In re General Motors LLC Ignition Switch Litigation
80 F. Supp. 3d 521
S.D.N.Y.2015Background
- GM announced ignition-switch recalls; hired Jenner & Block to investigate and Valukas led; 41 million documents and 350+ interviews conducted in ~70 days; Valukas Report submitted to Congress, DOJ, NHTSA and public; Valukas Interview Materials include notes, summaries, and memos; Court considered whether Interview Materials are protected by attorney-client privilege or attorney work product and whether waiver applies; Court denied production of Interview Materials but ordered disclosure of witness names not named in Valukas Report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the Interview Materials protected by the attorney-client privilege? | Plaintiffs contend confidentiality was lacking; materials not for legal advice. | New GM asserts materials reflect confidential legal communications and purposes | Yes, privilege applies to Interview Materials. |
| Are the Interview Materials protected by the attorney work product doctrine? | Work product protection should not apply to business-prepared materials. | Materials were prepared in anticipation of litigation and for legal advice. | Yes, work product protection applies to Interview Materials. |
| Did New GM waive privilege or work product under Rule 502? | Disclosures to Congress, DOJ, NHTSA constituted waiver. | Disclosures were not selective; no fair waiver for withheld materials. | No waiver as to the Interview Materials. |
| Should the court compel production of the Interview Materials or related items? | Need full access to interview notes, hard drives, and index. | Material is privileged/work product and not discoverable; production would be duplicative. | Discovery denied for Interview Materials and related items; witness-name list to be disclosed. |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege protects corporate communications to obtain legal advice)
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C.Cir.2014) (primary purpose test for internal investigations)
- In re County of Erie, 473 F.3d 413 (2d Cir.2007) (predominant legal purpose in privilege analysis)
- United States v. Adlman, 134 F.3d 1194 (2d Cir.1998) (scope of work-product protection and anticipated litigation)
- Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96 (S.D.N.Y.2007) (privilege analysis in a banking/internal investigation context)
- Hickman v. Taylor, 329 U.S. 495 (1927) (work-product protection origin and rationale)
- In re Grand Jury Subpoena Dated Sept. 15, 1983, 731 F.2d 1032 (2d Cir.1984) (attorney-client communications are protected; focus on confidentiality)