In re Honeywell International, Inc.

230 F.R.D. 293, 2003 WL 22722961
CourtDistrict Court, S.D. New York
DecidedNovember 18, 2003
DocketNo. M8-85 WHP
StatusPublished
Cited by23 cases

This text of 230 F.R.D. 293 (In re Honeywell International, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Honeywell International, Inc., 230 F.R.D. 293, 2003 WL 22722961 (S.D.N.Y. 2003).

Opinion

MEMORANDUM AND ORDER

PAULEY, District Judge.

Presently before this Court is plaintiffs’ motion to compel production of certain documents in a putative securities class action styled In re Honeywell International, Inc. Securities Litigation, 00 Civ. 3605(DRD), pending in the District of New Jersey. The defendants in that action include Honeywell International, Inc. (“Honeywell”) and several former directors of that company. The putative class of plaintiffs (“plaintiffs”) allege in the underlying action that defendants made materially false and misleading statements about Honeywell’s financial condition and results, the integration of its merger with Al-liedSignal, Inc. (“Allied”), and its acquisition of Pittway Corporation (“Pittway”).

On March 15, 2002, as part of a discovery barrage, plaintiffs served a subpoena on non-party PriceWaterhouseCoopers (“PWC”). PWC was Honeywell’s financial auditor during portions of the class period. The subpoena was issued from the Southern District of New York because PWC’s New York office performed the Honeywell audits. Plaintiffs contend that because Honeywell’s fraud was effectuated through accounting machinations, the integrity and accuracy of Honeywell’s accounting practices, financial statements and internal controls are squarely at issue.

In response to that subpoena, PWC produced approximately 63,500 pages of documents. Plaintiffs move this Court to compel production of certain categories of documents withheld by PWC from that production, while PWC cross-moves to quash the subpoena. Specifically, plaintiffs seek production of the following categories of documents: (1) an electronic version of PWC’s workpapers for the 1999 and 2000 audits and quarterly reviews of Honeywell financial statements; (2) all of PWC’s “permanent” and “carryfor-ward” files for its Honeywell engagements; (3) all workpapers for PWC’s 1999 audits of Pittway’s financial statements; (4) all correspondence, memoranda, electronic documents, e-mail and other documents concerning Honeywell for the period of January 1, 1999, through March 31, 2001; (5) all consulting workpapers and documents concerning Honeywell, Pittway or Allied for the period of January 1, 1999, through March 31, 2001; (6) all documents relating to PWC’s independence in Honeywell engagements during the period June 20,1999 through March 31,2001; (7) PWC’s document retention and destruction policies; and (8) all documents identified on PWC’s privilege log. Since both attorney-client privilege and attorney work product protection were asserted by Honeywell, these privileges are defended by Honeywell, not PWC.

For the reasons stated below, plaintiffs motion is granted in part and denied in part, and PWC’s motion is granted in part and denied in part. PWC is directed to comply with plaintiffs’ subpoena in accord with this Memorandum and Order.

Electronic Version of PWC’s Workpapers

Plaintiffs seek an electronic version of PWC’s audit workpapers for the 1999 and 2000 audits, and quarterly reviews of Honeywell’s financial statements. Alternatively, plaintiffs seek a complete hardcopy set of the workpapers produced in the order they are kept in the ordinary course of business. There is no dispute that PWC has produced hardcopies of the workpapers that plaintiffs are seeking. However, plaintiffs claim that PWC did not produce the work-papers in the manner in which the documents are maintained in the usual course of business, namely in an electronic form. Specifically, plaintiffs argue that the work-papers were produced in a way that makes it impossible to determine which attachment belongs with a particular workpaper. Plaintiffs complain that they are unable to review the workpapers as they are kept in the ordinary course of business because they cannot read a specific workpaper and then refer to any attachment it references.

PWC contends that it produced all of the workpapers in hardcopy, and that plaintiffs should be required to pay for any other [297]*297expense imposed on the non-party PWC. PWC also argues that it has addressed plaintiffs’ concerns by providing a complete index of workpapers and attachments, as well as annotated charts that reference the indices and production numbers for corresponding workpapers and attachments. PWC’s main argument, however, is that electronic copies of its workpapers are only accessible with the aid of its proprietary software, and therefore any production of the electronic files would reveal PWC’s trade secrets.

This Court finds that PWC’s prior production of its workpapers is insufficient because they were not produced as kept in the usual course of business. (Transcript of Oral Argument, dated Aug. 28, 2003 (“Tr.”), at 10-15.) Moreover, PWC has not provided plaintiffs with an adequate means to decipher how the documents are kept in the usual course of business. (Tr. at 10-15.) Under Rule 34(b) of the Federal Rules of Civil Procedure, PWC is obligated to produce its workpapers in their electronic form.

At oral argument, this Court directed the parties to meet and confer concerning the most efficient manner in which PWC could produce the workpapers electronically, and invited the parties to submit further memo-randa on that issue. After reviewing the parties’ additional submissions, this Court directs PWC to produce electronically its work-papers by either: (1) producing a copy of its workpapers on CD-ROMs that could be viewed using commercially-available software; or (2) producing a copy of its workpa-pers on CD-ROMs that could be viewed using PWC’s proprietary software, as well as producing the proprietary software to the extent it is necessary to view the workpa-pers.

PWC contends that the first option would be time-consuming and cost in excess of $30,000. It requests that this Court require plaintiffs to defray those costs. (Letter from Siobhan A. Handley, Esq., dated Sept. 9, 2003, at 2.) However, an offset or reimbursement on the part of plaintiffs is not warranted for two reasons: (1) if PWC desires to save time and money on its production it may opt for the second electronic production alternative, which PWC recognizes would not be time-consuming or excessively costly;1 and (2) PWC could have avoided the added expense it now faces by producing the work-papers in electronic form at the outset, rather than choosing to produce hardcopies of its workpapers with hieroglyphic indices that render the workpapers essentially incomprehensible.

Finally, this Court declines plaintiffs’ invitation to rule on whether PWC may convert some its workpapers to a PDF file format to protect their integrity. (Letter from Kathleen A. Herkenhoff, Esq., dated Sept. 8, 2003, at 7-8.) At this stage of discovery, this Court does not deem it necessary to direct PWC to adopt any particular procedure.

PWC’s Privilege Log

In their initial brief in support of their motion to compel, plaintiffs sought production of all documents on PWC’s privilege log since there is no basis for any attorney-client privilege for communications between PWC and Honeywell, and because the preeminent business purpose of the audits renders work product protection inapplicable. Since the privileges asserted in PWC’s privilege log belong to Honeywell, it is Honeywell that opposes plaintiffs’ motion on this issue.2 [298]

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Bluebook (online)
230 F.R.D. 293, 2003 WL 22722961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-honeywell-international-inc-nysd-2003.