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Acosta v. Target Corporation et al.

March 9, 2012

ACOSTA
v.
TARGET CORPORATION ET AL.



Order Form (01/2005)

Name of Assigned Judge or Magistrate Judge Joan B. Gottschall Sitting Judge if Other than Assigned Judge Geraldine Soat Brown

CASE TITLE

DOCKET ENTRY TEXT

For the reasons set out in the Memorandum Opinion and Order, and as set out below, Plaintiff's Motion to Compel the Production of Documents Being Withheld Under a Claim of Privilege [128] is granted in part and denied in part, and defendants Target Corporation, Target National Bank, and Target Receivables LLC are hereby ordered to produce to plaintiffs no later than March 23, 2012 all of the documents and previously redacted portions of documents that the court has determined not to be protected by privilege or work-product protection, as set out below; and to file no later than March 30, 2012, a submission showing any reason why the court should not apportion two-thirds (66%) of plaintiffs' expenses (consisting of costs and reasonable attorneys' fees) incurred in connection with the motion to be paid by Target. Enter Memorandum Opinion and Order.

O[ For further details see minute order and separate order.] Notices mailed by Judicial staff.

*Copy to judge/magistrate judge.

STATEMENT

Rulings on Documents

Rulings on Muro Documents

1. Not privileged. Although it is a memo to a lawyer, it neither requests legal advice nor responds to a request for information in order to provide legal advice. It appears to be merely a description of some files.

2. Privileged as to the handwritten notes only.

3. Privileged in part. This is an e-mail discussion that is also found several other documents. On August 2, 2004, Mike Murray sent an e-mail to a number of persons, including counsel, requesting both legal and business advice. To the extent that the documents reflect requested legal advice and the response Murray received, the communications are privileged. To the extent that they reflect the communication of business information and business decisions, they are not privileged. Discussing how to deal with customer reaction to a situation is different from assessing the legal consequences of that situation. Accordingly, in Murray's August 2, 2004 e-mail, Target may redact the paragraph beginning with "Here. . ." and ending with "implications." In Murray's August 3, 2004 e-mail, Target may redact the two paragraphs beginning with "From . . . " and ending with "rate." The balance must be produced.

4. Privileged.

5. Privileged.

6. Privileged.

7. Privileged.

8. Not privileged. Although this is an e-mail from corporate counsel, it does not contain any legal advice. Rather, it attaches a draft standard credit card disclosure. As reflected by the text of the e-mail, counsel's contribution was to calculate the percentages to be shown for a particular APR. That is not legal advice.

9. Not privileged. The attachments are standard credit card disclosure boxes as to which the lawyers contribution was to fill in the blanks for various APR levels. The e-mail discussion, although including a lawyer, is about a business decision. It does not include any legal advice.

10. Not privileged. This is an additional comment to #9, adding a business decision discussion. There is no legal advice sought or given.

11. Privileged.

12. Privileged in part. Target must produce the top message in the chain (Kathleen Brecker, Oct 31, 2003 at

2:03 p.m.) which discusses only business considerations, but may redact the rest of the document.

13. Has been produced.

14. Privileged.

15. Privileged.

16. Not privileged. In this e-mail chain, an in-house counsel and an in-house paralegal are asked for, and respond with, updated versions of rewards rules for marketing promotions. There is no request for legal advice, nor is any rendered. The fact that a lawyer rather than a business person prepares a document does not of itself make the document or its communication privileged.

17. Not privileged. The attachment is a revisions to the documents in #16. Although the in-house counsel made "two small changes" to the document, Target provides no information about the nature of those changes or why they would constitute legal advice rather than an editorial change.

18. Privileged.

19. Has been produced.

20. Not privileged. This is a copy of #10.

21. Privileged. This is a copy of #11.

22, 23, 27. Not privileged. Target does not claim privilege for these documents, but rather that they are "trade secrets." These documents must be produced pursuant to the Agreed Order dated September 6, 2012 [dkt 182].

24. Privileged.

25. Privileged. This is a duplicate of #7.

26. Privileged in part. This is the same as #12. Target must produce the top message in the chain (Kathleen Brecker, Oct 31, 2003 at 2:03 p.m.) but may redact the rest of the document.

28. Privileged.

29. Privileged in part. The initial message from Thomas Douty on Nov. 25, 2003 at 12:19 p.m. is not privileged. It neither requests nor describes any legal advice. Mike Murray added a comment at 12:26 p.m requesting legal advice, but the topic is not disclosed by the initial Douty message. Therefore, Target must produce the initial Douty message and may redact the balance.

30. Privileged.

31, 32. Privileged in part. Target may redact the following: a) the paragraph beginning "New Account -- Account Agreement Changes" and concluding "Take One Swap"; b) the paragraph beginning "RNB Name Change"; and c) the last two paragraphs. The balance of each must be produced because it is simply business discussion.

33. Privileged.

34. Privileged.

35. Privileged.

36. Privileged.

37. Privileged in part. This document is an e-mail chain with some privileged information and an additional comment by Thomas Douty that is not related to any legal discussion. The message from Douty (May 17, 2004 at 8:25 a.m.) must be produced. The balance may be redacted.

38. Privileged.

39. Privileged in part. The top two e-mails by Susan Smith (July 12, 2004 at 9:55 a.m.) and Thomas Douty (July 12, 2004 at 9:35 a.m.) may be redacted. The rest is a business discussion with no indication legal advice is being sought. The balance must be produced.

40. Privileged in part. The early links in this e-mail chain discuss legal advice. Brad Mares and Jody Nieborg to whom it was forwarded appear to be within the group of employees with whom legal advice on AutoSub could be shared, but they are not lawyers and are only being asked a business question in Lois Matti's later message to them. That message does not contain or discuss the advice, and it is not privileged. Matti's message (Aug. 5, 2004, 11:26 a.m.) must be produced but the balance may be redacted.

41. Privileged in part. This is a continuation of #40. The response by Nieborg (Aug. 5, 2004 at 11:28 a.m.) as well as the message by Matti reflect a business discussion and must be produced. The balance may be redacted.

42. Privileged in part. This is a continuation of #41. Matti's message to Warden (Aug. 5, 2004 at 11:33 a.m.) does not contain or discuss legal advice. That message, Neiborg's message (Aug. 5, 2004 at 11:28 a.m.) and Matti's message (Aug. 5, 2004 at 11:26 a.m.) must be produced. The balance may be redacted.

43. Privileged in part. This is a continuation of #40, with additional recipients who appear to be within the group of employees whose roles are relevant to the advice. Mares' additional message to Matti and Warden (Aug. 5, 2004 at 11:35 a.m.) does not contain or discuss legal advice. The top two links must be produced. The balance may be redacted.

44. Privileged in part. This is a continuation of #42. The response by Warden is simply a business discussion and must be produced. The first four links must be produced. The balance may be redacted.

45 - 48. Have been produced.

49. Privileged.

50. Privileged.

51. Has been produced.

52. This document is the same as #12 and #26. Privileged in part. Target must produce the top message in the chain (Kathleen Brecker, Oct 31, 2003 at 2:03 p.m.) but may redact the rest of the document.

53. Has been produced.

54. Privileged.

55. Privileged.

56. Has been produced in part. Redacted portion is not privileged for two reasons. First, the redacted portion does not disclose confidential legal advice. Second, this e-mail was addressed to a number of Target employees, including the e-mail address "TFS-Auth GTLs." The Wolf declaration identifies that as an internal mail box for Group "Group Team Leaders in the Authorizations department." Target states that the mailbox "included [Shelley Larson's] peers." Presumably, if Target knew the identity of those who received this e-mail or had more information about the identity Group Team Leaders, Target would have set it out in the privilege log or in Wolf's declaration. Without any further identification of who, in fact, received this e-mail, Target cannot sustain its burden of demonstrating that the communication (if it had been privileged) was retained confidential and that it was disclosed only to those who within the scope of privilege. See Muro III, 250 F.R.D. at 364, n. 22.

57. Has been produced in part. Redacted portion is not privileged for the same reasons as #56, because the e-mail was addressed to "TFS-Auth GTLs."

58. Has been produced in part. Redacted portion is not privileged for the same reasons as #56, because the e-mail was addressed to "TFS-Auth GTLs."

59. This is #3 being forwarded to a number of other people. Target may redact the same portions of Murray's messages as with #3, but must produce the balance.

60. This document is the same as #26 and #12. Privileged in part. Target must produce the top message in the chain (Kathleen Brecker, Oct 31, 2003 at 2:03 p.m.) but may redact the rest of the document.

61. Not privileged. This is the same document as #57.

62. Not privileged. This is the same document as #58.

63. Not privileged. This is the same document as #58.

64. Privileged in part. This contains responses to #3 from business people. It is a discussion among non-lawyer employees about a business problem. Murray's e-mail of August 2, 2004 contains a reference to seeking advice about a legal issue, but the messages from Jacob and Trocinski respond to requests for comments from Marketing and Guest Services, and do not discuss any legal issue or provide information to be forwarded for legal advice. Target may redact the paragraph of Murray's message beginning with "Here. . ." and ending with "implications." The balance must be produced.

65. Privileged in part. This is a continuation of the discussion in #64, again among non-lawyer employees discussing only business and not legal issues. Target may redact the paragraph of Murray's message beginning with "Here. . ." and ending with "implications." The balance must be produced.

66. Privileged in part. This is a further continuation of the discussion in #64 and #65. No lawyer was involved. The added link discusses only business information, not legal advice. Target may redact the paragraph of Murray's message beginning with "Here. . ." and ending with "implications." The balance must be produced.

67. Privileged in part. This is a further continuation of the discussion in #64, #65, and #66. No lawyer was involved. The added link discusses only business information, not legal advice. Target may redact the paragraph of Murray's message beginning with "Here. . ." and ending with "implications." The balance must be produced.

68. Privileged in part. This is another comment on #3. Target may redact the same parts that it may redact in #3, but must produce the balance.

69. Privileged in part. This is another comment on #3. Target may redact the same parts that it may redact in #3, but must produce the balance.

70. Privileged in part. This is a continuation of the e-mail chain in #68 and #69, but the additional messages by Nicky Witters and Sue Suhling are on a different topic and do not discuss legal matters. Those two messages must be produced. Target may redact the balance.

71. Privileged in part. This is a continuation of the e-mail chain in #68, #69 and #70, but the additional messages by Kevin Trocinski, Witters and Suhling are on a different topic and do not discuss legal matters. Those messages must be produced. Target may redact the balance.

72. Privileged.

73. Privileged in part. This is a continuation of #42. The response by Warden is simply a business discussion and must be produced. The top four links must be produced: Warden's message (Aug. 9, 2004 at 9:47 a.m.); Matti's message (Aug. 5, 2004 at 11:33 a.m.); Nieborg's message (Aug. 5, 2004 at 11:28 a.m.); and Matti's message (Aug. 5, 2004 at 11:26 a.m.). The balance may be redacted.

74. Not privileged. The attachments are drafts of documents scheduled to be sent to the public. The drafts were sent to a lawyer and a business process team manager as an informational matter. There is no request for legal advice. The writer simply asks both persons to let the writer know if they have any questions. Moreover, several of the individuals included in the earlier e-mail were not identified in Wolf's declaration as persons within the scope of privileged communications.

75. Not privileged. This is a continuation of #74. The discussion, although including a lawyer, is about a business decision. It does not include any legal advice.

76. Not privileged. This is a continuation of #74.

77. Not privileged. This is a continuation of #76.

78. Not privileged. This is a continuation of #76.

79. Not privileged. This is a continuation of #76.

80. Not privileged. This is an e-mail chain among employees, not all of whom are identified in Wolfe's declaration, as well as an attorney. The substance of the e-mails is a business discussion with no indication that legal advice was being sought.

81. Not privileged. Continuation of #80.

82. Not privileged. Continuation of #80.

83. Not privileged. Continuation of #80.

84. Not privileged. Continuation of #80.

85. Not privileged. Continuation of #80.

86. Not privileged. In this e-mail, Lois Matti seeks business advice from Jody Warden, a non-lawyer. The fact that she also copied in-house counsel does not make the document privileged. There is no communication from counsel contained or reflected in the document.

87 - 89. Have been produced.

Rulings on Acosta Documents: Exhibit D (redacted documents)

1 - 4. Not privileged. These are "autosub issues lists," apparently meeting agendas, in which the entry for "legal" has been redacted. These documents are primarily business in nature. In the case of each document, Target has not sustained its burden of showing the requirements of privilege, including the requirement that the communications "have been kept confidential by the company." Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981). There is no information about who authored each document or who received the document, and no showing that it was retained in confidence. On the contrary, it appears from document Bates no. ACOSTA 91, which is an e-mail forwarding #2, that the agendas were sent to a substantial number of people who are not included in Wolf's declaration. Similarly, the attendees listed in the meeting for document #4 include persons not listed in Wolf's declaration. In each case, Target must produce the entire document.

5. Not privileged. This is a spreadsheet of product change requirements. These documents are primarily business in nature. The redacted portions are entries under the heading "source/legal" and appear to contain directions from the legal department. But again Target has failed to carry its burden of showing the requirement of privilege that the communications "have been kept confidential by the company." Upjohn Co., 449 U.S. at 395. Target lists the author as "unknown," so there is no proof of where the information came from or to whom it had been communicated before it appeared in the spreadsheet. In its privilege log, Target apparently initially listed the recipients as "N/A." However, plaintiffs have added a list of recipients based, apparently, on other documents they have received, and that list includes at least one person who is not listed in Wolf's declaration. Document #5 must be produced.

6. Not privileged. Same ruling as #5.

7. Not privileged. Same ruling as #5. Copies were distributed to a substantial number of people not listed in Wolf's declaration.

8 - 16. Not privileged. These are the same as #1 through #4, only in a number of cases entries for "planning" with some comments by "legal" have been redacted. Copies were distributed to a substantial number of people not listed in Wolf's declaration. Same ruling as #1 through #4.

17. It appears that two pages have not been produced: Bates no. ACOSTA 559 (a similar spreadsheet to #1) and Bates no. ACOSTA 553 (a short agenda list ). There is nothing privileged in ACOSTA 553, and ACOSTA 559 is not privileged for the same reasons as #1 through #4 and #8 through #16.

18 - 23. Not privileged. This is a 2006 Product Change Issue Log on which Target has redacted entries from "Legal." The comments from "Legal" do not appear to reflect legal advice but rather monitoring of accounts. Furthermore, there is no evidence that the redacted portion was maintained as confidential. The author is "unknown" and the document appears to have been widely distributed to a number of employees, several of whom are not in Wolf's declaration. See also ruling on #36.

24. Privileged in part. Only the Brian Ohana message (Oct. 25, 2005 at 4:28 p.m.) third paragraph, from "should" through "legally" and the second sentence of the message from Sue Wolf (Oct 26, 2005 at 8:53 a.m.) relate to a request for legal advice and a response to it. The rest reflects a business discussion and must be produced.

25. Not privileged. Although a lawyer is involved, the discussion is about a business decision. Wolf's contribution is simply factual with no legal advice.

26. Privileged. The redacted portion reflects a conversation about information in-house counsel needs in order to provide legal advice.

27. Not privileged. This appears to be power point slides of autosub issues. The redacted portion mentions issues "legal" needs to address, but Target provided no information about who authored the document, to whom it was presented or whether it was maintained as confidential.

28. Privileged as to redactions.

29. Not privileged. Same as #27.

30. Privileged in part. A part of point 9 that is redacted contains a report of legal advice provided (in point

9) and may be redacted. The balance is merely direction as to how to process accounts and does not communicate legal advice. Target may redact the sentence beginning "Per" and ...


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