Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund et al v. Arbitron, Inc. et al

Filing 129

OPINION AND ORDER: (1) Arbitron's motion to compel disclosure of the names of the CIs is granted. The CIs' names are to be provided to the defense by November 21, 2011. However, Plaintiff's counsel is authorized to submit to the Cour t, by November 21, 2011, an ex parte affidavit setting forth, with particularity, any facts known to Plaintiffs counsel at the time of the initial confidentiality designation that would substantiate the concern that disclosure of a particular CI' ;s name would result in retribution. As to any CI addressed in such affidavit, Plaintiff's obligation to identify the CI to the defense is stayed pending the Court's review of the affidavit. (2) Arbitron's motion to compel production of all documents provided to Plaintiff by the CIs is also granted, to the extent that such documents are responsive to other valid discovery requests in this case. (Signed by Judge Paul A. Engelmayer on 11/14/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDNY
DOCUMENT
ELECTROr.-llCALL Y FiLED
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DATE FILED;

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PLUMBERS AND PIPEFITTERS LOCAL UNION
NO. 630 PENSION-ANNUITY TRUST FUND,
individually and on behalfofothers similarly situated,
Plaintiff,

08 Civ. 4063 (PAE)
OPINION AND ORDER

-v-

ARBITRON, INC. et aL,
Defendants.

------------------------------------------------------------------------}{

PAUL A. ENGELMAYER, District Judge:

This decision addresses a discovery dispute. Defendant Arbitron, Inc., moves for an
order directing the lead plaintiff, Plumbers and Pipefitters Local Union No. 630 Pension-Annuity
Trust Fund (Plaintiff), to disclose the names of 11 former Arbitron employees whom the
Complaint designates as "Confidential Informants" (CIs). Arbitron also seeks an order directing
Plaintiff to produce all documents that these 11 CIs provided to Plaintiffs counsel.
For the reasons that follow, Arbitron's motion to compel disclosure of the names of the
CIs is granted, subject to the opportunity the Court will afford the Plaintiff to substantiate, as
described herein, its claim that disclosure of a CI's name may result in retribution. Arbitron's
motion to compel production of all documents provided to the Plaintiff by the CIs is also
granted, to the extent that such documents are responsive to other valid discovery requests in this
case.

2

I.

Background
The Second Amended Complaint (SAC) in this securities class action litigation was filed

on October 19,2009. It alleges that Arbitron and two officers, Stephen B. Morris and Sean R.
Creamer, violated Section lOeb) of the Securities Exchange Act, and Rule 1Ob-5 promulgated
thereunder, by making false and misleading statements about Arbitron's planned rollout of a
technology known as the "Portable People Meter" (PPM). In essence, the SAC alleges that,
between July 19,2007, and November 26,2007, the defendants failed to disclose material
information regarding various problems and delays adversely affecting the scheduled PPM
rollout. The SAC further alleges that defendants made various statements tending to falsely
portray the PPM technology as "on schedule" or "on track" for a December 31, 2007 rollout.
On September 30,2010, this Court denied Arbitron's motion to dismiss. See Plumbers

and Pipejitters Local Union No. 630 Pension-Annuity Trust Fund v. Arbitron, Inc. et aI., No. 08­
CV-4063 (S.D.N.Y. Sept. 24, 2010) (Dkt. No. 80).1 Discovery, which had been stayed pursuant
to the automatic stay provision of the Private Securities Litigation Reform Act, see 15 U.S.C. §
78u-4(b)(3)(B), commenced soon thereafter. Under the schedule in place, fact discovery is due
to close February 28,2012; expert discovery closes May 3, 2012. Document production is
substantially complete. Depositions will commence shortly but have been deferred pending
resolution of the instant dispute. A protective order negotiated by the parties is in place
governing the handling of confidential discovery materials.

The Court's decision on the motion to dismiss supplies a more detailed summary of Plaintiff's
allegations. The Court also denied Morris' motion to dismiss, while granting Creamer's. At the
time of the motion to dismiss, the judge assigned to this matter was the Hon. John G. Koe1tl, to
whom this case was assigned until October 5,2011. On September 6,2011, Judge Koeltl
granted Plaintiffs motion to certify this action as a class action, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3). See Plumbers and Pipejitters Local Union No. 630 Pension-Annuity Trust Fund v.
Arbitron, Inc. et al., No. 08-CV-4063 (S.D.N.Y. Sept. 9, 2011) (Dkt. No. 115).
I

3

Arbitron presently seeks this Court's intervention in connection with two closely related
discovery disputes.

Identification ofCorifidential Informants: Arbitron asks the Court to enforce an
interrogatory (Interrogatory No.1) which directs Plaintiff to "specifically identify all
Confidential Informants referenced in the Complaint by the Confidential Informant number in
the Complaint, and include the person's full name, present or last known address, and present or
last known place of employment."
Plaintiff has refused to identify these 11 persons. It has given two independent reasons.
First, Plaintiff asserts that it has fully complied with any duties that Federal Rule of Civil
Procedure 26 imposes as to identification of the CIs. Plaintiff notes that - to comply with its
required initial disclosures under Rule 26(a)(I)(A)

it has furnished the defense with a list of 83

current or former Arbitron officers or employees likely to have discoverable information.
Plaintiff represents that this list contains the names of all II CIs (although they are not identified
as such).
Second, Lead Plaintiff asserts that the attorney work product doctrine protects it from
having to reveal the CIs' identities. As to the latter, Plaintiff argues that, were it to disclose the
CIs' identities,
Arbitron would be able to discern which witnesses counsel for Lead Plaintiff
considers important, thereby revealing counsel for Lead Plaintiff's mental
impressions, opinions, and/or legal theories regarding information provided by
these CIs. Specifically, disclosing this information is tantamount to revealing
how counsel for Lead Plaintiff analyzed and used the information provided by the
CIs, as well as the conclusions, opinions, and potentially even trial strategy
developed during counsel for Lead Plaintiff s investigation.
Plaintiff also argues that the SAC's descriptions of the CIs permit Arbitron to winnow out
various people listed on its initial disclosure list. Thus, the task for Arbitron of identifying the

4

CIs on its own steam is less substantial than initially might appear. Plaintiff finally states that
"the CIs have legitimate concerns that they will suffer retaliation regarding their current or future
employment in the industry if they are identified."
Arbitron disputes both arguments. Particularly salient here, it disputes that the work
product doctrine applies to the

cr s identities.

It asserts that even if any limited work product

protection applies to those identities, that protection is overcome by defendants' interest in
efficiently discovering relevant information. As Arbitron put the point in its moving papers:
"Arbitron should not be forced to depose as many as 83 persons to learn the identity of 11 CIs."
Documents produced by the CIs: In the second discovery dispute, Arbitron asks this

Court to enforce a document request, which, as narrowed by the parties, calls upon Plaintiff to
produce all documents provided to it by the CIs. The parties have largely treated this dispute as
derivative of the first.
On November 8, 2011, the Court held a lengthy, on-the-record, telephone conference
with counsel to discuss these motions.

II.

Discussion
a. Fed. R. Civ. P. 26(B)(1)
Management of discovery lies within the broad discretion of the district court. See

Baguer v. Spanish Broadcasting Systems, Inc., 423 F. App'x 102, 103 (2d Cir. 2011) (summary

order); Allied Maritime, Inc. v. Descatrade SA, 620 F.3d 70, 74 (2d Cir. 2010); In re IPO
Securities Litigation, 471 F.3d 24 (2d Cir. 2006).

The threshold discovery issue here is whether, as Lead Plaintiff has argued, its disclosure
duties under Fed. R. Civ. P. 26 with regard to the CIs were satisfied by including their names in
its initial disclosures, among a list of83 Arbitron officers or employees. See Fed. R. Civ. P.

5

26(a)(1)(A)(i) (requiring parties to identify the names and contact information of persons "likely
to have discoverable information ... that the disclosing party may use to support its claims or
defenses"). Specifically, the question is whether the additional fact now sought by Arbitron ­
the names of the 11 CIs

is relevant information that "appears reasonably calculated to lead to

the discovery of admissible evidence" and thus responsive to a separate part of Rule 26, Rule
26(b)(1).
The answer to that question is clearly yes, as a review of the SAC demonstrates. The
SAC prominently states that its allegations of securities fraud "are supported by the first-hand
knowledge of eleven (11) confidential informants." It describes these 11 as "former Arbitron
employees who provided facts from various departments within the [c]ompany," and who
"served in positions at Arbitron which provided them with access to the information they are
alleged to possess." SAC ~ 33. The SAC then devotes 11 paragraphs to setting out, to varying
degrees, the backgrounds and qualifications of each of the CIs. SAC ~~ 34-44.
The SAC proceeds to quote the CIs extensively, and/or to paraphrase their accounts of
various allegedly material deficiencies relating to the PPM rollout which, the SAC centrally
alleges, Arbitron either failed to disclose or affirmatively concealed. Thus, CIs 1,2,3,6, and 7
are quoted at length in a section of the SAC describing Arbitron's problems with recruiting
panelists to participate in the PPM surveys, SAC ~~ 74-80; CIs 1,2, and 4 are quoted in a section
describing problems with PPM data reliability and methodology, SAC ~~ 83, 85, 91-92; CIs 2, 5,
9, and 10 are quoted in a section describing the PPM's system's underrepresentation of the ages
18-34 and minority demographics, SAC ~~ 93,96-97, 100-101; and CIs 1 and 8 are quoted in a
section describing a shortage of PPM equipment, SAC ~ 104. In a section summarizing
Arbitron's allegedly false and misleading statements, the SAC also cites data provided by CI 1 as

6

a basis to impeach the company's claim that installation of the PPM equipment had been
successful, SAC ~ 111.
In light of these details, Rule 26(b)(1) clearly requires that the names of the 11 CIs be
produced (unless they are held to be privileged). Simply put, knowing who the CIs are would
help the defense to find and interview and/or depose them. Inasmuch as Lead Plaintiff has
represented that the 11 CIs have "firsthand knowledge" of specific facts tending to establish
Arbitron's liability for securities fraud, such interviews or depositions are reasonably likely
themselves to constitute or reveal admissible, if not highly probative, evidence. Furthermore, it
is reasonable to expect that defense counsel would then pursue leads from information provided
by the CIs, and that this follow-on investigation might in tum yield other admissible evidence. 2
See In re Marsh & McLennan Sec. Litig., No. 04-CV-8144, 2008 WL 2941215, at *3 (S.D.N.Y.
July 30, 2008) ("[b]ecause Lead Plaintiffs relied upon the CWs in drafting the [Complaint], the
CWs possess discoverable information") (citations omitted); In re Harmonic, Inc. Sec. Litig., 245
F.R.D. 424, 427 (N.D. Cal. 2007) (holding that "the identities of the [confidential witnesses] are
relevant to Plaintiffs claims," and required to be revealed in response to interrogatories, even
where the complaint that had mentioned these witnesses had since been dismissed and had been
succeeded by an amended complaint that removed references to them); In re Aetna, Inc. Sec.
Litig, No. Civ. A. MDL 1219, 1999 WL 354527, at *2 (E.D. Pa. May 26, 1999) (names and

Identifying the CIs would also help the defense to more accurately assess the strength of the
SAC's claims and Plaintiffs case-in-chief. For example, the identity ofa CI to whom damaging
facts are attributed may shed light on whether the CI in fact had a firsthand basis for his or her
allegations, or had been misquoted in the SAC. See, e.g., Campo v. Sear Holdings Corp., 371 F.
App'x 212, 216 (2d Cir. 2010) (summary order) ("neither of the confidential witnesses ...
offered testimony supporting plaintiffs' allegations"). It may also help the defense assess
whether there were reasons to credit, discredit, or view in a different context particular
allegations attributed to that CI.

2

7

addresses of confidential informants to whom factual allegations are attributed in the Complaint
"are obviously 'relevant to the subject matter involved in the pending action' and [are]
'reasonably calculated to lead to the discovery of relevant evidence''').

b. The Attorney Work Product Doctrine
The Court therefore turns to what it regards as the heart of the matter, which is whether
the names of the 11 CIs referenced in the SAC are protected from disclosure under the attorney
work product doctrine.
The attorney work product doctrine was first articulated in Hickman v. Taylor, 329 U.S.
495 (1947). It was later partially codified in Fed. R. Civ. P. 26(b)(3)(B). The work product
doctrine is based on the recognition that "it is essential that a lawyer work with a certain degree
of privacy, free from unnecessary intrusion by opposing parties and their counsel"; as such, it
protects such materials as notes, internal memoranda, statements, and mental impressions from
disclosure to the attorney's adversary. Hickman, 329 U.S. at 510. Under the doctrine, "opinion
work product," which "reveals the 'mental impressions, conclusions, opinions, or legal theories
of an attorney or other representative,' ... is entitled to greater protection than fact work
product." In re Grand Jury Subpoena Dated July 6, 2005,510 F.3d 180, 183 (2d Cir. 2007)
(citing United States v. Adlman, 134 F.3d 1194,1197 (2d Cir. 1998) (quoting Fed. R. Civ. P.
26(b)(3))). But, "[t]o be entitled to protection for opinion work product, the party asserting the
privilege must show 'a real, rather than speculative, concern' that the work product will reveal
counsel's thought processes 'in relation to pending or anticipated litigation.'" Id. at 183-84
(citing In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002,318 F.3d 379, 386 (2d
Cir. 2003) (quoting Gould, Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676,680 (2d Cir.
1987))).

8

The party asserting work product protection bears the burden of establishing all of its
elements, specifically, that the materials sought were '''prepared principally or exclusively to
assist in anticipated or ongoing litigation.'" In re Initial Pub. Offering Sec. Litig., 220 F.R.D. 30,
34 (S.D.N.Y. 2003) [hereinafter IPO Securities Litigation] (quoting United States v. Constr.

Prods. Research, Inc., 73 F.3d 464,473-74 (2d Cir. 1996». Where it applies, "the work product
protection is a qualified protection; it is not absolute"; it "can be overcome by a showing that the
party seeking discovery (1) has substantial need of the materials, and (2) that the party is unable,
without undue hardship, to obtain the substantial equivalent of the materials by other means." Id
(citations omitted).
In this Court's view, the names of the persons identified in the SAC as confidential
informants are not entitled to any work product protection; and if any work product protection
does apply to these names, it is minimal. 3 In the first instance, it is important to isolate just how
limited a disclosure is at issue in this case. Plaintiff has already disclosed the fact that these 11
people (and 72 others), all identified to the defense by name, likely possess discoverable
information. Plaintiff has also already disclosed important aspects of what the 11 CIs have stated
in interviews about the events at issue in this case. To the extent Lead Plaintiff has chosen not to
reveal other parts of the CIs' witness statements, Arbitron's present motion does not seek their
disclosure. All that Arbitron seeks to learn is which of the 83 names identified by Plaintiff
correspond to the 11 CIs described in the SAC. This would expedite the discovery process, for
all parties, by allowing Arbitron (as it has explained) to focus its depositions immediately on
these important "firsthand" witnesses, rather than having to engage in a costly process of

A motion to compel disclosure of a confidential witness's name also implicates the witness's
interest in maintaining confidentiality, and that interest may carry the day in particular cases, but
that distinct interest is not implicated by the work product doctrine. The Court's assessment of
that interest as applied to this case is discussed infra, in Section C.

3

9

elimination in which it would take numerous depositions simply to smoke out which of the 83
disclosed names are the 11 CIs.
It is difficult to see how syncing up the 11 CIs with these already disclosed names would
reveal Plaintiffs counsel's mental impressions, opinions, or trial strategy. Plaintiffs argument
on this point was that opposing counsel, upon learning the names of the 11 CIs, might surmise
that Plaintiff s counsel had judged the other 72 named witnesses to be less helpful witnesses for
its cause. Perhaps so, but any such surmise would be just that, surmise - not a reliable indicator
of counsel's actual thought processes. There are many other plausible reasons for a counsel not
to list a witness in a complaint (as a CI or by name) apart from an assessment that the witness
was peripheral. These may include, among others, the witness's insistence on not being quoted,
even pseudonymously, until later in the case; and a strategic judgment by counsel that it is best

not to unduly showcase or "out" a particularly potent trial witness early in the life-cycle of a
case. The Court thus finds, on the facts here, that an insufficient showing has been made that
opinion work product would be implicated by granting the pending motion. See In re Grand

Jury Subpoena Dated July 6, 2005,510 F.3d at 183-84.
It is also relevant to the Court's work product analysis that the crs names will almost

certainly eventually become known during this litigation, if Arbitron pursues the deposition
process long enough (as it has represented that it will given the CIs' centrality). In colloquy,
counsel for both sides acknowledged that, if asked in a deposition whether they had spoken to
Plaintiffs counsel, the 83 named witness would each be obliged to answer (i.e., no privilege
would apply). Both counsel also acknowledged that such a witness would be obliged to answer
whether he or she had made statements to Plaintiffs counsel along the lines of those that the
SAC attributed to a particular CI. These lines of examination would likely reveal which

10

witnesses are the CIs.4 Denying the instant motion would thus not permanently keep the 11 CIs'
identities under wraps. Instead, it would merely elongate the deposition discovery process,
imposing costs and burdens on all parties. 5
In holding that the CIs' names in this case are not entitled to work product protection, the
Court is, finally, mindful that Plaintiff has utilized the CIs offensively. By attributing extensive
factual allegations to the 11 CIs in the SAC, Plaintiff buttressed its complaint, presumably with
the goal of protecting it against dismissal. It is, of course, entirely proper and common for a
plaintiff to rely on confidential witnesses in a complaint, and attributions to such witnesses may
and often are credited on motions directed to the pleadings. See Novak v. Kasaks, 216 F.3d 300,
314 (2d Cir. 2000). But, once the discovery phase begins, the balance of interests shifts. The
priority becomes reciprocal and robust fact-gathering as the parties seek to discover relevant
evidence. See IPO Securities Litigation, 220 F.R.D. at 37. The parties' interrogatoriesincluding interrogatories aimed at helping the propounding party assess which witnesses are
most likely to possess probative, admissible evidence - are an integral part of this process.
In the Court's view, where a party has attempted to satisfy the pleading requirements of
the PSLRA "by 'showcasing' statements from a limited number of confidential witnesses, it may
not thereafter refuse to disclose who they are" on grounds of work product. Ross v. Abercrombie

4 The task of identifying the CIs' identities via the deposition process is further likely to be
successful because the Complaint identifies (at least generally) each CI's job titles, duties, and
approximate tenure at the company. See, e.g., SAC, 36 ("CI 3 is a former PPM Research
Associate employed by Arbitron from July 2007 through March 1,2008, in Columbia, Maryland.
CI3 was responsible for recruiting individuals into the Diary and the PPM survey methods."); id.
,43 ("CI 10 is a former Vice President of Marketing for Arbitron in Columbia, Maryland. CliO
was employed by Arbitron from approximately 2000 until September 2007"); see generally id.

t,33-44.
In colloquy, Plaintiff's counsel stated that he himself presently expects to take pretrial
depositions of some of the CIs. Any such deposition would itself tend to reveal that the deponent
was the CI.

11

& Fitch Co., No. 2:05-CV-08l9, 2008 WL 821059, at *3 (S.D. Ohio Mar. 24,2008); id.
("partial disclosure of infonnation protected by the work product doctrine may constitute a
waiver, and [] a party is not pennitted to use such doctrines as both a shield and a sword."); cf
NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 142 (N.D.N.Y. 2007) ("Just as the attorney-client

privilege cannot be used as a shield and sword, neither can a work product document, especially
one that does not include an attorney's impression, opinions, or strategies."); Computer Assoc.
Int'l, Inc. v. Simple. com, Inc., No. 02-CV-2748, 2006 WL 3050883, at *3 (E.D.N.Y. Oct. 23,

2006) (as to assertions of fact work product, noting the need for "courts to 'balance the policies
to prevent sword and shield litigation tactics with the policy to protect work product''') (citing In
re Echostar, 448 FJd 1294, 1302 (Fed. Cir. 2006)).

Even assuming some minimal work product protection applies to the 11 CIs' identities,
such protection would be overcome in this case. Arbitron's counsel has represented that counsel
and human resources personnel at Arbitron have compared the list of 83 named fonner employee
witnesses against the SAC's descriptions of the 11 CIs; the goal was to identify which of the 83
can be eliminated as a CI. That review eliminated between 12 and 17 of the 83. 6 Depending on
how quickly the 11 CIs are identified in depositions, the deposition process aimed at ensuring
that all 11 CIs were deposed could therefore entail as many as 66 to 71 depositions. Independent
of these depositions, Arbitron presently intends to take approximately 6 to 10 depositions;
Plaintiff expects to take approximately 20.

In colloquy, the Court probed with counsel the nature of this screening process. The Court was
assured that Arbitron's screening had eliminated both (1) current employees (all 11 CIs are
fonner employees), and (2) employees whose job titles and functions are inconsistent with the
descriptions of the CIs.
6

12
The deposition process in this case thus could potentially vary in scope by threefold or
more depending on whether Arbitron's interrogatory as to the names of the CIs is enforced. In
the Court's view, Arbitron has shown both a "substantial need" for these names, and that it
would entail "undue hardship[] to obtain the substantial equivalent ... by other means." IPO

Securities Litigation, 220 F.R.D. at 35. Relevant in this regard, Arbitron is a mid-size company
(between 1,200 and 1,500 employees during the events at issue) and its counsel has represented
that the cost of preparing for and taking dozens of additional depositions of former employees
would impose a substantial expense on the company.7
On the facts before it, the Court, balancing the relevant considerations, does not believe
that the work product doctrine compels Arbitron (or, derivatively, its shareholders) to bear these
costs. The discovery rules "should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. These goals are
disserved by forcing a party, in the name of an opponent's evanescent work product interest, to
playa high-cost game of "Where's Waldo?".
In reaching this conclusion, the Court has carefully reviewed the many cases addressing
similar applications. Although many such cases turn on particular facts, it is safe to say that the
case law is not unitary as to the application of the work product doctrine to motions to compel
the names of a witness referenced but not named in a complaint. Of these cases, the Court found
the analysis in four particularly instructive.

7 Relative to other securities class-action litigations premised on claims that a company's stock
price dropped as a result of the revelation of a material misstatement or omission, this litigation
is also properly classed as "mid-size." Counsel estimated that the outer conceivable damages,
assuming that Arbitron's stock's entire stock-price drop in November 2007 was attributable to
actionable misstatements or material omissions, would be approximately $55 million. The
volume of documents produced (as represented to the Court, a little over 200,000 pages by the
defendants; 75 pages by Plaintiff; and 15,700 by third parties) is not large by the standards of
present-day securities class-action litigation.

13

In In re Aetna, supra, the court enforced interrogatories that sought the names of
witnesses identified in the complaint by such terms as "a former regional general manager of
Aetna" or "a former Aetna vice-president of sales and customer service." The court held that the
names of such individuals were not protected by the work product doctrine. It noted that
"[p]laintiffs chose to include this allegation in their Second Amended Complaint and chose the
way in which this allegation was framed. Defendants are entitled to the discovery of the name
and address of those persons described in the Second Amended Complaint." 1999 WL 354527,
at *2. The court also held that disclosure of the names would not reveal opinion work product;
and that even if any "minimal work product content" were implicated, it was outweighed:
"Without the Court's intervention, Defendants would be forced to engage in a time-consuming
and expensive effort to ferret out the veritable needle in the haystack." Id at *4 (any qualified
protection "must yield to the need of the Defendants to get on with discovery in this case").
In In re Theragenics Corp. Sec. Litig., 205 F.R.D. 631 (N.D. Ga. 2002) [hereinafter In re

Theragenics], the court addressed a set of interrogatories, upholding two (No.2 and No.5)
which sought the names of persons referenced but not named in the complaint. Rejecting the
claim that such information was "core work product," the court observed that identifying such
persons "tells the defendants nothing new about the mental processes of the plaintiffs lawyers,
leaving the policy behind the work product doctrine intact." Id. at 635 (citing American Floral

Servs., Inc. v. Florists' TransworldDeliveryAss'n, 107 F.R.D. 258, 261 (N.D. Ill. 1985)). The
Court added: "The disclosure sought here will provide minimal, if any, disclosure of an
attomey's thought processes. It will not reveal Plaintiffs' litigation strategy. Certainly, the work
product doctrine was not devised to protect all work by attorneys in the global sense." Id at 636.

14

In In re Harmonic, supra, the court similarly enforced interrogatories as to the names of
five confidential witnesses, holding that the work product doctrine does not apply. It noted, on
facts closely akin to those here, that because plaintiff's initial disclosures had already listed the
five among the 77 witnesses listed on its initial disclosures, "[t]he issue here ... is not if the
CWs' identities will ever be discovered, but rather when they will be discovered." 245 F.R.D.
424,427 (N.D. Cal. 2007) (citation omitted). Thus, "there is no cognizable strategic advantage
to be gained by Plaintiffs in withholding the identities. The only effect is to force the Defendants
to expend resources on taking the depositions of 77 people in order to obtain the information."
Id. at 428. The court rejected the claim that revealing the CWs' names would reveal trial
strategy. "Plaintiffs have already revealed their legal strategy by including the CWs' statements
in the SAC." Id. As in Aetna, the court concluded by holding that even if some de minimus
factual work product were implicated, that interest was outweighed by "the interest in
discovery." Id. at 429.
Finally, in In re Marsh & McLennan, supra, a case brought in this District, the court
upheld a discovery demand seeking production of "documents sufficient to identify each and
every" of the 17 confidential witnesses referenced in the complaint. The court held that any
privilege that attached to these identities is "limited in nature," because those identities bear only
an "attenuated" relationship to an attorney's case strategy or mental impressions, and reveal no
more "about an attorney's mental processes than does the identification of a witness by name in
the complaint itself." No. 04-CV-8144, 2008 WL 2941215, at *3 n.5 (S.D.N.Y. July 30, 2008).
The court also noted that CWs who will serve as trial witnesses will necessarily be identified;
and as to others, it may be possible to deduce their identities from the complaint; thus, "there is
actually little confidentiality at stake." Id. Further, even if some work product protection

15

attached to the identities, it was outweighed, because identifYing the CWs by other means would
take a "substantial number" of depositions. Id. at *4. 8
The Court therefore holds that the work product doctrine does not protect Plaintiff from
having to respond to Interrogatory No. I.

c. The Witnesses' Interest in Avoiding Retribution

8 Although it addresses an issue not raised here - a discovery demand that plaintiff identifY the
names of all persons alleged in its pleadings to have engaged in allegedly wrongful business
practices the decision in IPO Securities Litigation, supra, also from this District, also offers
relevant guidance. Upholding that demand, the court there noted that the work product privilege
"does not ... ordinarily protect the identities of ... witnesses." 220 F.RD. 30, 34, n.23
(S.D.N.Y. 2003) (citing Edna Selan Epstein, The Attorney-Client Privilege and the Work­
Product Doctrine 302-03 (1997)). The court in IPO Securities Litigation also distinguished as
inapposite the circumstance in which a party demands a list of persons whom opposing counsel
has interviewed. Id. at 35. That circumstance - in which one party is essentially seeking, and
potentially piggybacking on, a roadmap of an adversary's pretrial investigation - implicates core
policies behind the work product doctrine. A number of the cases that Plaintiff has cited here, in
fact, arise from such a demand or ones similar to it, not from an interrogatory akin to the one
here. See, e.g., Electronic Data Systems Corp. v. Steingraber, No. 4:02-CV-225, 2003 WL
21653405, at * I (E.D. Tex. July 9, 2003) (interrogatory asked defendant "to identifY individuals
who have been interviewed concerning the relevant allegations in the case"); In re Ashworth,
Inc., Sec. liNg., 213 F.RD. 385, 386 n.1 (S.D. Cal. 2002) (interrogatory asked adversary to
identify each former employee "who has provided information which forms the basis for any
allegations" in the complaint); In re Gupta Corp. Sec. Ling., 1995 U.S. Dist. LEXIS 21847, at *3
(N.D. Cal. July 18, 1995) (interrogatories "asked counsel for plaintiff to identify each person
counsel for plaintiff had contacted about this case and to disclose what each such person told
counsel for plaintiff'); Commonwealth ofMassachusetts v. First Nat 'I Supermarkets, Inc., 112
F.RD. 149 (D. Mass. 1986) (interrogatory asked adversary, inter alia, to "[i]dentifY each person
who was interviewed in connection with any ... investigation"); Board ofEducation ofEvanston
Township High School, 104 F .RD. 23, 32 (N .D. Ill. 1984) (interrogatory asked adversary "to
identifY anyone they may have interviewed" concerning the subject of the litigation). The Court
acknowledges, however, contrary authority as to the application of the work product doctrine to
the identification of confidential witnesses named in a complaint. See, e.g., In re SLM Corp. Sec.
Litig., No. 08-CV-1029, 2011 WL 611854 (S.D.N.Y. Feb. 15,2011); In re Veeco Instruments,
Inc. Sec. Ling., No. 05-MD-1695, 2007 WL 274800 (S.D.N.Y. Jan. 29, 2007); In re MTI
Technology Corp. Sec. Ling., No. SACV 00-0745 DOC, 2002 WL 32344347 (CD. Cal. June 13,
2002). For the reasons set forth in this opinion, the Court finds the analysis in In re Aetna, In re
Theragenics, In re Harmonic, and In re Marsh & McLennan the most persuasive.

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A confidential witness may have a legitimate interest in non-disclosure, where revealing
his or her name may lead to retaliation in a current or future job. This interest belongs to the
witness - it is not one protected by the attorney work product doctrine. In an appropriate case, a
court may decline to order disclosure of a CI's name, or fashion an appropriate protective order,
in order to guard against this risk.
In this case, Plaintiff asserts generically that the 11 CIs "have legitimate concerns" about
such retaliation. However, there is no indication that any of these witnesses expressed concerns
specific to themselves that led to the confidentiality designation. Rather, this designation
appears to have been made on a global basis: Every Arbitron employee (save the individual
defendants) to whom statements are attributed in the SAC is identified as a CI. In colloquy,
Plaintiffs counsel represented that each ofthe 11 CIs had been told counsel would "do what we
can" to keep the CI's name confidential, but that it was possible that the CI's name would be
disclosed. Plaintiffs counsel further represented that each of the 11, aware of this possibility,
consented to being identified as a CI in the complaint. The Court further observes that each of
the 11 CIs is described in the SAC as a former Arbitron employee, which would appear to limit
(although not eliminate) the risk of future employment retaliation for supplying information here.
On this record, there is no reliable, non-conclusory basis to find that any of the CIs here
faces a risk of retaliation sufficient to justify non-disclosure of his or her name to the defense.
See Rahman v. Smith & Wollensky Restaurant Group, Inc., No. 06-CV -6198, 2007 WL 1521117,
at * 11 (S.D.N.Y. May 24, 2007) ("the mere spectre of retaliation, without more, does not
establish good cause for [a protective order]"); In re IPO Securities Litigation, 220 F.R.D. at *37
(ordering disclosure of witness names where "plaintiffs have failed to show the 'particular and

17

specific demonstration of fact ... ' that is necessary to support a showing of good cause")
(citation omitted).
The Court is, however, mindful that additional facts bearing on this concern may be
known to Plaintiffs counsel. Accordingly, the Court will afford Plaintiffs counsel one week
(until Monday, November 21,2011) to submit an ex parte affidavit setting forth particularized
facts (if any) known to counsel at the time of the original confidentiality designation that would
substantiate the concern that disclosure of a particular crs name would result in retribution.
Upon review of such an affidavit, the Court will promptly determine whether these facts justify
(a) non-disclosure, (b) disclosure but with limitations on further dissemination to be set forth in
an appropriate protective order, or (c) a follow-up telephonic inquiry of the witness by the Court,
to be arranged and attended by Plaintiff s counsel. If by that date no such affidavit has been
submitted as to a particular CI, Plaintiff that day shall disclose the CI's name to the defense. 9

d. Arbitron's Request for Documents
Turning, finally, to Arbitron's request for the production of all documents that the CIs
have provided to Plaintiff (including Plaintiffs counsel), it follows from the discussion above
that the work product doctrine does not protect Plaintiff from this request. However, that is not
the end of the inquiry. Although this objection was not raised by Plaintiff, in the Court's view,
this request is overbroad, in that it would sweep in documents (if any) provided by the CIs that
are of no relevance whatsoever to this litigation. Put differently, the mere fact that a CI produced
a document to Plaintiff does not make it relevant. Relevancy turns on the document's content.

To the extent the parties believe that limitations as to the parties' use or dissemination of the
CI's names prior to trial are appropriate and would not interfere with discovery, the Court will
entertain a proposed protective order. For example, the parties might agree that witnesses will
not be identified in publicly filed court papers as having been CIs, without leave of the Court to
do so.

9

18
The Court therefore directs the Plaintiff to produce all documents provided by the CIs
that are responsive to any other valid document request in this case. This modification is
designed to ensure that only relevant documents are produced. The Court expects that, as to each
document that is produced, the producing party will identify by name the source of the
document. Plaintiffs therefore are directed, as to anydocument provided by a CI responsive to
the document request as modified by the Court, to indicate to the defense the name of the person
who provided that document.
CONCLUSION
For the reasons stated:

1. Arbitron's motion to compel disclosure of the names of the CIs is granted. The CIs'
names are to be provided to the defense by November 21, 2011. However, Plaintiff's counsel is
authorized to submit to the Court, by November 21, 2011, an ex parte affidavit setting forth, with
particularity, any facts known to Plaintiffs counsel at the time of the initial confidentiality
designation that would substantiate the concern that disclosure of a particular CI's name would
result in retribution. As to any CI addressed in such affidavit, Plaintiff's obligation to identify
the CI to the defense is stayed pending the Court's review of the affidavit.
2. Arbitron's motion to compel production of all documents provided to Plaintiff by the
CIs is also granted, to the extent that such documents are responsive to other valid discovery
requests in this case.

SO ORDERED.

PJA.(~
Paul A. Engelmayer
United States District Judge

Dated: November 14, 2011
New York, New York