United States District Court, E.D. New York
IN RE PAYMENT CARD INTERCHANGE FEE AND MERCHANT DISCOUNT ANTITRUST LITIGATION This document refers to ALL ACTIONS
MEMORANDUM & ORDER
K. BRODIE, UNITED STATES DISTRICT JUDGE
putative class of over twelve million merchants brought
antitrust actions under the Sherman Act, 15 U.S.C.
§§ 1 and 2, and state antitrust laws, against
Defendants Visa and MasterCard networks, as well as various
issuing and acquiring banks, including Bank of America.
In re Payment Card Interchange Fee & Merch. Disc.
Antitrust Litig., 986 F.Supp.2d 207 (E.D.N.Y. 2013),
rev'd and vacated, 827 F.3d 223 (2d Cir. 2016).
Plaintiffs allege that Defendants harmed competition and
charged merchants supracompetitive prices by creating
unlawful contracts and rules and by engaging in conspiracies.
Id. at 213. One of the challenged rules is the
“Honor All Cards” rule, which requires merchants
that accept any Visa-branded or MasterCard-branded payment
cards to accept all Visa or MasterCard payment cards.
Id. Plaintiffs argue that their inability to steer
customers away from particular cards has resulted in
supracompetitive interchange rates established by the
addition to the class actions, groups of some of the largest
merchants brought actions against Defendants, which actions
were consolidated together with the class actions into a
multi- district litigation (“MDL”) in 2005.
Id. at 223. One such group is the 7-Eleven
Plaintiffs (“7-Eleven”). 7-Eleven, Inc., v. Visa
Inc., No. 13-CV-5746 (E.D.N.Y. Feb. 17, 2015).
before the Court is 7-Eleven's appeal of Magistrate Judge
James Orenstein's Order denying 7-Eleven's request to
overrule Bank of America's assertions of work product and
attorney-client privilege over documents produced from the
files of Bank of America's former, non-attorney employee
Herbert Fellman (the “Fellman Documents”).
(Minute Order dated Aug. 24, 2017 (“August 2017
Order”), Docket Entry No. 7051.) For the reasons set
forth below, the Court affirms Judge Orenstein's August
issue is a collection of documents retrieved from the files
of Mr. Fellman including emails, PowerPoint presentations,
handwritten notes, and graphs. These documents are identified
as Exhibits A through T and cover a range of __. According to
Bank of America, it inadvertently disclosed these documents
in the course of discovery. (Bank of America's Mem. of
Law in Opp'n to 7-Eleven Pls. Obj. to Magistrate Judge
Orenstein's Order Regarding Bank of America's
Assertions of Privilege 5 (“Def. Opp'n on
Appeal”), Docket Entry No. 7081.)
March 15, 2017, and April 18, 2017, Bank of America notified
7-Eleven that it would seek to claw back the Fellman
Documents because they were produced inadvertently and are
subject to work product protection and the attorney-client
privilege. (See 7-Eleven Pls. Obj. to
Magistrate Judge Orenstein's Order Regarding Bank of
America's Assertions of Privilege (“Pls.
Appeal”), Docket Entry No. 7063.)
August 4, 2017, after the parties met and conferred, 7-Eleven
filed a motion seeking an order invalidating Bank of
America's assertions of work product protection and
attorney client privilege over the Fellman Documents. (Pls.
Mot. to Invalidate Def. Assertion of Privilege (“Pls.
Mot.”), Docket Entry No. 7043.) On August 16, 2017,
Bank of America opposed 7- Eleven's motion. (Def. Mem. of
Law in Opp'n to Pls. Mot. (“Def. Resp.”),
Docket Entry No. 7043-3.) Judge Orenstein denied
7-Eleven's motion on August 24, 2017. (August 2017
September 8, 2017, 7-Eleven appealed Judge Orenstein's
August 2017 Order, in accordance with Rule 72(a) of the
Federal Rules of Civil Procedure, requesting that the Court
set aside the order based on clear error and as contrary to
law. (Pls. Appeal.) On October 3, 2017, Bank of America
opposed 7-Eleven's appeal. (Def. Opp'n on Appeal.)
7-Eleven submitted its reply brief on October 12, 2017. (Pls.
Reply Br. in Supp. of the Appeal (“Pls. Reply”),
Docket Entry No 7095.)
Fellman Documents include PowerPoint slides, emails and
handwritten notes. (Id.) As to some documents, Bank
of America claims privilege for selected pages rather than
the entire document. (See e.g., PowerPoint slides
annexed to Pls. Appeal as Ex. Q.)
The parties' arguments before Judge Orenstein
made several arguments before Judge Orenstein. First, it
argued that the Fellman documents do not contain any
attorney-client communication and instead were
“fact-based business analyses evaluating . (Pls. Mot.
2.) Second, it argued that the documents do not constitute
work product as they contain Bank of America's
“strategic business response” and not the
“mental processes of . . . counsel or its litigation
strategy.” (Id. at 4.) Third, it argued that
even if the documents can be labeled work product, they are
merely factual and do not involve any legal analysis or
opinion, and are therefore only entitled to minimal
7-Eleven argued that any minimal protection is outweighed by
its “substantial need for the documents” and the
inability to “obtain the information without undue
response, Bank of America argued that the documents are both
attorney-client communication and work product, as they
include information gathered at the direction of outside
counsel in anticipation of litigation and reflect
“mental impressions” and “analysis”
of counsel. (Def. Resp. 2.) Specifically, Bank of America
argued that the Fellman Documents were created as part of a
project entitled “Workstreams, ” __.
(Id. at 1.)__. (Id. at 2.)
August 24, 2017 hearing and Judge Orenstein's
August 24, 2017, Judge Orenstein heard oral arguments on the
motion, and allowed the parties to argue the merits without
specific references to the content of the documents because
of the nature of the motion. Judge Orenstein told the parties
that if they needed to reference the contents of the
documents, he would allow them to argue those issues in a
hearing closed to the public. (Aug. 24, 2017 Hr'g Tr.
(“Hr'g Tr.”) 11-12, Docket Entry No. 7052).
The parties never referenced the content of the documents and
did not request a closed hearing to do so. (See id.)
with their written submissions, 7-Eleven argued that the
documents are not privileged under the work product doctrine,
and do not constitute attorney-client communication. Bank of
America argued that the documents are protected under both
Orenstein ruled that the documents are subject to work
product protection, and therefore declined to determine
whether the documents are also protected by attorney-client
privilege. (Id. at 36-37.) Judge Orenstein found
that the documents at issue are “clearly created for
this litigation” and are “opinion” work
product and therefore entitled to heightened protection.
Id. He further ruled that 7-Eleven already had
access to the underlying facts, and failed to make a showing
sufficient to breach the higher protection afforded to
opinion work product. (Id.)
argues that Judge Orenstein's decision should be set
aside as clearly erroneous and contrary to law because: (1)
Judge Orenstein failed to examine each of the Fellman
Documents individually to determine their eligibility for
work product protection; (2) to the extent that some
documents are entitled to work product protection, they are
not opinion work product and are therefore only entitled to a
lower level of protection, which can be overcome by
7-Eleven's “substantial need, ” (Pls. Appeal
2); and (3) Judge Orenstein erred by not deciding that the
documents are not protected by attorney client privilege.
(Id. at 3.)
argues that Exhibits C, D, E, Q, S and T are
“business documents, devoid of any legal analysis
concerning litigation or settlement and would have been
generated . . . in the ordinary course of business.”
(Id. at 12.) As to Exhibits A, B, F, G, H, I, J, K,
L, N and P,  7-Eleven concedes that they constitute
work product, but argues that they are not
“opinion” work product, subject to heightened
protection because, to the extent they reflect opinions, the
opinions are not those of an attorney and the documents are
therefore entitled to a lower level of protection - a
protection that can be overcome by 7-Eleven's
demonstrated substantial need and inability to access the
information elsewhere without “undue hardship.”
also challenges Mr. Fellman's response to a question
about these documents at his deposition.___(Fellman Dep. Tr.
204:8-25, annexed to Pls. Appeal as Ex. Y.) 7-Eleven contends
that “even assuming that it was counsel who first asked
Mr. Fellman to provide__, that topic cannot be immunized from
discovery entirely.” (Pls. Appeal 18.)
Bank of America's objections on appeal
appeal, Bank of America states that all of the documents were
prepared for litigation at the direction of its inside and
outside counsel for the “Workstreams” project and
therefore constitute opinion work product subject to
heightened protection. (Def. Opp'n on Appeal 10- 11.)
Bank of America contends that the Fellman Documents are
“the product of __and are therefore attorney opinions.
(Id. at 12.) Bank of America argues that none of
those documents was “used for business purposes
independent of the litigation, and they have not been located
in any other Bank of America business-person's
response to 7-Eleven's argument that the documents are
only entitled to a lower level of protection because they
contain a business-person's opinions and not those of an
attorney, Bank of America argues that Rule 26 (b)(3)(B) of
the Federal Rules of Civil Procedure affords heightened
protection to opinions of an “attorney or other
representative concerning litigation, ” and Mr. Fellman
is one such representative because he was “working on a
litigation project directly and in conjunction with the
attorneys themselves, and the documents were not shared with
other business people.” (Id. at 16.) Bank of
America further argues that because the documents are opinion
work product and are entitled to a heightened level of
protection, 7-Eleven's substantial need for the documents
is irrelevant, and even if it is relevant, 7-Eleven has
failed to demonstrate such need. (Id. at 17-18.)
Bank of America argues that the documents constitute
attorney-client communication and are therefore protected
under attorney-client privilege. (Id. at 18-20.)
Standard of review
the Federal Magistrates Act, 28 U.S.C. § 636, and Rule
72 of the Federal Rules of Civil Procedure, “[a]
magistrate judge is authorized ‘to make findings as to
non-dispositive pretrial matters, such as discovery matters,
which may not be disturbed by a district judge absent a
determination that such findings were clearly erroneous or
contrary to law.'” Ebo v. N.Y. Methodist
Hosp., No. 12-CV-4432, 2015 WL 4078550, at *4 (E.D.N.Y.
July 6, 2015) (quoting McNamee v. Clemens, No.
09-CV-1647, 2014 WL 1338720, at *2 (E.D.N.Y. Apr. 2, 2014)));
see also Fielding v. Tollaksen, 510 F.3d 175, 178
(2d Cir. 2007)). An order is clearly erroneous if, based on
all the evidence, a reviewing court “is left with the
definite and firm conviction that a mistake has been
committed.” In re Gordon, 780 F.3d 156, 158
(2d Cir. 2015) (internal quotations omitted) (quoting
United States v. Murphy, 703 F.3d 182, 188 (2d Cir.
2012)); Ebo, 2015 WL 4078550, at *4. An order is
only contrary to law if it misapplies existing law and the
district judge is convinced that a mistake has been made.
In re Gordon, 780 ...