American Airlines Inc v. Travelport Limited et al

Filing 372

AMENDED ORDER PARTIALLY GRANTING PLAINTIFF'S AMENDED MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DENYING AS MOOT MOTION FOR LEAVE. [This order is amended to correct an error regarding the production of exemplar 16 (not 13) in part III of the original order issued on July 12, 2012.] (Ordered by Magistrate Judge Jeffrey L Cureton on 7/16/2012) (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINESN INC'

$

s

VS.

$

TRAVELPORT LIMITED, ET AL.

$
$

CIVIL ACTION NO. 4zrl-CY-244-Y

AMENDED' ORDER PARTIALLY GRANTING PLAINTIFF'S AMENDED MOTION
TO COMPEL PRODUCTION OF DOCUMENTS AND DENYING AS MOOT
MOTION FOR LEAVE
Pending before the Court is Plaintiff American Airlines, Inc. ("American)'s Combined
(I) Amended Motion to Compel Production ofDocuments Wrongfully Withheld Under the Guise

of Privilege by the Travelport Defendants ("Motion to Compel"), and (II) Motion for Leave to

File Supplemental Amended Motion ("Motion for Leave") [doc. # 316], filed May 7, 2012.
Having carefully considered the motions, response, reply, and supplemental briefing, the Court
concludes that American's Motion

to Compel should be PARTIALLY GRANTED

and

American's Motion for Leave should be DENIED AS MOOT.

I. BACKGROUND

In its motion, American claims, inter alia, that Defendants Travelport Limited
Travelport L.P. (collectively referred

to

and

hereinafter as "the Travelport Defendants" or

'oTravelport") "continues to improperly shield handreds of relevant, nonprivileged documents

by claiming they are privileged when in fact they are not." (American's Motion to Compel
Production of Documents ("PI.'s Mot.") at 1. American argues that Travelport is improperly
claiming as privileged four categories of communications:

(l)

communications with Defendant

rThis order is amended to correct an error regarding the production of exemplar 16 (not l3) in part III. of the
original order issued on July 12,2012.

Orbitz Worldwide , LLC ("Orbitz") based on a "common interest" exception to waiver of the
attorney-client privilege; (2) communications with Blackstone Group, L.P. ("Blackstone")2 based
on the fact that Blackstone is allegedly the Travelport Defendants' parent company and majority

owner; (3) communications that allegedly discuss purely business matters; and (4) communications which do not involve attorneys. (Pl.'s Mot. at2,9-19.) American requests that the Court
examine one hundred exemplar documents identifiedbyAmerican

as

representative ofdocuments

that are improperly being withheld, and, based upon the Court's review, order the Travelport
Defendants to produce the exemplars and all similar non-privileged documents improperly listed

anywhere on its privilege

log. (Pl.'s Mot. at 19.)

American also requests that, "in light of

Travelport's recent production of hundreds of documents it wrongfully withheld as privileged,
American's deadline to file an amended motion

as

to any remaining disputed matters be extended

to May 21,2012, such that American has the opportunity to review the documents produced by

Travelport andanalyzeTravelport's revised privilege log." (Pl.'s Mot. at 2; see Pl.'s Mot. at19'
20.)

In its response dated May 14, 20l2,the Travelport Defendants claim that they have:

(l)

produced nearly 1.5 million pages of documents to Americffii Q) "carefully addressed" each

of

the issues raised in American's original motion to compel filed on April 6;3 and (3) re-reviewed
thousands of documents previously withheld for privilege and amended their privilege logs.

(Defendants' Response to Plaintiff s Amended Motion to Compel ("Defs.' Resp.") at 1. The

2The

Travelport Defendants state that the actual name oftheir parents corporation is Blackstone LR Associates

V Ltd. (Defs.' Resp, at 12.)
American filed its original motion to compel [doc. 290] on April 6,2012. In an order dated April 16,2012,
the Court ordered the parties to "confer and make a good-faith effort to resolve this discovery dispute between
3

themselves."

Travelport Defendants argue that American has "raised a host of new demands that exceed the
scope of its

April6 motion." (Defs.'Resp. at 1.) In addition, the Travelport Defendants

state:

Travelport has spent considerable time, money and effort over the past month rereviewing thousands of previously withheld documents, including all 325
"exemplars" listed in [American's] April 6 Motion to Compel plus hundreds of
additional documents not specifically referenced in that motion. Travelport has
produced approximately 1,500 of these documents to [American], and has
amended its privilege log with respect to hundreds more. In short, Travelport has
carefully reviewed and fully addressed the issues raised in [American's] April 6
Motion. Accordingly, [American's] Amended Motion should be denied as moot.
o'Travelport's efforts to resolve this
(Defs.' Resp. at 8-9). The Travelport Defendants further state,

dispute aside, the arguments that [American] raises in its Amended Motion are completely

meritless." (Defs.' Resp. at 9.)
In an order dated May 29,2012,the Court ordered the Travelport Defendants to produce
in camera one hundred exemplar documents in the Travelport Defendants' privilege log that had
been designated by American. On June

8,20!2,the Travelport Defendants produced sixty-six of

the one hundred exemplar documents for the Court's review.a As to the other forty-four
documents,s the Travelport Defendants included

a

letter dated June 8,2012to the Court indicating

that they had withdrawn their claims of privilege as to these documents and had produced such
documents to American in

full or redacted form. The Travelport Defendants stated:

In preparing this submission, Travelport discovered that its privilege
determination standards were not applied consistently across each document on
Travelport's privilege log. The problems in consistently applying the applicable
standard for privilege assertions affected both Travelport's initial privilege
determinations and Travelport's re-review of documents challenged by American
Airlines. Travelport will thus undertake a full review of each document on its
4The Court appreciates the efforts the Travelport Defendants took in submitting thetr in cqmera documents in
a manner and with sufficient explanation to make the Court's review of such documents less difftcult.
5The Court notes that the Travelport Defendants also submitted these documents to the Court.

privilege log to identiff any documents that should be produced in full or redacted
form and to identiff any log entries that require modification.
Because the errors that Travelport identified are in the nature of execution
and not in Travelport's interpretation of the law, Travelport will continue to apply
the standards for asserting privilege that were explained in Travelport's opposition
brief, some of which are disputed by AA. (Compare Travelport Opp. [Doc' 320]

at9-17,with AAReply [Doc. 328] at5-9 (disputing inter alia interpretation ofthe
common-interest and related-companies doctrines).) Should the Court determine
that Travelport's interpretation of the law is correct, AA's motion is moot, as
Travelport has already begun to re-review each document on Travelport's entire
privilege log. However, if the Court disagrees with any of Travelport's interpretations of the law, Travelport will of course re-review its documents consistent with
the Court's guidance.
(Travelport Defendants' June 8,2}Izletter to the Court ("June 8,z}l2letter") at l-2.)6

II. DISCUSSION
Federal Rule of Civil Procedure ("Rule") 26(b)(1) permits parties to "obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense." "Relevant

information need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(bX1). However, a court may

limit discovery if the "burden or expense of the proposed discovery outweighs its likely benefit."
Fed. R. Civ. P.

26(b)(2)(Cxiii). "A party seeking discovery may move for an order compelling

an answef, designation, production, or inspection." Fed. R' Civ. P. 37(a)(3)(B).

A

court,

however, should not compel the production of privileged documents. Fed. R. Civ. P. 26(bxl).

6The Court notes that American submitted a copy of the Travelport Defendants privilege log with its motion

to compel. (See Pl.'s Appendix in Support ("PI.'s App.") at Ex. l.) American divided the privilege log and the
corresponding exemplars- into four sections based on four arguments it raised as to why the exemplars were not
privileged. tio*eu"i, the "re-reviewed" privilege log that the Travelport Defendants submitted to the Court with their
'in
camiradocuments is significantly revised and, thus, the Court reviewed each entry of the privilege log individually
to determine which of American's four arguments applied to each exemplar'

Th attorney-client privilege protects two types of communications:

(l)

confidential

communications made by a client to his lawyer for the purpose of obtaining legal advice; and (2)
any communication from an attorney to his client when made in the course of giving legal advice,

whether or not that advice is based on privileged communications from the client. United States
v.

Mobil Corp.,149 F.R.D. 533,536 (N.D. Tex. 1993) (citing Inre LTV Securities Litigation,S9

F.R.D. 595,600-03 (N.D. Tex. 1981)). "To invokethe attomey-clientprivilege, the claimantmust
establish the following elements:
a

(l)

the asserted holder of the privilege is or sought to become

client; (2) the person to whom the communication was made is (a)

a member

of a bar of a court,

or his subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attomey was informed (a) by his client (b) without
the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or

(ii) legal services (iii) or assistance in some legal proceeding, and (d) not for the purpose of
committing a crime or tort; and (a) the privilege has been (a) claimed and (b) not waived by the

client." Mobil Corp.,149 F.R.D. at

536 (citing In re LTV Sec.

Litig.,89 F.R.D. at 600; see U.S.

v. Kelly,569 F.zd 928,938 (5th Cir. 1978).7 Communications between a corporation, any
corporate employee, and its inside or outside counsel are protected by the attomey-client privilege
o'when

the communications concern matters within the scope of the employee's corporate duties

and the employee is aware that the information is being furnished to enable the attorney to provide

legal advice to the corporation

.- Mobil Corp.,l49 F.R.D. at 537 . The party claiming the privilege

bearstheburdenofprovingthattheprivilegeexists. InreSantaFelnt'1Corp.,272F.3d705,710
(5th Cir. 2001); (lnited States v. Kelly, 569 F.2d at 938.
TFederal cornmon law governs the resolution of privilege determinations because in this case the existence of
a federal question provides the 6asis for federal subject-matter jurisdiction. See United States v. Zolin,49l U.S' 554,

s62 (1e8e).

A. Communications With Blackstone
The first category of communications that American claims were improperly withheld are

those communications that the Travelport Defendants shared with third-party Blackstone.
American argues there

is no protection under the attorney-client privilege that protects

communications between the Travelport Defendants and Blackstone, a third-parfy and the
Travelport Defendants' alleged parent company and majority owner at the time the disputed
communications were made. (Pl.'s Mot. at t2.) American argues that case law does not support

the Travelport Defendants' "blanket assertion that corporations related through common
ownership are treated as one entity with respect to the attomey client privilege and do not need

to establish a substantial identi[t]y of legal interest to assert the privilege." (Pl''s Mot. at 15.)
American also argues that

o'Travelport is not a wholly owned subsidiary of Blackstone, and

therefore the cases that Travelport has previously cited are inapposite and do not support
Travelport's assertion that its communications with Blackstone are privileged." (Id.)
The Travelport Defendants claim, on the other hand, that the attorney-client privilege does

protect communications between

o"the corporation who retained an attorney, its parent, and its

wholly-owned and majority-owned subsidiaries."' (Defs.'Resp. at 12 (quotingl4/eil Ceramics

& Glass, Inc. v. Work,110

F.R.D. 500,503 (E.D.N.Y. 1936).) Travelport claims that the

withheld communications with its corporate parent Blackstone ranging from April 15,2007 to
September 23, 2011 are protected by the attorney-client privilege because, during this period,
,oBlackstone owned more than 70o/o

of Travelport Limited, which in turn owned 100% of

Travelport,L.P." (Defs.'Resp. atI2-I3.;see,e.g.,Defendants'AppendixinSupportofResponse
("Defs.' App.") at 79-80.)

6

After reviewing the Travelport Defendants' amended privilege log submitted to the Court

with its in camera documents, it appears that there are twelve exemplars8 that fall within this
category, exemplar numbers

2,3,8010, 11, 14,16,19,23,25,26, and 40. According to the

Travelport Defendants' privilege log, all but one of these exemplars contain communications
between Travelport agents, directors, employees, in-house counsel, and/or outside counsel and
Blackstone employees, directors, in-house counsel and/or outside counsel ranging from April 19,
2007 through May 26,201Le
The first issue is whether the attorney-client privilege itself applies to these exemplars.

The Court finds that it does apply to all exemplars except exemplar numbers 8 and 16. As to
exemplar 8, it is not protected by the attomey-client privilege because there does not appear to be
any attorney involved in the email exchange.ro As to exemplar 16,

it is not protected by the

attomey-client privilege because the redacted sentence contained within cannot be viewed as a

s

The Court notes that exemplar
be discussed infra.

l0 falls under the "common interest" exception category

as

well' which will

qExemplar

10, which Travelport claims is protected by the attomey-client privilege as well as the "commonand
interest,' exception, is allegedly an emiil exchange between Blackstone's outside counsel, Orbitz's in-house counsel,

Travelport' s in-house counsel.
roThe
Courtnotes that in the'osupplemental Attorneyllegal Reference" column oftheirprivilege log, itcontains
the notation,,(,Travelport legal')". The Travelport Defendants explain the "supplemental Attorney/Legal Reference"

column as follows:
The,,supplemental Attorney/Legal Reference" column lists information not otherwise captured in the
log that-nevertheless uppeitt in the content of the document (or its metadata) and supports the
ptlultege claim (e.g. the-names of attorneys or law firms, or certain words or phrases such a[s] "legal"
br ,,pr-epared fbr-counsel"). If a privileged document ,were to include an "attorney-client
communication" legend, foi instance, ihe phrase "attorney-client communication" would generally
appear in the Supplemental Attorney/Legal Reference column for that document. Similarly, if a
piivileged communication referred to an attorney who was not personally _involved in the
fommunication itself, that attorney's name would appear in the Supplemental Attorney/Legal
Reference column.

(Explanation of Materials-Volume I at I in the documents submitted in camerqtothe Court.) The Court, however, does
not hna any indication in exemplar 8 that it contained communication made to anyone in "Travelport legal."

confidential communication made for the pu{pose of securing primarily either (i) an opinion on

law or (ii) legal services (iii) or assistance in some legal proceeding. Instead, it is merely a
statement that the Travelport Defendants have sought legal advice regarding certain agreements.

Consequently, American's motion to compel is GRANTED as to exemplars 8 and 16.

The next issue is whether the attorney-client privilege was waived as to the other
exemplars in this category because they were shared with Blackstone employees, directors, inhouse counsel, and/or outside counsel, The Supreme Court in Upjohn v. United States,449 U.S'

383, 389-97 (1981) rejected a mechanistic approach to the application of the attomey-client

privilege in the corporate setting in favor of a case-by-case evaluation to determine whether
application of the privilege would further the underlying purpose of the privilege. Contrary to
American's arguments, the Court finds that "corporations related through common ownership or
control are treated as one entity for attorney-client privilege purposes." Pasadena Refining Sys'

*2 (N.D. Tex. Apr.26,
Inc. v. United States,No. 3:10-CV-0785-K(BF), 2011 WL 1938133, at
2011). This exception to waiver of the attomey'client privilege is sometimes referred to

as the

"related companies exception" and applies'owherein the corporation which retained the attomey,

its parent, and its subsidiaries are considered the same person for purposes of the privilege."
Zapata Gulf Marine Corp. v. Puerto Rico Maritime Shipping Auth., No. 86-2911, 1989 WL
149227, at*2 (8.D. La. Dec. 5, 1989); see United States v. Am. Tel. and Tel. Co,, 86 F.R.D. 603,

616 (D.D.C. 1979) (stating that the attomey-client protection provided for corporate clients
includes the corporation who retained an attorney, its parent, and its wholly-owned and majorityowned subsidiaries collectively).rr "The purpose of the attorney-client privilege is to 'encourage
ttBut see Mitsui Sumitomo Ins. Co. v. Carbel, ZIC No. 09-21208-ClV, 2011WL2682958, at *4 (S.D' Fla'
July I l, 201 1) (stated that the "common interest exception" to the waiver of the attorney-client privilege applied to the
disclosure of privileged communication shared between a parent corporation and a subsidiary when the parent and

frank and full communication between attomeys and their clients and thereby promote broader
public interests in the observance of law and administration ofjustice."' Mobil Corp.,l49 F.R.D.
at 547 (quoting Upjohn Co. v. united states,44g u.s. 393, 3gg (lggl)).r2

Furthermore, contrary to American's arguments, the Court finds that the fact that the
Travelport Defendants are not wholly-owned subsidiaries of Blackstone does not change the fact
that the communications it shared with Blackstone are privileged. Although there are some cases
that appear to lend support to American's position,l3 the Courts finds that the more reasoned view,
at least based on the facts of this case, is that disclosure of communications between a parent and

qred a legal inter-est); Gutf Istands Leasing, Inc. v. Bombardier Capital, 215
F.R.D. 466 474 (S.D.N.y.
1}!{$i.ary sf
2003) ("The mere existence of an affiliate relationship does not excuse aparty from demonstrating the applicability of

thecommoninterestrule."); Hohenwaterv.RobertsPharm.Corp.,152F.R.D.5l3,5l7(D.S.C. fSS+)tfinaing,inter
alia, that corporate defendant waived attomey-client privilege with respect to memorandum piepared -Uy its

representatives and its attorneys in preparation for litigation by revealing content of document to employee of its wirolly
owned subsidiary, where employee was not party to litigation).
r2ln

this Court's view, this is a different factual situation and standard than when two unrelated corporations are
claiming the attorney-client privilege for communications between their respective counsel, which is known as the
"commoninterest"exceptiontowaiveroftheattomey-clientprivilegeandisdistussed,szpra,atpagesl0-12. TheCourt
in Music Sqles Corp. v. Morris, No. 98CIV.9002(SASXFM),lggt wLg74}2s, at *7 (S.D.N.v i=ees;, explaining the
difference in the common interest and related companies exceptions to the attorney-cliint privilege, siated:

Although the Defendants' cases each address the applicability of the common interest dochine, they
plainly deal with two separate factual situations, which are subject to different legal standards and,
consequently, may lead to different results. As the cases show, unrelated corporalions cannot claim
the attorney-client privilege for communications from counsel which they have shared with each other
unless they have substantial identity of legal interest. Corporationi which are related through
.a
common ownership or control, however, need not meet this strict standard. Rather, such inter-relat6d
corporate communications' are heated 'in the same manner as intra-corporate communications.
Corporations consequently can demonstrate sufficient interrelatedness to be treated as one entity for
attorney-client privilege purposes ifthey either are closely affiliated or share an identity of iegal
interest.

Id. at *7 (internal citations and quotations omitted).

- . "Se.e, -e.g., Guy v. Llnited Heqlthcare Corp., 154 F.R.D. 172, 177-78 (S.D. Ohio 1993) (.,The disclosure of
otherwise privileged materials to a parent by a wholly owned subsidiary will not result in a waiver oithe attorney-client
privilege); State ex rel. Syntex Agri Business, Inc. Adolf,700 S.W.2d ggO, ggg (Mo. Ct. App. l9g5) (adopting
ihe rule
\o1l7syrance Company of North America v. Superior Courtfor the County of Los Angiles, r0i bal.'Api. 3d 75g
(1980), that "at least in the instance of wholly-owned subsidiaries and affiliatei, , . . the prErence
of a representative of
a parent or affiliated company at a legal briefmg of a subsidiary, and vice versa, does not destroy confidentiality
of
communication between counsel and client").

its majority-owned subsidiaries does not result in waiver ofthe attorney-client privile ge. See, e.g.,

Weil Ceramics

&

Glass, Inc.,

ll0

F.R.D. 500 (E.D.N.Y. 1986) (stating "the attorney-client

protection provided for corporate clients, includes the corporation who retained an attomey, its
parent, and its wholly-owned and majority-owned subsidiaries considered collectively); Am' TeL

andTel.Co.,86F.R.D. at616-18(findingthatthewhollyownedandmajority-ownedsubsidiaries

of AT&T but not the minority-owned companies and formerly affiliated companies were
considered the
as to the

o'clienf ' for attomey-client purposes). Consequently, American's motion to compel

remaining exemplars in this category is DENIED. Thus,

as

to all other similar documents

withheld by the Travelport Defendants, the attomey-client privilege will be upheld as long as all
elements of the attorney-client privilege are present, including that the communication involved
an attorney and contained a confidential communication.

B. Communications With Orbitz
The second category of documents that American claims were improperly withheld are
those shared with Orbitz, one ofthe co-defendants in this case. American claims that "Travelport
improperly withheld numerous communications with its co-defendant Orbitz, many of which
occur two and a half years before the instant litigation was

filed." (Pl.'s Mot. at 13.) The

Travelport Defendants, however, argue that these documents are protected under the "common
interest" exception to the general rule that the attorney-client privilege is waived when privileged

information is disclosed to a third party. (Defs.' Resp. at 9.) The Travelport Defendants claim
that all but one of the documents they are claiming as privileged under the common interest

exception post-date September 2010, which is the month Travelport and Orbitz allegedly
negotiated and executed

a

CommonlnterestAgreement in anticipation of litigation against certain

airlines, including American. (Defs.' Resp. at 10.)

l0

"The . . . common interest rule[] is an extension of the attomey-client privilege which
'seryes to protect the confidentiality of communications passing from one party to the attorney for

another party where

a

joint defense effort or strategy has been decided upon and undertaken by

the parties and their respective counsel."' United States v. Agnello,l35 F. Supp. 2d.380,382

(E.D.N.Y. 2001) (quoting United States v. Schwimmer,892F.2d237,243 (2d Cir. 1989)). There
are two types of communications protected under the common interest exception:

(l ) communica-

tions between co-defendants in actual litigation andtheircounsel and (2) communications between

potential co-defendants and their counsel in which there is a "palpable threat of litigation at the
time of the communication."r4 In re Santa Fe Int'l Corp.,272F.3dat7l0-ll.
According to Plaintiff, the originally-designated exemplars that deal with the issue of
whether the common interest exception applies are exemplars 27 through

49.

(See

Ex.

I of

Plaintiff s Appendix in Support of its Motion to Compel Documents.) After the Travelport
Defendants' re-review of these exemplars, there are, however, only six exemplars, exemplars 10,

43,45,46,47, and

48,15

that the Travelport Defendants continue to maintain fall within the

common interest exception. On the other hand, the Travelport Defendants represent that they
negotiated and executed a Common Interest Agreement

in

September 2010 with Orbitz in

anticipation of litigation against certain airlines, including American. (Defs.' Resp. at

10.)16

Thereafter, in November 201 0, American sued the Travelport Defendants in Texas state court and

lo"To be eligible for continued protection, the communication must be shared with the attorney of the
community of interest." In re Teleglobe Communications Corp., 493 F.3d 345, 364 (3d Clr.2007).
r5The

Court notes that the Travelport Defendants claim that exemplars 46,47, and 48 are also protected by the

work-product doctrine.
t6The
Travelport Defendants claim that the Common Interest Agreement is privileged and offered to produce
a copy for the Court. (Defs. ' Resp. at l0 n. I I .) To allow the Court to have a complete record on this issue, the Court
requests that the Travelport Defendants submit a copy of this agreement to the Court for in camera review.

1t

later filed counterclaims against the Travelport Defendants in Illinois state court. (Defs.' Resp.

at 10.) American filed the instant action in this Court on April 12,2011.

After reviewing the six exemplars in this category, the Court finds that the common
interest exception does apply to all exemplars as they all post-date September 2010, the date on

which the Travelport Defendants signed a Common Interest Agreement with Orbitz and are
communications between co-defendants in actual litigation and their counsel. Consequently,

American's motion to compel the production of these documents is DENIED. For all other
documents that meet the same criteria as these exemplars, the Court's ruling is the same.

C. Remaining Exemplars
The third category of documents that American claims were improperly withheld based
on the attorney'client privilege are those that appear to discuss "purely business matters." (Pl.'s

Mot.at16-18.) AmericanarguesthattheTravelportDefendants'privilegelogcontainshundreds
of documents that purport to discuss "contract negotiations" and should have been produced.
(Pl.'s Mot. at 16.) American claims that many of the documents do not appear to even involve

an attorney.

(Id.)

"American suspects that [many of] these documents discuss or reflect

Travelport's improper coordination with other [global distribution systemsf-through trade
organizatiorzs--to further the [global distribution systems'] anticompetitive business objectives."

(Pl.'s Mot. at 17.)
The Travelport Defendants argue, however, that they have "withheld or redacted such
documents only to the extent thatthey reflect legal advice or requestsfor the sqme." (Defs.' Resp.
at 13.) The Travelport Defendants claim "[t]hat such advice may concem contraction negotiations

or other business matters in no way alters its privileged status." (Defs.' Resp. at 13.)

T2

The fourth category of documents that American claims were improperly withheld are
those in which American alleges that no attomeys are associated with the documents. (Pl.'s Mot.
at 18-19.) American argues that "it appears that in submitting its revised log, Travelport merely
added a work product claim to many of the documents not associated with any attorney in an

attemptto shield them from discovery." (Pl.'s Mot. at 18.) The Travelport defendants, however,

claim that

it is not necessary

under the work product doctrine for an attorney to be directly

involved in a communication for that communication to be privileged as long at "they reflect or
refer to legal advice, or if prepared in anticipation of litigation." (Defs.' Resp. at 17; see Defs.'
Resp. at 15-17.)

As noted above, the attomey-client privilege "attaches only to communications made for
the purpose of giving or obtaining legal advice or services, not business or technical advice or
managementdecisions." Stoffelsv. SBC Commc'ns,Inc.,263 F.R.D. 406,411 (W.D. Tex.2009).

In addition, the work-product doctrine protects "documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party or its representative." Fed. R. Civ.

P.

26(bX3). The work product doctrine applies "not merely

as

to materials prepared by

an

attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by

or from a pary or any representative acting on his behalf." Fed. R. Civ. P. 26(b)(3) 1970
amendment advisory committee notes. Litigation is not required to be imminent for documents
and tangible things to be prepared in anticipation of

litigation. In re Kaiser Aluminum and Chem.

Co.,2I4 F.3d 586, 593 (5th Cir. 2000). To qualiff

as work product where

litigation is not

imminent, the "primary motivating purpose" behind the creation of the document must have been
to aid in possible future litigation. Performance Aftermarket Parts Group, Ltd. v. TI Group Auto
Sys.,

Inc., Civ. Action No. H-05-4251,2007 WL 1428628, at *2 (S.D. Tex. May

l3

ll,2007)

(quoting In re Kaiser,Zl4 F.3d at 593). In addition, work-product protection is not waived just
because certain documents are disclosed to third parties. Advanced Technologt Incubator, Inc.
v. Sharp Corp.,No. 2:07-CV-468,2009

WL

4432569, at *3 (E.D. Tex. July 29,2009)

After reviewing each of the remaining exemplars, the Court concludes that

these

documents are privileged as claimed by the Travelport Defendants pursuant to either the attorney-

client privilege and/or the work product doctrine as they have met the standards set forth above.
Consequently, the Court concludes that American's motion to compel as to these exemplars is

DENIED.

III. CONCLUSION
Based onthe foregoing,

itis ORDEREDthatAmerican's Combined (I) AmendedMotion

to Compel Production of Documents Wrongfully Withheld Under the Guise of Privilege by the
Travelport Defendants, and (II) Motion for Leave to File Supplemental Amended Motion [doc.

# 316l is PARTIALLY GRANTED in that the Travelport Defendants must produce without
redaction exemplars 8 and 16 to American no later than 4:30 p.m. on Friday, July 20, 2012.

It is further ORDERED that the Travelport Defendants shall complete its document by
document review of all documents on its privilege log, including re-reviewing all entries in its

privilege log to ensure they are consistent with this order, no later than 4:30 p.m. on Friday,

July 20, 2012

and produce any

fuither non-privileged documents no later than 4:30 p.m. on

Tuesday, Jtly 24,2012.

It is further ORDERED that the Travelport Defendants shall deliver to the undersigned's
chambers, no later than 4:00 p.m. on Fridayn July 20, 2012, a copy of the Common Interest
Agreement it signed with Orbitz in September 2010 for in comera review by the Court.

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It is further ORDERED that American's request to file an amended motion as to any
remaining disputed matters be extended to May

2I,

2012 is DENIED AS MOOT as such

deadline has already passed and American did not file any

All other relief not

granted herein is

DENIED.I

SIGNED July 16, 2012.

RETON
TATES MAGISTRATEruDGE
JLC/knv

rTThe

parties should note that the Court has grown weary of the discovery tactics being used in this case and
the proliferation of discovery disputes and motions that have been filed, many ofwhich have resuited in the unnecessary

expenditure of limited judicial resources. With regard to this particular motion, the Court finds the Travelport
Defendants'treatment of its privilege log suspect and its claim in its response to American's Amended Motion thit it
had "carefully reviewed" its privilege log to be disingenuous, at best, especially in light of the Travelport's recent
admission that it has "discovered that its privilege determination standards were not applied consistently across each
document on Travelport's privilege log." (June 8,20l2letter.) The Court cannot fathom why it took the filing of rwo
motions to compel and the Court's order for the production of in camera documents for the Travelport Defendants to
finally realize that there were major problems with their privilege log and decide to produce over forty percent of the
one hundred exemplars the Travelport Defendants had previously claimed were privileged. Each time the Travelport
Defendants amend or re-review their privilege log to correct errors, this results in additional burdens being placed on
American (and, in furn, or the Court). The parties are on notice that continued obstinance in good fait[ biscovery
participation and/or any failures to try to strictly comply with the principles set forth n Dondi-Properties Corp. i.
Commerce Swings & Loan Assoc.,l2l F.R.D. 284 (N,D. Tex. 1988) (en banc), will be viewed very unfavorably by the
Court.

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