The opinion of the court was delivered by: Judge Robert W. Gettleman
THIS DOCUMENT RELATES TO: All Direct and Indirect Purchaser Actions
MEMORANDUM OPINION AND ORDER
Geraldine Soat Brown, United States Magistrate Judge
Before the court is defendants' Motion to Enforce Defendants' Subpoena of William G. Burch. [Dkt 560.] Mr. Burch has filed a response to the motion, as have the attorneys for the putative direct purchaser class ("plaintiffs").*fn1 For the following reasons, the motion is granted in part and denied in part, and further submissions are required with respect to certain documents.
Some background to the present motion was set out in the opinion on defendants' earlier motion to compel plaintiffs to produce documents relating to Mr. Burch. (Memo. Op. and Or., Nov. 4, 2010 (the "November 4 Opinion").) [Dkt 667.] Defendants served a subpoena on Mr. Burch for, inter alia, all the documents he had provided to the Antitrust Division of the United States Department of Justice ("DOJ"). (Defs.' Mem., Ex. A-1, Subpoena to William G. Burch at 7.) Defendants' present motion seeks to compel a number of documents to which Mr. Burch has asserted attorney-client privilege, work-product protection or the extension of those protections by way of the common interest doctrine. During the course of the briefing on the motion certain disputes were resolved, and 34 documents remain at issue. (See App. to this opinion.) Most of the documents were provided to the court for in camera review.*fn2
In addition to the factual background set out in the earlier opinion, the following facts are relevant to this opinion. In early 2006, Mr. Burch filed a wrongful termination case against his former employer Champion Laboratories, Inc. ("Champion"), and Champion filed a lawsuit against Mr. Burch for embezzlement. On March 31, 2008, Mr. Burch filed a qui tam action against Champion and the other defendants in this lawsuit. (Pls.' Mem., Decl. of G. Steven Stidham ¶ 5.) Shortly thereafter, Mr. Burch's attorney G. Steven Stidham met with Phil Pinnell, an Assistant United States Attorney, and with Antonia Hill and Richard Rosenberg, attorneys from the Antitrust Division of the DOJ, and gave them materials that had been prepared for Mr. Burch's pending employment and qui tam litigation. (Stidham Decl. ¶ 6.) When Mr. Stidham communicated in April and May 2008 with Ms. Hill and Mr. Rosenberg, it was his belief that the DOJ was conducting a criminal investigation of defendants' participation in the alleged price-fixing conspiracy that was the subject of Mr. Burch's qui tam action. (Id.)
On or about September 5, 2008, Mr. Burch and Champion reached a settlement of his employment case and Champion's embezzlement lawsuit, which was set out in a confidential Settlement Agreement and Release. (Pls.' Mem., Decl.of Bernard Persky, Ex. C, Settlement Agreement and Release (filed under seal).)*fn3 Champion's lawsuit against Mr. Burch and Mr. Burch's employment lawsuit against Champion were dismissed shortly thereafter. The Settlement Agreement and Release carved out Mr. Burch's qui tam action from the scope of the release, except that Mr. Burch agreed not to pursue any claim under 31 U.S.C. § 3730(h) (whistleblower's protection from retaliation).
On December 10, 2008, the DOJ declined to intervene in the qui tam action, and on December 23, 2008, Mr. Burch dismissed his qui tam action without prejudice. (Stidham Decl. ¶ 7.) Mr. Stidham states that he and Mr. Burch always intended to re-file the qui tam action after further development of facts in support of the antitrust claims. (Id.)
In his response to defendants' motion, Mr. Burch claims that the common legal interest with the DOJ was "the anticompetitive activity of Defendants" and the joint effort was "to prove the anticompetitive activity his qui tam case alleged." (Burch Resp. ¶ 2.) Mr. Stidham states:
[A]fter the December 2008 voluntary dismissal of the first qui tam case, I and Mr. Burch continued to cooperate with the Antitrust Division . . . . I continued to provide additional information, including confidential attorney-client and work product privileged documents to the DOJ. This included providing privileged material to Jeffery Parker, another attorney with the Antitrust Division's Philadelphia Office, beginning in July 2009 and continuing through December 2009. The reason Mr. Burch and I continued to share this privileged information with the Antitrust Division from and after December 2008 was the common interest that we had an [sic] assisting the Antitrust Division to develop potential criminal antitrust charges against Champion and the other filters manufacturer defendants. (Stidham Decl. ¶ 8.)
Plaintiffs also claim that "Mr. Burch and his counsel shared a common interest with the DOJ at all times when the disputed privileged materials involving the August 25 Burch Memorandum were provided" to the DOJ. (Pls.' Mem. at 9.) As discussed below, however, any arguable common interest with the DOJ ended no later than June 2009.
Voluntarily providing materials to the government may waive any attorney-client privilege or work-product protection for them. See, e.g., U.S. ex rel Robinson v. Northrop Corp., 824 F. Supp. 830, 838-39 (N.D. Ill. 1993).*fn4 In order to avoid such a waiver, some, but not all, courts will apply a common interest theory to extend protection from discovery for attorney-client privileged or work-product protected materials given by a qui tam relator to the government. Compare Miller v. Holzmann, 240 F.R.D. 20, 21-23 (D.D.C. 2007) (extending protection) with Robinson, 824 F. Supp. at 838-39 (rejecting protection).
For attorney-client privilege or work-product protection to be extended by the common interest doctrine, however, the person to whom the material has been disclosed must be part of a joint effort with respect to a common legal interest and the disclosure must have been made to further an ongoing enterprise. U.S. v. BDO Seidman, LLP, 492 F.3d 806, 815-16 (7th Cir. 2007) (analyzing common interest extension of attorney-client privilege). "[T]he doctrine is limited strictly to those communications made to further an ongoing enterprise." Id. at 816. The in camera review of the documents in this case, described below, revealed facts dispositive of Mr. Burch's and plaintiffs' claim of a common interest with the DOJ, at least as of June 2009.
Communications with Assistant U.S. Attorney Jeffrey Parker
As described in the November 4 Opinion, a controversial document in this case is the "Honeywell Announcement." (See November 4 Opinion at 10-11.) It is now undisputed that Mr. Burch cut-and-pasted a fax header, including a date, on a version of that announcement. (Id.)Mr. Burch's explanation for doing so was set out in an August 25, 2009 memorandum (the "Burch Memorandum") to his attorney Mr. Stidham, which Mr. Stidham sent to Assistant United States Attorney Jeffery Partker at the DOJ and which was produced in its entirety to defendants in this case.*fn5
The in camera review of the disputed documents revealed that Mr. Stidham's motivation for sending the Burch Memorandum to Mr. Parker was not, as plaintiffs and Mr. Burch contend, a continuing joint interest with the DOJ in investigating a potential antitrust case against defendants, but rather Mr. Stidham's response on behalf of Mr. Burch to the DOJ's investigation of possible criminal charges against Mr. Burch for false statements and obstruction of justice.
Document 4 is an August 14, 2009 letter from Mr. Parker on DOJ letterhead to Mr. Stidham. In that letter Mr. Parker recounted his telephone conversation on June 30, 2009 with Mr. Stidham in which Mr. Parker expressed the DOJ's "concerns of possible criminal wrongdoing, including false statements and obstruction of justice, by Mr. Burch." (Doc. 4 at 1.) In particular, Mr. Parker expressed concerns about the authenticity of the Honeywell Announcement and statements Mr. Burch made in a communication with DOJ attorney Richard Rosenberg in May 2008. Mr. Parker requested a response in writing by August 28, 2009, although he acknowledged that any response would be voluntary. The Burch Memorandum is Mr. Burch's response to Mr. Parker's request. That memorandum expressly refers to "Mr. Parker's questions." (Burch Memorandum at 1.)
Mr. Parker's letter also states, "To the extent that you believe you have not already waived attorney-client and/or work-product privileges, I am not asking you to disclose information which you believe is protected by such privileges. Please, however, inform me in writing if you are invoking any such privileges." (Doc. 4 at 2 n. 2.) The DOJ was not taking the view that its communication at that time was pursuant to a common interest with Mr. Burch, but rather that it was in a potentially adversarial position.
Furthermore, it appears that Mr. Stidham recorded and transcribed at least part of that June 30, 2009 telephone conversation with Mr. Parker. Document 90 is entitled "Telephone conversation with Jeffrey C. Parker, June 30, 2009." In that conversation, Mr. Parker explained that the reason that he, a different U.S. Attorney, was brought in was to segregate the previous U.S. Attorneys (Ms. Hill and Mr. Rosenberg), who had been investigating claimed antitrust violations by defendants, from the investigation of possible charges against Mr. Burch. (Doc. 90 at 1.)
From these facts, it is apparent that Mr. Parker's communications with Mr. Burch and his counsel were not, in fact, pursuant to any common interest against defendants. Mr. Burch and Mr. Stidham were communicating with Mr. Parker in response to the DOJ's investigation of Mr. Burch. As Mr. Parker's letter illustrates, Mr. Burch could have no expectation of privilege or protection for such communications. Plaintiffs argue that the questioning of a document by DOJ attorney is "a standard part of any investigation" and does not destroy the common interest. (Pls.' Mem. at 9.) The possibility of criminal charges for obstruction of justice, however, goes far beyond any "standard" questioning of documents.
The reason for applying the common interest protection to materials provided by a qui tam relator is "the congressional desire that the relator apprise the government of all he or she knows as a condition of bringing a qui tam action." Miller, 240 F.R.D. at 23. That reason, however, does not exist here for communications with Mr. Parker. In Miller, the court observed that a relator in a qui tam action may have mixed motives for coming forward to the government with information, including "saving his own skin" because of his own complicity in the putative defendant's claimed offenses. Id. at 22-23. Whether that was part of Mr. Burch's original motivation for contacting the DOJ in 2008 need not be decided here. Mr. Parker's focus was not on defendants' alleged antitrust violations and Mr. Burch's possible complicity in those violations, but rather on Mr. Burch's possible culpability for his own independent actions. There is no "common interest" in any sense being advanced in Mr. Burch's communications with Mr. Parker. The purpose of the qui tam statute, as discussed in Miller, is not advanced by protecting those communications under the facts here.
Mr. Burch claims attorney-client privilege and work-product protection for Document 4, but there is no basis for either claim. Accordingly, Document 4 and all documents containing communications with Mr. Parker, as well as all documents that were sent to Mr. Parker, including any sent as attachments to e-mails, must be produced.*fn6 That includes Documents 1 (including attachments), 2, 3, 5, 6, 7, 8 and 9.
Mr. Stidham's Recordings of His Conversations with Mr. Parker
In addition to the June 30, 2009 recording, Mr. Stidham also recorded and transcribed his conversations with Mr. Parker on September 29, 2009 and November 17, 2009. (Docs. 91 and 92.) Neither plaintiffs nor Mr. Burch tender any explanation or justification for the recordings. At no time in any of the transcripts does Mr. Stidham tell Mr. Parker that the conversation is being recorded.*fn7
All of those conversations related to Mr. Parker's investigation of Mr. Burch, not to any joint prosecution of antitrust claims against defendants. Indeed, in the November 17, 2009 conversation, Mr. Parker asked Mr. Stidham whether Mr. Burch had any ongoing litigation against anyone in the filter industry, and Mr. Stidham responded, "No. Not personally, Jeff." (Doc. 92 at 1.) Mr. Stidham did not mention any intention to re-file Mr. Burch's qui tam lawsuit.
In a letter to defendants' counsel, Mr. Stidham claims attorney-client privilege and work-product privilege concerning those tape recordings. (Defs.' Reply, Ex. B.) There is no arguable basis for attorney-client privilege with respect to Mr. Stidham's conversations with Mr. Parker, nor are the conversations per se Mr. Stidham's work-product. The conversations were not to further any common interest between the DOJ and Mr. Burch, but rather to the contrary. In appropriate circumstances, Mr. Stidham could be compelled to testify about the content of those conversations. Mr. Burch has not submitted any argument or authority to support his claim that the transcripts are work product, and the court is skeptical about any such claim, since the transcripts appear to be simply verbatim transcriptions of the conversations. Even assuming, arguendo, that Mr. Burch is contending that the act of making the recordings and transcripts (whether proper or not) was "in anticipation of litigation" (i.e., Mr. Burch's defense of criminal charges), the transcripts must be produced.
The transcripts concern the same subject matter as documents intentionally produced in this case and ought in fairness to be considered with them. See Fed. R. Evid. 502(a).*fn8 Two of the conversations concerned the Burch Memorandum. The June 30, 2009 conversation set out the context in which the memorandum was written and the September 29, 2009 conversation was about the memorandum itself. The November 17, 2009 conversation was about the draft communication that Mr. Parker proposed to send to defendants, which was the subject of an e-mail previously produced by plaintiffs in this case. (See November 4 Opinion at 10-11.) Fairness requires that Mr. Burch and plaintiffs reveal all of their communications with the DOJ on those subjects, not just the communications they select, especially in light of Mr. Stidham's declaration about his communications with the DOJ, quoted above.*fn9 There is no "opinion" work product -- attorney's mental impressions or theories -- to be protected because Mr. Stidham was communicating with a potential adversary in those conversations.
Accordingly, Documents 90, 91 and 92 must be produced.*fn10
Document 18 is an April 24, 2008 letter from the DOJ to Mr. Burch regarding Mr. Burch's anticipated interview as part of the DOJ's investigation of the alleged antitrust violations. Although Mr. Burch claims both attorney-client privilege and work-product protection for this document, there is no basis for those assertions. It is not work product of Mr. Burch or his counsel. If it is work product at all, it would be work product of the DOJ. Mr. Burch has not submitted any authority or argument to suggest that he may assert a work-product protection for this letter prepared by the ...