Groman v. General Motors LLC.

Filing 237

MEMORANDUM OPINION AND ORDER re: (4875 in 1:14-md-02543-JMF) LETTER MOTION to Compel Lead Counsel to produce the documents withheld in response to New GM's September 22, 2017 Requests for Production addressed to Judge Jesse M. Fur man from Andrew B. Bloomer, P.C. dated December 15, 2017, filed by General Motors LLC. Upon review of the parties' submissions (GM Ltr. Mot.; Pls.' Opp'n; Pls.' Supp. Ltr.; Docket No. 4966 ("GM Supp. Br.")), includin g an in camera review of the materials at issue, the Court grants New GM's motion with respect to the Questionnaires and denies its motion with respect to the E-mails. The Clerk of Court is directed to terminate Docket No. 4875, and as further set forth herein, (Signed by Judge Jesse M. Furman on 1/29/2018) As Per Chambers, Filed In All Member Cases: 1:14-md-02543-JMF et al. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------------x
IN RE:

01/29/2018
14-MD-2543 (JMF)

GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
This Document Relates To All Actions

MEMORANDUM OPINION
AND ORDER

-----------------------------------------------------------------------------x
JESSE M. FURMAN, United States District Judge:
On December 15, 2017, New GM moved to compel the production of documents relating
to Lead Counsel’s advertisements with Top Class Actions, LLC (“TCA”), which maintains a
website on which Lead Counsel paid to post a questionnaire to attract potential plaintiffs in this
litigation. (Docket No. 4875 (“GM Ltr. Mot.”). Two sets of materials remain in dispute: first,
the data submitted by putative class members through the questionnaire hosted on TCA’s
website (the “Questionnaires”), which Lead Counsel contends are subject to the attorney-client
privilege; and, second, e-mails between Lead Counsel and TCA regarding the advertising
campaign (the “E-mails”), which Lead Counsel contends are protected by the work-product
doctrine. (Docket No. 4890 (“Pls.’ Opp’n”), at 2-3; Docket No. 4965 (“Pls.’ Supp. Ltr.”), at 23). Upon review of the parties’ submissions (GM Ltr. Mot.; Pls.’ Opp’n; Pls.’ Supp. Ltr.; Docket
No. 4966 (“GM Supp. Br.”)), including an in camera review of the materials at issue, the Court
grants New GM’s motion with respect to the Questionnaires and denies its motion with respect
to the E-mails.
First, the Court concludes that the Questionnaires are not protected by the attorney-client
privilege. To establish that the privilege applies, the party asserting it must generally show “(1) a
communication between client and counsel that (2) was intended to be and was in fact kept
confidential, and (3) was made for the purpose of obtaining or providing legal advice.” In re
Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007). A prospective client’s answers to a lawyer’s

questionnaire can, in some circumstances, qualify for such protection. See, e.g., Schiller v. City
of New York, 245 F.R.D. 112, 115-18 (S.D.N.Y. 2007) (citing cases). But Lead Counsel’s
assertion of privilege here founders (at a minimum) on the requirement of confidentiality. That
is, whether or not the webpage at issue made clear that the submissions were going to a law firm
for evaluation (as to which there is some dispute), it did not provide any assurance to users of
confidentiality. Even more problematic for Lead Counsel’s position, the webpage linked to
TCA’s legal notice, which expressly warned users that any “information” a user provided
through the website was “considered nonconfidential and nonproprietary”; that TCA could
disclose it to third parties under various circumstances (beyond what the privilege would allow),
and that TCA could not “guarantee that the information you submit to us will not end up in the
hands of the company or person that you are complaining about.” (GM Supp. Br., Ex. DD, at
Ex. B, at 2 (emphasis added)). It follows that Lead Counsel cannot establish that the privilege
applies. Cf., e.g., Schiller, 245 F.R.D. at 117 (rejecting a claim of privilege where the form
merely “impli[ed]” that “the information would not be held in confidence” (emphasis added)).
In arguing otherwise, Lead Counsel cite the fact that Hagens Berman, the law firm that
received the data, maintained the confidentiality of the data. (Pls.’ Supp. Ltr. 2). “More
important than what the law firm intended,” however, “is what the clients thought.” Barton v.
U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104, 1107 (9th Cir. 2005). And here, no
reasonable prospective client of the firm could have thought that his or her information would be
kept confidential when he or she was expressly warned that it might “end up in the hands” of
New GM. (GM Supp. Br., Ex. DD, at Ex. B, at 2). Citing the Ninth Circuit’s decision in Barton,
Lead Counsel also contend that “[d]isclaiming language does not automatically render a
prospective client questionnaire unprivileged.” (Pls.’ Supp. Ltr. 2 n.7). That may be true, but
Barton is easily distinguished from this case, as the disclaiming language there did not clearly

and expressly disclaim confidentiality. See 410 F.3d at 1110. As the Ninth Circuit explained:
“Neither the word ‘confidentiality’ nor the substance of a disclaimer of confidentiality can be
found in the online questionnaire. . . . [T]he words just do not say . . . that ‘confidentiality’ was
waived.” Id. Here, by contrast, the disclaiming language said precisely that: that the information
provided was “nonconfidential” and might “end up in the hands” of New GM. Having been so
warned, those who submitted data through the website cannot now invoke attorney-client
privilege to keep that data out of New GM’s hands. 1
The E-mails are a different story. Lead Counsel argue that the E-mails are protected by
the work-product doctrine, which “provides qualified protection for materials prepared by or at
the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury Subpoena Dated
July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (internal quotation marks omitted). New GM
only half-heartedly argues otherwise (GM Ltr. Mot. 3), which is wise as the communications

1

The Court has considered Lead Counsel’s other arguments for protection of the
Questionnaires and finds them to be without merit. First, Lead Counsel assert that New GM
seeks discovery from absent class members, in violation of Order No. 119 (Docket No. 3568),
and discovery related to states other than California, Missouri, and Texas, in violation of Order
No. 131 (Docket No. 4499). (Pls.’ Opp’n 2-3). But New GM does not seek to communicate
with, or obtain documents from, absent class members; it merely seeks documents already in
Lead Counsel’s possession. Further, those documents are relevant to, among other things, the
adequacy of counsel, and Order No. 131 places no limitation on New GM’s ability to obtain
discovery relating to that topic. Second, and related, Lead Counsel contend that requests for
production may be served only on “parties” under Rule 34(a) of the Federal Rules of Civil
Procedure and that counsel is not a “party.” (Id. at 3). There is some merit to that contention,
but there is little to be gained except delay in making New GM serve a subpoena to Lead
Counsel, as it represents that it would do. (Jan. 8, 2018 Status Conf. Tr. 83). Finally, Lead
Counsel notes that the Questionnaires have been commingled with submissions that were
received directly through the law firm’s website. (Pls.’ Opp’n 2). But Lead Counsel “cannot
avoid disclosure of non-privileged material simply because that material is intermingled with
privileged material.” United States v. Chevron Corp., No. C-94-1885 SBA, 1996 WL 264769, at
*6 (N.D. Cal. Mar. 13, 1996); cf. In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973) (Friendly, J.)
(“It is difficult to be persuaded that the documents were intended to remain confidential in the
light of the fact that they were indiscriminately mingled with the other routine documents of the
corporation and that no special effort to preserve them in segregated files with special protections
was made.” (internal quotation marks omitted)).

were created by Hagens Berman or TCA (at Hagens Berman’s request) as part of counsel’s
efforts to find named plaintiffs “in anticipation of litigation” (Pls.’ Supp. Ltr. 3). Instead, New
GM’s principal argument is that the protections of the doctrine were waived because there were
ninety-four e-mails between TCA and Lead Counsel and TCA disclosed ninety of them to New
GM in responding to an earlier subpoena (a response that was allegedly made “[i]n coordination
with Lead Counsel”). (GM Supp. Br. 2). That may well be so, but it is ultimately beside the
point because disclosure of some materials results in a subject matter waiver of “related,
protected” materials “only in those ‘unusual situations in which fairness requires a further
disclosure . . . in order to prevent a selective and misleading presentation of evidence to the
disadvantage of the adversary.’” In re Gen. Motors LLC Ignition Switch Litig., 80 F. Supp. 3d
521, 533 (S.D.N.Y. 2015) (quoting Fed. R. Evid. 502, Committee Notes). Here, there is no
suggestion, let alone evidence, that the partial disclosure — which was made by a third party, not
by Plaintiffs or Lead Counsel — was done selectively or strategically so that Plaintiffs might
gain an unfair advantage over New GM. The Court therefore finds that TCA’s earlier disclosure
does not call for production of the remaining four E-mails.
For the reasons stated above, the Court grants New GM’s motion with respect to the
Questionnaires and denies its motion with respect to the E-mails.
The Clerk of Court is directed to terminate Docket No. 4875.

SO ORDERED.
Dated: January 29, 2018
New York, New York