Free Other Notice - District Court of Arizona - Arizona

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Susan Martin, Atty. No. 014226 Daniel L. Bonnett, Atty. No. 014127 Jennifer Kroll, Atty. No. 019859 Martin & Bonnett, P.L.L.C. 3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 Telephone: (602) 240-6900 [email protected] [email protected] [email protected] Attorneys for Plaintiffs Michael L. Banks, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] Howard Shapiro, Pro Hac Vice Robert W. Rachal, Pro Hac Vice PROSKAUER ROSE LLP 650 Poydras Street, Suite 1800 New Orleans, LA 70130 Telephone: (504) 310-4088 [email protected]

David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [email protected] [email protected] Amy Covert, Pro Hac Vice PROSKAUER ROSE LLP One Newark Center, 18th Floor Newark, NJ 07102 Telephone: (973) 274-3258 [email protected] Christopher Landau, P.C., Pro Hac Vice Craig S. Primis, P.C., Pro Hac Vice Michael F. Williams, Pro Hac Vice KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005-5793 Telephone: (202) 879-5000 [email protected] [email protected] [email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs, vs. Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.
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No. CV04-0424 PHX ROS

Joint Statement to the Court Regarding Dispute Over Assertion of Privilege At Depositions of Jack Gilmore and Paul Bielert

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Defendants Statement: Plaintiffs are asserting a meritless claim of privilege to block discovery into communications that relate to Defendants statute of limitations and laches defenses. In September 1999, at least three years before they retained their present counsel, a group of former Garrett employees tried to solicit a lawyer named Blair Brininger to bring their claims against Defendants. (Ex. A.) Mr. Brininger declined to take the case, however, in recognition that the statute of limitations would prevent the retirees from prevailing. (Ex. B.) After he turned down the case, the retirees broadly distributed these communications to numerous public and private agencies, including the DOL, the AARP, the IRS, and the PBGC, waiving any conceivable claim to privilege. (Ex. C.) Plaintiffs now belatedly (and wrongly) claim privilege over these documents. (Ex. D.) Because the documents containing confidential communications [were]

disclosed to third parties, the privileged status of the communications is lost. S. Union Co. v. Sw. Gas Corp., 205 F.R.D. 542, 548 (D. Ariz. 2002). The retirees copied and sent the communications to assorted non-lawyers for purposes that were completely unrelated to securing legal services. (Ex. C.) These documents were produced multiple times in this litigation (on three separate occasions by Plaintiffs (Ex. E), and by the DOL in response to Defendants FOIA request). Plaintiffs also failed to assert the privilege when the documents were used as exhibits in earlier depositions, (Ex. F), and did not dispute that privilege had been waived when the documents were publicly filed two years ago. (Ex. G.) Only now, to block prejudicial testimony about these communications, do Plaintiffs belatedly assert privilege, (Ex. D), and for the first time claim they were inadvertently produced. (Ex. H) Plaintiffs cannot overcome waiver by arguing that the governmental agencies or the AARP shared a common adversary interest with plaintiffs. See S. Union, 205 F.R.D. at 549 (disclosure to third party without common adversary interest waived privileged). At the time the communications were disclosed, none of the agencies were prosecuting, or even investigating, a claim against Defendants. See Reed v. Advocate
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Health Care, No. 06 C 3337, 2007 WL 2225901, at *2 (N.D. Ill. Aug. 1, 2007) (no common interest privilege where there was no evidence of even a governmental investigation of defendants let alone any litigation. ) (emphasis in original). In fact, retirees disclosed these communications in an (unsuccessful) attempt to instigate an investigation of the Defendant Plans. (Ex. C); Info. Res., Inc. v. Dun & Bradstreet Corp., 999 F. Supp. 591, 593 (S.D.N.Y. 1998) (Waiver results from the voluntary submission of material to a government agency to incite it to attack the informant s adversary. ). As such, the cases cited by Plaintiffs (addressing governmental entities suing on behalf of or concurrently with private citizens) are not remotely applicable here. Moreover, Plaintiffs argument that they cannot waive the privilege is beside the point because Messrs Gilmore and Bielert waived it themselves by disclosing the communications. Defendants therefore respectfully ask the Court to: (1) reject the claim of privilege; and (2) reopen the depositions of Messrs Gilmore and Bielert for one hour to allow questioning directed at the statute of limitations communications. Plaintiffs Statement. Defendants endeavor to pin their hopes on the remark of a lawyer consulted but not retained by 21 of the nearly 14,000 absent class members (on dates within the applicable six year statute of limitations), reveals the weakness of their claimed statute of limitations and laches defenses. The privilege was not waived by including the Brininger email in materials Messrs. Gilmore and Bielert sent to the DOL, IRS, PBGC and AARP seeking advice and legal assistance.2 (Exh. 1.) When Mr. Gilmore communicated with Mr. Brininger in 1999 he was not acting with the named Plaintiffs and did not even know 4 of the 6 named Plaintiffs. (Exh. 3.) Named Plaintiffs did not and could not waive absent class members' Bielert and Gilmore's privilege by not objecting to the email during the class certification briefing. Unlike Defendants cited case where the plaintiff sought to disadvantage a Plaintiffs voluntarily produced these absent class members for depositions under an agreement with Defendants. (Exh. 2.) 2 The AARP is an active litigant and amicus on behalf of retirees. (Exh. 4.)
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competitor, Info. Res., 999 F. Supp. at 593, Mr. Gilmore was seeking assistance and contrary to Defendants claims, the DOL did investigate. (Exhs. 5,6.) Each agency contacted by Mr. Gilmore shares a common interest with participants in ensuring compliance with the Internal Revenue Code and ERISA. In re Grand Jury Proceedings, 162 F.3d 554, 557 (9th Cir. 1998) (gov't stands in shoes of beneficiaries under ERISA). See, e.g., Robert E. Jones et. al., Rutter Group Practice Guide:

Federal Civil Trials and Evidence §8:3505 (2008) ("Common Interest" privilege applies where interests are identical, nature of interest is legal and communications are made in furtherance of legal objective). See also E.E.O.C. v. Int'l Profit Assoc., 206 F.R.D. 215, 219 (N.D.Ill. 2002) ("Communications between prospective class members and EEOC counsel and their agents are protected from disclosure "); United States ex. rel. Purcell v. MWI Corp., 299 F.R.D. 21, 26-27 (D.D.C. 2002). Inclusion of the Brininger email in the request for assistance from these agencies and AARP did not waive attorney client privilege. Further, use of the DOL materials by Defendants in named Plaintiff Allen's deposition conducted before the action was certified could not waive these absent class members' privilege. A third party cannot waive someone else's privilege. See Rutter's, supra, at §8:355; In re Teleglobe Comm. Corp., 493 F.3d 345, 363 (3d Cir. 2007) (a joint client may not "unilaterally waive the privilege as to any of the other joint clients"). Defendants' claim that objection should have been made earlier or that disclosure by Plaintiff Allen somehow relinquished Mr. Gilmore and Mr. Bielert's privilege is unsupported by any authority. In any event, any potential waiver was inadvertent and does not authorize broad discovery regarding absent class members' communications with another lawyer. In re von Bulow, 828 F.2d 94, 102 (2d Cir. 1987)( extrajudicial disclosure of an attorneyclient communication-one not subsequently used by the client in a judicial proceeding to his adversary's prejudice-does not waive the privilege as to the undisclosed portions of the communication. ). Because Plaintiffs do not rely on the communication, there are no fairness concerns that warrant further inquiry. Id.
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Respectfully submitted this 21st day of August, 2008.

KIRKLAND & ELLIS LLP By: s/Michael Williams Christopher Landau, P.C. Craig S. Primis, P.C. Michael F. Williams 655 Fifteenth Street, N.W. Washington, DC 20005-5793 David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Howard Shapiro Robert W. Rachal PROSKAUER ROSE LLP 650 Poydras Street, Suite 1800 New Orleans, LA 70112-4017 Amy Covert PROSKAUER ROSE LLP One Newark Center, 18th Floor Newark, NJ 07102-5211 Michael L. Banks MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendants MARTIN & BONNETT, P.L.L.C. By: s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer L. Kroll
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3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 (602) 240-6900 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on August 21, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794 Michael Banks Azeez Hayne Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Howard Shapiro Robert W. Rachal Proskauer Rose LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112 Amy Covert Proskauer Rose LLP One Newark Center, 18th Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Craig Primis Michael Williams Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants

s/Jennifer Kroll

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