OPINION AND ORDER
Less than one year ago, General Motors LLC (“New GM”) announced the first of what would be become many recalls of its vehicles based on an ignition switch defect. Shortly after the first recall, New GM retained the law firm Jenner & Block LLP (“Jenner”) and its chairperson, Anton Va-lukas, to conduct an internal investigation into the defect and the delays in recalling the affected vehicles. As part of their investigation, Valukas and his colleagues reviewed a vast number of documents and interviewed over 200 New GM employees and former employees, among others. The result was a written report (the “Valu-kas Report”) that New GM submitted to Congress, the Department of Justice (“DOJ”), and the National Highway Traffic Safety Administration (“NHTSA”), among others.
Plaintiffs in this multi-district litigation proceeding (“MDL”) bring claims relating to the subject matter of the Valukas Report, namely the ignition switch defect. As part of discovery, New GM has disclosed the Valukas Report itself, and has agreed to disclose on a rolling basis every New GM document cited in the Report, including otherwise privileged documents (pursuant to a Federal Rule of Evidence 502(d) order). But it refuses to disclose other materials underlying the Valukas investigation, particularly notes and memo-randa relating to the witness interviews conducted by the Jenner lawyers. The principal question here is whether those materials are protected from disclosure by either or both the attorney-client privilege or the attorney work product doctrine.
For the reasons that follow, the Court agrees with New GM that the materials at issue are protected by both the attorney-client privilege and the attorney work product doctrine and that New GM has not waived either form of protection as to the materials at issue. Accordingly, New GM need not produce them in discovery at this time.
As noted, this MDL relates to defects in certain General Motors vehicles and associated product recalls, general familiarity with which is assumed. The following facts are taken from the parties’ briefs (14-MD-2543 Docket Nos. 437, 438, 465, 466) and are included by way of background to the privilege issues addressed in this Opinion and Order.
In February 2014, New GM announced the first recall of GM-brand vehicles based on an ignition switch defect. (Def. General Motors LLC’s Br. Regarding Privileged Interview Notes & Mem. (Docket No. 437) (“New GM’s Opening Br.”) 1, 3). Following the announcement of the “highly publicized” recalls, DOJ launched a criminal investigation into New GM. (Id.). In light of the DOJ investigation — and the spate of civil litigation anticipated by New GM— the company retained Jenner and its chairperson, Anton Valukas. (New GM’s Opening Br., Ex. 1 (Decl. of Anton Valukas) (‘Valukas Deck”) ¶¶ 1, 2). According to Valukas and Michael P. Millikin, the General Counsel of New GM, Jenner was retained “to represent New. GM’s interests and to provide legal advice to new GM in a variety of matters relating to the recalls, including the DOJ investigation and other anticipated government investigations and civil litigation.” (Id. ¶2; see also New GM’s Opening Br., Ex. 2 (Deck Michael P. Millikin) (“Millikin Deck”) ¶¶4-5). “As part of [New GM’s] request for legal advice regarding the pending government investigation,” New GM directed Valukas to “investigate the circumstances that led up to the recall of the Cobalt and other cars due to the flawed ignition switch” — specifically, “to determine why it took so long to recall thé Cobalt and other vehicles.” (Va-lukas Deck ¶ 2; see also Millikin Deck ¶ 5; Pis.’ Br. Concerning Produc. Material Related Valukas Report (Docket No. 438) (“Pis.’- Opening Br.”) 5 (internal quotation marks omitted); New GM’s Opening Br. 4 (internal quotation marks omitted)).
The investigation that followed was swift but wide-ranging. In the span of only seventy days, the Jenner lawyers collected over 41 million documents and conducted over 350 interviews with 230 witnesses, including over 200 current and former GM employees, several employees of GM’s insurance claims administrator, and several of New GM’s outside counsel. (Pis.’ Opening Br., Ex. A (Report to Bd. of Directors of Gen. Motors Co. Regarding Ignition Switch Recalls (‘Valukas Report”)) 14; Valukas Deck ¶ 3). According to Valukas, the interviews were conducted confidentially,, with the intention of preserving the attorney-client privilege between New GM and its counsel; all witnesses were informed at the outset of each interview that the purpose of the interview was to assist in the provision of legal advice to New GM and that the interview was privileged and should be kept confidential. (Valukas Deck ¶ 4). No transcript or recording was made of the interviews. (Id. ¶ 5). Instead, the Jenner lawyers produced three types of writings during and after the interviews: attorney notes taken during the interviews; summaries created after each interview; and formal attorney memoranda created after the interviews (collectively, the “Interview Materials”). (New GM’s Opening Br. 5).
On May 29, 2014, Valukas presented the fruits of Jenner’s labors — a 315-page document that came to be known as the “Valukas Report” — to the New GM Board of Directors. (Pls.’ Opening Br. 5; see generally Valukas Report).
On October 15, 2014, Plaintiffs in Melton v. General Motors, LLC et al., No. 14-A-1197-4 (Ga. Cobb Cnty. Ct.) ("Melton II”), a related state court action against New GM, filed a motion to compel New GM to produce various documents relating to the Valukas Report. (New GM’s Oct. 24, 2014 Ltr. (14-MD-2543 Docket No. 363), Ex.'2). Shortly thereafter, New GM filed a letter, arguing, inter alia, that this Court — rather than the Melton II Court — should decide most of the issues raised by the motion to compel. (New GM’s Oct. 30, 2014 Ltr. (14-MD-2543 Docket No. 369) 3). After further discussion, this Court and the Melton II Court agreed with the parties’ proposal to meet and confer in an effort to narrow the issues in dispute, and ordered the parties to submit a joint letter by November 12, 2014, indicating what issues remained to be decided and “proposing an expedited briefing schedule to address both the substantive merits of any remaining disputes and whether and how the two courts should coordinate rulings on those disputes.” (14-MD-2543 Order No. 21 (Docket No. 390) (emphasis omitted)). The parties’ meet-and-confer process did narrow the issues in dispute: New GM agreed to produce many documents previously identified as privileged, including some documents previously produced to the federal government (see Nov. 12, 2014 Joint Ltr. (Docket No. 397) 1) — an agreement that was memorialized in a Federal Rule of Evidence 502(d) order adopted by the Court on November 14, 2014. (See 14-MD-2543 Order No. 23 (Docket No. 404) 3). But New GM refused to produce other documents relating to the Valukas Report demanded by Plaintiffs, including, most notably, the Interview Materials. (Nov. 12, 2014 Joint Ltr. 3).
Per this Court’s Order (Docket No. 406), the parties then submitted joint opening and responsive briefs on the question of whether those materials are protected by the attorney-client privilege or the attorney work product doctrine and whether that question should be decided by this Court or the Melton II Court. (14-MD-2543 Docket Nos. 437, 438, 465, 466). In their opening brief, Plaintiffs indicate that they are seeking to compel production of three categories of information: (1) “An index evidencing all documents or information provided to Anton Valukas and/or Jenner & Block with respect to investigation into the GM ignition switch recalls”; (2) “Copies of all hard drives of documents that were gathered in connection with the investigation of GM and the preparation of the Valukas Report encompassing the 23 TB of data and 41 million documents referenced in the Valukas Report”; and (3) “A copy of all notes, transcripts, and tapes (audio or video) related to any person interviewed during the course of the Valukas investigation and preparation of the Valu-kas Report, including any of those not cited in the final Valukas Report.” (Pis.’ Opening Br. 13). Both sides agree, however, that the question of whether the rele
DISCUSSION
As a threshold matter, the Court agrees with the parties that the question of whether the materials at issue are protected by the attorney-client privilege or the attorney work product doctrine should be decided in this forum. First, a decision by this Court is consistent with the Court’s role as “the lead case for discovery ... in Coordinated Actions,” including Melton II, a role that the Court has played in an effort to promote efficiency and ensure consistency in ignition switch litigation across the country. (14-MD-2543 Order No. 15 (Docket No. 315) (“Joint Coordination Order”) 3). Given the size and nature of this Court’s docket, not to mention its national jurisdiction, it is in a better position than any other tribunal to decide issues that are likely to arise in, or apply to, large numbers of other ignition switch cases. Second, as discussed below, because New GM initially provided the Valu-kas Report “to a federal office or agency,” and subsequently produced the Report in this “federal proceeding,” Rule 502 of the Federal Rules of Evidence governs — and limits — the scope of any waiver of any such privilege. Fed.R.Evid. 502(a). Moreover, Rule 502(d) provides that this Court’s ruling on the question of waiver is binding on other courts throughout the country. In short, a decision on the questions presented by this Court in the first instance will help prevent inconsistent rulings in related actions as Yalukas Report-related privilege issues arise (as they are bound to do).
Turning then to the substantive questions, New GM argues that the Interview Materials are protected by both the attorney-client privilege and the attorney work product doctrine. Plaintiffs dispute both claims and contend that, even if the Interview Materials are protected, New GM has waived those protections. The Court will address each issue in turn.
A. The Attorney-Client Privilege
New GM contends first that the Interview Materials “reflect confidential communications between New GM’s outside counsel and its current or former employees, agents, and counsel,” and are thus protected by the attorney-client privilege. (New GM’s Opening Br. 9). In the Second Circuit, “[t]he attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance.” Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. DOJ,
Upjohn is the foundational case on attorney-client privilege in the corporate environment. There, the Supreme Court held that the privilege protected interview notes and memoranda prepared by a corporation’s in-house counsel during an internal investigation of illegal payments by employees. The Court noted that, in this context, “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn,
Upjohn applies squarely to the materials at issue in this case, at least to the extent that they reflect witnesses’ communications rather than the thoughts or impressions of lawyers (a subject that is discussed further below). Here, as in Upjohn, the internal investigation and accompanying interviews were conducted “as part of [the company’s] request for legal advice” in light of possible misconduct and accompanying governmental investigations and civil litigation. (Valukas Decl. ¶ 2). Here, as in Upjohn, the employees interviewed were aware (and, in fact, explicitly told) that the purpose of the interviews was to collect information to assist in providing legal advice to the
In arguing otherwise, Plaintiffs make two principal arguments. First, citing the testimony of New GM’s Chief Executive Officer Mary Barra before Congress, in which she promised to share the Valukas Report and “everything and anything that is related to safety,” Plaintiffs assert “[t]here was no expectation that the Valu-kas Report or the investigation would be confidential.” (Pis.’ Opening Br. 2, 14-15).
Those arguments are unavailing. Plaintiffs’ first argument — that New GM did not intend to keep the Interview Materials confidential — is based on a flawed inference: that because New GM promised to (and did) disclose the facts shared in the Valukas Report, it follows that the company did not intend to keep the communications reflected in the Interview Materials confidential. It is well established, however, that the attorney-client privilege “protects communications rather than information.” In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983,
The touchstone of the analysis, therefore, is not whether New GM intended to keep confidential the results of its investigation, but rather whether it intended to keep confidential the communications reflected in the Interview Materials. Applying that standard here, New GM has established a valid claim to the privilege. Barra may have promised transparency in matters relating to safety (see Pis.’ Opening Br. 14-15), but she did not promise to disclose the communications reflected in the Interview Materials. And the participants in the interviews themselves understood that their communications were intended to be kept confidential. As Valukas explains in a sworn declaration, consistent with Upjohn and its progeny, “at the outset of each interview the interviewing attorney informed the witness that the purpose of the interview was to gather information to assist in providing legal advice to New GM, that the interview was accordingly privileged, that this privilege'belonged to New GM, and that the witness should keep confidential the matters discussed in the interview.” (Valukas Decl. ¶4). And consistent with those warnings and assurances, Jenner and New GM have never shared the Interview Materials with any government agency or third party. (Id. ¶¶ 5-8).
Plaintiffs’ second argument — that the communications reflected in the Interview Materials were not made for the purpose of obtaining or providing legal assistance — is also unpersuasive. Plaintiffs are certainly correct that the privilege attaches only if “the predominant purpose of the communication is to render or solicit legal advice.” In re County of Erie,
To be sure, the D.C. Circuit’s decision in Kellogg Brown & Root is not binding on this Court. Nevertheless, its analysis of the “primary purpose” test as applied to internal investigations in the corporate setting is consistent with the Second Circuit’s analysis in County of Erie, where the Court explained (in addressing the privilege as applied to advice by a government lawyer) that “[t]he modern lawyer almost invariably advises his client upon not only what is permissible but also what is desirable ... [T]he privilege of nondisclosure is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice.”
Applying those standards here, the Court finds that New GM has met its burden of demonstrating that the provision of legal advice was a “primary purpose” of Jenner’s investigation and the communications reflected in the Interview Materials. In the face of an already-launched criminal investigation by the DOJ, and the inevitability of civil litigation, New GM “retained Jenner to represent New GM’s interests and to provide legal advice to new GM in a variety of matters relating to the recalls,” including the DOJ investigation. (Valukas Deck ¶ 2). “[I]n order to facilitate [that] provision of legal advice,” Jenner and Va-lukas conducted the interviews in question. (Id. ¶3). And as New.GM’s submissions make plain, the interviews have in fact been used in connection with Jenner’s representation of New GM with respect to the DOJ investigation. (See, e.g., id. ¶ 9 (noting that Jenner lawyers “orally proffered” to representatives of the U.S. Attorney’s Office for the Southern District of New York “their hypothetical understandings, based on the interviews, of what certain witnesses would likely say about the facts relating to the ignition switch recalls”)). Accordingly, regardless of whether New GM had other purposes in retaining Jenner, and regardless of whether the Valu-
This Court’s decision in Allied Irish Banks, upon which Plaintiffs principally rely (Pis.’ Opening Br. 15-17; Pis.’ Resp. Br. 5), does not call for a different result. In that case, the Court held (applying New York law) that the attorney-client privilege did not protect materials underlying a report prepared following an internal investigation. See
In short, as a threshold matter, New GM has shown that the attorney-client privilege applies to the portions of the Interview Materials reflecting communications between current and former New GM employees and agents and outside counsel.
B. The Attorney Work Product Doctrine
As noted, New GM argues that the Interview Materials are also protected by the attorney work product doctrine. (New GM’s Opening Br. 11-12; New GM’s Resp. Br. 13-16). Protection of attorney work product is based on the notion that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Hickman v. Taylor,
Applying those standards here, Rule 26(b)(3) provides an independent basis for New GM to withhold the Interview Materials. The materials at issue were produced in a situation far from the “ordinary course of business”; the interviews were conducted — and the Interview Materials were prepared — in light of the pending DOJ investigation and the anticipation of civil litigation. (Valukas Decl. ¶¶ 2-3; Millikin Decl. ¶¶ 4-5). Further, in light of the nature of the documents at issue and the factual situation in this case, it can “fairly be said” that the Interview Materials would not have been created in “essentially similar form” had New GM not been faced with the inevitability of such litigation. See, e.g., In re Woolworth Corp. Sec. Class Action Litig., No. 94-CV-2217 (RO),
That does not end the analysis, however, as the protections afforded by the attorney work product doctrine are not absolute. Instead, a party may obtain “fact” work product if it “shows that it has substantial need' for the materials to prepare its case ' and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3)(ii).
C. Waiver
Finally, the Court turns to the question of whether New GM waived the protections of either the attorney-client privilege or the attorney work product doctrine — as to which New GM also bears the burden of proof. See, e.g., United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO,
Significantly, although the parties discuss the common law of waiver in their memoranda of law (see New GM’s Opening Br. 15-16; Pls.’ Opening Br. 17-20), both sides agree that the waiver analysis is
D. Plaintiffs’ Other Requests
Separate and apart from the Interview Materials, Plaintiffs seeks both “[a]n index evidencing all documents or information provided to Anton Valukas and/or Jenner & Block with respect to investigation into the GM ignition switch recalls” and “[Copies of all hard drives of documents that were gathered in connection with the investigation of GM and the preparation of the Valukas Report encompassing the 23 TB of data and 41 million documents referenced in the Valukas Report.” (Pis.’ Opening Br. 13). Substantially for the reasons argued by New GM in its responsive memorandum of law (New GM’s Resp. Br. 16-17), the Court denies those requests. Plaintiffs have not argued— nor, likely, could they — that the production of those materials is “reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Moreover, in light of the extensive — indeed, vast — universe of documents that New GM has disclosed or will be disclosing in the coming months, the discovery sought by Plaintiffs is “unreasonably cumulative or duplicative.” Fed.R.Civ.P. 26(b)(2)(C)(i). Accordingly, Plaintiffs’ requests for those additional materials are DENIED.
CONCLUSION
For the foregoing reasons, the Court agrees with New GM that the Interview Materials are protected by both the attorney-client privilege and the attorney work product doctrine. The Court acknowledges that that ruling deprives Plaintiffs of material that might be helpful in the preparation of their cases. In reality, however, it “puts [Plaintiffs] in no worse position than if the communications had never taken place,” Upjohn,
Accordingly, and for the reasons explained above, Plaintiffs’ application to compel disclosure of the Interview Materials and other items is DENIED, except that New GM is ordered to disclose, within two weeks, the names of all witnesses who were interviewed by Valukas and his colleagues but not mentioned by name in the Valukas Report itself.
SO ORDERED.
Notes
. Jenner submitted amended versions of the Valukas Report to the New GM Board on June 1, 2014, and June 4, 2014. (New GM's Opening Br. 6 n. 2). As used in this Opinion and Order, the "Valukas Report” refers to the final version.
. As reflected in the Joint Coordination Order, this Court's proper role does not extend to deciding issues that are specific to any individual related case or cases. Accordingly, the Court intimates no view on the motion to compel in Melton II to the extent it raises issues specific to that case, such as whether New GM or its attorneys committed fraud during discovery in Melton I. To the extent that case-specific issues are raised in Melton II or any other related case, the Court leaves it to the court presiding over the case to decide the issue in the first instance.
. Insofar as many of the cases in this MDL are subject to this Court's diversity jurisdiction, it is by no means clear that federal law should govern analysis of the attorney-client privilege. See, e.g., Dixon v. 80 Pine St. Corp.,
. Relatedly, Plaintiffs contend that they are entitled to the Interview Materials because the Valukas Report was, in fact, "not kept confidential.” (Pis.’ Opening Br. 2). That contention is analyzed further below, in connection with Plaintiffs' broader argument that New GM waived any attorney-client privilege through its disclosures to Congress, NHTSA, and DOJ.
. Based on the interviews, and in order to cooperate with the DOJ investigation, Jenner attorneys "made oral hypothetical proffers” of "what certain witnesses might say if the DOJ were to speak with them,” a tactic New GM represents is “in accord with typical practice in DOJ investigations conducted in the Southern District of New York." (New GM Opening Br. 6). Plaintiffs make no argument that those oral proffers — which "were not complete or verbatim recitations of what the witnesses said or of the [Interview Materials]” (Valukas Decl. ¶ 9) — or the intention to make those oral proffers, vitiated the attorney-client privilege.
. By contrast, "opinion” work product is subject to heightened protection; it is not subject