United States v. Dish Network, L.L.C.
283 F.R.D. 420
C.D. Ill.2012Background
- Plaintiffs move to compel production of documents Dish withheld as privileged; documents were submitted under seal for in camera review.
- Plaintiffs allege Dish violated FTC Act §5(a), Telemarketing Act §6, and the TSR by improper telemarketing and do-not-call violations.
- Dish asserts attorney-client and work product privileges and relies on Safe Harbor, 16 C.F.R. § 310.4(b)(3).
- In camera review, the Court finds Dish’s attorneys actively monitored compliance, reviewed scripts and calling programs, and conducted investigations related to the Rule.
- The Court determines waiver of privilege for monitoring-related materials; many documents remain privileged; unprivileged materials must be produced by June 29, 2012; motion granted in part and denied in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of privilege via Safe Harbor monitoring | Plaintiffs contend monitoring by attorneys triggers waiver. | Dish argues monitoring is part of defense; privilege should apply. | Waiver as to monitoring-related evidence; privilege not protected for those materials. |
| Scope of privilege after in camera review | Plaintiffs seek disclosure of documents not privileged. | Dish maintains many documents remain privileged. | Unprivileged documents ordered produced; privileged documents denied disclosure. |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (corporate privilege extends to confidential employee communications for legal advice)
- Harding v. Dana Transport, Inc., 914 F. Supp. 1084 (D.N.J. 1996) (attorney as internal investigator can affect privilege scope)
- Musa-Muaremi v. Florists’ Transworld Delivery, Inc., 270 F.R.D. 312 (N.D. Ill. 2010) (fusion of attorney and monitoring roles waives privilege for monitoring evidence)
- In re County of Erie, 546 F.3d 222 (2d Cir. 2008) (attorney involvement in investigations can affect privilege scope)
- United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (attorney-client communications with third parties sharing a common legal interest)