United States District Court, S.D. New York
OPINION AND ORDER
NETBURN, UNITED STATES MAGISTRATE JUDGE
October 24, 2017, the Court issued an Opinion and Order
holding that Defendants had “failed to remedy the many
deficiencies in their privilege log and document
production.” ECF No. 287 at 1. The Court ordered
Defendants to produce 19 out of 20 documents that were
submitted for in camera review. Id. at
19-20. The Court also directed Defendants to review the fifth
iteration of their privilege log (the “Fifth
Log”) and all of the documents they had withheld and
produce additional documents in accordance with the guiding
principles the Court had established. Id. at 20.
Defendants have now submitted a motion for reconsideration
and clarification of the Court's October 24, 2017 Opinion
and Order. ECF No. 293. For the reasons stated below,
Defendants' motion for reconsideration is GRANTED in part
and DENIED in part, and their motion for clarification is
addition, in the October 24, 2017 Opinion and Order, the
Court granted Plaintiffs leave “to file a motion for
sanctions in the form of an award of attorneys' fees
incurred in reviewing and litigating issues related to
Defendants' Fifth Log.” ECF No. 287 at 20.
Plaintiffs have now filed a motion for attorneys' fees.
ECF No. 292. Plaintiffs' motion for attorneys' fees
is GRANTED in part and DENIED in part. Plaintiffs are awarded
$20, 087 in attorneys' fees and $325.89 in expenses.
MOTION FOR RECONSIDERATION
for reconsideration under Local Civil Rule 6.3 are governed
by the same standard as motions under Federal Rules of Civil
Procedure 59(e) and 60(b). In re Facebook, Inc., IPO Sec.
& Derivative Litig., 43 F.Supp.3d 369, 373 (S.D.N.Y.
2014), aff'd sub nom. Lowinger v. Morgan Stanley
& Co., 841 F.3d 122 (2d Cir. 2016). “[A] court
may grant reconsideration where the party moving for
reconsideration demonstrates an ‘intervening change in
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'” Id. (quoting Schoolcraft
v. City of New York, 298 F.R.D. 134, 136 (S.D.N.Y.
2014)). A motion for reconsideration must be accompanied by
“a memorandum setting forth concisely the matters or
controlling decisions which counsel believes the Court has
overlooked.” Local Civil Rule 6.3.
October 24, 2017 Opinion and Order, the Court held that
documents Defendants or their counsel prepared before January
1, 2015, are not covered by work product immunity because the
possibility of litigation was too remote before that date.
ECF No. 287 at 7. Defendants now ask the Court to
“reconsider that date with respect to five documents on
[their] privilege log.” ECF No. 294 at 5. The Fifth Log
lists Documents 51, 58, 67, 70, and 74 as work product,
identifies specific attorneys who purportedly prepared them,
and states that they were prepared in November 2013. ECF No.
294-1 at 2. Defendants contend that “these documents
were both properly withheld from production and were properly
logged”; therefore, they ask the Court to permit them
to continue withholding the documents. ECF No. 294 at 5.
Defendants are essentially asking the Court to conduct
another in camera review of documents. The Court is
hesitant to engage in this exercise again, particularly in
light of the fact that the Court has already reviewed
exemplars in camera on three prior occasions.
Nevertheless, the Court will entertain Defendants'
request under these limited circumstances to prevent manifest
discussed in the Court's previous opinions and orders,
work product immunity “shields materials prepared in
anticipation of litigation or for trial.” ACLU v.
U.S. Dep't of Justice, 90 F.Supp.3d 201, 213
(S.D.N.Y. 2015) (quoting Tax Analysts v. IRS, 117
F.3d 607, 620 (D.C. Cir. 1997)). “The material must (1)
be 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.” SEC v.
Yorkville Advisors, LLC, 300 F.R.D. 152, 159 (S.D.N.Y.
2014) (quoting In re Grand Jury Subpoenas Dated Dec. 18,
1981 & Jan. 4, 1982, 561 F.Supp. 1247, 1257
(E.D.N.Y. 1982)); see also In re EchoStar Commc'ns
Corp., 448 F.3d 1294, 1301-02 (Fed. Cir. 2006). A
document may be withheld when it “can fairly be said to
have been prepared . . . because of the prospect of
litigation.” United States v. Adlman, 134 F.3d
1194, 1203-04 (2d Cir. 1998) (quoting 8 Charles Alan Wright,
Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure § 2024 (3d ed. 1994));
accord Waymo LLC v. Uber Techs., Inc., 870 F.3d
1350, 1362 (Fed. Cir. 2017). But “litigation must at
least be a real possibility at the time of preparation or, in
other words, the document must be prepared with an eye to
some specific litigation.” Litton Indus., Inc. v.
Lehman Bros. Kuhn Loeb Inc., 125 F.R.D. 51, 54 (S.D.N.Y.
1989) (quoting James Julian, Inc. v. Raytheon Co.,
93 F.R.D. 138, 143 (D. Del. 1982)).
addition, when a party withholds documents based on work
product immunity, Federal Rule of Civil Procedure 26 requires
the party to “expressly make the claim” and
“describe the nature of the documents, communications,
or tangible things not produced or disclosed-and do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the
claim.” Fed.R.Civ.P. 26(b)(5)(A). Local Civil Rule 26.2
also requires the party asserting the privilege to describe:
(i) the type of document, e.g., letter or
memorandum; (ii) the general subject matter of the document;
(iii) the date of the document; and (iv) the author of the
document, the addressees of the document, and any other
recipients, and, where not apparent, the relationship of the
author, addressees, and recipients to each other . . . .
Local Civil Rule 26.2(a)(2)(A). Failure to provide the
information required by Rule 26 or Local Civil Rule 26.2 may
result in a waiver of privilege. Fed.R.Civ.P. 26 Advisory
Committee's note to 1993 amendment; In re SmithKline
Beecham Corp., 243 F.3d 565 (Fed. Cir. 2000)
(unpublished table decision); Dorf & Stanton
Commc'ns, Inc. v. Molson Breweries, 100 F.3d 919,
923 (Fed. Cir. 1996); United States v. Constr. Prod.
Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996);
Yorkville Advisors, 300 F.R.D. at 167.
51 is a memorandum from Key Wynn, an attorney at YKK
Corporation of America (“YCA”), to Jim Reed, who
was then the Chief Legal Counsel of YCA. ECF No. 294 at 6.
The memorandum examines the roles of judges and juries in
determining the meaning of ambiguous contract terms and also
discusses who authored the exclusive licensing agreement at
issue in this case. Id. The memorandum appears to
have been prepared in anticipation of litigation and may well
be covered by work product immunity. But the Fifth Log states
that the document was prepared by Melissa Ewing, which is
false. By failing to provide accurate information required by
Local Civil Rule 26.2, Defendants waived any claim that the
document was covered by work product immunity. Document 51
must be produced.
58 contains calculations of potential damages that might be
imposed by a judge and jury if Defendants were sued in
connection with their sales of polyurethane zippers. ECF No.
294 at 6. The Fifth Log states that the document was prepared
by Attorney Reed on November 14, 2013, and identifies it as a
“[c]onfidential document reflecting attorney input
regarding negotiation strategy.” ECF No. 294-1 at 2.
According to their motion for reconsideration, Defendants
described the document as relating to “negotiation
strategy” because the calculations were used to assess
what amount Defendants should offer to Plaintiffs in attempt
to avoid litigation. ECF No. 294 at 7. But this is precisely
the type of after-the-fact explanation the Court rejected in
the October 24, 2017 Opinion and Order. ECF No. 287 at 5. The
Court will rely solely on the Fifth Log's description and
will not consider the additional context provided in
Defendants' recent motion papers. See id.
Document 58 itself makes no mention of negotiations and gives
no indication that the calculations were used in formulating
an offer to avoid threatened litigation. Thus,
“negotiation strategy” is not an apt description
of the document's subject matter. The description is
vague and does not provide sufficient information to enable
other parties to assess the claim of privilege. Moreover,
even if the document is viewed as relating to
“negotiation strategy, ” this phrase suggests
that the document concerns negotiations, rather than
litigation, undermining Defendants' claim that it
constitutes work product. Either way, Defendants waived any
claim of work product immunity by failing to provide an
adequate description of the document in the Fifth Log.
Document 58 must be produced.
67 consists of PowerPoint slides analyzing the claims
Plaintiffs might bring if they initiated litigation against
Defendants in connection with the exclusive licensing
agreement, the potential damages associated with those
claims, Defendants' potential defenses, and other legal
strategies Defendants could utilize. Id at 7. The
Fifth Log states that the document was prepared by Attorney
Reed on November 5, 2013, and describes the document as a
“presentation” relating to “litigation
strategy, ” “negotiation strategy, ” and
“rights under the license agreement.” ECF No.
294-1 at 2. This presentation seems to have been prepared
because of the prospect of litigation, and its analysis
suggests that the possibility of litigation was real when it
was prepared. The document is covered by work product
immunity. Moreover, the description in the Fifth Log appears
to describe the document accurately and fairly specifically.
Document 67 was adequately described in the Fifth Log, and
Defendants may continue to withhold it.
70 is a PowerPoint presentation prepared by Attorney Reed on
November 15, 2013. ECF No. 294 at 8. The document discusses
Plaintiffs' possible claims against Defendants in
connection with the exclusive licensing agreement as well as
potential damages, defenses, and legal strategies associated
with those claims. Id. The Fifth Log accurately
identifies the document's author and date and describes
the document as a “presentation . . . regarding rights
under the license agreement.” ECF No. 294-1 at 2. The
presentation appears to have been prepared because of a real
possibility of litigation. Thus, the document constitutes
work product. In addition, the Fifth Log describes the
presentation and its subject matter with accuracy and
relative specificity. Document 70 is adequately described in
the Fifth Log and may be withheld.
74 consists of PowerPoint slides discussing Plaintiffs'
potential claims against Defendants with respect to the
exclusive licensing agreement and Defendants' sales of
polyurethane zippers. ECF No. 294 at 8-9. The document also
discusses litigation strategies Defendants might use in
connection with those potential claims. Id. The
Fifth Log indicates that Attorney Reed prepared the
presentation on November 5, 2013, and describes the document
as a “presentation” relating to “litigation
strategy, ” “negotiation strategy, ”
“rights under the license agreement, ” and
“sales of PU zippers.” ECF No. 294-1 at 2. Again,
the presentation seems to have been created because of a real