Professional Documents
Culture Documents
Petitioner,
MISCELLANEOUS
v. PROCEEDING NO. _ __
"i~\<b """"c.. \.0~\ 1.5' ~(\
OFFICE OF THE INSPECTOR GENERAL
FEDERAL HOUSING FINANCE AGENCY,
Respondent.
--~--------------------------~/
UNOPPOSED MOTION OF PETITIONER FOR PROTECTIVE ORDER
"Petitioner"), by and through its undersigned counsel, moves the Court for a protective order
with respect to a November 17, 2017, subpoena duces tecum and a subsequent, nearly
identical September 6, 2018, subpoena duces tecum 1 (the "Subpoenas") issued to ALAW by
the Office of the Inspector General, Federal Housing Finance Agency in conjunction with the
Inspector General, U.S. Department of Housing and Urban Development (together, "the
Government"), pursuant to 5 U.S.C. App. 3 §6(a)(4) of the Inspector General Act of 1978
1 The Government has served two subpoenas -- one on November 17, 2017, and a nearly identical
subpoena on September 6, 2018. The September 6, 2018, subpoena replaced the original subpoena
because the parties agreed that the subpoena should include a certificate of compliance with the Right
to Financial Privacy Act pursuant to 12 U.S.C. §§34012-3422. The proposed order submitted
herewith applies to any production made by ALA W in response to either subpoena.
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As detailed below, the Subpoenas seek, inter alia, communications between ALAW,
a law firm practicing in Florida, and some of its clients which, though not privileged, 2 are
confidential and protected from disclosure by Florida Bar Rule of Professional Conduct 4-1.6
absent a protective order. 3 In lieu of a motion to quash, ALA W seeks a protective order that
maintains the confidentiality of these responsive documents that are subject to Rule 4-1.6.
In addition, ALA W seeks the entry of an order pursuant to Fed. R. Evid. 502( d) that
protects against a waiver of attorney-client and work product privileges with regard to any
documents produced by ALA W in response to the Subpoenas. Kyle S. Cohen, the Assistant
United States Attorney for the Middle District of Florida, who is representing the
Government with respect to the Subpoenas, does not oppose this Motion or the entry of the
protective order attached hereto as Exhibit A. For these reasons, and as more fully explained
below, the Court should grant this motion and enter the attached protective order.
JURISDICTION
The Court has subject matter jurisdiction over this motion. The Government issued
the administrative Subpoenas pursuant to 5 U.S.C. App. 3 §6(a)(4) of the IG Act. The IG
Act specifically provides that subpoenas issued pursuant to it are "enforceable by order of
2 The requests in the Subpoenas encompass documents and data of ALA W and its clients which are
protected by the attorney-client and work product privileges. ALA W will withhold documents and
data that are subject to a privilege or work product doctrine and will provide the Government with a
privilege log in the format required by Fed. R. Civ. P. 26. This Motion also addresses those
documents which, though not technically subject to the attorney client privilege or work product
doctrine, are nonetheless entitled to protection pursuant to the applicable Florida Bar Rule of
Professional Conduct.
3 The Comment to Florida Bar Rule of Professional Conduct 4-1.6 contemplates that a protective
order such as that ALA W seeks herein is required to protect client confidences: " ... appropriate
protective orders or other arrangements should be sought by the lawyer to the fullest extent
practicable."
2
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any appropriate United States District Court." 5 U.S.C. App. 3 §6(a)(4). Thus, this Court
has jurisdiction to enforce the Subpoenas by upholding them, quashing them or modifying
them. Greene v. Philadelphia Housing Auth., 789 F. Supp. 582, 586, n. 1, 3, 4 (E.D. Pa.
2011) (plaintiff has standing to move to quash HUD administrative subpoena pursuant to
Fed. R. Civ. P. 45, as applicable to administrative agencies through Fed. R. Civ. P. 81(a)(5),
and court has jurisdiction to consider "free-standing" motion to quash subpoena under 5
U.S.C. App. 3 §6(a)(4)); Territorial Ct. ofV.l v. Richards, 847 F. 2d 108, 109 (3d Cir. 1988)
(district court has jurisdiction to enforce administrative subpoena); see also United States v.
Lilburn Geriatric Center, Inc., Civ. Action No. 1:03-CV-1517-JEC, 2003 WL 27381235, *1-
2 (N.D. Ga. Sept. 23, 2003) (deciding case which is before the court on petitioner's motion to
same).
Indeed, the Greene court dealt with the exact jurisdictional issue raised by this matter.
In Greene, HUD issued an administrative subpoena duces tecum to the Philadelphia Housing
Authority ("PHA") seeking unredacted invoices for certain legal expenses incurred by PHA
to investigate whether Carl Greene, the Executive Director of PHA, authorized payment of
legal services for personal legal services. Greene, 789 F. Supp. at 584. Greene filed a
motion for a temporary restraining order to enjoin PHA from producing unredacted legal
invoices that might include notes from meetings with counsel. !d. The Court held that it did
not have jurisdiction over a TRO action because the complaint did not raise a federal
question. !d. at 584-85. The Court determined, nonetheless, to "frame Greene's case as a
motion to quash" the subpoena because the Court did have jurisdiction "to consider whether
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to quash or modify the HUD subpoena." Id at 584, 586. In finding that it had jurisdiction
over a motion to quash or modify the HUD administrative subpoena, the court specifically
cited to the IG Act provision that subpoenas issued under it are "enforceable by order of any
Thus, like the court in Greene, this Court has jurisdiction over this motion, which is
essentially an unopposed motion for a protective order in lieu of a motion to quash the
Subpoenas. Here, ALAW has informed the Government that it cannot produce certain
subject to Rule 4-1.6 and (ii) a protective order entered pursuant to Rule 502(d). Absent such
protections, ALAW would have no option but to move to quash the Subpoenas.
FACTUAL BACKGROUND
ALAW is a full-service real estate law firm headquartered in Tampa, Florida. By the
Subpoenas, the Government seeks certain categories of documents and information from
ALAW, a law firm, and its clients, which, even though they may not be privileged, they are
confidential and protected from disclosure by Rule 4-1.6, and (ii) information covered by the
To protect ALAW from violating Rule 4-1.6, ALAW seeks entry of a protective
order in the form attached as Exhibit A hereto. Further, because ALAW is a law firm, there
the responsive documents are either privileged or they contain information protected by the
attorney-client privilege and the work-product doctrine. Therefore, the parties have agreed
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that there is a need for the Court to enter a protective order under Rule 502(d) in the form
MEMORANDUM OF LAW
a lawyer obtains during the representation of a client. The rule provides that except for
certain specified situations, "[a] lawyer must not reveal information relating to representation
of a client ... unless the client gives informed consent." Rule 4-1.6(a) Further, under
Rule 4-1.6(e) and (f), "[a] lawyer must make reasonable efforts to prevent the inadvertent or
representation of a client" and "[w]hen disclosure is mandated or permitted, the lawyer must
disclose no more information than is required to meet the requirements or accomplish the
purposes of this rule." Moreover, the comment to the rule shows an intent to apply the rule
broadly: the "confidentiality rule applies not merely to matters communicated in confidence
by the client but also to information relating to the representation, whatever its source."
Here, the Subpoenas seek documents, ESI or information that ALA W obtained during
its representation of certain of its clients. Some of this information, although not privileged,
is confidential to ALAW's clients and is covered by Florida Bar Rule 4-1.6. The Comment
to Rule 4-1.6 provides that" ... appropriate protective orders or other arrangements should
be sought by the lawyer to the fullest extent practicable." Therefore, ALAW seeks entry of
the protective order attached as Exhibit A hereto to protect ALA W from violating Rule 4-1.6.
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II. ALAW Requires Entry of a Protective Order Under Fed. R. Evid. 502(d)
Upon entry of an appropriate order by the Court, Fed. R. Evid. 502(d) may be
invoked to protect against the waiver of privilege protected by the attorney-client privilege or
that "[a] federal court may order that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court - in which event the disclosure is also
not a waiver in any other federal or state proceeding." Fed. R. Evid. 502(d); see also
Tracfone Wireless, Inc. v. Simply Wireless, Inc. et al., Case No. 1:15-cv-24565, 2016 WL
4581320, *4-5 (S.D. Fla. Aug. 16, 2016) (entering 502(d) order); Pragmatus AV, LLC v.
Citrix Sys., Inc., No. 11-cv-62484, 2012 WL 12094515, *10 (S.D. Fla., Jul. 18, 2012).
Federal courts routinely enter such orders upon request of the parties. See e.g., Sankar v.
Napleton's Palm Beach Imports, LLC, No. 16-cv-80129, 2016 WL 528466, *1 (S.D. Fla.,
Feb. 0, 2016); Rudolph v. Correct Care Solutions, LLC, No. 5:15-cv-317, 2016 WL 1104612,
Thus, because ALA W is a law firm, there is an increased risk of the inadvertent or
protective order under Rule 502(d) in the form attached hereto as Exhibit A.
CONCLUSION
Therefore, for the reasons set forth herein, the parties respectfully request that the
Court enter an order pursuant to Rule 502(d) in the form attached hereto as Exhibit A.
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Pursuant to Local Rule 3.01(g), the undersigned certifies that counsel for the movant
has conferred with Kyle S. Cohen, the United States Attorney for the Middle District of
Florida, who is representing the Government with respect to the Subpoenas, and who
informed the undersigned that the Respondent is unopposed to the relief sought herein and is
Respectfully submitted,
PHELPS DUNBAR LLP
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 1Oth day of December, 2018, I electronically filed
the foregoing with the Clerk of the Court using the CM/ECF system which will provide
electronic service on Kyle S. Cohen, Esq., Assistant United States Attorney for the Middle
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District of Florida, Civil Division, Kyle.Cohen@usdoj.gov; Special Agent Jamila Davis, U.S.
8
PD.25014976.1
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