IN RE: TERRORIST ATTACKS ON SEPTEMBER 11, 2001.
Al Qaeda Islamic, et al., 02 Civ. 6977 (GBD) (FM) This decision relates to: Ashton, et al. Burnett
Al Baraka, 03 Civ. 9849 (GBD) (FM) Federal Insurance Co.
Al Qaida, 03 Civ. 6978 (GBD) (FM) O'Neill
Al Baraka Investment & Devel. Corp., 04 Civ. 1923 (GBD) (FM) Continental Casualty Co.
Al Qaeda, 04 Civ. 5970 (GBD) (FM) Cantor Fitzgerald & Co.
Akida Bank Private Ltd., 04 Civ. 7065 (GBD) (FM) Euro Brokers, Inc.
Al Baraka Investment & Devel. Corp., 04 Civ. 7279 (GBD) (FM)
MEMORANDUM DECISION AND ORDER
FRANK MAAS, Magistrate Judge.
I. Introduction and Background
This litigation, now in its tenth year, consolidates personal injury and property damage claims against various terrorist organizations, Islamic charities, and foreign banks, arising out of their alleged involvement in the terrorist attacks on September 11, 2001. The case has a complex and sprawling procedural history, which has seen a number of dismissals, default judgments, and two trips to the Court of Appeals. There has been no shortage of disputes regarding discovery, which continues to proceed at a deliberate pace.
In February, the Plaintiffs submitted a privilege log in response to the document requests of a number of the defendants, including the Al Haramain Islamaic Foundation, Inc. (USA), Dubai Islamic Bank, International Islamic Relief Organization, Muslim World League, Sana-Bell, Inc., Sanabel Al Kheer, World Assembly of Muslim Youth/World Assembly of Muslim Youth International, Wael Jelaidan, and Perouz Sedaghaty (collectively, "Defendants"). The Defendants have moved to compel production of two categories of documents identified in the log, which they contend have been improperly withheld from disclosure: (a) correspondence with government agencies relating to document requests the Plaintiffs made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., and (b) documents deemed confidential that Plaintiffs' counsel obtained in connection with their representation of separate, unrelated parties in Linde, et al. v. Arab Bank, PLC , No. 04-CV-2799 (NG) (VVP), a case currently pending before Judge Gershon in the Eastern District of New York.
For reasons that are explained below, the motion is granted in part and denied in part.
A. FOIA Correspondence
The FOIA correspondence consists of three types of documents: (1) letters from Plaintiffs' counsel to various government agencies requesting documents pursuant to FOIA ("FOIA Requests"), (2) letters or other communications from the government acknowledging and responding to the Plaintiffs' FOIA requests ("FOIA Responses"), and (3) the actual documents received in response to the Plaintiffs' FOIA requests ("Underlying Documents"). The Plaintiffs concede that the Underlying Documents are not privileged and have agreed to produce all such documents that have not already been disclosed. (Pl.'s' Opp. Let. at 3, 6). They take a different position with respect to the FOIA Requests and Responses, maintaining that those documents are exempt from disclosure because they contain details about their attorneys' mental impressions, thoughts, legal theories, and priorities concerning which documents and issues to pursue. (Id. at 4). Because the FOIA Requests and Responses allegedly tend to reveal counsels' confidential strategies about "which subjects to research, which documents to collect, and which documents and issues to prioritize, " the Plaintiffs argue that requiring production would unfairly prejudice them by supplying the Defendants with a "roadmap" to their case. (Id. at 6).
The work product doctrine, originally articulated by the Supreme Court in Hickman v. Taylor , 329 U.S. 495, 514 (1947), is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. That rule excludes from discovery "materials prepared in anticipation of litigation' by a party or the party's representative, absent a showing of substantial need." United States v. Adlman ("Adlman 1") , 68 F.3d 1495, 1501 (2d Cir. 1995) (quoting Fed.R.Civ.P. 26(b)(3)). The protection afforded by the work product rule provides a "zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, ' free from unnecessary intrusion by his adversaries." United States v. Adlman ("Adlman II") , 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman , 329 U.S. at 511). To avail itself of that protection, a party must demonstrate that the material at issue is "(1) a document or tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative." Gucci Am., Inc. v. Guess?, Inc. , 271 F.R.D. 58, 73-74 (S.D.N.Y. 2010). However, the work product rule is not absolute. United States v. Nobles , 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); In re Initial Pub. Offering Sec. Litig. , 249 F.R.D. 457, 459 (S.D.N.Y. 2008). Thus, even if a document qualifies as work product within the meaning of Rule 26(b)(3), a party may obtain its disclosure by showing that it has a "substantial need" for the document and cannot obtain the "substantial equivalent" through other means without "undue hardship." Fed.R.Civ.P. 26(b)(3)(A)(ii). Rule 26 further distinguishes between "factual" work product - such as materials obtained through independent factual investigation - which requires the ordinary showing of "substantial need, " and "opinion" work product - materials containing an attorney's mental impressions, conclusions, opinions, or legal theories which receives special protection and is not discoverable absent a "highly persuasive" showing of need. Adlman II , 134 F.3d at 1199, 1204.
I. FOIA Requests
The Plaintiffs' FOIA Requests clearly are work product because they were created on the Plaintiffs' behalf by their lawyers as part of their factual investigation in connection with this litigation. Moreover, to the extent that the Requests are reflective of counsels' determinations about which subject matter, documents, or issues are important to their case, they provide a window into the Plaintiffs' confidential legal theories and strategies.
Ordinarily, that would be sufficient to end the inquiry. Here, however, the Plaintiffs voluntarily disclosed the work product information contained in their FOIA Requests to the government. When work product is shared with third parties in a manner that is either "inconsistent with maintaining secrecy against opponents or substantially increases the opportunity for a potential adversary to obtain the protected information, " any applicable protection for those documents is waived. Ricoh Co. v. Aeroflex. Inc. , 219 F.R.D. 66, 70 (S.D.N.Y. 2003). The Plaintiffs' decision to submit their FOIA Requests to the government means that they are now within the records of each agency to which they were sent and are therefore obtainable by anyone, including the Defendants, through an independent FOIA request. Not only is that kind of disclosure plainly inconsistent with the requirement that parties take reasonable steps to keep work product secret, but it also significantly raises the odds that such information might wind up in the hands of a litigation opponent.
The Plaintiffs contend that their sharing of work product information with various government agencies should not lead to any waiver because the government is not their adversary in this or any related proceeding. (Pl.'s' Opp. Let. at 5). But even disclosure to non-adversaries waives work product protection if it materially increases the likelihood that an adversary can gain access to that infoimation. Costabile v. Westchester, N.Y. , 254 F.R.D. 160, 164 (S.D.N.Y. 2008). The FOIA Requests are now widely available to the public through FOIA as a direct result of the Plaintiffs' decision to submit them to government agencies. Although work product protection might be preserved "where the disclosing party and the third party share a common interest, " Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc. , 229 F.R.D. 441, 446 (S.D.N.Y. 2004), the government and the Plaintiffs have no relevant interests in common. Thus, even though the government might not be their adversary, the Plaintiffs' disclosures nonetheless have forfeited any work product protection that might otherwise be applicable. See, e.g., Medinol. Ltd. v. Boston Scientific Corp. , 214 F.R.D. 113, 115 (S.D.N.Y. 2002) ("where the third party to whom the disclosure is made is not allied in interest with the disclosing party or does not have litigation objectives in common the protection of the [work product] doctrine will be waived").
The Plaintiffs argue that the FOIA correspondence should be afforded more extensive protection because the documents allegedly fall within the scope of the common law work product doctrine, which stems directly from Hickman and is somewhat broader than the privilege that is encompassed by Rule 26(b)(3). (See Pl.'s' Sur-Reply at 2 (citing United States Info. Sys. v. IBEW Local Union No. 3 AFL-CIO, No. 00 Civ. 4763, 2002 WL 31296430, at *5 (S.D.N.Y. Oct. 11, 2002))). Application of the common law standard, however, ...