Declaration Of Helen J. Hodges In Support Of Lead Counsel's ...

previously noticed.” Order on Plaintiffs’ Motion to Compel (Westboro #14) and Plaintiffs’ Motion
to Compel Deutsche Bank to Refrain from Instructing Witnesses During Questions (Docket No. 364
in Case No. H-02-1446) at 4. The Court also ordered Deutsche Bank to stop improperly coaching
witnesses during oral examination.
14. Lead Counsel Challenges the “Advice of Counsel” Defense
163. On May 20, 2005, Lead Counsel moved for an expedited order forcing defendants to
either (a) within five days, explicitly and unambiguously notify Lead Plaintiff in writing they waived
the advice of counsel defense, or (b) within ten days, produce all attorney-client communications
concerning Enron-related transactions for which they sought advice of counsel, answer Lead
Plaintiff’s interrogatories requesting the basis for the defense, and allow deposition questioning
concerning the legal advice at all future depositions (Docket No. 3502). Lead Counsel argued the
financial institutions avoided disclosing documents purportedly attorney-client privileged, yet at the
same time asserted an advice of counsel defense. Lead Counsel argued the defendants could not
have it both ways: assertion of advice of counsel defense operated as a subject-matter waiver of the
attorney-client privilege as to all communications with counsel.
164. The bank defendants filed a response on May 24, 2005, arguing expedited
consideration was unnecessary, a full briefing schedule was preferred because the issue was
complex, and arguing the court in WorldCom did not compel defendants to make an election or
waiver until just six weeks before trial (Docket No. 3506).
165. Lead Counsel’s motion was successful. On June 20, 2005, the Court signed a
stipulation among the parties that required defendants to inform Lead Plaintiff about any aspect of a
transaction, or complaint allegation, for which the financial institution intends to assert the defense
of reliance on its own counsel (Docket No. 3619). If asserting the reliance on counsel defense, the
financial institutions also agreed to produce all communications previously withheld on the basis of
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