The opinion of the court was delivered by: Geraldine Soat Brown United States Magistrate Judge
THIS DOCUMENT RELATES TO: All Direct and Indirect Purchase Actions
Judge Robert W. Gettleman
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER Before the court is defendants' Motion to Compel Direct Purchaser Plaintiffs to Produce Improperly Withheld Documents. (Defs.' Mot. Compel.) [Dkt 547.] Direct purchaser plaintiffs (hereinafter, "plaintiffs") oppose the motion (Pls.' Resp.) [dkt 549], and submitted the documents for an in camera review. Argument was held on the motion and additional submissions were filed by the parties.*fn1 For the reasons stated below, the motion is granted in part and denied in part.*fn2
In this multidistrict litigation, several putative plaintiff classes allege that the leading manufacturers of automobile aftermarket filters conspired together to fix, raise, maintain or stabilize prices, rig bids, and allocate customers of aftermarket automotive filters in violation of federal and/or state antitrust laws. (Transfer Order at 1.) [Dkt 1.] Discovery has been underway for several months. Defendants served plaintiffs with their First Request for Production of Documents to All Plaintiffs. (Defs.' Mem., Ex. 11.) Plaintiffs produced some documents in response, and provided defendants with an amended privilege log, identifying seventeen documents plaintiffs claim are protected from discovery. (Pls.' Am. Log.)*fn3 Plaintiffs are not claiming that any of the withheld documents are attorney-client privileged.
By their motion, defendants challenge the claimed work-product protection as to eleven of plaintiffs' withheld documents.*fn4 In the course of the hearings on the motion, plaintiffs withdrew their claim of protection as to one document, so ten documents are now in dispute.*fn5
Defendants are attempting to obtain information from plaintiffs relating to a witness, William G. Burch. Although the parties dispute Mr. Burch's importance in the litigation, at least some of plaintiffs' complaint appears to be based in part on information obtained from Mr. Burch. (See, e.g., Consolidated Am. Compl. ¶ 79.) [Dkt 150.] Mr. Burch had been a sales executive with defendant Purolator Filters N.A., LLC, and defendant Champion Laboratories, Inc. ("Champion"), during most of the class period. (Id. ¶ 2.) On January 13, 2006, a representative of Champion, Mr. Burch, and a representative of the FBI had a meeting during which Mr. Burch accused Champion of price-fixing and Champion accused Mr. Burch of embezzlement from the company. (The parties dispute which accusation occurred first.) In 2006, Mr. Burch sued Champion for wrongful discharge alleging that his employment had been terminated in retaliation for refusing to participate in price fixing and other illegal activities and for reporting Champion's alleged activities to an FBI agent. (Pls.' Resp., Ex. A, Complaint.) Champion sued Mr. Burch for fraud. Those actionswere settled. Mr. Burch dismissed his employment action in September 2008.
In March 2008, Mr. Burch filed a qui tam action against Champion and other filter manufacturers (who are also defendants here). (Pls.' Am. Suppl., Decl. G. Steven Stidham ¶¶ 1, 5.)
On December 10, 2008, the government declined to intervene, and on December 23, 2008, Mr. Burch dismissed the action without prejudice. (Id. ¶ 6.) Nearly a year later, on December 21, 2009, Mr. Burch re-filed the qui tam action in the Northern District of Oklahoma. (Id. ¶ 7.) The government again declined to intervene. (Defs.' Mem., Ex. 10.) That action is still pending.
Mr. Burch has been represented in those lawsuits by attorneys from the law firm Sneed Lang Herrold LLP ("Sneed Lang attorneys"), including G. Steven Stidham. He has not been represented by any of the attorneys representing plaintiffs in this case, although he or his counsel shared all of the disputed documents with attorneys at Labaton Sucharow LLP, one of the law firms representing the putative direct purchaser class in this litigation ("Labaton Sucharow attorneys").
The disputed documents at issue in defendants' motion are either e-mail communications between Mr. Burch, Sneed Lang attorneys, and Labaton Sucharow attorneys, or documents prepared by Mr. Burch or the Sneed Lang attorneys and shared with the Labaton Sucharow attorneys. (See Pls.' Am. Log.) Defendants argue that: 1) most of the documents are not protected work product; and 2) if they are work product, any protection was waived either by Mr. Burch's or his counsel's sharing of the documents with the Labaton Sucharow attorneys, or by plaintiffs' intentional disclosure of other documents in this case. (Defs.' Mem. at 8-11.) Defendants further argue that plaintiffs have waived any discovery protection by placing Mr. Burch's knowledge at issue. (Id. at 12-14.) Defendants claim they need the withheld material in order to explore Mr. Burch's credibility and prepare their defense. (Id. at 14-15.)
Plaintiffs assert that the documents are protected work product, and that the common interest between Mr. Burch and plaintiffs' counsel in this litigation maintains the documents' protected status. (Pls.' Resp. at 3-6 ) Plaintiffs argue that neither their production of other documents nor their use of Mr. Burch as a witness waived work-product protection for the disputed documents. (Id. at 9-12.) They also argue that the ...