United States District Court, D. Connecticut
MATTHEW D. WILLIAMS, Plaintiff,
RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendant.
ORDER ON DISCOVERY MOTIONS
DONNA F. MARTINEZ, Magistrate Judge.
Plaintiff, Matthew D. Williams, brings this action pursuant to the Fair Debt Collection Practices Act ("FDCPA") alleging that defendant Rushmore Loan Management Services, LLC (hereinafter "Rushmore") engaged in improper collection tactics by making misrepresentations and communicating directly with plaintiff about his mortgage despite knowing that he was represented by counsel. Pending before the court are plaintiff's motion to compel (doc. #50) and defendant's motion for protective order. (Doc. #58.) I heard oral argument on February 10, 2016. For the following reasons, plaintiff's motion is GRANTED IN PART and DENIED IN PART and defendant's motion is GRANTED.
I. Plaintiff's Motion to Compel
I rule on the disputed discovery requests as follows.
A. Requests #1 & 7 - Servicing Agreement
Rushmore objects to producing its unredacted servicing agreement on the ground that it contains confidential and proprietary business information that would cause irreparable harm if it were disclosed. Rushmore makes no showing to support this argument. "The mere fact that defendant deems these items to be proprietary does not (by itself) render them to be proprietary." Demutis v. Sally Beauty Supply LLC, No. 09CV92A, 2010 WL 1038679, at *3 (W.D.N.Y. Mar. 19, 2010). "[M]erely labeling the material proprietary and confidential' is not by itself sufficient to bar its production." Novomoskvovsk Joint Stock Co. "Azot" v. Revson, No. 95 CIV. 5399 (BSJ), 1996 WL 282085, at *1 (S.D.N.Y. May 28, 1996). The objection is therefore overruled.
Rushmore also objects that the servicing agreement is irrelevant. This objection is overruled in part, and plaintiff's motion to compel is granted in part. To the extent that any sections of the servicing agreement discuss or relate to Rushmore's policies and protocols on debt collection or loss mitigation, Rushmore must disclose them to plaintiff.
B. Request #3 - Attorney Account Notes
This request was refined at oral argument to 354 pages of communications between Rushmore and its counsel. Rushmore objects, arguing that the communications are protected from disclosure by the attorney client privilege and the work product doctrine. It offers to produce the documents for in camera inspection.
"Where, as here, there is federal question jurisdiction, the court must apply federal common law with respect to attorney-client privilege. Fed.R.Evid. 501." Leone v. Fisher, No. 3:05CV521 (CFD)(TPS), 2006 WL 2982145, at *3 (D. Conn. Oct. 18, 2006). "The privilege protects not only the advice of the attorney to the client, but also the information communicated by the client that provides a basis for giving advice." Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 554 (S.D.N.Y. 2013). "[I]n order to invoke the attorney-client privilege, a party must demonstrate that there was: (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice." Rapkin v. Rocque, 87 F.Supp.2d 140, 143 (D. Conn. 2000) (internal quotation marks omitted). "It is axiomatic that the burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship... a burden not discharged by mere conclusory or ipse dixit assertions." In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224-25 (2d Cir. 1984).
"The work product doctrine is distinct from and broader than the attorney-client privilege." United States v. Nobles, 422 U.S. 225, 238 n. 11 (1975) (citing Hickman v. Taylor, 329 U.S. 495, 508 (1947)). The work product doctrine shields from disclosure documents and other materials prepared in anticipation of litigation or trial by a party or a party's representative, absent a showing of substantial need and the inability to obtain the substantial equivalent without undue hardship. Fed.R.Civ.P. 26(b)(3)(A); see also In re Grand Jury Subpoenas Dated Oct. 22, 1991 and Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992). "Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation, it falls within Rule 26(b)(3)." United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998).
"[T]he work-product doctrine [also] shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case." Nobles, 422 U.S. at 238. "An attorney's protected thought processes include preparing legal theories, planning litigation strategies and trial tactics, and sifting through information." Salomon Bros. Treasury Litig. v. Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993). The doctrine extends to notes, memoranda, correspondence, witness interviews, and other materials, whether they are created by an attorney or by an agent for the attorney. See Nobles, 422 U.S. at 238-39; Carter v. Cornell Univ., 173 F.R.D. 92, 95 (S.D.N.Y. 1997).
With these principles in mind, counsel are ordered to meet and confer in a good faith effort to select a sample of the withheld communications. See, e.g., Mehta v. Ace Am. Ins. Co., No. 3:10CV1617 (RNC), 2013 WL 3105215, at *1 (D. Conn. June 18, 2013) (finding defendant's privilege log to be insufficient, court "invited defendant to submit a sample of the allegedly privileged documents for in camera inspection"). By February 23, 2016, Rushmore's counsel shall submit to chambers for in camera inspection a representative sample that best illustrate the issues raised by the parties. See Makhoul v. Watt, No. 11-CV-05108 (PKC)(VMS), 2014 WL 977682, at *5 (E.D.N.Y. Mar. 12, 2014) (noting that "the first step to settling the privilege dispute [is] to conduct an in camera review of a sample of documents from defendants' privilege log to determine whether they contain any information relevant to the existence of an attorney-client relationship). The court will rule on the representative samples in the hope that such ruling will facilitate resolution of the pending dispute. See, e.g., Unidad Latina En Accion v. U.S. Dep't of Homeland Sec, 253 F.R.D. 44, 46 ...