Opinion
04-CV-251 (JBW).
July 22, 2004
MEMORANDUM AND ORDER
In the only outstanding discovery dispute pending before this Court, defendant Yellow Book USA, Inc. ("defendant" or "Yellow Book") seeks an order compelling plaintiff Verizon Directories Corp. ("plaintiff" or "Verizon") to produce seven documents that have been withheld in whole or in part on the basis of the attorney/client privilege and/or work product doctrine. See Letter to the Court dated 7/14/04 from Lawrence O. Kamin ("7/14/04 Def. Letter"); Letter to the Court dated 7/19/04 from Lawrence O. Kamin ("7/19/04 Def. Letter"). Plaintiff responds that defendant's challenge is both untimely and baseless. See Letter to the Court dated 7/16/04 from Richard H. Dolan ("7/16/04 Pl. Letter"). Having reviewed the seven disputed documents and accompanying declarations in camera, the Court grants in part and denies in part defendant's application.
DISCUSSION
I. Procedural IssuesAs an initial matter, the Court rejects plaintiff's argument that defendant's application is untimely and/or waived. The record reflects that for a significant portion of the time preceding defendant's application, the parties were engaged in good faith negotiations designed to narrow their disputes over the documents identified in plaintiff's 55-page privilege log. Fortunately for the Court, those negotiations proved to be highly productive, and only seven of the 459 documents on the list remain in contention.
This opinion will refer to each of the seven documents by the sequential number assigned to it on plaintiff's privilege log. See 7/14/04 Def. Letter Ex. 1. Each of the documents is reproduced in its entirety as an exhibit to one or more declarations appended to plaintiff's letter of 7/16/04.
The following is a listing of the seven disputed documents:
Equally unavailing is plaintiff's contention that defendant waived its objection to the redaction of Document No. 385 by failing to seek judicial relief within five days of plaintiff's assertion of the privilege following the inadvertent production of that document. See 7/16/04 Pl. Letter at 5. Paragraph 13 of the Protective Order Regarding Confidential Information provides that a party failing to challenge such an assertion of privilege within five business days must return or destroy the inadvertently produced document.See 7/19/04 Def. Letter at 1-2 Ex. 1 at ¶ 13. Had the Court interpreted paragraph 13 in the manner proposed by plaintiff, the Court would have declined to sign the Protective Order, on the ground that the purported waiver provision would compel a party to seek judicial intervention prematurely.
Finally, the Court rejects defendant's challenge to the sufficiency of plaintiff's privilege log. See In re Copper Mkt. Antitrust Litg., 200 F.R.D. 213, 223 (S.D.N.Y. 2001); see generally 7/16/04 Pl. Letter at 2-3, 7-8.
Accordingly, the Court reaches and decides the merits of plaintiff's assertions of privilege.
In contrast, the Court rejects as untimely plaintiff's last-minute challenge to defendant's assertions of privilege, which was raised as a "tit-for-tat" afterthought in plaintiff's response to defendant's application for a compulsion order. See 7/16/04 Pl. Letter at 8 (acknowledging that plaintiff "did not previously challenge the Yellow Book privilege claims" because plaintiff viewed defendant's assertions as "sufficient."). Plaintiff's belated request did not comply with the meet-and-confer requirements of both the federal and local rules,see Fed.R.Civ.P. 26(c), 37(a)(2)(A); E. Dist. Local Civ. R. 37.3(a), and will not be further considered.
II. The Merits
A. Governing Legal Principles
The instant dispute implicates both the attorney/client privilege and work product doctrine. Among other things, defendant argues that the withheld materials were prepared primarily for business purposes, rather than to secure legal advice. See 7/14/04 Def. Letter at 3-4.
In its Memorandum and Order of June 18, 2004 ("6/18/04 MO"), this Court addressed at length a similar dispute involving plaintiff's assertion of the attorney/client privilege. See 6/18/04 MO at 3-11. The Court will not recount herein the legal principles detailed in that opinion. Suffice it to say, a communication that relates to business matters will not be protected by the attorney/client privilege unless it was made "with the `dominant' or `primary' purpose of securing (or rendering) legal (as opposed to business) advice." Id. at 3-4 (collecting cases).
As to some of the seven documents now at issue, plaintiff seeks protection under the work product doctrine, which is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. The work product doctrine grants a qualified privilege for materials "prepared in anticipation of litigation or for trial," by or for a party "or by or for that party's representative. . . ." Fed.R.Civ.P. 26(b)(3). As the Second Circuit declared in its landmark decision in United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998), a document is prepared "in anticipation of litigation" when, "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Id. at 1202 (internal quotation omitted). Thus, the work product privilege does not protect documents "that would have been created in essentially similar form irrespective of the litigation," id. at 1202, "[e]ven if such documents might also help in preparation for litigation. . . ." Id. As with the attorney/client privilege, the party resisting disclosure bears the burden of establishing the factual basis for its claim of privilege, see United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), and the proponent of a privilege does not discharge its burden with conclusory or ipse dixit assertions.See In re Grand Jury Subpoena dated Jan. 4, 1984, 750 F.2d 223, 225 (2d Cir. 1984); 6/18/04 MO at 4 (collecting cases).
To qualify for protection under Rule 26(b)(3), documents prepared in anticipation of litigation need not have been prepared by or at the request of counsel. See In re Copper Mkt. Antitrust Litig., 200 F.R.D. at 221 (collecting cases).
Measured against these legal principles, plaintiff's assertions of privilege are sustained in part and overruled in part.
B. The Seven Disputed Documents
1. Document No. 5 [Alexander Ex. A; Bernstein Ex. B]
Plaintiff asserts only work product in connection with this e-mail string, which has been withheld in its entirety.
Although the document is dated November 16, 2001, and therefore predates this lawsuit by several years, the record supports plaintiff's claim that the prospect of litigation had already materialized. See Mundy Decl. at ¶ 3 Ex. A thereto. Nevertheless, the Court is not persuaded that the entire document was created because of anticipated litigation. The document consists of two e-mails: an "Original Message" sent at 2:54 p.m. by Jeb Stone (of Marketing Services) to the Group Manager of Marketing Communications (Lisa Alexander) and the Manager of Market Research (David Bernstein), and a second e-mail at 4:30 p.m., in which one of the two recipients (Alexander) forwarded her comments and the earlier e-mail to her subordinate for transmission to legal counsel.
The later e-mail, without the attachment, was properly withheld as privileged. However, the data contained in the "Original Message" was information that clearly was relevant to the business functions performed by the three parties to that communication, each of whom was involved in some aspect of plaintiff's marketing activities. Neither of plaintiff's two declarations concerning this document establishes that the earlier e-mail would not have been created "in essentially similar form irrespective of the litigation." Adlman, 134 F.3d at 1202; see Bernstein Decl. at ¶¶ 9-11; Alexander Decl. at ¶¶ 3-5. Therefore, the Original Message may not be withheld, and Document No. 5 should be disclosed in redacted form.
Defendant has made no showing of substantial need and undue hardship, prerequisites to disclosure of materials that constitute work product. See Fed.R.Civ.P. 26(b)(3). Moreover, although plaintiff invoked only the work product doctrine, the e-mail appears to fall more comfortably within the ambit of the attorney/client privilege. Whether or not litigation was then contemplated or prompted the transmission of the later e-mail, that message unquestionably was sent in order to secure legal advice. See Cuno, Inc. v. Pall Corp., 121 F.R.D. 198, 203 (E.D.N.Y. 1988).
Nor is the Original Message protected under the attorney/client privilege. As was the case with the document addressed in the 6/18/04 Memorandum and Order, the Court is not convinced that Stone's primary purpose in transmitting the data to both Alexander and Bernstein was to facilitate the securing of legal advice. See generally 6/18/04 MO at 7-11.
2. Document No. 178 [Miller Ex. A]
This "Interoffice Memo" dated January 29, 2002, was sent by Dave Miller to Scott Waller, with copies to the "Competitive Response Team." Plaintiff asserts both the attorney/client privilege and work product doctrine as to the entire document, which references discussions with plaintiff's counsel.
The bulk of the seven-page document falls squarely within the purview of both privileges, as the memo describes plaintiff's counsel's interactions with defendant's general counsel and identifies follow-up items requested by plaintiff's counsel. See Miller Decl. at ¶¶ 5-7. However, the two follow-up items on page 4 of the document appear on their face to be purely business objectives communicated from one non-legal employee to other non-legal personnel. See Miller Ex. A at 4. In fact, Miller acknowledges that he (and not counsel) decided to include those two items. See Miller Decl. at ¶ 7. "[W]ork by a non-attorney, undertaken without a request by the attorney to assist her, is not within the [attorney/client] privilege. . . ." Byrnes v. Empire Blue Cross Blue Shield, No. 98 Civ. 8520 (BSJ) (MHD), 1999 WL 1006312, at *4 (S.D.N.Y. Nov. 4, 1999). Therefore, as to those two follow-up items, plaintiff has failed to sustain its burden of establishing either that Miller's primary purpose in disseminating those action items was to communicate legal advice or that those directions would not have been disseminated in essentially similar form but for the prospect of litigation. The two follow-up items on page 4 should thus be disclosed, and the remaining portions of Document No. 178 may be redacted. 3. Document No. 385 [Mundy Ex. C]
Cf. 7/16/94 Pl. Letter at 4 (stating that the document was "prepared, in part, in connection with a request for the assistance of counsel") (emphasis added). The fact that Miller may have discussed the subject of those follow-up items with plaintiff's counsel (see Miller Decl. at ¶ 7) does not, within more, bring those portions of the memo within the protective cloak of the attorney/client privilege. See TVT Records v. Island Def Jam Music Group, 214 F.R.D. 143, 145 (S.D.N.Y. 2003) (ordering disclosure of portions of e-mails that addressed business strategy and included no legal strategy or advice);Byrnes, 1999 WL 1006312, at *5 (where it was "apparent that [certain] data was intended to assist the business decision-makers" and did "not reflect the performance by counsel of legal services," attorney/client privilege did not apply, even though "the data was funneled by [defendant] through its attorney. . . .").
This memo, dated December 5, 2003, was produced in redacted form, with only one line redacted. The redacted sentence is expressly addressed to William Mundy, plaintiff's general counsel, and consists of a request that he take action. See generally Mundy Decl. at ¶¶ 6-10. Plaintiff has invoked the attorney/client and work product privileges and both assertions of privilege are sustained.
4. Document No. 423 [Miller Ex. B]
This document consists of two e-mails sent by Dave Miller: an "Original Message" sent on September 26, 2001, at 4:03 p.m. to Lewis Rose, a Verizon sales executive in the Boston area, and copied to several additional business personnel; and a second e-mail at 4:14 p.m., forwarding the first e-mail to various other business employees. Plaintiff invokes the attorney/client privilege as to the entire document.
Only a few isolated lines in Document No. 423 in any way concern legal advice or action by counsel: the second half of the first line of the Original Message (starting with "and"); the last two sentences in item 1 of the Original Message; and the final sentence of the Original Message. The remaining portions of the document are strictly business communications among colleagues, and nothing in Miller's Declaration establishes otherwise. See Miller Decl. at ¶¶ 8-9; 7/16/04 Pl. Letter at 4 (stating that the document was prepared "in part" in connection with a request for legal advice). "[N]either the attorney-client nor the work product privilege protects underlying facts." SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291 (JSM), 2002 WL 1455346, at *4 (S.D.N.Y. July 3, 2002). Therefore, plaintiff's assertions of privilege as to those portions are overruled, and Document No. 423 must be produced in redacted form.
Thus, whether or not Miller subsequently discussed some of these issues with counsel (see Miller Decl. at ¶ 9) is irrelevant to the privilege analysis. Cf. SR Int'l, 2002 WL 1455346, at *4; U.S. Postal Serv. v. Phelps Dodge Ref. Corp., 852 F.Supp. 156, 163-64 (E.D.N.Y. 1994) ("A corporation cannot be permitted to insulate its files from discovery simply by sending a `cc' to in-house counsel.").
5. Document No. 442 [Mundy Ex. E]
Plaintiff has invoked the work product privilege as to only one sentence in this e-mail dated December 17, 2003, from Randy Roush to various Verizon employees. The line redacted by plaintiff pertains to strategy that apparently was taken in contemplation of litigation, which in fact was initiated by plaintiff the following month. Plaintiff's invocation of the work product doctrine is sustained. As defendant has made no showing of substantial need or undue hardship, the document need not be produced.
6. Document No. 456 [Bernstein Ex. A]
This document consists of a string of e-mails in early February 2004, all of which have been disclosed but for two lines in an e-mail sent by David Bernstein to other business persons at 1:56 p.m. on February 5, 2004. The two redacted lines specifically reference the need for communicating with counsel in connection with this case. See Bernstein Decl. at ¶ 6. Plaintiff's assertion of attorney/client privilege is sustained. 7. Document No. 457 [Chu Ex. A]
Although not argued by plaintiff, the redacted portions would also qualify for protection as work product.
This document consists of handwritten notes taken by Verizon employee Jennifer Garvey, at a meeting conducted by her superior, Lester Chu, on February 4, 2004; at that meeting, Chu conveyed to his subordinates information he had obtained at a meeting the preceding day, including information from plaintiff's general counsel. The redacted information consists of counsel's comments relative to this lawsuit. See Chu Decl. at ¶¶ 3-4. That information was properly redacted.
CONCLUSION
For the foregoing reasons, defendant's motion to compel is granted in part and denied in part. Plaintiff shall, by the close of business on July 23, 2004, furnish defendant with copies of those portions of the documents as to which plaintiff's assertions of privilege have not been sustained.
SO ORDERED.
Withheld in Exhibit Privilege Document Entirety or No. Number Date From Asserted Description Redacted
5 Alexander Ex. A 11/16/01 J. Stone W/P E-mail chain Entire Bernstein Ex. B 178 Miller Ex. A 1/29/02 D. Miller W/P E-mail with Entire A/C attached memo 385 Mundy Ex. C 12/5/03 K. Harless A/C Memo Redacted W/P 423 Miller Ex. B 9/26/01 D. Miller A/C E-mail Entire 442 Mundy Ex. E 12/17/03 R. Roush W/P E-mail Redacted 456 Bernstein Ex. A 2/5/04 D. Bernstein A/C E-mail Redacted 457 Chu Ex. A 2/4/04 J. Garvey A/C Handwritten Redacted W/P notes