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DAVIS POLK ORDERED TO TURN OVER DOCUMENTS A New York law firm can be ordered to turn over the non-privileged documents of an overseas client not itself subject to U.S. subpoena, a federal appeals court has ruled. The decision by the Second Circuit U.S. Court of Appeals overturns a January district court ruling that had shielded Davis Polk & Wardwell from producing documents relating to a Securities and Exchange Commission investigation into one of its clients, Ernst & Young Netherlands. “Documents held by an attorney in the United States on behalf of a foreign client, absent privilege, are as susceptible to subpoena as those stored in a warehouse within the district court’s jurisdiction,” the appellate panel wrote in Ratliff v. Davis Polk & Wardwell, 03-7194. “Documents obtain no special protection because they are housed in a law firm.” Davis Polk had represented Ernst & Young in the course of its voluntary cooperation with an SEC inquiry into audits that the accountancy performed between 1995 and 1997 for the Baan Co., a Netherlands-based software maker. Ernst & Young sent documents to Davis Polk to be shared with the SEC, and the law firm also retained transcripts of testimony given by Ernst & Young employees before the SEC. — The New York Law Journal

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