Gibson Dunn May Be Forced To Give Up Bridgegate DocsJames A. Cohen in Law360, April 08, 2014
By Martin Bricketto
Law360, New York (April 08, 2014, 8:40 PM ET) -- The public nature of a Gibson Dunn report clearing New Jersey Gov. Chris Christie in the Bridgegate scandal could hamper arguments that materials from the internal investigation are protected from disclosure if lawmakers who met Tuesday move to subpoena them, attorneys told Law360.
Late last month, Gibson Dunn issued its 344-page report on September's politically tainted closure of George Washington Bridge Access lanes amid separate probes by federal prosecutors and a New Jersey legislative committee. The Joint Select Investigative Committee didn't issue any new subpoenas Tuesday but its special counsel, Reid Schar of Jenner & Block LLP, is working with Gibson Dunn in an effort to obtain materials that underpin the report.
If the committee doesn't receive the documents by the end of the week, it will seek to compel production, committee co-chair John Wisniewski said after the meeting. The report refers to interviews with 70 people but doesn't include summaries, transcripts or other documents related to those interviews, he noted. Wisniewski said the committee is waiting for guidance on whether any subpoena would target Gibson Dunn or the governor's office, which retained the firm.
“There has been a dialogue back and forth with the Gibson firm about the production of these documents,” said Assemblyman Wisniewski, D-Middlesex. “We want to allow that process to play out and give a fair opportunity for the governor's counsel to cooperate with the committee, but we do have a limit.”
Gibson Dunn did not return a request for comment.
Whether Gibson Dunn or the governor's office provides the documents or refuses based on attorney-client privilege, the work-product doctrine or some other protection remains to be seen, but a judge might be reluctant to side with arguments for shielding the materials based on the report's very public disclosure, according to attorneys.
“The publication watered down any argument that they may have on whether there's any privilege applicable, whether attorney client or work product,” said Jack Arseneault, a partner with Chatham, N.J.-based Arseneault & Fassett LLP.
Attorneys cautioned that the ability to withhold the documents would be a fact-specific analysis dependent on a variety of factors, including the details of the firm's engagement agreement.
However, a public disclosure can mean the waiver of a privilege that potentially applied, or indicate that a privilege didn't apply in the first place because the underlying substance of the report wasn't supposed to be confidential, according to Eli Richardson, a member of Bass Berry & Sims PLC.
And while the work-product doctrine covers documents created in anticipation of litigation, that doesn't seem to be the case here, according to Arseneault.
“Clearly the mission of this review, besides clearing the governor, was to ferret out the facts and conduct an internal investigation in order to produce the facts, which they claim they have done, so it's not in anticipation of litigation,” he said.
Arseneault added that those interviewed by Gibson Dunn weren't clients per se.
“All of these people had to know that this report was going to be public, so I don't think there was an anticipation of confidentiality,” he said.
Still, any subpoena will have limits. Interview transcripts aren't the same as an attorney's interview notes, which might contain that lawyer's subjective opinions or reveal his or her thought process, according to Sergio Acosta, a partner with Hinshaw & Culbertson LLP.
“If no transcripts were prepared, and only attorney notes exist, it would be highly unusual for those notes to be turned over to a third party,” Acosta said.
During a March 27 press conference at his firm's Manhattan office, Gibson Dunn partner Randy Mastro unveiled the report based on a 10-week review of more than 250,000 documents, including Christie's personal texts and emails, and interviews with dozens of witnesses.
Those interviews didn't include former deputy chief of staff Bridget Kelly or former Port Authority of New York and New Jersey official David Wildstein. The report contends that they took part in the plan that jammed traffic in Fort Lee, N.J., based on some ulterior motive targeting the town's mayor and then tried to cover up their actions.
Documents disclosed in January had already made their names synonymous with the controversy, such as an Aug. 13 email from Kelly to Wildstein that said “time for some traffic problems in Fort Lee.” Wildstein resigned last year, and Christie fired Kelly after her involvement became public. Gibson Dunn found no evidence that other members of Christie's staff participated in the decision to close the lanes or cover up what happened.
Christie had pledged to make Gibson Dunn's findings public and went on the offensive following the report's release, saying he told the firm to “find the truth no matter where it led” and reiterated its conclusion that he had no involvement in the lane closures.
“He certainly causes some very interesting legal arguments for having waived any privileges that he might have been able to assert, but to the governor's credit, he has not yet asserted any privileges,” Donald Scarinci, managing partner of Scarinci Hollenbeck LLC, said.
The document squabble comes as the U.S. Attorney's Office has reportedly stepped up its own investigation and convened a grand jury. Mastro said last month that the Gibson Dunn team would be “judged at the end of the day on whether we got this right,” but the firm's credibility won't necessarily be damaged if federal prosecutors find wrongdoing beyond those blamed in the report, some attorneys say.
The grand jury could have access to additional witnesses and information that weren't available to Gibson Dunn, which couldn't be held against the firm and its internal investigation, according to Acosta.
Gibson Dunn concluded that Christie knew nothing about the lane closure plot while noting that it couldn't interview people such as Wildstein and Kelly, who have asserted their Fifth Amendment rights. It's critical for a firm handling an independent investigation to acknowledge and incorporate the limitations of that review as part of any report, according to Richardson.
“The investigation and the result and the conclusion will have integrity as long as those conclusions are not oversold based on the information that is available,” he said.
Gibson Dunn said it had ample testimonial and documentary evidence to reach its conclusions, but Fordham Law School professor James Cohen called the report “embarrassing” on its face regardless of what prosecutors end up doing. A firm handpicked by Christie's office and a reportedly $1 million investigation that lacked interviews with key Bridgegate figures couldn't truly exonerate the governor, Cohen suggested.
“Lawyers are criticized for many things and arrogance is one of them, but the announcement gives a deeper and more profound meaning to the word arrogance,” he said.
The report may ultimately be “worthless,” but nothing will hurt Gibson Dunn and the profile boost it has received from the investigation, according to Scarinci.
“The fact they were hired to do this in a case that has national significance and the sound bite that the governor was cleared by Gibson Dunn is really what the bulk of the public will remember, and only the people who are paying close attention to the actual matter will really focus on what the report specifically did and did not do,” Scarinci said.