Failure To Specify Attorney's Role In Internal Investigation Could Cost You The Attorney-Client and Attorney Work-Product Privileges


Recently, in HSBC Guyerzeller Bank AG v. Chascona N.V. et al., Index No. 114705/2003 (Sup. Ct., NY County, June 23, 2010) ("Guyerzeller"), Justice Bernard J. Fried held that the attorney-client and attorney work product privileges did not shield from discovery documents created and maintained by an attorney acting as an investigator.

Seeking to foreclose on Manhattan’s Gorham Hotel, Plaintiff HSBC Guyerzeller Bank AG ("Guyerzeller") initiated the action in 2003. The Hotel was owned by defendants Chascona N.V. ("Chascona") and Mora Hotel Corp. N. V. ("Mora").

Defendants CIBC Mellon Trust Company and Chrysler Canada Inc. (together, "Chrysler") were judgment creditors of Chascona and Mora, and claimed that the mortgage fraudulently and inequitably encumbered the Gorham Hotel, in that it concealed the fruits of an earlier fraud (the "Castor Fraud") committed by Chascona and Mora, shielding their ill-gotten assets from creditors. Chrysler based its contentions on the results of an investigation of the Castor Fraud conducted by Herbert Schectman. Schectman was a vice president at Chrysler, but also an attorney. Claiming attorney-client privilege and attorney work-product, Chrysler refused to produce some 40 boxes of documents Schectman had retained over the course of his investigation (the "Investigation Documents"), and would not permit Schectman to testify in response to questions regarding the investigation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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