-THK Ross et al v. Bank of America N.A. (USA) et al, No. 1:2005cv07116 - Document 276 (S.D.N.Y. 2010)

Court Description: MEMORANDUM OPINION AND ORDER: The Court assumes that Discover's counsel will re-review its privilege log to ensure that any documents identical or similar to the documents described above as containing business advice, are produced to Plaintiffs. Discovery properly invoked the attorney-client privilege with respect to the other documents that have been reviewed. (Signed by Magistrate Judge Theodore H. Katz on 11/3/2010) (jpo)
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j , i. ,-t)!'\!" itf .. '. -VI. rV . i , ·" it i'''''' ... t ,', d -THK Ross et al v. Bank of America N.A. (USA) et al 'I ;I ' i UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK . f41LBl) Doc. 276 ¢ i)A rF PILED: II ­­x IN RE CURRENCY CONVERSION MOL No. 1409 M­21­95 ANTITRUST LITIGATION, ROBERT ROSS, et al., PI ntiffs, 05 Civ. 7116 (WHP) (THK) ­against­ MEMORANDUM OPINION AND ORDER BANK OF AMERICA, N.A., et al., Defendants. ­­x THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE. Plaintiffs in this class action challenge the addition of arbitration provisions to ir consumer credit card agreements wi th, among others, Defendants Ci tigroup Inc., Cit k, N.A., ibank USA, N. A. , Universal Bank, N. A., Uni versal Financi Diners Club (collectively"C i"), and Defendants DFS and Cit Services LLC, Discover Bank, (collectively" scover"). other Corp, financial Discover Financial Services Plaintiffs contend institutions unlawfully Defendants and conspired to arbitration provisions to their credit card agreements, violation of federal anti trust law, U.S.C. § 26. Presently before Compel the Production of documents § add in 16 of the Clayton Act, 15 Court is Plaintiffs' Motion to 0 Defendants Citi and Discover, for which either the entire document or redacted portions have been Dockets.Justia.com wit on the basis of t contend t the pri support was produced for creat (2 ) privil Plaintiffs argue, in any (1) were wi iness documents t ly circulated among personnel, and an atto recip are thheld on the basis of for the purpose of giving or receiving 1 they intiffs are cursory and vague, and no other event, that the documents were improperly pri vi lege because: lege. P lege has not been properly asserted because ivilege 1 Defendants' attorney­client pri non­ were not 1 advice; and 1, bus s was merely identified as one of the s. BACKGROUND The documents in issue were la process at the Defendant co ly generated as rt of a rations by which they isions about whether to add arbitration provisions to their consumer credit card agreements, as well as were after t r contracts, and, whether to modify those provisions. Defendants contend that, by necessity, both in­house outs counsel were involved in the analysis, and were critical in address such matters as the 1 arbitration sions, 1 propriety and ications of substance of the provisions, the nature of the arbitration process and its ramifications, information conveyed to consumers about and process. 2 the arbitration provisions r De Plaintiffs raised objections to s' privilege logs and the if not all, of the documents in adequacy of opriety of withholding many, logs, Defendants re­reviewed their withheld documents and, in some cases, wi of pr lege. Nevertheless, with re their cIa to De Discover, it s that approximately 123 documents remain in dispute. number of Citi documents in dis r considering The is substantially smaller. parties' extensive written submissions on the motion, the Court requested t a random s of the s on the privilege logs be submitted for in camera review. in that Court draws the and cons llowing red the ies' positions, the ions. I. Adeguacy of the Privilege Logs It is beyond dispute t the burden of es document. "A (1) ishing pr the party asserting privi lege with re has ct to each withheld invoking the attorney­client privilege must show a communication between client and counsel that (2) intended to and was in for the purpose of obtai kept confi The 1 Rules of C ial, and (3) was made or providing legal advice. u 473 F.3d 413, 419 (2d was In re r. 2007). 1 Procedure describe in only general terms what a party must do to properly invoke privilege: "descr the nature of the documents and do so in a manner that, 3 without revealing formation itself privileged or protected, will enable other parties to assess the claim. H 26(a) (5) (A) (ii) ("Rule 26"). is Court's Local Rules. pr date of t R. Civ. P. Meat is put on those bare bones by For documents wit lege, a party must produce a log document; (2) Fed. on t basis of ifying: (1) the type of general subject matter of the document; (3) the document; and sufficient to identify (4) such other formation as is document, including, where appropr the author of the document, the addressees of the document, and any r rec ients of the document, and, where not apparent, the relationship of the author to the addressees and recipients. See Local Civil Rule the Southern District of New York 26.2 (a) (2) (A) ("Local Rule 26.2"). Plaintiffs argue t Defendants' pr lege logs contain only "rudimentary information H that "falls far short of establish that the documents in question are in ct pri vile (Memorandum H in Support of Plaintiffs' Motion to Compel Product of Citi and Discover Documents Subject to an Assertion of Privi Mem."), at 9.) They argue that the "mere conclusory ("PIs.' dixit assertions" in the logs are inadequate to discharge Defendants' burden of demonstrating vilege, and that Defendants were required to supplement the logs with evidentiary submissions. (Id.) ng reviewed De ndants' privilege logs, the Court finds 4 that they generally comply with the requirements of Rule 26 and Local Rule 26.2. Although Pla the logs is sparse Both provi iffs contend that t informat lacks detail, the Court cannot agree. the information required by Local Rule 26.2, most particularly, they describe t authors and re s of t documents, the nature of the documents and their general subject matter, as well as the role of counsel in ei t r authoring or providing a response to the documents. Plaintiffs' reliance on the Second Circuit's decision in 73 F.3d 464 (2d r. 1996), for the proposition that a privilege log must be supplemented with other privil dence, is misplaced. In that case, the log was found woefully inadequate because the document descriptions and comments did nothing to had been invo For strate why privil le, with respect to one document, the log entry stated: "Fax: Whistleblower article with comment 'Selfexplanatory, '"' and with respect to another document '" Summary of Enclosures' with comment 'Self­explanatory' Understandably, the court concluded that .ff at 474. thout additional factual support, the privilege had not been properly asserted or supported. Here, by contrast, one Discover log entry in issue reads: "Email chain and attached ject document and flow charts re arbitration opt­out requesting and reflecting 5 1 advice of in­house counsel re a ration opt­out procedures." (Discover Privil No. 105.) document Another ent reflecting that is in issue reads: "Training legal arb ration provision." Log Entry advice scover P from in­house counsel vilege Log Ent re No. 158.) And, by example, one entry in the C i Privilege Log that is in issue reads: "Draft rt ­ This document is a forwarded document prepared at the request of Julie Nelson and Ed Burge [attorne sent to counsel so that they can provide legal advice about arbitration clauses in consumer agreements." (Citi Privilege Nelson0449659.) "provid[i Another document is an email thread legal scribed as ce from Karla Bergeson and Julie Nelson [on] arb ration clauses in consumer agreements. Initial email from son provided legal advice about training materials. Karla Other emails in the string seek legal advice from Karla Bergeson and Julie Nelson and de legal advice in response to those requests." (Citi Privilege Log ­ satisfy t requirements r Nelson0529993.) These entries the in ial invocation of the attorney­client privilege. See Constr. Prods. Research, 73 F.3d at 473 (requiring that a privilege log provide "sufficient detail to a judgment as to whether document is at least potentially protected from disclosure") What Plaintiffs really take issue with is the assertion of lege for documents that r to have been 6 rcul to and among business staff, and which mate Is and for ormation about the arbitration l provisions that was to be conveyed to consumers. however, is not a funct business ial legal communications document s, rather than conf i example, train ar to them to That concern, of the adequacy of Defendants' lege rather, of Plaintiffs' skepticism about whether the logs, privilege can be supported. In response to that skepticism, which rlies Plaintiffs' motion to compel, Defendants have properly responded by sUbmitting larations in whi provide further explanation of why various attorneys lege was invoked. AIO No. 07 Ci v . 7 052 ( S S ) (H BP), 2 0 0 8 WL H 4067437, at *8 (S.D.N.Y. ivilege . 28, 2008) (after the assertions of a log are challenged resolved informally, the withhol court the ng party must then submit to the dence by way of affidavit and establishing the elements of spute cannot be privil ) sition testimony . The Court will therefore turn to the substant whether question of documents in issue are properly subject to the attorney­client privilege. II. Plaintiffs a attorney­client pri vi that Defendants improperly invoked the for business documents that were not created predominantly for the purpose of 7 ng or receiving 1 1 advice. They contend that simply because a lawyer contributed to a business document does not transform the document into a privileged communication. distribution Moreover, according to Plaintiffs, the rn of many of the documents, to many non­lawyer business employees, for a business, r than legal purpose, further belies Defendants' claim of privilege. A. Applicable Legal Principles To be privi d, a communication must obtaining or providing 1 for purpose of advice and assistance. as here, in­house counsel, who are often business executives, are involved the communications, "the question usually is whether the communication was generated for the purpose of obt providing legal advice as ng or sed to business advice." County of Erie, 473 F.3d at 419; see also AIU Ins. Co., 2008 WL 4067437, at *6 ("[Wlhere within legal, house counsel also serves as a business advisor corporation, only those communications 'related to as contrasted with business, protected.' ") (quoting TVT Records v. advice are Island Def Jam Music Group, 214 F.R.D. 143,144 (S.D.N.Y. 2003)). test to employed is "whether the predominant purpose of the communication is to render or solicit legal advice." Id. "[f]undamentally . at 420. Al though legal inte . involves ce ion and application of legal principles to guide future conduct or to assess past 8 conduct," t role of corporate lawyers is demarcated by a bright line." r and "not at 419­20. As the Second Circuit has observed: lawyer may well promote and rein rce the legal ce given, weigh it, layout its ramifications by explaining: how the ce is s e and can be implemented; legal downsides, risks and costs of taking advice or otherwise; what other persons are doing and thinking the matter; or the collateral benefits, sks or costs terms of expense, politics, urance, commerce, morals, and appearances. So long as the predominant purpose of the communi cat is legal ad vice, ions and caveats are not other than legal ce or severable from it. at 420. However, "[t] ascerta predominant purpose of a communication cannot by quantification or assificat of one pass or another; it should be assessed dynamically and in light of the advice ing sought or rende between advice that can author ies and as well as the relationship rendered only by consulting 1 ce that can be given by a non­l 420­21. Moreover, even where the 1 r." rd. at edominant purpose of a document or communication is business, that is, non­legal, such a document can also contain legal advice, which can be redacted on the basis of the attorney­client privilege. Although Plaintiffs po to the id. at 421 n.B. stribution of many of the communications in issue to large numbers of rate employees, a communicat "not containing legal 9 ce does lose [ its] d among corporate privileged status when loyees who share responsibility for the subject matter of the communi cat " Baptiste v. Cushman & Wakefield, Inc. , No. 03 Civ. 2102 (RCC) (THK) , 2004 WL 330235, at *2 (S.D.N.Y. Feb. 20, 2004) (citing cases) ; Verschoth v. Time Warner, Inc. , No. 00 Civ. 1339 (AGS) (JCF), 2001 WL 286763, at *2 (S.D.N.Y. Mar. 22, 2001) ("[T]he son to whom an executive relays legal advice must share responsibility for the subject matter underlying t privilege to be prese consultation in order for the Furthermore, the originator of the communication must have intended that it be kept confidential, and it may not know circulat beyond those employees with the need to information.") ernal citations and quotations tted) . B. Application to Withheld or Redacted Documents The former General Counsel for Consumer tigation at Citigroup, Inc., Julie Nelson, as well as other in­house attorneys, submitted a sworn declaration in support of Citi's invocation of the at client privilege. that one of her ce rega In her laration, Ms. Nelson attests ific responsibilities was to provide legal ng issues related to arbitration. cifically, she provided legal advice regarding: (1) whether to adopt arbitration, (2) the 1 1 procedures for implementing and enforcing arbitration change­in­term notices, (3) the terms of the Citi Cards change in terms notice and the arbitration clause, (4) draft training materials for customer service 10 representatives to answer cardho r questions regarding arbitration procedures reflect in change­in­terms notices and the a ration clause, (5) customer correspondence regarding a ration, (6) draft questions answers for possible media inquiries re rding, among other things, terms of arbitration ause, and (7) ot r legal issues that arose from t to­time regarding arbitration, including 1 i ion regarding the enforcement of arbitration clauses. (Declaration of Julie D. Nelson in Support of the Citi De Response to (" aintiffs' Motion to son Decl."), 2.) recipients listed on 1, dated s' 18, 2010 According to Ms. Nelson, the non­lawyer Is were ved in implementing ous aspects of the change­in­terms notice and the arbitration clause for Citi Cards. "Given the size of the change­ erms project, which required amendments to tens of millions of cardmember agreements, numerous individuals from several different Ci ti Cards business units required legal advice from the law department regarding many different aspects of the project. oyees generally communications to and from in­house or outside stood counsel are conf in­house Non­lawyer 1." (Id. 3.) outside Citi counsel declarations ir under Ms. Nelson, as well as other then set forth in their of why specific documents were either withheld or redacted, by referencing context in which 1 advice was either sought or given. Similarly, various Discover attorneys have submitted declarations setting forth their review of withheld or redacted 11 documents, and explaini t the general nature of t was being sought or , as well as its context. ss through which it asserts that the legal ce Discover the arbitration provision to its credit card agreements "included the ext ens involvement of Discover's i provided legal advice se and outsi and counsel counsel, each of whom throughout scover's Memorandum Opposition to P ("Discover Mem."), at 2.) In addition, the process." intiff's Motion to Compel fication of scover's arbitration provision, to allow an opt­out, also heavily reI the advice of counsel. id. at 3.) it produced more than 10,000 on scover asserts that, while s of documents in the litigation, it engaged in a "meticulous and time­consuming process ch resulted in a privilege log which contained more than 1,300 entries." (Id. at 4.) correspondence chall Nevertheless, after it received Plaintiffs' ing the assertion of pr lege, and a r engaging in numerous meet and confers, in a good faith effort to resolve their differences, it produced over 200 documents that had been on the privilege log. In response to the Court's request, a random sample of approximately 25% of the Citi documents at issue in Plaintiffs' motion to compel, as well as the specific documents discussed in Plaintiff's Reply Memorandum of Law, were produced for camera review. The Court's review of these documents leads me to conclude 12 that, for the most part, the attorney­client privilege was properly invoked. There is no doubt that many business considerations went into the decision to adopt an arbitration provision, and that business people were involved implementation. in the decision­making process and However, there can also be no question that the resolution of many legal issues were critical to the decision to add an arbitration provision to consumer credit card agreements. Bank consumer lending and credit card businesses are highly regulated, and the requirement that disputes be subject to arbitration rather than litigation, has obvious legal ramifications. Thus, in implementing the change, in­house and outside counsel were deeply involved in, and critical to: (1) the decision­making process; (2) drafting of the provisions; (3) how consumers were notified of the changes to their agreements; (4) the explanations given to consumers about the new provisions; and (5) the training of bank personnel in how to respond to consumer questions about the arbitration provisions. The documents in issue all deal with these matters, and Defendants appear to have made a good­faith effort to disclose the business­related portions of the documents, while redacting only those portions in which attorneys were viewed as conveying legal advice or analysis. There is not always a bright line demarcation 13 of the two areas, and reasonable people could of the redactions. 1 sagree as to some Nevertheless, I see no of Plaintiffs' concern that an "entire document related to the project [was withheld] based on a lawyer's stray comment during the process." (Plaintiffs' Reply Memorandum in Further Motion to Compel ("Pls.' Reply Mem."), at 5.) of Plaintiff's Moreover, although large groups of business people were, at times, parties to communications, standing alone that fact s not undermine t material. privileged status of the documents or For the most part, where documents conta attorney opinions and 1 advice were circulated to business e, the documents were marked privileged and confidential, thus creating the expectation t should not be Nor sseminated more wi they ly. s the Court agree with aintiffs' contention t things as tra ing materials are, by and cannot 1 finition, business such cuments, privileged because the predominant purpose of these 1 advice. documents was not to convey 1 Plaintiffs, "a lawyer simply a business practice." Thus, according to fting a Q&A is a 1 (Pls. ' 1 Y Mem. at 7, n . 8 . ) in Having though not relevant to analysis, for those redactions where the Court the distinction between legal and business advice to be a close call, the material cted is fairly innocuous and, in Court's view, is not material to the cla defenses of the ies. As is often t of the dispute about privilege far overs importance of the materi in issue. 14 the dra revi attorney t training materials, which were authored by an sent to other atto for sions, it is clear that se are materials for which a corporation would choose to rely upon an attorney's advice and legal expertise. attorneys are advising customer service In the mat als, sentatives as to what the arbitration provision means and entails, and how to respond to customer questions about arbitration sion. p re eractions with customers can reasonably be expected to have legal consequences, ce from an attorney on how to respond to customer inquiries is legal ceo With these general cons ration of inciples mind, the Court now turns to specific examples discussed Memoranda, which have been produced for in Plaintiffs' camera A. Citi Documents Ross Citi 23851­ timetable This document, setting rth a plan and r deciding whether to adopt an arbitrat and, if so, how to implement it, a hough authored by an attorney, was produced to Defendants. Only six 1 claiming that those lines conta provision s were redacted, with Citi either le 1 advice or analysis. With one exception, the redactions are appropriate. One 1 ­ "As part of this phase, consumer surveys or focus groups should be conducted to ensure that the program will customer friendlyU appears to the Court to be business advice that does not require 15 legal expertise or training. Ross­Citi 23748­RR to 23749­RR ­ thread in whi several lines were redacted. speculate that the redacted mate non­privileged This document an email though Plaintif al is likely to contain " scription of t work being performed rather than a request for or the provision of legal advice,n ions do, in fact, contain legal at 9), the lS Ross­Citi 25011­R to 25014­R s.' Reply Mem. ice. This document was authored by an attorney and sent to Charles Prince, then General Counsel of tigroup, and the redacted portions reflect legal analysis arbitrat sions which , as well as a reached scussion of two recent court dif rent conclusions about the enforceabili ty of arbitration provisions in consumer contracts. The ed portions contain classic legal advice and analysis. Ross­Citi 25 8 to 25930 only redacted sentence in document 25928 contains the legal ce of outsi counsel. Contrary to Plaintiffs' contention, it is not necessary t outside counsel be a party to the communication, as an in­house attorney was paragraph conveying outside counsel's view. ed in document 25930 contains in­house counsel's discussion of the potential legal implications of a case that was then be Supreme Court. Ross­C This involves classic legal analysis and i 23742 to 23744 are duplicates 16 0 these documents. re the ceo Ross­Citi 23755­R to 23756­R ­ This is an email was generated shortly after C icorp acquired Trave read whi rs Insurance. attorneys on the thread are senior attorneys at Citi. Plaintiffs contend that because the involved a request ideas that sis of t se communicat s ght he the business, "the request has an obvious business purpose, and any follow up discussion is likely to focus on business issues." (Pis.' Reply Mem. at 10.) S y because ideas or projects were being conside the business, does not mean was divorced from emails is that the consideration of 1 considerations. to he se ideas What is apparent from the concept of arbitration of consumer di es was one of the business proj ects being considered, and this ired legal as well as business analysis. rly bulk of the redacted mater 1 involves just such legal analysis and discussion, and was properly withheld on the basis of the attorney­cl ivilege. Court takes issue, however, w the redaction of several lines in the first and final emails in the thread. The first two lines of the November 21, 1998 email from Julie Nelson to Joan Warrington, s ly express an understanding of attitudes of Citi and Travelers, re arbitration. past business cti vely, to the use of This does not involve legal analysis or advice, and 17 should be unredacted. Similarly, the rst three lines of the last email, dated November 23, 1998, appear to the Court to involve ve general business consi cons ide scus rations about whether arbitration should be , and do not involve legal analysis or legal advice. As , however, the substance of these redactions is entirely innocuous and the redactions do not appear to be a function of some ne ous attempt to shield cr ical evidence from Plaintiffs. Ross­Citi 19939­R to 19941­R ­ This email thread was produced largely t act, except that the final two emailswereredacted.In email thread, an in­house attorney (Maura Solomon) forwards to Julie Nelson, a higher level in­house attorney, a draft of an ABA study on the consumer benefits of mandatory arbitration, asking if Nelson has any comments. Nelson responds that she does not any comments. One line of her response is redacted, as well as the one­ line reply to that response. redacted material, stating that son would like to see the final version of the report, and reply, that it will be provided, is not privileged. This is nei legal opinion nor advice. Ross­Citi 123614 ­ s email exchange between Julie Nelson, in­house counsel, and another in­house lawyer /government affairs employee, discusses the idea of retaining an expert to review i's draft arbitration provision so, if necessary, he could testify favorably before Congress about the p 18 sion. This is not a discussion of retaining an 1 strategy, as might occur in the context of rt for litigation. strategy which, at least in reflect the 1 Rather, it involves political se emails, does not require or expertise of an attorney. "strategyU itself is not deleted from the emails. the redacted mater I names of figures) whose views might be well­ Yet, left unredacted is the entire response to the opening email, which rna s reference to one of the potent I s whose name was deleted from t essence, a the In fact, most of merely involves a list of potential experts (politi received by Congress. Moreover, opening email. This is, in scussion about retaining a lobbyist as a matter of business strategy. The full email chain should be produced. ions noted above, which involve With the irly innocuous redactions that do not reflect a pattern of overzealous invocation of the attorney­client privilege, the Court concludes that t attorney­client privilege has been properly asserted and supported by Ci ti. B. Discover Documents Discover has also tted approximately 25% of the documents on its privilege log for in camera review. review, the Court had some uncerta After undertaking y about the rationale Discover's invocation of privilege with re documents. The re, with the parties' 19 r to a number of consent, the Court address scover's counsel ex parte. 2 its questions to scover's attorneys were completely forthcoming and refreshingly frank acknowledging the merit of some of the Court's skepticism. Indeed, in some cases, scover's counsel willingly agreed to produce certain documents t concludes that had been withheld. Discover's invocation of In t the end, the Court attorney­client privilege was, in some cases, more expansive than can be justified. Nevertheless, the Court rceives no attempt by Discover to hide critical or material information. Most of the information that was withhe or redacted is of little consequence to this 1 the end, much of and, was disclos igation, in other documents. Although many of the documents on the log are bus documents, r ss example Business Product Specification ("BPS") documents, only a small section of the documents relates to the arbitration provision, and it is the withholding or redaction of that section that is in issue. As with the Citi documents, even the redacted material is fairly innocuous and it is difficu that it could have any mate to believe al bearing on the parties' claims and fenses_ Plaintiffs' repeated objection that the predominant purpose of the documents in issue is business, rather than legal, misses the point. 2 As discussed, the draft of a document written for business The Court's ex parte conference was, however, transcribed. 20 reasons can conta legal comment and advice. While, as Plaintiffs contend, a lawyer's contribution to a business document does not transform the entire document into a privileged communication, if a lawyer's advice or input is based on legal expertise and training, that advice, not the entire resulting document, is privileged. Just because the documents were distributed for business purposes, such as developing protocols for advising customers of the arbitration provision and tracking customer decisions to opt in or opt out of their agreements, does not undermine the ct that they were also distributed to attorneys for comment and review. legal advice and input of the attorne Again, only the , not the business comments or protocols, may be withheld on the basis of privilege. With those principles in mind, the Court does ta issue with Discover's claim of privilege with respect to a number of documents and redactions. Discover Log Entry No. 736 This is an email thread that was prompted by a request from Deborah Lowe, an in­house attorney, for in rmation about the number of people who chose to opt out of the Discover arbitration provision. The request was not from a client seeking legal advice; rather, it was r straightforward factual information about the number of people who had chosen to opt out the arbitration requirement. In response to the Court's comments, Discover agrees to w hdraw the claim of attorney­cl 21 privilege for this document. Discover Log Entry No. 1182 (identical or substant lly similar to Entries 106­10, 152­56, 159­63, 176­80, 183­87, 375­79, 380­84, 385­89, 643 44, 645 46, 649­50, 1183, 1184, 1350)­ This is an excerpt from BPS documents, that was reviewed and approved by house counsel, among others. Discover contends that the statements the document are based on Ie 1 advice, although the section title is "Business Requirements Overview." The Court concludes that these are merely business documents, describing in ve general terms what the process will be for notifying customers of the addition of the arbi tration provision and what they must do to opt out. This document is not one in which the legal merits of the proposal are being scuss , but merely one in which business people are being instructed on mechanical steps that must be implemented and followed. Indeed, the same mechanical steps were disclosed in other documents, for example, Log Entry Nos. 329 and 339 (at 012574). (The only redaction in Entry No. 329 is on page 10060, and the only redaction in Entry No. 339 is on page 012590.) In the Court's discussion with counsel, counsel focused on the final paragraph of the document, which, in essence, states that "legal" needs the ability to track cardmembers who opt out or attempt to opt out of the arbitration provision, and that all correspondence from cardmembers on those subj ects must be stored for future reference. 22 That the legal department needed to keep track of customer data hardly constitutes a confidential communication for t advice. purpose of imparting legal Moreover, the need to keep track of and mainta data on customer opt­outs is discussed throughout other documents that were produced to Plaintiffs, for example, Entry No. 339. Discover Log Entry Nos. 158, 175, 182, 188 ­ Most of this training document is unrelated to the arbitration provision. last page, however, The does communicate legal advice to customer representatives about how to respond to customer questions about the arbitration provision. As with a similar Citi document, this aspect of customer relations could reasonably be viewed as having legal ramifications. Therefore, Discover drew on the particular expertise of attorneys to provide input into what should and should not be told to customers. The attorney­client privilege was properly invoked. * * * The Court assumes that Discover's counsel will re­review its privilege log to ensure that any documents identical or similar to the documents described above as contai ng business advice, are produced to Plaintiffs. scover properly invoked the attorney­ client privilege with respect to the other documents that have been reviewed. So Ordered. 23 THEODORE H. KATZ UNITED STATES MAGISTRATE JUDGE Dated: November 3, 2010 New York, New York 24