Consumer Financial Protection Bureau et al v. RD Legal Funding LLC et al

Filing 177

ORDER: However, the Court concludes that some of the communications do not fall within the protection of the work product privilege because they merely involve scheduling and logistics. See, e.g., Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 14 CV 00006, 2018 WL 739870, at *4 (N.D. Ind. Feb. 6, 2018) ("Another category of documents outside the scope of the work-product doctrine are communications dealing with merely administrative, logistical, or scheduling matters") . Hence, the following documents should be produced in whole or in part: CFPB-COURT0000001 CFPB-COURT0000041 (unredact top; maintain redaction at bottom) CFPB-COURT0000082 CFPB-COURT0000083 CFPB-COURT0000084 CFPB-COURT0000087 (unredact top; maintain redaction at bottom) SO ORDERED. (Signed by Judge Loretta A. Preska on 5/9/2022) (ks)

Case 1:17-cv-00890-LAP Document 177 Filed 05/09/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONSUMER FINANCIAL PROTECTION
BUREAU, et al.,
Plaintiffs,
-against-

17 Civ. 890 (LAP)
ORDER

RD LEGAL FUNDING LLC, et al.,
Defendants.

LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is RD Legal’s February 14, 2022 request to
compel Plaintiff Consumer Financial Protection Bureau (CFPB) to
produce certain documents it believes were improperly withheld
or redacted on the basis of the work-product privilege.
no. 164.)

(Dkt.

CFPB responded on February 18, 2022, arguing that the

materials were properly withheld.

(Dkt. no. 166.)

On February

21, 2022, RD Legal submitted a reply in support of its
application.

(Dkt. no. 167.)

On February 23, 2022, the Court

ordered the CFPB to produce for in camera inspection the
challenged documents.

On April 12, 2022, the CFPB submitted to

the Court 38 emails for the Court’s inspection.
The work-product doctrine is embodied in Fed. R. Civ.
P. 26(b)(3), which provides that a party may ordinarily not
obtain disclosure of “documents and tangible things . . .
prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative.”
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Case 1:17-cv-00890-LAP Document 177 Filed 05/09/22 Page 2 of 4

The purpose of the work product privilege is “to preserve a zone
of privacy in which a lawyer can prepare and develop legal
theories and strategy ‘with an eye toward litigation,’ free from
unnecessary intrusion by his adversaries.”

United States v.

Adlman, 134 F.3d 1194, 1196 (2d Cir. 1999) (quoting Hickman v.
Taylor, 329 U.S. 495, 510-11 (1947)).

As interpreted by the

Court of Appeals, documents come within the “anticipation of
litigation” requirement if they were prepared because of
litigation. Id. at 1202.

“This same confidentiality applies to

the work product of government.”

See New York Times Co. v.

United States Dep't of Just., 939 F.3d 479, 489 (2d Cir. 2019).
And the privilege is not vitiated merely because a communication
involves a third party, so long as the third-party’s interests
are closely aligned such that the communication did not create a
substantial risk of further dissemination.

See Schoenmann v.

Fed. Deposit Ins. Corp., 7 F. Supp. 3d 1009, 1014 (N.D. Cal.
2014); William A. Gross Construction Associates, Inc. v.
American Manufacturers Mutual Insurance Co., 262 F.R.D. 354, 361
(S.D.N.Y. 2009) (“[W]here work product is disclosed to a third
party, the claim of work product protection may be maintained if
the third party is aligned in interest with the author of the
work product.”).
Following the Court’s individualized review of these
materials, the Court concludes that the CFPB properly withheld
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Case 1:17-cv-00890-LAP Document 177 Filed 05/09/22 Page 3 of 4

or redacted the following documents on the basis of the workproduct privilege.

The CFPB has met its burden of establishing

that these communications, including communications with third
parties, were prepared because of litigation:
CFPB-COURT0000002
CFPB-COURT0000005
CFPB-COURT0000006
CFPB-COURT0000008
CFPB-COURT0000010
CFPB-COURT0000012
CFPB-COURT0000042
CFPB-COURT0000043
CFPB-COURT0000044
CFPB-COURT0000045
CFPB-COURT0000046

CFPB-COURT0000049
CFPB-COURT0000050
CFPB-COURT0000051
CFPB-COURT0000052
CFPB-COURT0000057
CFPB-COURT0000080
CFPB-COURT0000081
CFPB-COURT0000085
CFPB-COURT0000093
CFPB-COURT0000095
CFPB-COURT0000097

CFPB-COURT0000098
CFPB-COURT0000099
CFPB-COURT0000100
CFPB-COURT0000102
CFPB-COURT0000105
CFPB-COURT0000106
CFPB-COURT0000111
CFPB-COURT0000112
CFPB-COURT0000117
CFPB-COURT0000120

However, the Court concludes that some of the
communications do not fall within the protection of the workproduct privilege because they merely involve scheduling and
logistics.

See, e.g., Valley Forge Ins. Co. v. Hartford Iron &

Metal, Inc., No. 14 CV 00006, 2018 WL 739870, at *4 (N.D. Ind.
Feb. 6, 2018) (“Another category of documents outside the scope
of the work-product doctrine are communications dealing with
merely administrative, logistical, or scheduling matters”).
Hence, the following documents should be produced in whole or in
part:
CFPB-COURT0000001
CFPB-COURT0000041 (unredact top; maintain redaction at bottom)
CFPB-COURT0000082
CFPB-COURT0000083

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Case 1:17-cv-00890-LAP Document 177 Filed 05/09/22 Page 4 of 4

CFPB-COURT0000084
CFPB-COURT0000087 (unredact top; maintain redaction at bottom)
SO ORDERED.
Dated:

May 9, 2022
New York, New York

__________________________________
LORETTA A. PRESKA
Senior United States District Judge

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