Opinion
C.A. No. 98C-10-034 MMJ.
Submitted: May 31, 2006.
Decided: June 30, 2006.
Upon the Court's In Camera Review of Documents Deemed Privileged.
Thomas J. Allingham, II, Esquire, James W. Brown, Esquire, Skadden, Arps, Slate, Meagher Flom, Wilmington, Delaware, Attorneys for Plaintiff Cendant Corporation
Jon E. Abramczyk, Esquire, Morris, Nichols, Arsht Tunnell, Wilmington, Delaware, Kevin M. Dinan, Esquire, King Spalding, Washington, DC, Attorneys for Commonwealth General Corporation.
ORDER
1. By Memorandum Opinion dated April 25, 2006, the Court considered Defendant Commonwealth General Corporation's Motion to Compel Production of Privileged Documents Cendant has put "At Issue." The Court granted Commonwealth's Motion, subject to the following procedure:
Cendant is hereby ordered to identify documents listed is its privilege log that are responsive to Commonwealth's requests for production. As to each listed document, Cendant may provide the Court with its position as to whether Commonwealth has or lacks substantial need for the document; and whether the information is reasonably available through other sources. The Court will review the identified documents in camera to evaluate whether the document is related to a subject placed at issue.
2. Cendant submitted a privilege log and a binder of 26 tabbed documents. The Court has now reviewed each document and considered Cendant's arguments as to why each document should not be produced.
3. The Court finds that the following documents are not subject to production by Cendant.
Document Description Tab Potential Category Discussion
1 Due Diligence (Category 1) Cendant produced this document to Commonwealth in redacted form. The 10/23/97 letter from Hele of redacted handwriting is not relevant to any Merrill Lynch to Katz, with issue in dispute. lawyer's handwriting
3 Due Diligence (Category 1) Cendant produced this document to Commonwealth in redacted form. The "Management Presentation" redacted parts are substantively duplicative booklet, with lawyer's of material already produced or not handwriting relevant to any issue in dispute.
4 Due Diligence (Category 1) Cendant produced this document to Commonwealth in redacted form. The 11/6/97 due diligence list redacted handwriting is not relevant to any (faxed), with lawyer's issue in dispute. handwriting
5 Due Diligence (Category 1) Not relevant to any issue in dispute.
Cover memo dated 11/10/97. Tax and employee benefits (author and recipient are outside counsel)
6 Due Diligence (Category 1) Not relevant to any issue in dispute.
Memo — "HFS-Project Seed — Employee Benefits Due Diligence"
7 Due Diligence (Category 1) Not relevant to any issue in dispute.
Detailed listing of individual employee benefits
11 Due Diligence (Category 1) Not relevant to any issue in dispute.
Undated drafts of memo re: intellectual property
12 Due Diligence (Category 1) Not relevant to any issue in dispute.
Undated draft agreement sections
13 Due Diligence (Category 1) Not relevant to any issue in dispute.
Redacted memo dated 11/20/97 re: draft agreement — change in control issues
14 Due Diligence (Category 1) Not relevant to any issue in dispute.
Memos dated 11/21/97 and 11/24/97 summarizing Affiliate Agreements (author and recipient are outside counsel)
15 Due Diligence (Category 1) Cendant has already produced this document to Commonwealth in final form. 11/25/97 draft letter from The draft and final document are not Silverman to Hele materially different. (Providian agent) re: final definitive proposal
16 Due Diligence (Category 1) Not relevant to any issue in dispute.
Memo re: divested business, properties and material agreements
17 Due Diligence (Category 1) Not relevant to any issue in dispute
Redacted memo dated 12/2/97 re: draft agreement — change in control issues
18 Due Diligence (Category 1) Cendant has already produced this document to Commonwealth 12/02/97 memo re: outstanding due diligence requests, with in-house counsel's name handwritten on front
23 Due Diligence (Category 1) Not relevant to any issue in dispute
Redacted memos dated 4/28/98 re: change in control issues
24 May 18 Meeting Cendant produced this document to (Category 4) Commonwealth in redacted form. The handwritten notes are not responsive to the 05/08/98 fax of agenda for issue of what statements actually made at meeting, with lawyer's May 18 meeting are alleged by Cendant to handwritten notes be fraudulent.
25 Due Diligence, May 18 Substantively duplicative of material Meeting (Categories 1 and already produced 4)
Draft memos dated 6/25/98 through 7/6/98 re: Providian Stock Purchase Agreement, Representation and Current Compliance
27 Notice of Litigation Cendant has already produced this (Category 3) document to Commonwealth in final form. The drafts and final document are not Drafts of letter to LeBoeuf materially different re: notice of Providian Financial Corp. Lawsuit
4. The Court finds that the following documents must be produced by Cendant to Commonwealth. As to each of these documents, the Court has determined that Cendant has waived the attorney-client privilege by raising one of the following four issues in the litigation:
(1) what Cendant and its advisors did or did not learn about Providian's business during due diligence, including what they knew about the right to use the Providian name after closing; (2) the negotiating history of the Stock Purchase Agreement between Commonwealth and Cendant; (3) when Commonwealth actually provided Cendant notice about the existence of litigation involving the Providian name; and (4) what statements were made at a May 18, 1998 meeting that Cendant alleges were fraudulent.
In order to fully and fairly litigate the factual and legal issues in this case, Commonwealth needs to review these documents. Other sources of the information contained in these documents are not reasonably available.
Tab Document Description Potential Category
2 Due Diligence, May 18 Meeting (Categories 1 and 4)
Excerpts from lawyer's handwritten notes
8 Due Diligence (Category 1)
Memo dated 11/13/97 re: due diligence meetings, with focus on creating an outline of "legal and regulatory" issues based on document review. Author and recipients are all outside counsel.
9 Due Diligence (Category 1)
Series of draft outlines, with different draftline dated, apparently relating to binders in the due diligence room
10 Due Diligence (Category 1)
Drafts of memo dated 11/20/97 re: "Preliminary Due Diligence Review."
19 Due Diligence (Category 1)
Memo dated 12/3/97 re: status of title to the Providian Service Mark
20 Due Diligence (Category 1)
Redacted memo dated 4/3/98 re: Providian Name Change
21 Due Diligence (Category 1)
Redacted memo dated 4/3/98 re: Providian Name Change
22. Due Diligence (Category 1)
Redacted memo dated 4/14/98 re: Providian name and change in control issue
26 Due Diligence (Category 1)
Memo dated 7/30/98 re: Barker litigation