A federal appeals court in Washington today ruled against the law firm Williams & Connolly in its fight to squeeze documents from securities regulators rooted in the prosecution of former Cendant Corp. chairman Walter Forbes.
The U.S. Court of Appeals for the D.C. Circuit said in a unanimous ruling that the U.S. Securities and Exchange Commission is properly keeping secret more than 100 sets of notes.
Forbes is serving a 12.6-year prison sentence for securities fraud, convicted in 2007 in New Jersey federal district court after two earlier hung juries.
Lawyers at Williams & Connolly, including partner Robert Cary, are fighting to overturn the conviction on several fronts. In one action, Forbes’ legal team is seeking documents—including government interview notes with two key witnesses—from the U.S. Securities and Exchange Commission.
The SEC identified 114 sets of notes responsive to the law firm’s Freedom of Information Act request. The agency refused to turn over the notes, calling them inter-agency or intra-agency communication. The SEC cited work-product and deliberative process privileges in arguing the notes are confidential.
Forbes’ lawyers contend the SEC waived the work-product privilege, a doctrine that protects material prepared in anticipation of litigation or for trial, because the agency turned over 11 of the 114 sets of notes during the criminal trial.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled today that an agency has no obligation to turn over documents when another officer has given up the same information already.
Writing for the panel, Senior Judge A. Raymond Randolph said the SEC did not waive work-product protection for the remaining set of 103 notes. (Randolph heard the case with now-Senior Judge Douglas Ginsburg and Senior Judge Harry Edwards.)
The Justice Department’s decision in the Forbes prosecution to turn over 11 sets of notes “has no bearing on whether FOIA permits the SEC to withhold the remaining 103 documents,” Randolph said. “In criminal trials, evidentiary privileges may give way for any number of reasons.”
The panel judges said “Williams & Connolly never provides us with a persuasive reason why the disclosure of documents by one government agency waives work product protection for other documents held by another government agency.”
Williams & Connolly also unsuccessfully argued that U.S. District Judge Judge Colleen Kollar-Kotelly should at least have looked at the documents in chambers to determine whether Forbes should receive the information.
Randolph said “requiring agencies and courts to explore the requester’s circumstances and review documents accordingly would create an administrative nightmare.”
“It does not matter why the requester seeks the information, what the requester plans to do with it, or what harm the requester might suffer from not getting the information,” Randolph said.
Williams & Connolly associate Simon Latcovich, who was on the defense team that represented the late Alaska Senator Ted Stevens, argued for Forbes. Assistant U.S. Attorney Michelle Lo argued for the SEC.