United States District Court, D. Connecticut
RICHARD M. COAN et al., Plaintiffs,
SEAN DUNNE et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
Gayle Killilea, Mountbrook USA, LLC, Wahl, LLC, and TJD21,
LLC move to quash a subpoena served by plaintiff Trustee
Richard M. Coan on the law firm of Heagney Lennon & Slane
LLP (HLS). Defendants principally argue that the subpoena
improperly demands the production of privileged materials,
and the Trustee counters that the documents fall within the
scope of the crime-fraud exception. Because I conclude that
the Trustee has not established a sound basis for application
of the crime-fraud exception, I will grant defendants'
motion to quash to the extent that the subpoena demands
production of privileged information.
a financial fraud case that is related to bankruptcy
proceedings in Connecticut and the Republic of Ireland
involving real estate developer Sean Dunne. See Coan v.
Dunne, 2019 WL 302674, at *1-*2 (D. Conn. 2019)
(generally describing the history of this case). The law firm
of HLS is based in Greenwich, Connecticut, and represented
one or more of the defendants as counsel in connection with
the acquisition and conveyance of certain real estate
properties in Greenwich including properties at 22 Stillman
Lane and 42 Bote Road. An attorney from HLS acted as trustee
in both of those purchases. Doc. #244-2; Doc. #244-3. HLS
also incorporated defendant Wahl, LLC, which defendant
Killilea owns. Doc. #244-5. As trustee, HLS conveyed 22
Stillman Lane to Wahl. Doc. #244-5. HLS acted as authorized
signatory for Wahl when it issued a mortgage to Newinvest, a
nonparty to this suit that the Trustee alleges defendants
control. Doc. #244-6.
January 18, 2019, the Trustee served a subpoena on HLS
pursuant to Federal Rule of Civil Procedure 45. See
Doc. #205-1. The subpoena requests the production of 27
different categories of documents, including virtually all
communications between HLS and defendants, all documents
concerning the properties that are at the center of this
litigation, all documents concerning defendants'
finances, and all communications concerning defendants with
numerous third parties-including defendants' foreign
counsel. Doc. #205-1 at 11-13.
face, the subpoena demands the production of every single
attorney-client privileged communication between HLS and any
of the defendants. For one among many examples, Item #5 of
the subpoena demands the production of “[a]ll
directives and/or instructions made to you by Sean Dunne,
Gayle Killilea, John Dunne, or the Dunne Entities concerning
any business or financial transaction related thereto.”
Doc. #205-1 at 11. Similarly, Item #10 demands the production
of “[a]ll communications between you and Sean Dunne,
Gayle Killilea, John Dunne, or the Dunne Entities concerning
the Greenwich Properties, including, but not limited to,
emails, calendars, diaries, notes, reports, or memoranda
concerning or reflecting any conversation, telephone call, or
meeting of whatever kind between you and Dunne, Killilea,
John Dunne, and/or the Dunne Entities.” Ibid.
Many of the other requests demand
“communications” on varied subject matters
between defendants and their attorneys at HLS.
move to quash the subpoena principally on the ground that it
seeks privileged information and is unreasonably broad.
Although defendants also argue that the subpoena did not
provide a reasonable time for compliance, I understand this
objection to be moot insofar as it is represented that HLS
has produced nonprivileged documents. Doc. #244 at 4 n.3. As
to the privileged documents, the Trustee maintains that the
crime-fraud exception applies.
Federal Rule of Civil Procedure 45, the Court is required to
quash or modify a subpoena if the subpoena “requires
disclosure of privileged or other protected matter, if no
exception or waiver applies, ” or if the subpoena
“subjects a person to undue burden.” Fed.R.Civ.P.
45(d)(3)(A). In addition, under Rule 26, the Court has the
authority to “issue an order to protect a party or
person from annoyance, embarrassment, oppression, or
expense.” Fed.R.Civ.P. 26(c).
preliminary matter, the subpoena plainly requests information
protected by the attorney-client privilege and the
work-product privilege. The attorney-client privilege
protects communications (1) between a client and his or her
attorney, (2) that are intended to be, and in fact were, kept
confidential, (3) for the purpose of obtaining or providing
legal advice. See United States v. Krug, 868 F.3d
82, 86 (2d Cir. 2017). The work product privilege extends to
documents prepared by counsel in anticipation of litigation,
so that “a lawyer can prepare and develop legal
theories and strategy with an eye toward litigation, free
from unnecessary intrusion by his adversaries.”
Schaeffler v. United States, 806 F.3d 34, 43 (2d
Cir. 2015) (internal quotations omitted).
these privileges are subject to a “crime-fraud”
exception. See In re Richard Roe, Inc., 168 F.3d 69,
71 (2d Cir. 1999). “[A] party seeking to invoke the
crime-fraud exception must at least demonstrate that there is
probable cause to believe that a crime or fraud has been
attempted or committed and that the communications were in
furtherance thereof.” Id. at 70 (internal
Second Circuit has cautioned, “[g]iven that the
attorney-client privilege and work product immunity play a
critical role in our judicial system, ” the crime/fraud
and other exceptions “should not be framed so broadly
as to vitiate much of the protection they afford.”
Roe, 168 F.3d at 71. For this reason, the
crime/fraud exception “applies only when the
communications between the client and his lawyer further a
crime, fraud or other misconduct, ” and “[i]t
does not suffice that the communications may be related to a
crime, ” because “[t]o subject the
attorney-client communications to disclosure, they must
actually have been made with an intent to further an unlawful
act.” United States v. Jacobs, 117 F.3d 82, 88
(2d Cir. 1997), abrogated on other grounds by Loughrin v.
United States, 573 U.S. 351 (2014).
Trustee argues that the documents he seeks “were in
furtherance of the Dunnes' global scheme to hinder, delay
and defraud Debtor's creditors.” Doc. #244 at 2. To
support this sweeping claim, the Trustee devotes a total of
four pages to allegations of facts that are sometimes
supported by citations to primary source documents and
sometimes supported by no citation at all. Doc. #244 at 4-7.
The Trustee then confuses his presentation with some needless
repetition and a sprinkling of a few more facts and citations
in later parts of his memorandum. Doc. #244 at 11-14.
to the Trustee, one of the HLS lawyers (Thomas Heagney) took
title as trustee to the properties at 22 Stillman Lane and 42
Bote Road in January 2011, and then in May 2011 Heagney
conveyed the property to Wahl. Doc. #244 at 4-5. In August
2012, Heagney encumbered 22 Stillman Lane with a mortgage by
Newinvest, which was a purported third-party lender that
allegedly loaned funds to Wahl. Id. at 5. The
Trustee alleges that this mortgage was fraudulent, because
Gayle Killilea and John Dunne actually financed and