Rohan Ramchandani, the former European head of Citigroup’s forex spot market trading desk, is trying to prepare for proceedings launched by the Comptroller of the Currency (OCC). More than two years ago, Richard Usher and Rohan Ramchandani were acquitted of charges of manipulating the Forex spot market in criminal proceedings brought by the Department of Justice. Now, they have to respond to the OCC accusations.

Usher and Ramchandani want to use documents from the criminal case in the OCC proceedings against them.

On December 18, 2020, Counsel for Ramchandani filed a request at the New York Southern District Court to amend the Protective Order used in the criminal case in order to permit Ramchandani to use 58 documents in his OCC proceeding. This sliver (0.00002%) of the 2.8 million documents produced in criminal discovery would be provided to another federal agency, the OCC, Ramchandani’s counsel notes.

Let’s recall that, in August 2020, the OCC issued notices against Richard Usher and Rohan Ramchandani. The notices said that hearings will commence so as to determine whether Orders should be issued against Ramchandani, the former Head of European Foreign Exchange Spot Trading at Citibank, and Richard Usher, the former Head of EMEA Foreign Exchange Spot Trading at JPMorgan Chase Bank, N.A., prohibiting the respondents from participating in any manner in the conduct of the affairs of any federally insured depository institution or any other institution, credit union, agency or entity referred to in 12 U.S.C. § 1818(e), and requiring respondents to pay a civil money penalty.

Ramchandani seeks to use 58 documents. These fall into three broad categories.

First, he requests to use 32 documents, which are transcripts of electronic chatroom conversations involving participants from two or more financial institutions, similar to the chatroom transcripts introduced at the criminal trial without objection by any party.

A core allegation in the OCC matter, under the U.S. banking laws, is that Mr. Ramchandani engaged in conduct “contrary to generally accepted standards of prudent operation”. Accordingly, the OCC administrative tribunal will be required to analyze whether Mr. Ramchandani’s practices were prevalent in the FX industry at the relevant time. These 32 documents are needed to show that the bank trading practices at issue were pervasive throughout the FX industry and thus generally accepted.

Ramchandani’s counsel explains that the privacy interests at stake are de minimis: these financial institutions have produced countless interbank chats in civil litigation – to scores of different litigants – likely including the very same 32 chatroom transcripts at issue (among thousands of other chats). Also, Ramchandani’s counsel says that neither the individual participants nor the financial institutions that produced them to the DOJ had any expectation of privacy over their contents given that they are, by definition, not internal communications but outside communications between two or more banks.

The list of documents requested also includes 18 documents reflecting non-privileged communications between bank counsel and the DOJ regarding the factual or legal basis for the alleged Sherman Act violation at issue in the May 20, 2015 bank plea agreements.

A necessary element of the OCC’s case against Mr. Ramchandani is that he “caused” Citibank losses in connection with the bank’s plea agreement and criminal penalty. To establish this element, the OCC will need to prove, in essence, that Citibank paid penalties because the DOJ was correct in alleging that Mr. Ramchandani violated the Sherman Act. These 18 documents show otherwise, according to Ramchandani’s counsel.

Finally, eight documents reflect communications between the DOJ and counsel for the DOJ’s cooperating witness, Matthew Gardiner, regarding the factual or legal basis for his alleged Sherman Act violation at issue at the criminal trial and now before the OCC.

Ramchandani’s counsel says the DOJ has already selectively provided the OCC with hundreds of pages of reports of its interviews with Gardiner. The eight documents at issue are needed to complete this record, reveal exculpatory statements by Gardiner, and, if necessary, impeach his credibility.

The DOJ opposes Ramchandani’s request regarding every single document mentioned above. In fact, the Department says that it has notified Barclays, Citi, JPMorgan, and UBS of this dispute, and the banks have informed the Department that they do not support the requested amendment to the protective order.