Jul 212015

Court Sides with Armstrong in Document Dispute Involving Defendants’ Prior Counsel

Kristin Graham Koehler, Monica Groat and Hilary Hoffman (Summer Associate)
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On July 13, 2015, the District Court for the District of Columbia sided with cyclist Lance Armstrong and his former attorneys, Williams & Connolly, LLP, in their efforts to oppose relator Floyd Landis’ attempt to compel Williams & Connolly to comply with a subpoena for communications among the firm, Armstrong, and Armstrong’s agents, Capital Sports and Entertainment Holdings Inc. (CSE).  A copy of the court’s order can be found here.

As previously discussed on this blog here, here, here, here,  here, and here, Landis (Armstrong’s former teammate) brought a False Claims Act lawsuit against Armstrong, CSE, and Armstrong’s former employer Tailwind in 2010.  On May 8, 2015, Landis subpoenaed communications among Armstrong, CSE, and Williams & Connolly, and, on June 9, 2015, he filed a motion compelling Williams & Connolly to comply with the subpoena.  Landis asserted three reasons why the attorney-client privilege should not apply to Williams & Connolly’s communications with Armstrong and CSE: (1) the applicability of the crime-fraud exception to attorney-client privilege; (2) the inapplicability of the privilege to communications between Williams & Connolly and CSE, which was neither a client of Williams & Connolly nor acting as Armstrong’s intermediary; and (3) the inapplicability of the privilege to communications that did not constitute legal advice.  Landis also asked the court review in camera the documents that Armstrong claimed to be privileged.

On Monday, Judge Christopher Cooper denied Landis’ motion, upholding the applicability of the attorney-client privilege and finding that Landis “failed to provide sufficient facts to meet his burden to overcome” the application of the privilege.  First, the court addressed the crime-fraud exception, stating that Landis did not provide “sufficient evidence to allow a reasonable inference that [Williams & Connolly’s] ‘representation and advice’ helped further a crime or fraud.”  The court also rejected Armstrong’s argument that the privilege did not apply to communications between Williams & Connolly and CSE because CSE was neither a client of Williams & Connolly nor an intermediary of Armstrong.  Judge Cooper reasoned that, because CSE has served as Armstrong’s agents for many years, the intermediary doctrine is satisfied.  The court further explained that the fact that CSE also acted as agents of Tailwind does not preclude the use of the intermediary doctrine, because CSE could act as agents for both Armstrong and Tailwind.  Finally, Judge Cooper found that any non-legal communications between Armstrong and Williams & Connolly remain protected by the attorney-client privilege because these communications relate closely enough to the legal proceedings in which Armstrong was involved.  The court also denied Landis’ request for in camera review, finding that Landis failed to show how “in camera review would reveal evidence sufficient to establish the claim that the crime-fraud exception applies.”

This decision is a strong endorsement of the attorney-client privilege; Judge Cooper referred to “the central importance of the attorney-client privilege to the proper functioning of the judicial system.”  The decision also illustrates that courts may be reluctant to burden nonparties in qui tam cases with discovery demands absent a legitimate justification.  We will continue to provide updates regarding this ongoing litigation.

Kristin Graham Koehler

Washington, D.C.

kkoehler@sidley.com

Monica Groat

MonicaGroat@sidley.com

Hilary Hoffman (Summer Associate)

hhoffman@sidley.com

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