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holding documents prepared at the request of counsel for the purpose of rendering legal advice are privileged even if they may have informed business analysis as well
Summary of this case from Chrimar Systems Inc. v. Cisco Systems Inc.Opinion
No. C-02-1786 JSW (EMC).
August 23, 2004
ORDER GRANTING IN PART AND DENYING IN PART FIRST DATA'S MOTION TO COMPEL VISA AND ACCENTURE TO PRODUCE ACCENTURE DOCUMENTS (Docket Nos. 245, 248)
Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, and good cause appearing therefor, the Court hereby GRANTS in part and DENIES in part First Data's motion to compel Visa and Accenture to produce Accenture documents.
I. FACTUAL PROCEDURAL BACKGROUND
Early in 2002, First Data applied to Visa to operate a new private arrangement through which it would authorize, clear, and settle a large number of Visa transactions without routing the transactions through Visa's central system VisaNet. See Popofsky Decl. ¶ 2. According to Visa, "[s]oon after receiving First Data's application, . . . Visa began to consider what risks private arrangements posed for the Visa payment service." Theoharis Decl. ¶ 3. Paul Allen (Executive Vice President and General Counsel at Visa) and Steve Ruwe (Executive Vice President of Operations and Risk Management at Visa) subsequently "assembled a team of Visa business people to analyze the risks to the Visa payment associated with private arrangements and to assist the lawyers." Murphy Decl. ¶ 4. "Mr. Allen and Mr. Ruwe asked key business people to write short memoranda summarizing their initial thoughts about how a large scale private arrangement would affect the part of Visa's system with which they were most familiar." Id. ¶ 5. Visa has produced these memoranda to First Data as part of discovery. See Opp'n at 3-4.
Soon after assembling the team of Visa business people, Visa hired consultants at Accenture, a third party, to assist Visa in analyzing First Data's "request to cross-clear transactions." Hersey Decl., Exs. B-C (unsigned letters of 4/12/02 from Accenture to Mr. Allen and Mr. Ruwe); see also Murphy Decl. ¶ 6 (stating that Accenture was hired to assist in the effort to analyze risks to Visa payment system associated with private arrangements and to assist lawyers). It appears that Accenture was retained by Visa on or about April 12, 2004. See Hersey Decl., Exs. B-C (unsigned letters of 4/12/02 from Accenture to Mr. Allen and Mr. Ruwe). The retention letter between Visa and Accenture was signed by Mr. Ruwe. See id. ¶ 4; Parker Reply Decl., Ex. B (signed letter of 4/12/02 from Accenture to Mr. Ruwe).
On April 15, 2002, Visa filed suit against First Data for, inter alia, trademark infringement and breach of contract on the grounds that First Data would not agree to abide by Visa's then-existing rules concerning private arrangements. See Docket No. 1 (complaint). Soon after, counsel for the parties met, and First Data presented Visa with a draft counterclaim that First Data was considering filing. See Popofsky Decl. ¶ 4. The draft counterclaim included antitrust and common law claims similar to those in First Data's current counterclaim. See id.
A Visa Board meeting was scheduled for the end of May 2002. See Murphy Decl. ¶ 9. It appears that, in advance of the Visa Board meeting, Mr. Allen instructed the internal Visa and Accenture teams to begin preparing a presentation to the Board. See Theoharis Decl. ¶ 11 (stating that this was his "understanding"). According to Visa, it has a practice of having "attorneys integrally involved with the drafting and review of Board materials concerning active or anticipated litigation." Id.; see also Miller Decl. ¶ 3 (same). Visa has refused to produce the draft Board materials prepared by Accenture to First Data. See Theoharis Decl. ¶ 11; Miller Decl. ¶ 3.
Also in advance of the Visa Board meeting in May 2002, "the Accenture team, with assistance from business people at Visa, compiled information about the business risks associated with large scale private arrangements into a single analysis (the 'May 2002 Analysis')." Murphy Decl. ¶ 9. The May 2002 Analysis was completed prior to the Visa board meeting. Visa has produced the analysis — as well as drafts of the analysis — to First Data as part of discovery. See Opp'n at 4. On or about May 30, 2002, the Visa Board adopted a temporary moratorium on new private arrangements. See Murphy Decl. ¶ 10.
After the Board imposed a temporary moratorium on new private arrangements, Visa — with the assistance of Accenture — began to prepare a new document "summarizing the risks to Visa from a large scale private arrangement and identifying potential conditions that could be imposed on private arrangements to attempt to ameliorate those risks and inventory any residual risks." Murphy Decl. ¶ 11. According to Visa, drafts of this document, called the "Private Arrangement Analysis" were personally reviewed by Visa's outside counsel (Heller Ehrman) as well as in house counsel, and both provided legal advice based on their review of those drafts. See Popofsky Decl. ¶ 6; Miller Decl. ¶ 4. Moreover, according to Visa, "[d]rafts of the Private Arrangement Analysis were created to assist the attorneys in providing legal advice about the issues in this litigation." Id.; see also Popofsky Decl. ¶ 2 (stating that this was his "understand[ing]"). The drafts were not shared with Visa's Board. See Miller Decl. ¶ 4. Visa has refused to produce the drafts of the Private Arrangement Analysis to First Data, although it appears that, recently, Visa gave to First Data one of the drafts of the analysis. See Reply at 5.
According to Visa, "[a]t some point during the process of analyzing the legal issues relating to private arrangements, the legal team determined that Visa's directors and senior management would need a document summarizing the relevant issues to assist them in making a final decision about whether to permit new private arrangements." Miller Decl. ¶ 7; see also Popofsky Decl. ¶ 7 (stating that legal team made this determination "[d]uring this time"). The final version of the Private Arrangement Analysis was intended to serve this business purpose. See Miller Decl. ¶ 7; see also Popofsky Decl. ¶ 7. Visa has produced the final version of the Private Arrangement Analysis, dated August 28, 2004, to First Data as part of discovery. See Hersey Decl., Ex. D (final version of the Private Arrangement Analysis).
Subsequently, Visa decided to permanently prohibit new private arrangements. See Popofsky Decl. ¶ 8. Sometime before this decision, outside counsel for Visa (Laurence Popofsky of Heller Ehrman) asked Visa to provide its attorneys information about three factual issues that they believed would be important in defending Visa in the litigation with First Data. See id. Visa generated three reports in response, dated August 2002. See id., Exs. 1-3 (reports). Visa has refused to produce these reports to First Data.
Finally, there is a group of miscellaneous documents that Visa has also refused to produce to First Data, consisting of, e.g., e-mails, draft discussion documents, draft analyses, and draft letters. See generally Miller Decl., Exs. 3-4; Theoharis Decl., Exs. 1-3, 5.
II. DISCUSSION
A. Attorney-Client Privilege
(1) When legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are, at the client's instance, permanently protected (7) from disclosure by the client or by the legal adviser (8) unless the protection be waived.United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). The party asserting the attorney-client privilege has the burden of establishing all of the above elements and, even if established, the privilege is strictly construed. See id. at 999-1000.
For purposes of this opinion, two of the above elements warrant additional discussion, namely, elements (1) and (2).
Regarding (1), a learned treatise has stated that "there is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultations is to seek legal advice or assistance." 1 Paul R. Rice, Attorney-Client Privilege in the United States § 7:5, at 43-44 (2d ed. 1999) (emphasis in original). Numerous cases from this district have applied this standard. See, e.g., North Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1127 (N.D. Cal. 2003) ("In general, legal advice is implicated 'if the nonlegal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation.'"); United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2001) ("In order to show that a communication relates to legal advice, the proponent of the privilege must demonstrate that the 'primary purpose' of the communication was securing legal advice."); United States v. Chevron Corp., No. C 94-1885 SBA, 1996 U.S. Dist. LEXIS 8646, at *3 (N.D. Cal. May 30, 1996) ("[T]o the extent that the withheld documents relate to a combination of both legal and business advice, the applicable legal test requires Chevron to prove that all of the communications it seeks to protect were made primarily for the purpose of generating legal advice.") (internal quotation marks omitted); Conner Peripherals v. Western Digital Corp., 31 U.S.P.Q.2d (BNA) 1042, at *6-7 (N.D. Cal. 1993) ("Although a lawyer may advise as to both legal and business ramifications, if the primary purpose of a communication is to solicit or render advice on business or other non-legal matters, the attorney-client privilege does not apply."); see also 1 Rice, Attorney-Client Privilege § 7:5, at 44-47 n. 56 (citing cases holding that privilege applies only if primary purpose is to seek legal advice or assistance).
A recent Ninth Circuit opinion, however, suggests that the primary purpose test may have been replaced or refined by a "because of" standard. See In re Grand Jury Subpoena, 357 F.3d 900 (9th Cir. 2004). While In re Grand Jury Subpoena addressed the work product doctrine, and not the attorney-client privilege, the key issue for the court was whether a document should be protected if it has not only a litigation purpose but also a nonlitigation purpose — an issue similar to that which arises in the context of attorney-client privilege, i.e., whether a document should be privileged because it has both a legal purpose and a nonlegal purpose. The Ninth Circuit stated that "a document should be deemed prepared 'in anticipation of litigation' and thus eligible for work product protection under Rule 26(b)(3) if 'in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.'" Id. at 907 (emphasis added). Notably, the court specifically pointed out that
[t]he "because of" standard does not consider whether litigation was a primary or secondary motive behind the creation of a document. Rather, it considers the totality of the circumstances and affords protection when it can fairly be said that the "document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation."Id. at 908 (emphasis added).
The Court discerns no reason why and neither of the parties has advanced any reason why, for purposes of determining the discoverability of documents that have both a legal purpose and a nonlegal purpose ( e.g., business purpose), the methodology in In re Grand Jury Subpoena should not be applied to the attorney-client privilege. Moreover, the Court notes that the "because of" standard is more protective than the "primary purpose" standard, see 6-26 Moore's Fed. Practice — Civ. § 26.70[3][a] ("The 'because of' approach is more inclusive than the approach taken by those courts that require a document to be prepared 'primarily or exclusively to assist in litigation.'"), and the work product doctrine discussed in In re Grand Jury Subpoena is generally broader than the attorney-client privilege. See United States v. Nobles, 422 U.S. 225, 238 (1975) ("[T]he work-product doctrine is distinct from and broader than the attorney-client privilege."). Given these two factors, the Court finds that the methodology in In re Grand Jury Subpoena is appropriately applied to the attorney-client privilege without any prejudice to Visa.
As for element (2) above, "courts have extended the [attorney-client] privilege to the substantive advice and technical assistance" of agents of the attorney. 1 Rice, Attorney-Client Privilege § 3:3, at 14; see also id. at 22 (noting that privilege covers confidential communications from client to agent, from client to attorney in presence of agent, from attorney to agent, and from agent to attorney, provided that communications not from client reveal prior confidences of client). The issue of whether a nominal third party qualifies as an agent of the attorney is informed by the leading case of United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).
In Kovel, the court held that the attorney-client privilege extended to confidential communications made by a client to an accountant in the attorney's employ, even though the accountant was not an attorney. The communications were incident to the client's obtaining legal advice from the attorney. Analogizing the role of the accountant in assisting the lawyer to that of an interpreter assisting the lawyer when a client speaks a foreign language — the latter relationship clearly covered by the attorney-client privilege — the court stated that
the presence of an accountant, whether hired by the lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought not destroy the privilege, any more than would that of the linguist . . .; the presence of the accountant is necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.Id. at 922.
According to one judge in this district, " Kovel did not intend to extend the [attorney-client] privilege beyond the situation in which an accountant was interpreting the client's otherwise privileged communications or data in order to enable the attorney to understand those communications or that client data." Chevron Texaco, 241 F. Supp. 2d at 1072 (emphasis added). However, not all courts have taken as narrow an approach to agency. See 1 Rice, Attorney-Client Privilege § 3:3, at 13-21 (noting that courts have extended the attorney-client privilege to substantive advice and assistance of, e.g., investigators, interviewers, technical experts, and other specialists).
Although the precise parameters of Kovel are not self-evident, the court in Kovel emphasized that "[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service, . . . or if the advice sought is the accountant's rather than the lawyer's, no privilege exists." Id. (emphasis added). Thus, for purposes of element (2), when the issue is whether a nominal third party is an agent of the attorney, a key question is whether a communication was made for a legal purpose, the same inquiry as in element (1).
B. Work Product Doctrine
The work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3). Pursuant to the doctrine, documents and tangible things prepared by or for a party, or the party's representative, in anticipation of litigation are protected from discovery. See In re Grand Jury Subpoena, 357 F.3d at 906. A representative of a party includes the party's attorney, consultant, or agent. See Fed.R.Civ.P. 26(b)(3).
If a party satisfies its burden in showing that the protection afforded by the work product doctrine extends to the materials it has withheld, see Chevron Texaco, 241 F. Supp. 2d at 1080-81 (discussing burden of proof), the materials may still be ordered produced but only "upon an adverse party's demonstration of 'substantial need [for] the materials' and 'undue hardship [in obtaining] the substantial equivalent of the materials by other means.'" In re Grand Jury Subpoena, 357 F.3d at 906 (quoting Fed.R.Civ.P. 26(b)(3)). In ordering discovery of such materials when the required showing has been made, a court must "protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Fed.R.Civ.P. 26(b)(3).
For a document or tangible thing to have been prepared in anticipation of litigation does not mean that litigation need have actually commenced, but "there must be more than a remote possibility of litigation." Fox v. California Sierra Fin. Servs., 120 F.R.D. 520, 524 (N.D. Cal. 1988). As noted above, the Ninth Circuit has stated that "a document should be deemed prepared 'in anticipation of litigation' and thus eligible for work product protection . . . if 'in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.'" In re Grand Jury Subpoena, 357 F.3d at 907 (emphasis added).
The "because of" standard is not difficult to apply when a document has been prepared exclusively in anticipation of litigation. See id. at 907. However, when a court moves beyond such a "single purpose" document and considers a "dual purpose" document — i.e., a document that was not prepared exclusively in anticipation of litigation — the inquiry becomes more complicated.
The question of entitlement to work product protection cannot be decided simply by looking at one motive that contributed to a document's preparation. The circumstances surrounding the document's preparation must also be considered. In the "because of" . . . formulation, 'the nature of the document and the factual situation of the particular case' are key to a determination of whether work product protection applies. When there is a true independent purpose for creating a document [ i.e., nonlitigation purpose], work product protection is less likely, but when two purposes [litigation and nonlitigation] are profoundly interconnected, the analysis is more complicated.Id. at 908.
In In re Grand Jury Subpoena, the Ninth Circuit examined the applicability of the work product doctrine to various documents prepared by an environmental consultant hired by an attorney, who was in turn retained by Ponderosa to advise and defend it in anticipated litigation with the government. See id. at 905. The consultant conducted an investigation to assist the attorney in preparing a legal defense after Ponderosa had been informed that it was under investigation by the EPA for unlawful transportation and disposal of hazardous substances. See id. Shortly thereafter, the information collected by the consultant was used to answer an EPA CERCLA Information Request, a reporting responsibility independent of the investigation and anticipated litigation. See id. at 905-06. Two years later, a grand jury investigating Ponderosa issued a subpoena to the consultant for the production of all records concerning the disposal of waste material by Ponderosa. See id. at 906. Ponderosa intervened and moved to quash the subpoena, contending that the documents were protected under the work product doctrine. See id.
The Ninth Circuit noted that some of the documents sought pursuant to the subpoena had a dual purpose — i.e., they were prepared in anticipation of litigation with the government and in compliance with the CERCLA Information Request. See id. at 907. However, they were prepared because of the anticipation of litigation: "[The attorney] hired [the consultant] because of Ponderosa's impending litigation and [the consultant] conducted his investigation because of that threat. The threat animated every document [the consultant] prepared, including the documents prepared to comply with the Information Request. . . ." Id. at 908. It was the anticipation of litigation that prompted the consultant's work "in the first place." Id. at 909. Thus, the Ninth Circuit concluded that the documents at issue were entitled to work product protection because, "taking into account the facts surrounding their creation, their litigation purpose so permeate[d] any non-litigation purpose that the two purposes [could not] be discretely separated from the factual nexus as a whole." Id. at 910.
C. Documents at Issue
Having laid out the applicable legal framework for the attorney-client privilege and work product doctrine, the Court now turns to the whether, in the instant case, the documents at issue should be produced. The Court notes that, while there are significant differences between the attorney-client privilege and work product doctrine, there is one important similarity, which should be evident from the discussion above, namely, whether the documents at issue were prepared because of a legal or litigation purpose.
1. Drafts of Private Arrangement Analysis
The drafts of the Private Arrangement Analysis are as follows: TRACC0000915 (Miller Decl., Ex. 2); TRACC00932-33 (Miller Decl., Ex. 2); TRACC0000935-45 (Miller Decl., Ex. 2); TRACC0000956 (Miller Decl., Ex. 2); TRACC0000957-63 (Miller Decl., Ex. 2); TRACC0001506-14 (Miller Decl., Ex. 2); TRACC0001515-39 (Miller Decl., Ex. 2); TRACC0002551-98 (Miller Decl., Ex. 2); TRACC0002850-53 (Miller Decl., Ex. 2); TRACC0002854-900 (Miller Decl., Ex. 2); and TRACC0002901-47 (Miller Decl., Ex. 2). It also appears that the following documents are drafts of the analysis: TRACC0001758-70 (not attached to any declaration); TRACC0002800-02 (not attached to any declaration); TRACC0002803-19 (not attached to any declaration); and TRACC0002820-26 (not attached to any declaration). Finally, TRACC0000903-04 (Miller Decl., Ex. 3), TRACC0000913-14 (Miller Decl., Ex. 3) and TRACC0001562-1608 (Miller Decl., Ex. 3) — although e-mails — also fall under the category of drafts of the Private Arrangement Analysis. See Opp'n at 17.
Visa contends that the drafts of the Private Arrangement Analysis are protected by the attorney-client privilege and work product doctrine because the drafts were prepared in part to permit Visa's attorneys to review them and provide input as to editing. Presumably, that input reflected legal advice from counsel. Nonetheless, the fact that the documents were reviewed and subject to revisions by counsel does not necessarily make them privileged or protected by the work product doctrine. At best, attorney involvement and the anticipation of attorney review for legal significance renders the drafts dual purpose documents under In re Grand Jury Subpoena.
Visa's suggestion that the drafts of the Private Arrangement Analysis were single purpose documents, prepared exclusively for a legal purpose, and that only at some unidentified later point did the legal team realize that the Board would need to see the analysis is not credible. In May 2002, the Board imposed a temporary moratorium on new private arrangements, after which a final decision on the status of new private arrangements, including First Data's application, was still necessary. To make that business decision, the Board needed an analysis of private arrangements — just as it had an analysis of private arrangements, i.e., the May 2002 Analysis, to guide its decision on whether to impose a temporary moratorium. Notably, Visa produced not only the final version of the May 2002 Analysis to First Data as part of discovery but also the drafts of that analysis, thus underscoring the implausibility of Visa's position that the drafts of the Private Arrangement Analysis had an exclusive legal purpose. The engagement letter with Accenture also makes clear the business purpose of Accenture's retention, stating: "Accenture is pleased to submit this arrangement letter outlining our approach for helping Visa U.S.A. with its analysis of the recent First Data Corporation (FDC) request to cross-clear transactions." Parker Reply Decl., Ex. B at 1 (letter of 4/12/02 from Accenture to Mr. Ruwe).
Even under Visa's argument, once the alleged determination was made that the Board needed "a document summarizing the relevant issues to assist them in making a final decision about whether to permit new private arrangements," Miller Decl. ¶ 7, then all drafts of the Private Arrangement Analysis from that point on were dual purpose documents.
Given the dual purpose of the drafts of the Private Arrangement Analysis ( i.e., a legal purpose and a business purpose), the question for the Court is whether, under the totality of the circumstances, it can be fairly said that the drafts were created because legal advice was sought or litigation was anticipated — i.e., whether the drafts would not have been created in substantially similar form but for the need for legal advice or the prospect of litigation. Unlike the investigation documents in In re Grand Jury Subpoena, the drafts of the Private Arrangement Analysis were not prepared in the first place because of impending litigation or solely to obtain legal advice. The drafts were prepared to assist Visa in reaching a business decision as to whether to permit First Data to continue and expand its private arrangement. Even if no lawyers were to be involved, this analysis would have been undertaken. Cf. United States v. Adlman, 134 F.3d 1194, 1204 (2d Cir. 1998) (asking whether document would have been prepared as part of ordinary course of business of undertaking restructuring or whether document would not have been prepared but for anticipation of litigation with IRS over losses generated by restructuring). This is underscored by the fact that Accenture was retained not by Visa's counsel (outside or in house) but by Mr. Ruwe, Executive Vice President of Operations and Risk Management at Visa.
By serving an independent business purpose, the drafts stand in contrast to the investigatory documents at issue in In re Grand Jury Subpoena. The drafts are more akin to the accountant's records found not to be protected in United States v. Frederick, 182 F.3d 496 (7th Cir. 1999), a case discussed by the Ninth Circuit in In re Grand Jury Subpoena. In Frederick, the documents at issue were used in preparation of tax returns and for use in litigation. The Ninth Circuit explained that, in Frederick, "[a]lthough [the attorney's] clients were under investigation (which the [Seventh Circuit] acknowledged was a 'complicating factor'), work product protection was ultimately inappropriate because tax return preparation is a readily separate purpose from litigation preparation. . . ." In re Grand Jury Subpoena, 357 F.3d at 909. In the case at bar, the drafts of the Private Arrangement Analysis, the final version of which ultimately went to the Visa Board to inform their ultimate decision whether to grant or deny First Data's request, had a readily separable purpose. At bottom, it simply cannot be fairly said that the drafts were created in the first place because of the need to obtain legal advice or because of anticipation of litigation.
The Court notes that there are substantial policy reasons for holding that business documents submitted for attorney review are not by that virtue automatically exempt as privileged or work product protected communications. See 1 Rice, Attorney-Client Privilege § 7:2, at 24 (noting that businesses may try to "immunize internal [business] communications from discovery by placing legal counsel in strategic corporate positions and funneling documents through counsel").
The cases cited by Visa are unavailing. Visa argues that "[i]t is axiomatic that a 'client may intend to direct or permit the release of the final version of a document while still intending that his communications with his attorney prior to the finalization of the document remain confidential.'" Opp'n at 16 (citing In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 474 (S.D.N.Y. 1996)). However, the question in Kidder, as in the other cases on which Visa relies, was whether drafts of a document should be protected when the final version was ultimately transmitted to a third party. See Kidder, 168 F.R.D. at 474 (discussing public release of report); In re Grand Jury Subpoena, 731 F.2d 1032, 1037 (2d Cir. 1984) (noting that final versions of documents "might eventually be sent to other persons") (emphasis added); Alexander v. FBI, 198 F.R.D. 306, 312 (D.D.C. 2000) (discussing disclosure of final letter (not drafts) to third party). That is not the issue before the Court in the instant case. Here, the question of waiver based on exposure to a third party ( i.e., Accenture) turns on the Kovel analysis which in turn is informed by the dual purpose analysis discussed above.
As a final point, the Court notes that, even if the drafts of the Private Arrangement Analysis were covered by the attorney-client privilege and/or work product doctrine, as argued by Visa, there is a strong argument that such protection was waived because Visa appears to have produced to First Data one of the drafts of the analysis.
The draft Board materials are as follows: TRACC0001445-49 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4); TRACC0001748-52 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4); TRACC0001753-57 (Theoharis Decl., Ex. 4); TRACC0001771-76 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4); TRACC0001777-82 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4); TRACC0001888-97 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4); TRACC0002827-37 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4); TRACC0002838-48 (Miller Decl., Ex. 1; Theoharis Decl., Ex. 4).
The Court similarly concludes that the draft materials to the Board are not protected by either the attorney-client privilege or work product doctrine. The materials were prepared for distribution to the Visa Board to inform its substantive business decision whether to approve or deny First Data's application. The drafts thus had a clear, readily separable business purpose. Although these documents may have been submitted to Visa's counsel for review, given that these materials would have been prepared in any event for the Board, it cannot fairly be said that they were created in the first place because of the need to obtain legal advice or the prospect of litigation.
Notably, there is no confirmation that the drafts were actually reviewed by counsel. In the declarations submitted by Visa, there is only the statement that "[i]t is Visa's practice to have attorneys integrally involved with the drafting and review of Board materials concerning active or anticipated litigation." Theoharis Decl. ¶ 11 (emphasis added); Miller Decl. ¶ 3 (emphasis added).
3. Reports Requested by Mr. Popofsky
The reports requested by Mr. Popofsky are as follows: TRACC0001861-63 (Popofsky Decl., Ex. 3); TRACC0001864-80 (Popofsky Decl., Ex. 2); and TRACC0001881-87 (Popofsky Decl., Ex. 1).
In contrast to the documents discussed above, the three reports prepared by Accenture at the specific request of Mr. Popofsky (outside counsel) are protected by at least the work product doctrine. Unlike the documents discussed above, these documents were prepared under the direction of counsel. They were created in the first instance for the purpose of rendering legal advice by counsel in anticipation of litigation. They would not necessarily have been created but for the need for legal advice. To the extent these documents may have informed the business analysis as well, these reports did not have a readily separable purpose unrelated to the provision of legal advice. Thus, the documents are protected from disclosure.
4. Miscellaneous Documents
a. TRACC0001104-08, TRACC0002614-18 (Theoharis Decl., Ex. 1)
According to Visa, both before and after it filed its complaint, there were several meetings between Visa business people and First Data employees to discuss business issues surrounding First Data's application. See Opp'n at 18. "Before attending these meetings, Visa employees sought advice from Visa's in house and outside counsel concerning what should be discussed at the meetings in light of the legal issues in the potential, and later actual litigation." Opp'n at 18. Apparently, the Visa employees sought this legal advice by sending the above documents — described as "draft discussion document[s]" in Visa's privilege log — to counsel. However, the Visa employees also sent the drafts to Accenture. According to the privilege log, the drafts were given to Accenture in March 2002, about a month before Visa filed its complaint.
The Court concludes that the documents are not protected by either the attorney-client privilege or work product doctrine. First, as noted above, for the attorney-client privilege to apply, Accenture must have been an agent of Visa's attorneys, but nothing about the draft discussion documents indicates that Accenture was acting to assist the attorneys in providing legal or litigation advice. Indeed, at that point, Accenture had not even been hired by Visa or its attorneys to deal with the First Data application.
Second, regarding the work product doctrine, Visa has not met its burden in showing that the documents were prepared in anticipation of litigation. The documents were prepared before Visa filed its complaint (and therefore before First Data showed Visa its proposed counterclaim) and, while litigation need not have commenced in order for the doctrine to apply, Visa has not made a showing that litigation with First Data was being contemplated at that point in time. The fact that First Data had applied to Visa to operate a new private arrangement such that "Visa began to consider what risks private arrangements posed for the Visa payment service," Theoharis Decl. ¶ 3, does not by itself demonstrate that litigation was more than a "remote possibility." Fox, 120 F.R.D. at 524.
b. TRACC0000900-02 (Theoharis Decl., Ex. 2)
This document is described in the privilege log as a "draft analysis" authored by Tim Murphy (Senior Vice President of Operations at Visa) and sent to Accenture. The analysis is of a First Data letter. According to Visa, its attorneys sometimes asked its business people to analyze First Data correspondence in order for counsel to provide legal advice about what should or should not be said in response. See Opp'n at 18 (citing Theoharis Decl. ¶ 8).
This document is protected by at least the work product doctrine. By June 2002, the prospect of litigation with First Data was evident, not only because of First Data's proposed counterclaim but also because of the temporary moratorium on new private arrangements. As with the reports requested by Mr. Popofsky, the document was prepared under the direction of counsel and would not necessarily have been created but for the need for legal advice. To the extent the document may have informed the business analysis as well, it did not have a readily separable purpose unrelated to the provision of legal advice.
c. TRACC0001145-47, TRACC0001417-20, TRACC0002543-45 (Theoharis Decl., Ex. 3)
These documents are drafts of a letter sent by Paul Vessey, a senior Visa executive, to Visa's member banks advising them of legal action taken by Visa against First Data. Drafts of the letter were given to Accenture by Visa's in house counsel and business people. Drafts of the letter were reviewed by Visa's attorneys so they could provide legal advice about the content of the letter. See Opp'n at 17-18 n. 8; Theoharis Decl. ¶ 8.
These documents are protected by at least the work product doctrine as they would not have been prepared but for the actual litigation with First Data.
d. TRACC0001438, TRACC0001259, TRACC0000981, and ACN0001461 (Miller Decl., Ex. 4)
TRACC0001438 is an e-mail sent by Mr. Murphy (a Visa business person) to Accenture and embedded in the e-mail is another e-mail from Mr. Murphy to Mr. Ruwe and in-house counsel. TRACC0001259 is an e-mail from Sam Galdes of Visa (presumably a Visa business person) to Accenture and embedded in the e-mail are additional e-mails in which Visa in-house counsel was either an author or recipient and another Visa business person (presumably) was copied. TRACC0000981 is an e-mail from Mr. Murphy to Visa's in-house counsel, with a copy being sent to another Visa business person, and embedded in the e-mail is another e-mail from in-house counsel to Mr. Murphy and the same Visa business person. All of the above e-mails concern the analysis of private arrangements. See Miller Decl. ¶ 10.
ACN0001461 is a memorandum from Accenture to Mr. Ruwe and has been partially redacted. The redacted portion recounts a conversation that Accenture had with one of Visa's in-house attorneys regarding private arrangements. See Opp'n at 18-19 n. 9.
The involvement of in-house counsel alone is not enough for the attorney-client privilege to be applicable. "Because in-house counsel is often extensively involved in the business matters of the company (not infrequently holding executive positions), . . . [c]ourts have not been willing to presume that the services provided were of a legal, as opposed to a business, nature." 1 Rice, Attorney-Client Privilege § 3:14, at 55-56 n. 32 (citing cases). Similarly, Visa has not demonstrated that the e-mails and memorandum were prepared because of a legal or litigation purpose. The documents therefore should be produced.
The Court notes as well that TRAC0000981 seems to relate to the temporary moratorium that was imposed in May 2002 and Visa has produced both the drafts and final version of this analysis.
e. TRACC0001735-39, TRACC2520-22 (Miller Decl., Ex. 4)
These are documents sent by Visa's in-house counsel to Visa business people, Accenture, and/or outside counsel. The documents concern preservation of documents for purposes of this litigation. These documents are protected by at least the work product doctrine because they would not have been prepared but for the actual litigation with First Data.
f. ACN0001217-18 (Theoharis Decl., Ex. 5)
This document is a chart listing projects performed by Accenture for Visa during the years 1997 and 1998 ( i.e., predating this litigation). It has been partially redacted. According to Visa, "[t]he information redacted from the project list relates to those projects performed by Accenture in connection with [different] litigation [ i.e., a case called In re Visa Check/MasterMoney Antitrust Litigation], and only the portions that would themselves reveal privileged information have been redacted." Opp'n at 20 n. 10; see also Theoharis Decl. ¶ 12. While the Court has some doubts as to whether job names and document names are privileged in this instance, the Court holds that an unredacted copy of the chart need not be produced since no showing has been made that the earlier litigation is in any way relevant to the instant case.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part First Data's motion to compel Accenture documents. Visa shall produce all nonprivileged or nonprotected documents identified above within two weeks of this order.
IT IS SO ORDERED.