Rolando Eslaya Bautista

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MEMORANDUM RE BRYAN SMITH’S
MTN. FOR PROTECTIVE ORDER 	-1-
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re: 	) 	Bankruptcy Case
) 	No. 03-33714-SCTC
) 	Chapter 7
ROLANDO ESLAYA BAUTISTA, 	)
)
)
Debtor. 	)
___________________________________)
MEMORANDUM RE BRYAN SMITH’S INFORMAL MOTION FOR PROTECTIVE ORDER RE
AUGUST 6, 2007 2004 ORDER
On October 18, 2007, the court held a telephonic hearing on
Bryan Smith’s informal motion for protective order regarding the
court’s August 6, 2007 Rule 2004 Order. 	W. George Wailes appeared
on behalf of Brian A. Holt, chapter 7 trustee for creditor Mario
Rulloda. 	Bryan Smith appeared on his own behalf and on behalf of
Debtor.
This memorandum constitutes the court’s findings of fact and
conclusions of law regarding the motion for protective order.
FACTS
On April 6, 2004, Mr. Holt, on behalf of Mario Rulloda, filed
a $1,750,000 general unsecured claim in the above-captioned
bankruptcy case. 	On July 12, 2007, the Rulloda claim was allowed
in the amount of $1,517,816. 	It remains largely unpaid, despite
Signed and Filed: December 10, 2007
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
December 10, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 03-33714 Doc# 199 Filed: 12/10/07 Entered: 12/10/07 14:20:39 Page 1 of
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1/ On August 1, 2005, this court made the following finding of fact:
I find it is more likely than not that on the petition date
of his current chapter 7 case Rolando had assets of significant
value somewhere in the world that he failed to list in his
schedules and failed to turn over to the trustee. 	I find further
that Rolando concealed this property with the intent to hinder,
deceive, and defraud creditors. 	I find further that Rolando
knowingly and fraudulently failed to list this property in his
schedules.
Adv. Proc. No. 04-3144, Fact and Conclusions of Law, ¶ 26 at 7:6-13.
MEMORANDUM RE BRYAN SMITH’S
MTN. FOR PROTECTIVE ORDER 	-2-
denial of Debtor’s discharge, because Debtor has hidden significant
assets from his creditors. 1/
On May 12, 2006, the court entered an order requiring Debtor
to turn over and account for the concealed assets. 	After Debtor
failed to comply with that order, the court granted the contempt
motions of Mr. Holt and Ms. Schoenmann, chapter 7 trustee for
Debtor’s bankruptcy case. 	On February 5, 2007, the court entered
an order holding Debtor in contempt of court and setting deadlines
to comply with three court orders regarding the concealed assets.
When Debtor failed to comply with the first contempt order,
the court entered a second order, on April 6, 2007, again holding
Debtor in contempt of court and setting new compliance deadlines.
Debtor did not comply with the second contempt order.
Mr. Holt has been unable to locate Debtor for the purpose of
serving him with either contempt order. 	Unable to find Debtor, Mr.
Holt obtained a Rule 2004 order requiring Debtor’s family law
attorney, Bryan Smith, to be examined and to produce documents
regarding Debtor’s current contact information and assets.
In a letter to the court, Mr. Smith objected to being examined
and to producing the documents, including those that would reveal
Debtor’s current contact information, because, Mr. Smith contends,
Case: 03-33714 Doc# 199 Filed: 12/10/07 Entered: 12/10/07 14:20:39 Page 2 of
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MEMORANDUM RE BRYAN SMITH’S
MTN. FOR PROTECTIVE ORDER 	-3-
all documents requested are presumptively protected from disclosure
by the attorney-client privilege or the work product doctrine. 	Mr.
Smith further contends that there is no legitimate need to compel
disclosure of Debtor’s whereabouts because such information may be
obtained through other means. 	In the letter, Mr. Smith offers,
upon court order, to provide a privilege log identifying each
document within his file, and/or to make the entire file available
to the court for in camera inspection.
LAW
Federal privilege law supplies the rule of decision because
Mr. Holt is seeking to enforce an order of examination under
Bankruptcy Rule 2004. 	Fed. R. Evid. 501; e.g., Moore v. Eason (In
re Bazemore), 216 B.R. 1020 (Bankr. S.D. Ga. 1998); see, e.g.,
Clarke v. American Commerce National Bank, 974 F.2d 127 (9th Cir.
1992).
The burden is on the party asserting the privilege to
establish all elements of the privilege and to identify the
specific communications and grounds supporting the privilege as to
each piece of evidence over which the privilege is asserted. 	U.S.
v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002). 	Blanket
assertions of privilege are “extremely disfavored.” 	Id. at 1000
(citation omitted).
Mr. Smith has not identified the specific communications or
the grounds supporting the privilege as to evidence regarding which
the privilege is asserted. 	He must do so by promptly preparing a
privilege log and providing it to Mr. Holt. 	Furthermore, as
explained below, Mr. Smith must produce documents that are not
privileged.
Case: 03-33714 Doc# 199 Filed: 12/10/07 Entered: 12/10/07 14:20:39 Page 3 of
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MEMORANDUM RE BRYAN SMITH’S
MTN. FOR PROTECTIVE ORDER 	-4-
Not all communications made between a client and his lawyer
are privileged. 	Rather, a communication is privileged only if each
of the following conditions is satisfied.
(1) When legal advice of any kind is sought (2) from a
professional legal adviser in his or her capacity as
such, (3) the communications relating to that purpose,
(4) made in confidence (5) by the client (6) are, at the
client’s instance, permanently protected (7) from
disclosure by the client or the legal adviser (8) unless
the protective be waived.
Martin, 278 F.3d at 999 (citing Wigmore on Evidence); accord
Reiserer v. U.S., 479 F.3d 1160, 1165 (9th Cir. 2007) (attorney-
client privilege applies only when communication intended to be
“confidential.”) ; Gomez v. Vernon, 255 F.3d 1118 (9th Cir.
2001)(same); U.S. v. Alexander, 287 F.3d 811, 816 (9th Cir.
2002)(attorney-client privilege applies only when communication
made “in order to obtain legal advice.”).
For example, information regarding a client’s identity, the
amount of fees, the identification of payment by case-file name,
and the general purpose of the work performed are generally not
protected from disclosure by the attorney-client privilege. 	E.g.,
Clarke, 974 F.2d at 129. 	This is because such information is
preparatory or incidental to the attorney-client privilege, and is
not provided “in order to obtain legal advice.”
In addition, if evidence would not have been privileged while
still in the client’s possession, such as documents prepared for
business or other purposes not related to obtaining legal advice,
the client cannot cloak the evidence in the attorney-client
privilege by transmitting it to his attorney. 	U.S. v. Osborn, 561
F.2d 1334, 1338 (9th Cir. 1977).
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MEMORANDUM RE BRYAN SMITH’S
MTN. FOR PROTECTIVE ORDER 	-5-
Thus, Mr. Smith must produce documents, whether internally
created or provided by Debtor, that contain Debtor’s contact
information, such as his address, telephone number (including
cell), fax number, email address, contact persons and physical
location.” 	This contact information would not be privileged while
in Debtor’s possession, and cannot be made so by transmitting it to
his counsel, even if it is included on a document containing a
confidential communication.
To the extent the information regarding Debtor’s contact
information comes only from conversations between Debtor and Mr.
Smith, or from documents internally created by Mr. Smith, the court
determines that this contact information must also be produced
because it is not a communication made to obtain legal advice.
Rather, such information, like a client’s identity or the amount of
the fee, is preparatory or incidental to, and not part of,
information provided by Debtor to Mr. Smith for the purpose of
obtaining legal advice. 	There is no indication in the record that
Debtor sought advice from his counsel about where Debtor lived or
is now living.
Mr. Smith can protect the privileged portions of any documents
produced, whether created by Debtor or internally by Mr. Smith or
his office, by redacting the privileged information from the
document before turning it over to counsel for Mr. Holt.
**END OF MEMORANDUM**
Case: 03-33714 Doc# 199 Filed: 12/10/07 Entered: 12/10/07 14:20:39 Page 5 of
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-6-
COURT SERVICE LIST
W. George Wailes, Esq.
Carr, McClellan, Ingersoll,
Thompson & Horn
216 Park Road
Post Office Box 513
Burlingame, CA 94011-0513
Bryan Smith, Esq.
177 Bovet Rd., Ste. 600
San Mateo, CA 94402-3191
Dennis D. Davis, Esq.
Goldberg, Stinnett, Meyers & Davis PC
44 Montgomery St., Ste 2900
San Francisco, CA 94104
Rolando Eslaya Bautista
2695 Tipperary Avenue
So. San Francisco, CA 94080
Case: 03-33714 Doc# 199 Filed: 12/10/07 Entered: 12/10/07 14:20:39 Page 6 of
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