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holding that there is no privilege that precludes the discovery of settlement agreements, and that production of statements made in the context of settlement discussions would not undermine the policy of encouraging settlements, because the settlement discussions were no longer ongoing, and there were no other specific circumstances outweighing the relevance of the material
Summary of this case from CONOPCO, INC. v. WEINOpinion
04 Civ. 9264 (RJH) (MHD).
December 15, 2005
MEMORANDUM ORDER
Defendants have objected to a number of plaintiff's interrogatories and document requests, some on the basis of privilege and others on the basis of burden. At the court's direction, the parties have briefed the issues of privilege and burden, and defendants have proffered a supporting affidavit. We address the issues in the order presented by defendants, and we uphold some, but not all, of their objections.
Plaintiff's interrogatory 10 asks defendants to identify "each and every client residing in New York for which JKH successfully prepared and negotiated an IRS OIC (including the date the client retained JKH, the amount of back taxes owed the IRS, the fee paid to JKH, the amount the IRS accepted and the date of acceptance)." Defendants report that the company has no list of such clients and would have to search approximately 163,000 files — some in their offices and some in storage — to identify the clients in question. (Affidavit of Monica Linder, sworn to Dec. 5, 2005, at pp. 2-3). They also suggest that the demand is unclear.
It bears mention that defendants, perhaps somewhat surprisingly, do not assert any privacy rights that may belong to their clients.
We find the request sufficiently specific. We also note that a party's failure to maintain its documents in a searchable manner does not ordinarily justify its invoking what is, in effect, a self-created burden as an excuse not to produce otherwise relevant documents. See, e.g., Chemtex, LLC v. St. Anthony Enterprises, Inc., 2004 WL 764781, *1 (S.D.N.Y. Apr. 9, 2004) (citing cases). The apparent breadth of plaintiff's demand, however, raises a serious question as to whether, in weighing relevance against burden, the court can justifiably direct defendants to provide the requested information.
Under the circumstances, we decline to order production at this time. Plaintiff is free, however, to depose either Ms. Linder or any other knowledgeable employee of J.K. Harris as to its record-keeping procedures to determine whether the degree of burden asserted in her affidavit is correct.
We note, for example, that the figure cited in Ms. Linder's affidavit — 163,000 files — appears to represent the total of all of defendant's clients nationwide, whereas the request is solely for the identification of New York clients. It is also not at all clear that the files of all of J.K. Harris's clients are kept in one location and not organized by state.
Interrogatory 11 seeks the same information for tax liabilities owed to the State of New York. For largely the same reasons, we dispose of defendants' objections on the same terms as those pertaining to the preceding interrogatory.
Document request 12 asks for "[a]ll correspondence received from a current or former client requesting a refund of fees paid to JKH from January 1, 2000 to present." Defendants oppose this request, at least in part, and they do so on the ground of burden. They reiterate the fact that J.K. Harris has 163,000 client files, and they observe that correspondence is kept in those files. They admit that the company has "a computer list of individuals who have requested refunds", but they assert that to pull the correspondence would require them "to pull the client's files and make copies of correspondence responsive to this request", and they characterize this process as "an onerous burden." (Linder Aff. at p. 3). Nonetheless, they volunteer to provide to plaintiff the list of clients who asked for a refund, with the proviso that plaintiff's counsel then go to the J.K. Harris office in Charleston, South Carolina and an unidentified storage facility in order to review and copy the files. (Id. at p. 3).
This argument is entirely unpersuasive. It is the burden of the party resisting discovery to demonstrate the degree of burden that would be involved in production. See, e.g., Compaqnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984); accord, e.g., Breon v. Coca-Cola Bottling Co. of New England, 2005 WL 3071501, *6 (D. Conn. Nov. 4, 2005); Lineen v. Metcalf Eddy, Inc., 1997 WL 73763, *7 (S.D.N.Y., Feb. 21, 1997). In this case defendants fail to do so; indeed, they offer no meaningful evidence that production would be — as they say — "onerous". In particular, they avoid indicating how lengthy the list of refund-requesting clients is, and they fail as well to demonstrate the degree of the burden involved in simply pulling the clients' files and either copying the pertinent correspondence or alternatively simply sending the pertinent documents to their New York counsel. In any event, defendants implicitly concede — as they must — that they will be required to pull the files of the clients whose names appear on the list, and hence the only work that they are proposing to avoid is copying the documents and/or shipping them to New York.
There is no justification for relieving defendants of those tasks. The documents are indisputably pertinent to the claims, counterclaims and defenses in this case, and defendants do not demonstrate that providing the responsive documents to plaintiff in New York will be unduly burdensome.
Plaintiff's document request 14 asks for "[a]ll correspondence between [J.K. Harris and] any federal or state governmental agency and/or quasi-agency alleging that JKH's advertisements are false, deceptive or misleading." In a related vein, request 16 seeks "[a]ll correspondence between [J.K. Harris] and any federal or state governmental agency and/or quasi-agency alleging that JKH violated any consumer protection statute including statutes protecting consumers against unfair business practices." Defendants oppose production, invoking a claimed privilege for settlement negotiations pursuant to Fed.R.Evid. 408. They also say, without any specification, that "JKH is precluded from producing some documents pursuant to various confidentiality agreements in the respective actions." (Linder Aff. at p. 4; Defts' Memo of Law at 3-7).
At a conference with counsel on November 30, 2005, we observed that requests 14 and 16, although poorly worded, were intended to seek communications between government agencies and J.K. Harris, and not communications between government agencies. (Nov. 30, 2005 Tr. at 30-32).
These claims fail in several respects. There is no independent settlement privilege, and defendants fail, in any event, to establish any facts pertinent to the court's invocation of its discretionary authority to relieve a party of its obligation to produce relevant discovery.
Plaintiff asserts two claims, one of which arises under federal law. (See Compl. at ¶¶ 2, 37-44) (asserting claim under the Lanham Act, 15 U.S.C. § 1125(a)). Accordingly, pursuant to Fed.R.Evid. 501, the source of legal authority pertinent to the defendants' privilege claims is federal law. See, e.g., von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Scheiner v. Wallace, 1995 WL 753931, *4 (S.D.N.Y. Dec. 19, 1995). Under federal law, courts have generally declined to recognize a privilege that would preclude discovery for the purpose of settlements or settlement negotiations. See, e.g., In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1124 (7th Cir. 1979); In re Subpoena Issued to Commodity Futures Trading Comm'n, 370 F. Supp. 2d 201, 207-212 (D.D.C. 2005); Primetime 24 Joint Venture v. Echostar Communications Corp., 2000 WL 97680, *4 n. 5 (S.D.N.Y. Jan. 28, 2000);Morse/Diesel, Inc. v. Fidelity Deposit Co. Of Maryland, 122 F.R.D. 447, 449 (S.D.N.Y. 1988); Bennett v. LaPere, 112 F.R.D. 136, 138-39 (D.R.I. 1986); NAACP Legal Defense Fund, Inc. v. U.S. Dep't of Justice, 612 F. Supp. 1143, 1146 (D.D.C. 1985). But see Goodyear Tire Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980-81 (6th Cir. 2003) (holding that settlement negotiations are never relevant but apparently excluding settlement agreements). This outcome is not surprising in view of the fact that Rule 408 explicitly authorizes the admission of statements made in the course of settlement discussions for a number of purposes and excludes their introduction only for the purpose of proving liability or the amount of damages. See, e.g., Starter Corp. v. Converse, Inc., 170 F.3d 286, 293 (2d Cir. 1999); In re Subpoena, 370 F. Supp.2d at 211 (quoting inter alia Weinstein's Federal Evidence § 408.07 at 408-26 (2005)). See also American Society of Composers, Authors Publishers v. Showtime/The Music Channel, Inc., 912 F.2d 563, 580-81 (2d Cir. 1990) (reproducing Memorandum Order) (citing cases).
To the extent that defendants rely on the existence of such a privilege, their argument fails as a matter of law. Moreover, even if we agreed with their legal premise, the privilege claim would have to be rejected because they have offered no evidence that would support their implicit contention that all (or some unstated portion) of the universe of documents sought by plaintiff in requests 14 and 16 come within the scope of the asserted privilege. It is well-settled that the party invoking a privilege has the burden of proving the facts on which the privilege claim is based, and it must do so with competent and specific evidence and may not rely on conclusory assertions. See, e.g., United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996); In re Kidder Peabody Secs. Litig., 168 F.R.D. 459, 467 (S.D.N.Y. 1996). Defendants entirely fail to make this showing, choosing instead to rely solely on a conclusory statement by Ms. Linder that, "[a]s set forth more fully in the accompanying memorandum of law, said requests encompass confidential settlement negotiations". (Linder Aff. at p. 4). Moreover, apart from this failure, Ms. Linder's affidavit fails to justify defendants' objections, since plaintiff's requests plainly call for a variety of documents that are unlikely to fit the description she offers.
Even if we creatively give defendants' arguments concerning requests 14 and 16 the most persuasive alternative interpretation that we can discern, the result would not change. We assume that they seek to press the notion that, even if not privileged, some of the requested documents should be withheld because they reflect ongoing negotiations, or perhaps because they are not relevant, or — as they more explicitly suggest — because they are protected by confidentiality agreements. Even if we accept this liberal reading of defendants' arguments, they fail to justify precluding discovery.
A number of courts that have confronted the question of whether to order production of settlement agreements or other settlement materials have acknowledged the policy of encouraging settlements of otherwise litigable disputes and hence have recognized a variety of specific circumstances that may counsel against production absent a showing of need. See, e.g., Primetime 24, 2000 WL 97680, *4 n. 5 (declining to order disclosure of ongoing settlement negotiations, which the court deemed irrelevant); ABF Capital Mgt. v. Askin Capital Mgt., 2000 WL 191698, *2 (S.D.N.Y. Feb. 10, 2000) (finding settlement agreement irrelevant since production was sought only to assist discovering party in settlement negotiations). In this case, however, defendants fail to demonstrate any specific circumstances that might counsel against production of the requested materials.
It cannot be said that the materials in question — correspondence with government entities pertaining to accusations of misleading advertising or other deceptive business practices — are not pertinent. Indeed, any allegations that defendants had engaged in deceptive or misleading advertising or other unfair business practices and defendants' responses to those accusations plainly would be highly relevant both to the claims of the plaintiff and to the counterclaims of the defendants. Moreover, although defendants cite Primetime 24, they do not even attempt to demonstrate that any of the responsive documents embody ongoing negotiations, much less do they purport to identify which portion of the universe of the contested materials would come within this category. Finally, although Ms. Linder refers in general terms to confidentiality agreements, she neither identifies any such agreements nor offers any explanation as to why such an agreement — which would presumably have been entered into for the benefit of the investigated party, that is, defendant J.K. Harris — can be used by defendant to block otherwise relevant discovery in this case.
In sum, defendants' privilege claims cannot be sustained on the present record. The documents in question must therefore be produced.
Document request 18 seeks "[a]ll correspondence between the Better Business Bureau and JKH from January 1, 200 to the present." Defendants object on grounds similar to those articulated in response to request 12, that is, that J.K. Harris has 163,000 client files. (Linder Aff. at p. 4). Since, however, defendants concede that they have a list of complaining clients, they agree to pull the pertinent client files, although they assert that they will produce them only in South Carolina. (Id.). Again, we see no justification for requiring plaintiff's counsel to travel there, particularly in the complete absence of any showing as to why it would be unduly burdensome for defendants to produce the pertinent files (or documents from them) in New York.
Finally, defendants resist document request 24, which asks for "[a]ll documents referring to or concerning the Plaintiff in this matter." Defendants are prepared to produce documents concerning a direct-mailing letter sent by plaintiff in January 2005, which apparently triggered defendants' defamation counterclaim, but they assert that locating any other documents would require a search through all of the client files. Rather than order such a search, we leave to plaintiff the option to depose someone employed by defendants who has personal knowledge of the handling and disposition of other documents pertaining to the plaintiff.
CONCLUSION
For the reasons noted, we direct that defendants produce the documents sought by plaintiff in requests 12, 16 and 18, and that they do so within two weeks of the date of this Order.