Sutherland Asbill & Brennan offices in Washington, D.C. Sept. 15, 2016. (Photo: Diego M. Radzinschi/ALM)
Federal prosecutors in Atlanta are opposing a request by Atlanta attorney Bennett Kight’s defense team to keep records sealed that were used in a ruling finding Kight competent to stand trial on fraud charges.
Following Kight’s Jan. 19 competency hearing, his defense asked Judge William Duffey Jr. of the District Court for the Northern District of Georgia to leave under seal competing expert reports and associated medical records stemming from the legal brawl over whether Kight, a former partner at Atlanta’s Sutherland, Asbill & Brennan, suffers from dementia.
Citing privacy concerns, Kight’s defense team also asked that records from a guardianship proceeding last year in Fulton County Probate Court also remain under seal. The hearing resulted in the appointment of Kight’s wife as his guardian.
The defense, contrary to Duffey’s competency ruling, described the records they wish to keep sealed as “documenting [Kight's] Alzheimer’s disease, dementia, medications, and other medical and mental health conditions.”
Bennett Kight, Atlanta .
In a motion filed Friday, Assistant U.S. Attorney Douglas Gilfillan countered that the medical and psychological records and expert reports centering on Kight’s competency “are necessary for the public to evaluate, understand, and have confidence in the court’s finding that [Kight] is competent.”
In a Feb. 5 opinion, Duffey found Kight competent and rejected what he called “inconsistent and suspect” evidence presented by Kight’s defense. Duffey specifically rejected claims the 76-year-old attorney has experienced a progressive deterioration of his mental faculties since he suffered a brain hemorrhage in January 2008.
Duffey said the claims were contradicted by subsequent medical findings that Kight “made a full recovery within months of his January 2008 hemorrhage.”
“Not until eight and a half years later, and shortly after [Kight] was indicted in the underlying criminal proceedings in this matter, did [he] report any concerns regarding a cognitive decline,” Duffey wrote.
In opposing the seal, Gilfillan also argued Kight “no longer has a legitimate privacy interest” in barring public scrutiny of medical records and expert reports that Duffey relied on and that were the subject of testimony during the Jan. 19 competency hearing.
Gilfillan also branded as “incorrect and gratuitous,” a defense contention that federal prosecutors are coordinating the criminal fraud case with plaintiffs in multiple civil suits against Kight, his former law firm, now called Eversheds Sutherland, Kight’s wife and son and a former accountant.
The ongoing litigation, which dates back to 2013, was filed on behalf of beneficiaries of trusts established by the late industrialist and philanthropist Walter Bunzl. Kight was co-trustee until a Fulton County judge removed him in 2015 over his objections and for reasons unrelated to competency.
The criminal charges against Kight allege the attorney defrauded the trusts of at least $2 million while a trustee. The civil suits claim Kight defrauded the trusts of as much as $60 million.
“Sealing the remaining medical records and expert reports may simply allow [Kight] to continue to assert inconsistent positions in the civil litigation and this case,” Gilfillan argued.
