Viacom, Inc. v. Sumitomo Corp.

200 F.R.D. 213, 2001 U.S. Dist. LEXIS 5269
CourtDistrict Court, S.D. New York
DecidedApril 30, 2001
DocketIndex No. M8-85 LTS; MDL 1303
StatusPublished
Cited by90 cases

This text of 200 F.R.D. 213 (Viacom, Inc. v. Sumitomo Corp.) 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
Viacom, Inc. v. Sumitomo Corp., 200 F.R.D. 213, 2001 U.S. Dist. LEXIS 5269 (S.D.N.Y. 2001).

Opinion

OPINION

SWAIN, District Judge.

Plaintiffs Viacom Inc. and Emerson Electric Co. (“Plaintiffs”) move to compel the production of documents listed on the privilege log (the “Privilege Log”) produced by non-party Robinson Lerer & Montgomery (“RLM”) in response to a subpoena issued from this Court on March 9, 2000. For the reasons set forth below, Plaintiffs’ motion is denied.

FACTUAL BACKGROUND

This motion arises out of multi-district litigation pending in the Western District of Wisconsin. On or about September 27, 1999, Plaintiffs brought an action against Sumito-mo Corporation (“Sumitomo”), Sumitomo Corporation of America, Global Minerals and Metals Corporation and Credit Lyonnais Rouse, Ltd., alleging that the defendants conspired to manipulate global copper prices. By the subpoena dated March 9, 2000, Plaintiffs requested that RLM produce documents relating to RLM’s public relations consulting work for Sumitomo. Because the March 9, 2000 subpoena issued from this Court, the Court has jurisdiction to determine Plaintiffs’ motion. Fed.R.Civ.P. 45(c)(2)(B). Although the parties differ as to the legal significance of their respective factual proffers, none of the facts proffered is disputed in any material respect. The relevant factual background is as follows.

The signal event giving rise to the underlying antitrust litigation occurred during a deposition conducted in April 1996 by the Commodities Futures Trading Commission (“CFTC”), when Yasuo Hamanaka (“Hama-naka”), then head of Sumitomo’s Non-Ferrous Metals Division, disclosed that he had executed an unauthorized power of attorney relating to hundreds of millions of dollars in copper trading. Anticipating a CFTC investigation and other litigation, Sumitomo retained RLM, a “crisis management” public relations firm, on or about May 23, 1996, to handle public relations matters arising from the copper trading scandal. Declaration of Yasutomo Katsuno, dated August 30, 2000, 112 (hereinafter “Katsuno Decl.”); Affidavit of Elizabeth Sigler Mather, sworn to August 31, 2000, 117 (hereinafter “Mather Aff.”). Both the investigation and civil litigation ensued promptly.

Sumitomo hired RLM because it had no prior experience in dealing with issues relating to publicity arising from high profile litigation, and because Sumitomo lacked experience in dealing with the Western media. Only .two of the three executives in Sumito-mo’s Corporate Communications Department had English language facility and those individuals’ English language skills were not sufficiently sophisticated for media relations. Katsuno Decl., HH 4-5; Mather Aff., HH 11-15. Working largely out of Sumitomo’s Tokyo headquarters with Sumitomo’s Corporate Communications Department, RLM acted as Sumitomo’s agent and its spokesperson when dealing with the Western press on issues relating to the copper trading scandal. r Kat-suno Decl., 11118-9. The chief object of RLM’s engagement was damage control, ie., the management of press statements in the [216]*216context of anticipated litigation “to ensure that they do not themselves further damage the client.” Mather Aff., U 2. “RLM’s primary goal in representing Sumitomo was to help the Company make the statements it needed to make, but to do so within the necessary legal framework — all with the realization, indeed the expectation, that each such statement might subsequently be used by Sumitomo’s adversaries in litigation.” Mather Aff., U 23. In the course of providing its services to Sumitomo, RLM conferred frequently with Sumitomo’s outside counsel, Paul, Weiss, Rifkind, Wharton & Garrison (“Paul Weiss”) (Mather Aff., U 24) and Sumi-tomo’s in-house counsel. Katsuno Deck, U10.

RLM dealt with the western press on Sumitomo’s behalf, while Sumitomo’s internal Corporate Communications Department dealt with the Japanese press. Katsuno Deck, 118. RLM’s public relations duties included preparing statements for public release and internal documents designed to inform Sumitomo employees about what could and could not be said about the scandal. Affidavit of Roberta Kaplan, sworn to August 30, 2000, 11116-8 (hereinafter the “Kaplan Aff.”). RLM’s duties also included drafting, in collaboration with Sumitomo’s counsel, public relations documents, press releases, talking points, and Questions and Answers (“Q and As”) to be used as a framework for press inquiries. The press releases were intended for different audiences, including regulators and other parties with whom Sumitomo anticipated litigation. Mather Aff., U 30. RLM prepared many drafts of the documents, incorporating legal advice from Paul Weiss and Sumitomo in-house counsel. Mather Aff., U28. All documents prepared by RLM relating to legal issues arising from the CFTC investigation or the Hamanaka scandal were vetted with Sumito-mo’s in-house counsel and/or outside counsel. Mather Aff., U 26. RLM had the authority to make decisions on behalf of Sumitomo concerning its public relations strategy. Katsu-no Deck, UU 3-6, 8-10; Mather Aff., UU 11-21.

RLM was the functional equivalent of an in-house public relations department with respect to Western media relations, having authority to make decisions and statements on Sumitomo’s behalf, and seeking and receiving legal advice from Sumitomo’s counsel with respect to the performance of its duties. Mather Aff., U 21; Katsuno Aff., UU 9-10.

On March 9, 2000, Plaintiffs served a subpoena requesting that RLM produce all documents relating to RLM’s public relations consulting work for Sumitomo in connection with the copper trading scandal. Kaplan Aff., U10. RLM produced approximately 15,000 pages of documents in response. Kaplan Aff., U12. Most of the documents were produced in April 2000, approximately six weeks after the subpoena was issued. Kaplan Aff., U12. In preparing for the production, the attorney in charge at Paul Weiss gave instructions to the persons reviewing the documents as to what documents should be produced, what documents should be withheld, and what material should be redacted. Kaplan Aff., U 18. On June 27, 2000, RLM delivered the Privilege Log along with the final portion of its production. Kaplan Aff., U 23. On June 23-24 2000, prior to the final production, Paul Weiss undertook a re-review of the documents. Kaplan Aff., U20. As a result of that review, Paul Weiss discovered that 17 documents it contends are privileged and/or work-product had been produced in error.1 The attorney in charge of the production reviewed the 17 documents the next business day and, the following day, simultaneously with RLM’s final production, Paul Weiss informed Plaintiffs’ counsel that in preparing the Privilege Log it had discovered that certain documents (hereinafter the “Disputed Documents”) had been inadvertently produced. Kaplan Aff., UU 20-22.

RLM has asserted both attorney-client privilege and work-product immunity with respect to the 583 communications listed on the Privilege Log. Plaintiffs argue that the [217]*217documents listed in the Privilege Log are not protected by the attorney-client privilege or work-product immunity. Plaintiffs contend that the attorney-client privilege is inapplicable because RLM, a third party, was involved in the communications as to which the privilege is asserted. Similarly, Plaintiffs argue that the work-product doctrine is inapplicable because of RLM’s third-party status, because its public relations work for Sumitomo was not exclusively litigation-related, and because the work was not done at the request of Sumitomo’s attorneys.

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200 F.R.D. 213, 2001 U.S. Dist. LEXIS 5269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viacom-inc-v-sumitomo-corp-nysd-2001.