Travers, along with Jones Day‘s US offices, is advising the Royal Bank of Scotland (RBS) on the case, while Royal Bank of Canada (RBC) has turned to White & Case. RBS now owns NatWest, while the three once worked at RBC.
Lawyers for the bankers, who were extradited to the US last year on seven counts of Enron-related wire fraud, filed a motion in early August alleging that the “counsel for the purported victim in this case [RBS] has interfered with the ability of defence counsel to obtain relevant testimony”, and therefore their clients’ ability “to mount a vigorous defence has thereby been severely compromised, if not eviscerated”.
The trio’s lawyers are trying to collect videotaped statements from UK witnesses.
Travers litigation partner Stephen Paget-Brown rubbished the defence lawyers’ claims, labelling them “self-serving” and “without any foundation in fact”.
The NatWest Three – David Bermingham, Giles Darby and Gary Mulgrew – are being advised respectively by name partners Dan Cogdell at Cogdell Law Firm, Matt Hennessy at Deguerin Dickson & Hennessy and Reid Figel at Kellogg Huber Hansen Todd Evans & Figel.
There were suggestions that the NatWest Three’s counsel were using the motion as a tactic to dismiss the trial for being unfair.
Hennessy responded by saying: “Seeking exculpatory testimony from witnesses with personal knowledge of relevant facts is not some mere tactic, as has been suggested. It’s what a lawyer must do. It’s as simple as that.”
The defence lawyers’ claims about Travers’ and White & Case’s behaviour turn on the process of contacting 36 potential witnesses. All but one replied via Travers and declined to have anything to do with the case, let alone go to the US to testify. The lawyers also claim that Travers claimed to represent all 36 without making the witnesses aware of this.
It is understood that Travers spoke to all but three potential witnesses, who were contacted by in-house counsel at RBS.
Paget-Brown told The Lawyer: “Whether employees or former employees choose to assist the defendants is entirely a matter for them as individuals. What we can say is that we made that point clear to every witness we contacted. Each individual we contacted was more than happy for us to correspond with the defendants’ lawyers on their behalf.”
For videotaped evidence to be submitted in the US, the trio’s lawyers would have to lobby UK authorities for depositions. This is not unusual.
One UK-based barrister said: “Even in civil litigation it’s hard to find witnesses for events that happened five years ago. It’s not up to Travers to mount a defence for the three. But it wouldn’t be right for a firm to say they’re representing someone if that person hadn’t heard anything about it.”
Hennessy told The Lawyer: “While I have no doubt that Travers Smith always believed that they represented all current and former RBS employees in connection with this case, my understanding is that a few current or former RBS employees were surprised to learn that Travers Smith had that belief.”
White & Case, whose team is being led by Washington DC-based of counsel Bob Bittman, directed enquiries to RBC, which replied: “RBC and its counsel have fully complied with all their legal responsibilities and have acted appropriately at all times throughout this matter.”