Opinion
Case No. 02-CV-73747-DT.
February 16, 2005
ORDER FOLLOWING IN CAMERA REVIEW OF DOCUMENTS SUBMITTED PURSUANT TO THE COURT'S JANUARY 26, 2005, ORDER (Doc. Ent. 114)
On December 23, 2004, plaintiff filed a motion for defendants to show cause why they had not complied with this Court's October 26, 2004, and December 1, 2004, orders. (Doc. Ent. 80). On January 26, 2005, I entered an opinion and order granting in part and deeming withdrawn in part plaintiff's motion. (Doc. Ent. 114). Within that order, I granted plaintiff's renewed request for in camera inspection of seven documents. (Doc. Ent. 114 at 12).
On February 14, 2005, BMW submitted for in camera review ten (10) pages of documents, bearing Bates numbers PRIVILEGE 0001 — PRIVILEGE 0010. After conducting an in camera review of these documents, I have reached the following conclusions:
1. PRIVILEGE 0001-0003 (described at page five of my January 26, 2005, order as documents i, ii, and iii) are documents related to the Tagle settlement. BMW has correctly described the documents. The attorney client privilege applies, because the documents describe negotiations with Tagle and constitute communications between BMW employee(s) and counsel with regard to ongoing settlement discussion or indicate the amount of a settlement check.
2. PRIVILEGE 0004-0006 (described at pages five to six of my January 26, 2005, order as documents iv, v, and vi) are documents related to the Illman/Fitts settlement. BMW has correctly described the documents. The attorney-client privilege applies, because the documents contain information provided to counsel by a BMW employee regarding settlement discussion with Illman or his attorney. The documents are properly withheld under the attorney-client privilege.
3. PRIVILEGE 0007 (not specifically described in my January 26, 2005, order) is a February 28, 1996 fax from Tengler to Eddy regarding Figueroa, the heading of which states "At The Request of Counsel". This document was apparently a precursor to PRIVILEGE 0009 (described at page six of my January 26, 2005, order as documents vii). It is not clear to the Court whether this letter was copied to BMW's counsel. However, in light of its "At The Request of Counsel" heading and the substance of its contents (concerning the investigation into the Figueroa matter), the document has been properly withheld under the attorney-client privilege.
4. PRIVILEGE 0009 (described at page six of my January 26, 2005, order as documents vii). BMW has correctly described this document. However, even though the document contains an "At Request of Counsel" header, it does not appear to contain any confidential communications between attorney and client that warrant protection under the attorney-client privilege. Therefore, BMW shall provide plaintiff's counsel with a copy of the document labeled as PRIVILEGE 0009 within ten (10) days of the date of this order unless an appeal is taken from this order to Judge Edmunds.
5. PRIVILEGE 0008 and PRIVILEGE 0010 (neither specifically described in my January 26, 2005, order) appear to be a February 29, 2006, fax confirmation report and an inter-branch memo from Bauer to shipping regarding the shipping request for items to be shipped for the purpose of product liability investigation in the Figueroa matter, respectively. As with PRIVILEGE 0009, PRIVILEGE 0008 and PRIVILEGE 0010 do not appear to contain any confidential communications between attorney and client that warrant protection under the attorney-client privilege. Therefore, BMW shall provide plaintiff's counsel with a copy of the documents labeled as PRIVILEGE 0008 and PRIVILEGE 0010 within ten (10) days of the date of this order unless an appeal is taken from this order to Judge Edmunds.
IT IS SO ORDERED. BMW may reclaim the documents submitted for in camera review by arranging for a member of defense counsel's firm to pick them up from my chambers.
The attention of the parties is drawn to Fed.R.Civ.P. 72(a), which provides a period of ten days from the date of this Order within which to file any written appeal to the District Judge as may be permissible under 28 U.S.C. 636(b)(1).