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Court Partially Grants Madoff Trustee’s Motion to Compel Discovery Against Madoff’s Relative

October 17, 2017, New York – Last month, the US Bankruptcy Judge Stuart M. Bernstein ruled that Madoff’s relative in a Chapter 11 clawback suit waived attorney-client privilege over an email he received from his counsel by forwarding it to the imprisoned Ponzi schemer. The underlying action was initiated when the Madoff Trustee, Irving Picard sought to avoid and recover alleged fictitious profits in the sum of $410,000 that Madoff’s relative, Roman (husband of Madoff’s sister-in-law) withdrew from Madoff’s BLMIS account within two years of the Madoff bankruptcy filing as intentional fraudulent transfers under §548(a)(1)(A).

The fight over discovery in the case began last year when the trustee served Roman with discovery requests seeking information regarding any communications Roman, or his counsel – Chaitman LLP had with Madoff since the filing date. Roman objected to those requests claiming, among other things, that the communication was privileged. Upon deposing Roman on May 17, 2017, he testified that he and Madoff had exchanged a total of six letters; however, citing work product privilege, he didn’t disclose anything further. The trustee then filed a motion to compel discovery, arguing that the alleged communications fell outside the scope of the work-product doctrine, and Roman waived any work-product protection when he sent communications to Madoff. The Court agreed and held that the email, sent by attorney Helen D. Chaitman was a confidential communication providing legal advice regarding BLMIS profit withdrawals, but it was voluntarily shared with Madoff, who had no attorney-client privilege with respect to the email, thus, granting Picard, the right to obtain all portions of the message that did not contain Chaitman’s legal conclusions or theories.


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