The law firm Williams & Connolly wants a federal appeals court in Washington to force securities regulators to turn over documents rooted in the investigation of Cendant Corp., whose former chairman, Walter Forbes, is serving a 12-year prison sentence in a fraud conspiracy case.
The U.S. Securities & Exchange Commission contends the documents at issue—114 sets of handwritten notes—were properly withheld from Forbes' attorneys.
The attorney work-product privilege, the commission contends, protects the documents from disclosure. A federal trial judge in Washington agreed in August 2010, rejecting a Freedom of Information Act request.
A lawyer for Forbes, Simon Latcovich, a Williams & Connolly associate, told a panel of the U.S. Court of Appeals for the D.C. Circuit today that the SEC is unfairly keeping secret handwritten notes between agency officials and witnesses.
Latcovich said the SEC previously produced some of the documents during the criminal prosecution of Forbes in U.S. District Court for the District of Connecticut. The agency, Latcovich said, should not be permitted to hang onto even more documents now. Forbes’ attorneys sued the SEC in February 2009 under the Freedom of Information Act.
D.C. Circuit Judge Douglas Ginsburg today questioned whether Williams & Connolly is speculating that the earlier-released documents have anything to do with the material the SEC is refusing to disclose to Forbes’ lawyers. “You have nothing,” the judge said to Latcovich at one point.
Latcovich insisted several times the government hasn’t made an attempt to distinguish between the earlier produced documents and those papers that securities regulators are keeping to themselves.
Forbes’ attorneys said in court papers that, in the least, Judge Colleen Kollar-Kotelly should have inspected the disputed records in chambers before making a decision in the case. The judge’s opinion is here.
An assistant U.S. attorney, Michelle Lo, arguing for the securities commission, said the U.S. Justice Department turned over the notes in the Forbes prosecution through the rules of criminal procedure. Therefore, she said, the SEC did not waive any privilege that attached to the documents.
The SEC has produced to Williams & Connolly more than 2,400 pages of non-exempt records through the firm’s public records request, Lo said in a brief filed in June.
The notes the SEC produced to Forbes’ criminal defense attorneys were material to the defense, Lo said in the brief, citing the Kollar-Kotelly’s opinion in Washington federal district court.
Lo said in the brief that Williams & Connolly’s “argument mistakenly conflates the government’s statutory obligation to disclose records under the FOIA with its separate statutory and constitutional obligations in a criminal proceeding.”
The appeals court did not immediately rule today.