Case 1:15-cv-07116-PKC Document 90 Filed 03/11/16 Page 2 of 6 2 1325992-v1\NYCDMS afforded this discretion because the denial of a stay could impair a party's Fifth Amendment privilege against self-incrimination, extend criminal discovery beyond the limits set forth in Federal Rule of Criminal Procedure 16(b), expose the defense's theory to the prosecution in advance of the trial, or otherwise prejudice the criminal case."

In Plumbers, the Court identified a host of prejudices that befall the target of criminal investigation should he be forced to proceed with a related civil case: Courts are afforded this discretion because the denial of a stay could impair a party’s Fifth Amendment privilege against self- incrimination, extend criminal discovery beyond the limits set forth in Federal Rule of Criminal Procedure 16(b), expose the defense’s theory to the prosecution in advance of trial, or otherwise prejudice the criminal case. Plumbers, 886 F. Supp. 1138. Case 1:15-cv-07116-PKC Document 83 Filed 02/26/16 Page 9 of 11 15611056_12 7

Fed. R. Evid. 701, advisory committee’s notes (Rule 701 “channel[s] testimony that is actually expert testimony to Rule 702 . . . [to] ensure[] that a party will not evade the expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Crim. P. 16 by simply calling an expert witness in the guise of a layperson”).

Even that showing does not suffice when considering “opinion” work product, such as internal memoranda, that reflects an attorney's mental impressions; these materials are almost always protected from disclosure. See, e.g., Hickman, 329 U.S. at 510, 67 S. Ct. 385; Williamson v. Moore, 221 F.3d 1177, 1182 (11th Cir. 2000) (noting in dispute under Fed.R.Crim.P. 16(a)(2) that “opinion work product enjoys almost absolute immunity" from discovery). The document request thus improperly attempts to invade the attorney client and CASE NO. 07-21221 ALTONAGA/Brown MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077 8 work product privileges, particularly where Ms. Davis has responded to discovery about same and about which she was questioned at length in her deposition.