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Goosby v. Branch Banking & Trust Co.

United States District Court, S.D. Florida, Miami Division

April 17, 2018

JAMES GOOSBY, Plaintiff,
v.
BRANCH BANKING & TRUST COMPANY. Defendant.

          ORDER ON DEFENDANT'S WORK PRODUCT CLAIM

          JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE

         Introduction

         In the classic novella Animal Farm, written by George Orwell (1903-1950) and first published in 1945, the pigs who control the Manor Farm famously amended “The Seven Commandments of Animalism” and changed the commandment that “all animals are equal” to proclaim that “all animals are equal but some animals are more equal than others.”[1" name="FN1" id= "FN1">1]

         In the litigation context, and especially when evaluating a work product claim, it is sometimes important to consider an Animal Farm-like maxim: there are reports, and then there are reports. In other words, all reports may not always be equal.

         The discovery dispute percolating here for several weeks concerns a Suspicious Incident Report (“SIR”), not to be confused with Suspicious Activity Reports (“SAR”), which the Government requires banks to file under certain circumstances. The dispute requires the Undersigned to determine whether the “primary purpose” test, “dual purpose” test, or some other test or approach (concerning the motivation for a person's creation of a document subject to a work product claim) applies. Neither the United States Supreme Court nor the Eleventh Circuit Court of Appeals has answered that question. District courts in our Circuit have used both the primary purpose and dual-purpose test, while some other circuit courts and district courts in other circuits use different tests.

         Moreover, the dispute also triggers the need to evaluate the specifics of the SIR at issue and to decide whether the nature of this particular SIR has any legal significance. Thus, the work product squabble has produced the following two additional questions for resolution (above and beyond determining which test to use): First, is the specific SIR at issue a garden variety one, prepared as a matter of mandatory and standard business routine, or is it a special type of SIR, prepared in a particular way because of a concern over threatened litigation? Second, if it is a special type of SIR, would that status (of being litigation-influenced and unusual) affect the work product claim assessment?

         These questions arose after Plaintiff James Goosby sued his bank, Defendant Branch Banking & Trust Company (the “Bank”), for malicious prosecution, false arrest/imprisonment, and other related theories arising from a Friday, March 3, 2017 incident at a Bank branch. Bank employees incorrectly concluded that Goosby had tried to cash a forged check. Both Goosby and the Bank contacted police, and an officer ultimately arrested him (for disorderly conduct). The Bank later determined (that same day, before police drove off with Goosby in a police car to take him to jail) that the check was not in fact forged. A police officer at the scene advised the Bank that its mistake would likely yield repercussions. The Miami-Dade State Attorney's Office later dropped all charges against Goosby (but not until after he was taken to jail).

         Goosby returned to the Bank the next business day, Monday, March 6, 2017. The branch manager and a branch banker jointly completed an SIR later that day, after Goosby left. Although Bank employees routinely issue SIRs as part of the Bank's standard, mandatory procedure, the Bank seeks to withhold production of the SIR under a work product claim.

         At bottom, the Bank contends that it was concerned about litigation when the SIR was prepared because Goosby threated to sue the Bank. Thus, the Bank contends that this litigation concern influenced the SIR's preparation and resulted in an unusual SIR --one containing far more detail than would otherwise be expected. According to the Bank, this partial motivation (the other motivation being the need to comply with the Bank's requirement that employees prepare an SIR) generates work product protection for this SIR. Goosby disagrees.

         The parties have submitted legal memoranda. [ECF Nos. 62; 1');">71');">1');">71; 89');">89; 97]. Also, at my direction, the Bank filed a representative sample of ten SIRs. [ECF No. 99].

         For the reasons outlined below, the Undersigned sustains the Bank's work product claim (and confirms my earlier ruling). In short, the SIR at issue is, similar to some of the fictional Animal Farm animals, not equal to other Bank-prepared SIRs. Though required (like all other SIRs), this particular SIR is significantly more focused on litigation-related issues than the other samples.

         The SIRs

         The Bank prepares SIRs in the ordinary course of its business. SIRs are distinct from SARs (Suspicious Activity Reports), which the Bank Secrecy Act protects from disclosure. At the time at issue, the Bank's standard procedures “required” employees who witnessed an event similar to the March 3, 2017 Goosby incident “to complete and submit a SIR [sic] within one business day of the occurrence.” [ECF No. 55-2, ¶ 7 (emphasis added)]. The Bank has since renamed its SIRs to “UFOs” (for Unusual Financial Observation), perhaps to avoid confusion between SIRs and SARs.

         The Bank's applicable written procedures require the submission of an SIR when there is a “suspicious incident involving a client or another associate.” [ECF No. 61-3, 2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2]. They also explain that the SIR is “required by bank policy” and is “used to collect and process information for reporting suspicious activity.” [ECF No. 61-4, 2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2]. In addition, the Bank's written procedures explain that “[a]ccording to governmental regulations, attempted activity that is suspicious must be reported.” [ECF No. 61-4, 2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2]. And the procedure also highlights that “[f]ailure to timely file a [sic] SIR can cause increased risk, exposure and loss” to the Bank. [ECF No. 61-4, 2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2');">2');">p. 2].

         The SIR is a prelude to the potential submission of an SAR required by federal law. The submission of an SIR may lead the Bank to submit an SAR. See Wiand v. Wells Fargo Bank, N.A., 1 F.Supp.2d 1214');">981 F.Supp.2d 1214 (M.D. Fla. 2013) (discussing federal law and regulations for SARs).

         Detailed ...


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