Document Dispute in Armstrong Litigation Raises Privilege and Burden Concerns for Defendants’ Prior Counsel

Posted by Kristin Graham Koehler, Monica Groat, and Hilary Hoffman (Summer Associate)

In June 2010, relator Floyd Landis (Lance Armstrong’s former cycling teammate) brought a False Claims Act lawsuit against Armstrong, Armstrong’s agents Capital Sports and Entertainment Holdings Inc. (CSE), and Tailwind, Armstrong’s former employer. We have previously discussed the Armstrong litigation on this blog here, here, here, here, and here.

On May 8, 2015, Landis subpoenaed communications among Armstrong, CSE, and Armstrong’s former attorneys, Williams & Connolly, LLP, and, on June 9, 2015, Landis filed a motion compelling Williams & Connolly to comply with the subpoena. Landis asserted that the requested communications between Williams & Connolly are not protected by the attorney-client privilege because: (1) they are subject to the crime-fraud exception; and/or (2) they were made for the purpose of lobbying and other non-privileged purposes. First, Landis argued that the crime-fraud exception applies because the communications among Armstrong, CSE, and Williams & Connolly were “in furtherance of a crime, fraud, or other misconduct.” He alleged that Armstrong used Williams & Connolly to make false statements on his behalf in warding off missed drug-test sanctions, successfully arbitrating a $7.5 million bonus that SCA Promotions, Inc. previously withheld from Armstrong after he won the 2004 Tour de France, and in formulating the Vrijman Report. (This Report established that the laboratory where Armstrong tested positive for performance enhancing substances had used improper methods, and, therefore, these results “could not form the basis for any action by UCI against Armstrong.”)

Second, Landis asserted that communications between Williams & Connolly and CSE are not privileged because CSE was neither a client of Williams & Connolly nor an agent of Armstrong. Landis claimed that the need to obtain the documents from non-party Williams & Connolly, rather than defendant CSE, arose because, in January 2005, CSE destroyed potentially relevant documents. Finally, Landis asked the Court to review in camera the documents that Armstrong claims are unrelated to his use of performance enhancing substances, and Williams & Connolly to provide the documents directly to Landis, rather than to Armstrong’s current counsel.

On June 16, 2015, Armstrong filed his opposition to Landis’ motion, and Williams & Connolly filed their response. Armstrong argued that Landis’ subpoena is harassment and a “fishing expedition;” because Armstrong already has admitted to using performing enhancing substances and doping, the documents would not provide any probative information. Furthermore, he maintained that the crime-fraud exception does not apply because Landis fails to allege any specific crime or fraud, and that CSE is protected by the attorney-client privilege because CSE was acting as Armstrong’s agent. Finally, Armstrong asserted that Howry, Breen & Herman LLP, not Williams & Connolly, represented Armstrong in the SCA arbitration regarding his $7.5 million bonus, with Williams & Connolly only assisting in the cross-examination of an anti-doping expert.

Williams & Connolly responded and outlined the “‘Production Procedure’ that the firm intended to follow in responding to the Subpoena” – a procedure “recommended by the District of Columbia Rules of Professional Conduct in scenarios like this one,” and which dictates that Williams & Connolly should send all potentially relevant documents to Armstrong’s current counsel, who will determine which documents are privileged. Williams & Connolly maintained that this procedure is necessary in order to comply with its ethical obligations to Armstrong, its former client, and that the procedure appropriately limits its burden and expense.

On June 19, 2015, Landis replied to both Armstrong’s opposition and Williams & Connolly’s response, again arguing that the crime-fraud exception to the attorney-client privilege applies, and that the purpose of the subpoena was not to harass but rather, as stated in the prior motion to compel, to obtain documents from non-party Williams & Connolly because of CSE’s destruction of the potentially relevant documents.

This dispute illustrates the lengths that relators’ counsel will go to in order to obtain documents and the burden that can be imposed on defendants and their counsel. It also highlights the novel arguments advanced by Landis that the attorney-client privilege does not apply to the communications possessed by Armstrong’s former counsel because they were made for lobbying or other non-privileged purposes. We will continue to provide updates regarding this ongoing litigation.