Monday, April 5, 2004
‘Daubert’ and the Rise of the Valuation Expert
Use of Financial Testimony in Complex Corporate and Securities Cases Requires Scrutiny
BY ROBERT J.A. ZITO
HERE IS an old story in which
a lawyer asks a potential
expert, “How much is two plus
two?” Eager to get the engagement, the expert replies, “How
much do you want it to be?”
In the maze of valuation evidence, it is often difficult to determine which evidence is reliable and which is not. Numbers,
accounting and valuation principles are often mystifying to the bench and bar. To a jury, they can be
downright incomprehensible without the guidance
of expert interpretation. In Daubert v. Merrell Dow
Pharms., Inc.1 the U.S. Supreme Court wisely noted
that “expert evidence can be both powerful and
quite misleading because of the difficulty in evaluating it.”2
In this age of ever-changing technology and everincreasing sources of information, society is becoming saturated with so-called “experts.” In the area
of asset and business valuation, there is an increasing number of experts who purport to be able to
value assets and interests in private companies and
calculate damages from the lack of disclosure. Valuation testimony is often offered in cases dealing
with stockholder freeze-outs, stockholder appraisal proceedings, proxy and takeover contests, dissolutions, federal estate tax proceedings in the tax
court and various kinds of bankruptcy proceedings. This article will discuss the standard laid out
by Daubert, as applied to valuation testimony.
Valuation Concepts
Many concepts in accounting and valuation
analysis are counterintuitive. For example, a balance sheet for a company will necessarily reflect
the so-called “book value” or “shareholders’ equity” of the company. Book value is simply the company’s assets minus its debts. While balance sheets
are prepared by accountants, most accountants
will concede that the book value or shareholders’
equity has little to do with the true value of either
a private or public company, let alone the ownership interests in the company. In the case of public companies, stock prices are determined by the
organized stock markets, although such does not
necessarily reflect the value of the company as a
whole or the company’s various assets. Private
companies, on the other hand, rarely have an
organized market for their ownership interests,
whether they be stock, partnership interests or
limited liability membership units. As a result, their
valuation is a challenging exercise.
The balance sheet itself is often a confusing doc-
The Role of National Coordination Counsel
BY WILLIAM H. VOTH ..........................................................................................................................................................................................................S3
Disclosure of Protected Health Information for Legal Proceedings
BY LINDA MALEK AND STACEY GOLDSTON ....................................................................................................................................................................S4
Continued on page S12
Applying Privilege to Regulatory Investigations
Robert J.A. Zito is a litigation partner at Schiff
Hardin. William P. Scott, a litigation associate at
the firm, assisted in the preparation of this article.
Both are resident in the New York office.
BY JAMES R. WARNOT JR., DIANA GOOD, PATRICK BOYLAN AND ANDREA FORT ................................................................................................S5
CLASSIFIEDS ........................................................................................................................................................................................................................S15
Monday, April 5, 2004
NEW YORK LAW JOURNAL
S5
Applying Privilege to Regulatory Investigations
Developments in the UK Highlight Variations With U.S. Over Protection of Communications
BY JAMES R. WARNOT JR.,
DIANA GOOD, PATRICK BOYLAN
AND ANDREA FORT
ECAUSE OF THE shared
origins and many similarities between the U.S. and
UK legal systems, there is
a common perception
that the laws on attorneyclient privilege and work
product protection in the two jurisdictions
are broadly similar and cover the same
types of communications. While this may
be true in a very general sense, companies
operating in both jurisdictions need to be
aware of the significant differences in this
area of law. This is particularly true following recent judgments of the Court of
Appeal in London indicating that the availability of privileges may be increasingly
limited, particularly in the context of regulatory investigations.
Overview of the Two Privileges
In the U.S., the attorney-client privilege protects confidential communications between an attorney and client
made in the course of legal representation. The privilege applies equally to outside and in-house counsel when
providing legal advice, though communications by in-house counsel acting in
a business advisory role will not be protected.1 The attorney-client privilege is
exceedingly broad and covers all confidential communications between an
attorney and her client.
The work product doctrine is broader
in certain respects and can be used to prevent disclosure of documents and tangible things prepared in anticipation of
litigation by a party or a party’s representative. The classic example is an attorney’s notes of his interview with a witness,
which was the scenario in which the U.S.
Supreme Court established the work product doctrine in Hickman v. Taylor.2 “Fact
work product,” materials including an
attorney’s organization of factual material, interview notes, and the like, may be
discoverable if a party shows a substantial need for the materials and cannot procure them elsewhere without undue
hardship.3
“Opinion work product,” an attorney’s
mental impressions and opinions, is generally protected without limitation, however.4 Litigation need not have actually
been commenced in order for work product protection to apply, as long as it was
reasonable to believe that litigation was a
reasonable possibility.5 In the U.S., it is presumed that both attorney-client privilege
and work product protection are available
in regulatory investigations, although
there is tremendous pressure by the regulators to waive privileges.
James R. Warnot Jr. is a partner in the
Litigation Department in the New York
office of Linklaters, and Diana Good is a
partner in the Litigation Department in the
firm’s London office. Patrick Boylan
and Andrea Fort are associates in the
firm’s London and New York offices,
respectively.
In the UK, the work product and attorney-client privileges are known as litigation and legal advice privilege,
respectively. Litigation privilege applies
to documents and other communications
created for the purpose of obtaining legal
advice or gathering evidence in connection with litigation proceedings. Whether
litigation privilege may be asserted in regulatory investigations is unclear, and until
case law is created on this point there
remains doubt that this will be the case.
In 1997, the House of Lords, England’s
highest court, in a family law case found
that litigation privilege was an essential
part of adversarial litigation procedure
because it afforded protection to both
sides.6 The Lords further stated that the
notion of a fair trial between opposing parties will assume far less importance in pro-
ceedings that are primarily non-adversarial and investigative. In light of this language, there is a risk that litigation
privilege may eventually be held not to
extend to regulatory or other types of
inquisitorial investigations.
Two recent decisions by the English
Court of Appeal7 have significantly
Continued on page S10
S10
NEW YORK LAW JOURNAL
Monday, April 5, 2004
Privilege Issues in UK and U.S.
Continued from page S5
reduced the scope of legal advice privilege. Until these decisions, the general
view in the UK, as is the case here, was
that legal advice privilege extended to all
communications between lawyer and
client relating to matters within the ordinary scope of the lawyer/client relationship, as well as to documents created by
the client (but not a third party) for assisting in the giving or receiving of legal
advice. This included materials prepared
by employees of corporate clients that are
intended to provide information necessary for the lawyers to conduct their work.
The previous view concerning the similarity between the systems no longer
holds following the recent decisions by
the Court of Appeal in the case known as
Three Rivers.
The ‘Three Rivers’ Decisions
Three Rivers arose from the collapse of
the Bank of Credit & Commerce International (BCCI). The UK government established a non-statutory board of inquiry,
led by Lord Justice Bingham, to investigate the collapse of BCCI and to provide
recommendations on the future regulation
of the financial sector. This type of inquiry
is distinct from a regulatory investigation
required or permitted by statute. The
Bank of England, the central bank of the
UK, retained outside lawyers to assist it in
the inquiry and established a three-member group of employees known as the
Bingham Inquiry Unit (BIU) to be the primary liaison with these lawyers.
BCCI’s liquidators and various creditors, including the named plaintiffs, subsequently brought a lawsuit against the
Bank of England for misfeasance in public office in its role as BCCI’s regulator.
The plaintiffs sought discovery of
numerous categories of documents prepared in connection with the Bingham
inquiry, although they did not seek communications between the BIU and outside counsel. The defendants accepted
that litigation privilege was not applicable and relied only on legal advice
privilege. The disputed categories of
documents were those prepared by current and former Bank employees with
the intention that they be provided to
outside counsel. In its April 2003 decision, 8 the Court of Appeal ruled that
none of the disputed documents were
privileged. The holding of the court was
that legal advice privilege covers only
communications between a client and
its lawyer for the purpose of obtaining
legal advice. This in itself is not particularly controversial.
In applying this ruling, however, the
court held that only the BIU was the
client for purposes of the privilege, and
therefore found that documents produced by other Bank employees were
not privileged. As to communications
between the clients (the BIU in this
case) and lawyer, the Court of Appeal
accepted the broader definition of com-
munication that it set forth in an earlier case in 1988, Balabel v. Air India.9 In
that case, the court held that the protection afforded to communications
extended not only to the actual communications containing or seeking legal
advice, but also to preparatory and
other documents which came within the
necessary “continuum of communication” between lawyer and client.
Under this reasoning, once the client
is properly identified, any necessary
preparatory documents created by that
client should be privileged. However, the
classes of documents that the Court of
Appeal ordered to be disclosed also
included documents created by the BIU,
as well as documents created by other
Bank of England employees. No discussion or guidance was provided by the
Court of Appeal as to why BIU-generated preparatory documents, were not
privileged. Moreover, in rejecting privilege for documents created by other
Bank employees based on 19th-century
authority,10 the court rejected the argument that corporations act only through
their employees. It is difficult to reconcile the court’s holding with the realities
of modern business practice. Despite
Balabel, which has not been overruled,
there is now uncertainty as to which
client-generated preparatory documents
will attract privilege.
The first Three Rivers judgment contained dicta that the dominant purpose of
the disputed documents was not to obtain
legal advice but to assist outside counsel
in crafting the Bank’s presentation to the
inquiry. Emboldened by this dicta , BCCI’s
liquidators subsequently sought disclosure of communications passing between
the BIU and outside counsel. In its most
recent Three Rivers decision on March 1,
2004, the Court of Appeal held that those
communications were not privileged
either because they were communications
prepared for the dominant purpose of giving presentational advice, rather than legal
advice.11 Moreover, in the penultimate
paragraph of its judgment the court suggested that attorney-client communications should not be privileged at all unless
litigation is anticipated, and suggested
that the British Law Reform Committee
should consider this issue.
The end result of the Three Rivers decisions is significant uncertainty as to the
scope of legal advice privilege and certainly a reduction in that scope. There
have been suggestions that the limitations
imposed on the identity of the client for
privilege purposes can be remedied by a
broad definition in an engagement letter.
It is uncertain, however, whether the
courts will follow that definition or instead
restrict “clients” for purposes of the privilege to those employees dealing directly
with outside lawyers. Moreover, the
court’s decisions require line-drawing
between “presentational” advice and
advice on rights and obligations. The location of that line, which will be determined
subsequently by courts, is not at all clear.
The effects of this new restrictive
NEW YORK LAW JOURNAL
Monday, April 5, 2004
approach as to what constitutes legal
advice are already being felt. In a subsequent judgment in USA v. Philip Morris,
handed down last month, on March 23,12
the Court of Appeal has ordered that an
English lawyer answer questions on document retention advice he gave to a tobacco company. The court accepted that
advice on the law relating to privilege or
disclosure of documents would probably
be privileged, but that advice on the practical aspects of a document retention policy might not amount to advice
concerning legal rights and obligations.
With that guidance, the court ordered the
testimony to proceed. Finally, should the
Law Reform Committee be called on to
examine this area and should it subsequently accept the court’s invitation to
exclude from the privilege advice on transactions, attorneys and clients will have to
re-examine the way they have ordered
their affairs for centuries.
Three Rivers and the following judgment
in Philip Morris create significant problems
for companies operating in England. These
problems are not necessarily confined
within the borders of the UK, given the differing rules on privilege waiver.
Cross-Border Implications
In the UK, selective waiver will generally not result in loss of the privilege as to
other parties provided that the document
has not entered the public domain and
remains confidential. Thus, disclosure in
a confidential regulatory investigation or
under confidentiality provisions in civil litigation does not lead to a generalized loss
of the privilege. This is not the case in the
U.S., however. The majority view is that
disclosure of a single privileged document
to third parties, including regulators,
results in a complete loss of privilege as
to the entire subject matter of the privileged documents.13 As a result, disclosure
of privileged documents in the UK, either
compelled or otherwise, will likely lead to
subject matter waiver in the U.S.
This problem is compounded by the
self-reporting duties of companies under
the UK financial regulatory regime, which
are understood to be broader than in the
U.S. While financial services firms in the
U.S. have similar obligations, UK requirements are principles-based (as opposed
to rules-based in the U.S.), and are deliberately worded very broadly in order to
place the onus on the firms involved to
report any facts that regulators may in retrospect believe to be material. For example, the Financial Services Authority (FSA)
Principle 11 states: “a firm must deal with
its regulators in an open and co-operative
way, and must disclose to the FSA anything relating to the firm of which the FSA
would reasonably expect notice.” The
FSA’s Supervision Manual likewise provides that a firm must notify the FSA of any
matter which could have a significant
adverse impact on the firm’s reputation,
which “has occurred, may have occurred
or may occur in the foreseeable future.”
This broad self-reporting obligation
may result in large numbers of documents
and other privileged information being voluntarily provided to the FSA as a means
of demonstrating cooperation, although
there is no obligation to make disclosure,
with the resulting loss of privilege in the
U.S. Moreover, it would then be open to
FSA in many circumstances to provide
such information to the Securities and
Exchange Commission (SEC) and other
U.S. regulators through various existing
mechanisms. This could be done either at
SEC’s request or on FSA’s own instigation.
For international investment banks or
other international financial institutions
that are subject to both SEC and FSA’s
regulatory regime, this opens up the possibility of regulatory “arbitrage” by the
regulators themselves. Thus, the SEC
may take the opportunity to exploit the
arguably wider disclosure obligations
applicable in the UK by making requests
for assistance to the FSA, which in turn
may urge firms to provide full cooperation and assistance and make voluntary
disclosure of all relevant material, which
might then be turned over to the SEC by
the FSA. Recent cross-border issues such
as analysts’ conflicts, IPO market abuses (spinning, laddering etc.) and more
recently market-timing and mutual fund
abusive practices have all exposed the
potential for exploitation of any regulatory imbalance.
The practical implications of this regulatory imbalance may not be as severe as
appears at first blush. That is because in
the U.S., the availability of privileges in
practice is increasingly uncertain once a
company becomes the subject of a regulatory investigation. Following the rash of
financial scandals that began with the collapse of Enron, U.S. regulators have been
increasingly zealous in carrying out their
mandates, and the fines and civil penalties
imposed
have
dramatically
increased.14 Given the potentially harsh
consequences, companies coming under
regulatory scrutiny may find it in their
best interests to cooperate with regulators to the greatest extent possible.
According to regulators, an important
part of cooperation is the waiver of privileges. In 2001 the SEC announced in the
Seaboard case that cooperation, including
the waiver of privileges, would be a significant factor in settling charges.15 The
Department of Justice has also circulated
a document known as the Thompson
memorandum, explicitly listing waiver of
privileges as an element of cooperation in
its guidelines for prosecutors.16 The result
is that companies under investigation by
U.S. authorities are now finding themselves in the uncomfortable position of
choosing between potential disclosure of
sensitive materials to third parties in civil
litigation and an assertion that the company failed to cooperate with regulators.
While SEC has asserted that confidential
disclosures to it do not effect a general
subject matter waiver, the courts have not
yet accepted this view.17
Conclusion
In order to preserve privilege, it is no
longer sufficient simply to ensure that the
corporate client is properly identified and
Continued on page S15
S11
NEW YORK LAW JOURNAL
Monday, April 5, 2004
Attorney-Client
Classified
Advertising
Continued from page S11
Coordination
Continued from page S9
issues in the cases, and the lines of questions that have been used should be in
a better position to prepare and represent the witnesses than counsel who has
a more limited involvement in a particular case or jurisdiction. Having the
same counsel represent witnesses who
are deposed multiple times may create
a rapport that makes the deposition
process smoother and the witness more
comfortable. Coordination counsel may
also be able to work with multiple plaintiffs’ counsel to notice and schedule
depositions to limit the number of times
a witness has to testify and reduce
inconvenience.
Depositions under Fed. R. Civ.
P. 30(b)(6) or state law equivalents present additional challenges that require a
coordinated response in multiple litigations. Rule 30(b)(6) deposition notices
frequently demand that a company designate a witness or witnesses to testify
on its behalf concerning numerous broad
subjects. Frequently, these subjects are
of dubious relevance, are described in
vague or argumentative terms or are
directed to litigation contentions and
anticipated trial proof. Coordination
counsel can be helpful in negotiating limitations and clarifications of the notice
and, where necessary, litigating motions
for protective orders that are consistent
from case to case.
Rule 30(b)(6) deposition notices in
major litigations sometimes also seek
testimony on historical matters as to
which no current employee has personal knowledge. Nonetheless, some courts
have said that a company must designate a witness to testify on “matters
known or reasonably available to the
organization.” This has been interpreted
to require that the designee be prepared
on those issues through documents the
witness has never seen, conversations
with former employees or third parties,
and whatever other sources of information might exist. If the preparation and
testimony are later deemed inadequate,
sanctions may be imposed, including an
order precluding the party from offering
evidence at trial on the subject. In such
circumstances, there are clear benefits
to a single counsel being responsible for
the difficult tasks of identifying the
appropriate designee, determining what
materials are available and should be
used in the preparation, and working
with the designee to assure adequate
preparation and testimony that is consistent with the unusual role the witness
is called to play.
that the communications or documents
sought to be protected meet the basic criteria for asserting the doctrines. In the UK,
companies should seek to ensure that
communications clearly relate to legal
rights and obligations to the greatest
extent possible in order to prevent a Three
Rivers result.
Clients may also opt not to reduce
strategic or arguably “presentational”
advice to writing. Companies with operations in both the U.S. and UK should
ensure that disclosure to regulators is
made on as limited a basis as possible to
prevent privileges being deemed waived
in potential U.S. proceedings. In the U.S.,
companies should carefully reflect on the
potential advantages and disadvantages
of the waiver of privileges as they proceed
with internal investigations, since regulators are unlikely to soften their views on
cooperation in the near future.
The future of legal advice privilege in
the UK is quite uncertain. The Bank of England has indicated that it will attempt to
appeal the latest Three Rivers judgment to
the House of Lords, but that application
is uncertain. Moreover, it is uncertain
whether the Law Reform Committee, if it
reviewed the law in this area, would
accept the Court of Appeal’s invitation to
radically restrict the privilege. Although it
is certainly evident to practitioners both
here and in England, the Court of Appeal
in Three Rivers stated that outside the context of litigation, “it was not easy to see
why” communications between lawyer
and client should be privileged.
••••••••••••••
•••••••••••••••••
(1) Georgia-Pacific Corp. v. GAF Roofing Mfg Corp.,
93 Civ. 5125, 1996 U.S. Distr. LEXIS 671 (S.D.N.Y. Jan.
24, 1996).
(2) 329 U.S. 495 (1947).
(3) Fed. R. Civ. P. 26(b)(3).
(4) Id.
(5) See In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir.
1998).
(6) Re L (a minor) [1997] AC 16.
(7) In England and Wales, the Court of Appeal is the
nationwide intermediate appellate court, and as a
result, the Court of Appeal establishes the law of the
land until such time as the House of Lords considers
an issue.
(8) Three Rivers District Council and others v. The
Governor and Company of the Bank of England (No.5)
[2003] QB1556.
(9) Balabel v. Air India [1988] Ch 317.
(10) Greenough v. Gaskell (1833) 1 My & K 98;
Anderson v. Bank of British Columbia (1876) 2 Ch D
644; Southwark and Vauxhall Water Company v. Quick
(1878) 3 QBD 315; Wheeler v. Le Marchant (1881)
17 Ch D 675.
(11) Three Rivers District Council and others v. The
Governor and Company of the Bank of England [2004]
EWCA Civ 218.
(12) USA v. Philip Morris, BAT & Others [2004] EWCA
Civ 336.
(13) See, e.g., In re Steinhardt Partners L.P., 9 F.3d 230
(2d Cir. 1993). There is a minority view to the contrary,
but it should not be relied upon. See Diversified Industries v. Meredith, 572 F.2d 596 (8th Cir. 1998).
(14) Bank of America recently agreed to a $675 million settlement in relation to charges involving afterhours trading in its mutual funds. See “The Fund
Scandal’s Biggest Payout,” Wall. St. J., March 16, 2004,
at C1.
(15) Securities Exchange Act of 1934 Rel. No. 44969
(Oct. 23, 2001), Accounting and Auditing Enforcement Rel. No. 1470, Report of the Investigation Pursuant to Section 21(a) of the Securities Exchange Act
of 1934 and Commission Statement on the Relationship of Cooperation to Agency Decisions.
(16) Memorandum from Deputy Attorney General Larry D. Thompson: Principles of Federal
Prosecution of Business Organizations (Jan. 20,
2003).
(17) Brief of the U.S. Securities and Exchange Commission, McKesson HBOC, Inc. v. Adler, No. 99-C-79903 (Ga. Ct. App. filed May 13, 2001).
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