journal, and the company agreed to pay a $50 million penalty, court records show. Thompson was indicted in 2006.
Williams Co. is not a party in the criminal case against Thompson but is a defendant in civil litigation in California. Gibson, Dunn partner Tulumello, vice-chair of the firm's class action and complex litigation practice group, argued in court that the private attorney notes and analysis that the company turned over to Justice came with restrictions that no other person be allowed to view the material. Lawyers for Williams Co. say they are concerned the documents will become part of the civil litigation in California.
The company “sought confidentiality, but the assurances it secured were neither sufficiently strong nor sufficiently unqualified to prevent the government’s disclosure of documents material to preparation of a criminal defense,” Rogers wrote for the D.C. Circuit panel. Rogers said the trial court must “afford appropriate protection" to Williams Co. against public disclosure.