Corporation for Character v. Federal Trade Commission

Filing 149

MEMORANDUM DECISION AND ORDER - Defendant is hereby ordered to produce those documents not subject to privilege within 10 days from the date of this order. Signed by Magistrate Judge Dustin B. Pead on 2/19/2015. (las)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CORPORATION FOR CHARACTER,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
Case No. 2:11-cv-419
United States District Court
Judge Robert Shelby

UNITED STATES OF AMERICA,
Magistrate Judge Dustin Pead
Defendant.

I.

BACKGROUND
At the hearing held on August 20, 2014, (doc. 142) addressing Defendant Corporation

For Character’s (“Defendant”) Motion For Protective Order (doc. 134) and Plaintiff United
States of America’s (“Plaintiff”) Motion To Compel (doc. 137), this court ordered Defendant to
provide all responsive documents to Plaintiff by October 21, 2014 (doc. 141).
Several days before the documents were due, Defendant submitted a request for this court
to engage in an in camera review (doc. 146). In its request, Defendant asserts that the documents
at issue were either previously disclosed or constitute privileged work product and attorney-client
communications. However, in “an abundance of caution” Defendant submits the documents to
the court for its review.1 After an initial review, the court concluded that there was an absence of

1

Many of the documents submitted for review contain redacted information. Defendant
indicates that the redactions indicate portions of the documents that it previously determined to
be“outside counsel legal advice or work product/analysis” and not discoverable (see October 16,
2014, letter to court submitted with documents for review). As a result, this court’s in camera
review and ruling is limited to only those portions of the documents submitted that have not been
redacted by Defendants.

information related to the communications and the parties involved. Consequently, the Court
issued a docket text order requesting that Defendant provide a privilege log addressing each
specific communication and including information on the context of the communication, parties
involved and privilege asserted (doc. 145).
Consistent therewith, on January 12, 2014, Defendant submitted a second set of
documents for review accompanied by an index outlining the information requested by the court
(doc. 146)
II.

LEGAL STANDARDS
The attorney-client privilege protects “confidential communications by a client to an

attorney made in order to obtain legal assistance from the attorney in his capacity as legal
advisor.” In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010 ) (quoting In re
Grand Jury Subpoena Duces Tecum, 697 F.2d 277, 278 (10th Cir. 1983)). An attorney’s
involvement in a communication “does not automatically render the communication subject to
the attorney-client privilege, rather, the communication between a lawyer and client must relate
to legal advice or strategy sought by the client.” Trans-Western Petroleum, Inc. v. Wolverine Gas
& Oil Corp., 2011 U. S. Dist. LEXIS 144744, *7 (D. Utah, Dec. 15, 2011) (citing In re Grand
Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010)).

Privilege should be construed

narrowly and the party asserting a privilege “bears the burden of establishing its applicability.”
In re Grand Jury Proceedings, 616 F.3d at 1183.
Relevant to this case is the distinction between the production of facts and counsel’s
advice or discussions related to those facts. Generally, the attorney-client privilege only extends
to attorney-client communications and not to facts. See United States v. Badger, 2013 U.S. Dist.
LEXIS 108178, *6 (D. Utah, July 30, 2013) (internal quotation and citation omitted) (“A fact is

one thing and a communication concerning that fact is an entirely different thing.”)). Applying
the fact-communication distinction here, the court concludes that those documents containing
information and facts outlining the differences between Data Set 1 and Data Set 2 are not
privileged, while documents containing an attorney’s advice or an analysis of the facts are
protected from disclosure.
III.

IN CAMERA REVIEW
Having reviewed the documents submitted by Defendant, the Court concludes as

follows:
*Document 1: not privileged, should be produced.
*Document 2: not privileged, should be produced.
*Document 3: not privileged, should be produced.
*Document 4: not privileged, should be produced.
*Document 5: not privileged, should be produced.
*Document 5A: not privileged, should be produced.
*Document 6: not privileged, should be produced.
*Document 7: not privileged, should be produced.
*Document 8: not privileged, should be produced.
*Document 9: not privileged, should be produced.
*Document 10: not privileged, should be produced.
*Document 11: not privileged, should be produced.
*Document 12: privileged.
*Document 13: privileged.
3

*Document 14: not privileged, should be produced.
*Document 15: not privileged, should be produced.
*Document 16: not privileged, should be produced.
*Document 17: not privileged, should be produced.
*Document 18: not privileged, should be produced.
*Document 19: not privileged, should be produced.
*Document 20: not privileged, should be produced.
*Document 21: not privileged, should be produced.
*Document 22: privileged.
*Document 23: not privileged, should be produced.
*Document 24: privileged.
*Document 25: privileged.
*Document 26: privileged except for portion of the document entitled “Differences in the
data sets that were provided” that has previously been produced and provided to Plaintiff.
See Index, doc. 26.
*Document 27: privileged except for those facts that have previously been produced and
provided to Plaintiff. See Index, doc. 27.

Accordingly, Defendant is hereby ordered to produce those documents not subject to
privilege within ten (10) days from the date of this Order.
Dated, this 19th day of February, 2015.

_________________________
Dustin B. Pead
U.S. Magistrate Judge
4