The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

CHINA Construction America (CCA) should be compelled to produce over 300 documents relative to discovery in Baha Mar’s Chapter 11 bankruptcy case the developer’s lawyer has argued, describing the contructors’ decision to withhold the documents on the basis of “common interest” with the Bahamian government and the China Export Import (CEXIM) Bank as unsupportable.

Laura Davis Jones, of the Pachulski, Stang, Ziehl & Jones law firm, urged US bankruptcy judge, Kevin J Carey, in a letter filed on Friday to compel CCA to produce 302 documents it has held on the grounds of “common interest”. In her letter Ms Davis-Jones noted that CCA on August 17 had produced 155 documents and a privilege log identifying 302 documents that had been withheld under the privilege doctrine.

“The debtors immediately raised with CCA the deficiencies in both the Privilege Log and the production,” she wrote. “On August 18, CCA produced an additional 21 documents and Supplemental Privilege Log containing two categorical entries for 168 documents, but deficiencies remained.” She further noted that CCA had, on August 21, agreed to produce a supplemental production addressing missing attachments; that it would not maintain a Bahamian legal privilege assertion over the withheld documents if it was found that there exists no common interest; and to provide more detailed privilege descriptions for 140 attachments that were categorically withheld as “documents selected for sharing among clients and counsel relating to matters within their common legal interest”.

Ms Davis-Jones submitted to the judge that CCA was still withholding documents. “CCA continues to withhold 302 documents on the basis of an unsupportable ‘common interest’, she said. “In its Privilege Log and Supplemental Privilege Log, CCA identifies 302 documents withheld based on a vaguely asserted “common interest” with either CEXIM or the Bahamian government ‘in the establishment of The Bahamas as the appropriate forum for the Debtors’ insolvency proceeding’. However, CCA’s position is untenable. The common interest doctrine applies only where two separately represented parties ‘share a common legal interest’, she argued.

The Baha Mar attorney asserted that the shared interest must be “legal rather than commercial” and must be “at least a substantially similar legal interest”. Ms Davis-Jones noted that the legal interests of CCA, CEXIM and the Bahamian government were neither identical nor similar. “As an initial matter, the Bahamian government’s interest is in the economic wellbeing of the Bahamas and the Bahamian people. CCA, on the other hand, is a Chinese for profit entity with a purely pecuniary interest in the outcome of these proceedings. Indeed, the Bahamian government is not even a party to the proceedings, and thus cannot share with CCA a common interest in these proceedings.

“The Bahamian government is seeking to appoint a liquidator in the Bahamas. CCA, on the other hand, is seeking to dismiss the instant proceeding, thus allowing it to act against the Debtors without violating this Court’s automatic stay. Those interests are neither identical nor ‘substantially similar’,” said Ms Davis-Jones.

“Furthermore, CCA has not produced any form of a common interest agreement between the parties nor disclosed the existence of one. CCA’s Privilege Log and Supplemental Privilege Log are further indications that no legally cognisable common interest with the Bahamian government exists. While this Court afforded CCA the opportunity to present the basis for any asserted common interest, CCA’s Logs simply fail to show any basis for such assertion. The Logs absolutely do not support the ‘shared interest’ or affirmative showing of the decided upon, common legal strategy the common interest doctrine is designed to protect. Instead, CCA includes only generic and largely repetitive privilege log descriptions, which fail to show any factual grounds that might underlie its position,” she added.