United States District Court, Southern District of New York
Lloyd E. Constantine, Esq., Jean Kim, Esq. Ankur Kapoor, Esq., Samuel H. Rikkers, Esq. David A. Scupp, Esq, Constantine Cannon, LLP.
Jason J. Enzler, Esq. Constantine Cannon, LLP.
Namita Chadha, Esq. Chadha & Company S-237, Greater Kailasha II
Adam J. Podoll, Esq. Allison B. Jones, Esq. Dane H. Butswinkas, Esq. Kevin T. Baine, Esq. Nicholas G. Ganse, Esq. Masha Hansford, Esq. Thomas G. Hentoff, Esq. Williams & Connolly LLP
Stephanie S. Abrutyn, Esq. Home Box Office, Inc. Litigation Department.
Robert L. Begleiter, Esq. Schlam Stone & Dolan LLP.
Katherine M. Bolger, Esq. Levine Sullivan Koch & Schulz, LLP.
HENRY PITMAN, United States Magistrate Judge.
I write to resolve four of the remaining discovery disputes in this matter.
I. HBO's Objections to the Special Master's Decision and Order
On October 14, 2010, Devin F. Ryan, Esq., the Special Master in this matter, issued a Decision and Order addressing certain disputes between the parties concerning matters of privilege and work product and concluded that each side's motion to compel should be granted in part and denied in part (Docket Item 163) (the "Order"). Plaintiff, Mitre Sports International Limited ("Mitre") has not objected to the Order. Defendant, Home Box Office, Inc. ("HBO"), has filed objections to the Order "insofar as the Order denies HBO's request to compel [Mitre] to produce further deposition testimony from Kam Raghavan and [certain documents]" (Memorandum of Law of Defendant Home Box Office, Inc. in Support of Its Objection to the Special Master's October 14, 2010 Order, dated November 4, 2010 (Docket Item 169) ("HBO's Mem.") at 1). After reviewing the relevant portions of the Order de novo, see Fed.R.Civ.P. 53(f)(3)-(4), HBO's objections are overruled.
The reader's familiarity with Special Master Ryan's Order and the Opinion and Order of the Honorable George B. Daniels, United States District Judge, resolving the parties' motions for summary judgment, Mitre Sports Int'l Ltd. v. Home Box Office, Inc., 22 F.Supp. 3d 240 (S.D.N.Y. 2014), is assumed. HBO's objections concern Mitre's assertion of the work-product doctrine and the United Kingdom's litigation privilege in response to document requests and deposition questions concerning Mitre's investigation of the subject matter of a segment distributed by HBO which asserted that Mitre used child labor to stitch soccer balls (the "Segment"). HBO does not argue that documents and testimony are not protected by the work-product doctrine, nor does it claim the doctrine should be pierced because it has substantial need for the material. Rather, HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint (HBO Mem. at 2). HBO concedes that a decision adverse to it on the issue of waiver renders its other arguments moot (see Reply Memorandum of Law of Defendant Home Box Office, Inc. in Further Support of Its Objection to the Special Master's October 14, 2010 Order, dated November 18, 2010 (Docket Item 171) ("HBO's Reply") at 2 n.3).
Although I reach the same result as the Special Master, I do so by a slightly different (but closely parallel) route.
HBO first argues that Boocock's testimony concerning his investigation of the allegations in the Segment operates as a subject-matter waiver of any privilege that Mitre may have otherwise had with respect to its investigation. For purposes of the discussion herein, I assume that Boocock's testimony concerning the investigative steps he took and the content of the statements made to him in interviews did disclose material protected by the work-product doctrine. See generally GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 11 Civ. 1299 (HB)(FM), 2011 WL 5439046 at *6 (S.D.N.Y. Nov. 10, 2011) (Maas, M.J.) ("[T]he work product privilege extends beyond documents prepared by counsel and includes those prepared by a client in the course of preparation for possible litigation."); Sec. & Exch. Comm'n v. Strauss, 09 Civ. 4150 (RMB) (HBP), 2009 WL 3459204 at *6 (S.D.N.Y. Oct. 28, 2009) (Pitman, M.J.).
Although the Special Master did not rely on it, Fed.R.Evid. 502(a) addresses the precise issue of when a partial disclosure of protected information results in a waiver of undisclosed information.
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver.
When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the ...