The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Sojitz Corporation of America ("SCA"), Jun Matsumoto, and Takashi Tsukda, the defendants in this employment discrimination suit, have moved to compel production of purportedly privileged documents withheld by the plaintiff, Arnold Schanfield. For the reasons that follow, the motion is granted with respect to certain documents but denied with respect to others.
Mr. Schanfield served as SCA's Chief Internal Auditor from July 10, 2006 until May 21, 2007, when his employment was terminated. (Plaintiff/Counterclaim Defendant Arnold Schanfield's Concise Statement of Material Facts ("Pl. Facts"), ¶ 1; Defendants' Statement of Material Undisputed Facts Pursuant to Local Rule 56.1 ("Def. Facts"), ¶¶ 15, 67). On November 1, 2007, the plaintiff commenced this lawsuit on behalf of himself and a class of current and former non-Japanese/non-Asian managerial employees of SCA. Mr. Schanfield maintains that SCA routinely engaged in a variety of discriminatory practices, systematically favoring Japanese and Asian employees and subjecting non-Japanese and non-Asian employees to disparate promotional opportunities, compensation, and other benefits. (Second Amended Complaint ("SAC"), ¶¶ 1, 12-32). Mr. Schanfield also alleges that SCA unlawfully retaliated against him. (SAC, ¶¶ 63-76). In response, defendant SCA asserted counterclaims against Mr. Schanfield for breach of his employment contract, misappropriation of trade secrets, and breach of fiduciary duties owed to SCA. (Answer and Counterclaims to the Second Amended Class Action Complaint ("Ans.") at 17-24). The defendants specifically contend that Mr. Schanfield improperly used and disclosed information contained in "highly sensitive and confidential" SCA documents; they allege further that Mr. Schanfield continues to refuse to return these documents to SCA. (Memorandum of Law in Support of Defendant Sojitz Corporation of America's Motion to Compel ("Def. Memo.") at 3; Ans. at 17-24). The parties have been enmeshed in discovery for over a year.
The instant dispute concerns documents from the plaintiff's personal computer. On August 29, 2008, I issued an order directing a third-party vendor to search Mr. Schanfield's computer using certain search terms agreed upon by counsel and to generate a report of electronically stored information containing these terms. (Order dated Aug. 29, 2008 at 1, 3). Within ten days of receiving this report, the plaintiff was to produce copies of all non- privileged documents relevant to the defendants' counterclaims. (Order dated Aug. 29, 2008 at 2).*fn1 Since October 2008, however, the parties have disputed the scope of the plaintiff's production on the grounds of both relevance and privilege.
On January 22, 2009, I held a telephone conference with the parties in an attempt to resolve this issue. I then reviewed, in camera, twenty allegedly non-responsive and irrelevant documents withheld by the plaintiff and twenty documents that were produced to the defendants in redacted form. The redactions, according to the plaintiff, "were made on the basis of the work product protection and/or irrelevance." (Letter of Patricia E. Ronan dated Jan. 26, 2009). Thereafter, although I ordered the plaintiff to produce two of the redacted documents in un-redacted form, I found that otherwise the "plaintiff's redactions and determinations to withhold documents . . . are well-founded, primarily on the basis of relevance," and thus, "[n]o further review is warranted." (Order dated Jan. 28, 2009). As explained during the preceding telephone conference, however, this determination did not preclude the defendants from challenging the assertion of privilege with respect to other documents withheld.
The defendants filed the instant motion on January 30, 2009. They specifically identify thirty-six documents from the plaintiff's privilege log, arguing that these documents are not protected from disclosure and must be produced. (Reply Memorandum of Law in Support of Defendant Sojitz Corporation of America's Motion to Compel ("Def. Reply") at 6, 7, 9).*fn2 In response, the plaintiff maintains that these documents are in fact protected by the attorney-client privilege or the work product doctrine. (Memorandum of Law in Opposition to Defendant Sojitz's Motion to Compel and for Fees and Costs ("Pl. Memo.") at 10-12, 13-18, 18-20). Both parties seek costs and fees associated with this dispute. (Def. Memo. at 16-19, Pl. Memo. at 24-25).
I reviewed the thirty-six contested documents in camera in addition to considering each party's submissions on the matter.
A. Attorney-Client Privilege and Work Product Doctrine
The traditional articulation of the attorney-client privilege is that:
(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.
United States v. International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, AFL-CIO, 119 F.3d 210, 214 (2d Cir. 1997) (quotation marks and citation omitted); see also Kingsway Financial Services, Inc. v. Pricewaterhous-Coopers LLP, No. 03 Civ. 5560, 2007 WL 473726, at *7 (S.D.N.Y. Feb. 14, 2007); In re Rivastigmine Patent Litigation, 237 F.R.D. 69, 73-74 (S.D.N.Y. 2006); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995).*fn3 "It is axiomatic that the burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship, a burden not discharged by mere conclusory or ipse dixit assertions." In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224-25 (2d Cir. 1984) (citations and internal quotation marks omitted); accord von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 523 (S.D.N.Y. 1992). As the proponent of the attorney-client privilege in this case, the plaintiff ...