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In Re Vitamin C Antitrust Litigation

January 20, 2011


The opinion of the court was delivered by: James Orenstein, Magistrate Judge:


This document refers to: ALL ACTIONS

Plaintiffs Animal Science Products, Inc.; The Ranis Company, Inc.; and Magno- Humphries Laboratories, Inc. move to compel defendant Northeast Pharmaceutical Group Co., Ltd. ("NEPG") to produce nine documents notwithstanding NEPG's assertion of privilege. Docket Entry ("DE") 317. For the reasons set forth below, I now grant the motion in part and deny it in part; specifically, I order NEPG to produce eight of the nine documents at issue (including two authored by a non-party and six that were distributed to non-parties) but deny similar relief with respect to the remaining document.

I. Background

On August 21, 2008, the movants filed the instant application to compel NEPG to produce nine documents that it had withheld on the basis of attorney-client, work product, and joint defense privileges. DE 317 (Motion); see id. Ex. A (the "Privilege Log"). The movants argued that none of those privileges applied and that NEPG's disclosures to non-parties -- including to the Ministry of Commerce ("Commerce Ministry") of the People's Republic of China ("PRC") -- waived any protection that might otherwise have shielded the documents from disclosure. NEPG denied there had been any such waiver and provided the documents at issue for me to review in camera. DE 321 (NEPG's Opposition) ("Opp."). The Commerce Ministry, purporting to act as amicus curiae, also submitted a letter in opposition to the motion. DE 322.

I heard oral argument on the motion on September 10, 2008. DE 326 (minute entry); DE 329 (Transcript of Proceedings) ("Tr."). As NEPG's counsel noted at that time, although there are nine separate documents at issue in this motion, they consist of copies and variations of only three original documents: two authored by NEPG and one authored by the Commerce Ministry. Specifically, the nine documents at issue are those numbered 1, 3, 4, 6, 7, 8, 13, 17, and 43 in NEPG's Privilege Log. See Privilege Log at 1-2, 5. Documents 3 and 4 (collectively, the "Ministry Report") are two English translations of the same document which was written by the Commerce Ministry, addressed to "The Chamber," and shared with NEPG, "the [Commerce] Ministry's outside counsel," and the other defendants in this litigation. Id. at 1. NEPG authored documents 1, 6, 7, 8, 13, and 43 (collectively, the "Report to Government Agencies") -- which all have essentially the same content -- and sent them to the Commerce Ministry as well as the PRC's Ministry of Foreign Affairs (the "Foreign Ministry") and the Shenyang Municipal Bureau of Foreign Trade and Economic Cooperation ("Shenyang Bureau"). Id. at 1-2, 5. NEPG also authored document 17 and sent it exclusively to the Commerce Ministry. See Tr. at 41-43; Privilege Log at 2.

II. Discussion

NEPG asserts two bases for withholding the documents at issue. First, it contends that all of the documents are shielded from disclosure as attorney work product pursuant to Federal Rule of Civil Procedure 26(b)(3), notwithstanding the fact that each was prepared by or disclosed to a non-party. Opp. at 1-2. Second, NEPG argues that the documents are independently shielded from discovery by the "common interest rule" or "joint defense" privilege. Id. at 2-3. I address each theory in turn below.

A. Work Product

1. Applicable Law

The work product doctrine protects from disclosure documents "prepared in anticipation of litigation or for trial by or for another party or by or for another party or its representative." Fed. R. Civ. P. 26(b)(3)(A). The doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy 'with an eye towards litigation,' free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). However, "the principle underlying the work product doctrine -- sheltering the mental processes of an attorney as reflected in documents prepared for litigation -- is generally not promoted by shielding from discovery materials in an attorney's possession that were prepared neither by the attorney nor his agents." In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (citation omitted).

Generally, a voluntary breach of the zone of privacy protected by the work product doctrine -- sharing, for instance, theories and strategy with an adversary -- destroys the privilege. In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993) (citing United States v. Nobles, 422 U.S. 225, 239 (1975); In re John Doe Corp., 675 F.2d 482, 489 (2d Cir. 1982)). The test for such waiver is whether the disclosure at issue has "substantially increased the opportunities for potential adversaries to obtain the information." In re Visa Check/Master Money Antitrust Litig., 190 F.R.D. 309, 314 (E.D.N.Y. 2000) (citing 8 Charles A. Wright & Richard L. Marcus, Federal Practice & Procedure § 2024, at 369 (2d ed. 1994)); see also In re Crazy Eddie Sec. Litig., 131 F.R.D. 374, 379 (E.D.N.Y. 1990). The party seeking disclosure is not required to prove that its adversary's earlier disclosure to a purported ally substantially increased that risk; to the contrary, it is the party claiming the privilege that carries the heavy burden of demonstrating that the privilege applies and has not been waived. See In re Grand Jury Subpoenas, 318 F.3d at 384; Bank of Am., N.A. v. Terra Nova Ins. Co., 212 F.R.D. 166, 169 (S.D.N.Y. 2002) ("The party asserting the protection afforded by the work product doctrine has the burden of showing . that it has not been waived.") (citations omitted).

2. The Ministry Report

NEPG describes each of documents 3 and 4 as a "Report from Ministry of Commerce sent to outside litigation counsel and NEPG regarding the Ministry's draft amicus curiae brief[.]" Privilege Log at 1. NEPG may not properly withhold these documents pursuant to the work product doctrine because they were not "prepared by or for a party, or by his representative." Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 105 (S.D.N.Y. 2007) (citations and quotations omitted). NEPG argues that these documents meet this threshold concern because they were "prepared for a party -- NEPG and the Defendants." Opp. at 1 (emphasis in original). This assertion contradicts the Privilege Log, which describes the document as one prepared by the Commerce Ministry and addressed to "The Chamber" -- referring to the China Chamber of Commerce of Medicines & Health Products Importers & Exporters (the "Chamber"). The fact that the Ministry Report was also sent to NEPG does not mean it was prepared for NEPG, nor does the fact that the document was prepared to support NEPG's ...

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