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In re Syngenta AG Mir 162 Corn Litigation

United States District Court, D. Kansas

June 13, 2017

IN RE SYNGENTA AG MIR 162 CORN LITIGATION, This Document Relates to All Cases No. 14-md-2591-JWL


          James P. O'Hara U.S. Magistrate Judge.

         Plaintiffs in this multidistrict litigation have filed a motion asking the court to order Syngenta to produce approximately 440 documents that Syngenta is withholding on the grounds of attorney-client privilege and/or work-product protection (ECF No. 3109). On May 5, 2017, the undersigned U.S. Magistrate Judge, James P. O'Hara, issued an order rejecting Syngenta's arguments that plaintiffs lost the ability to challenge the privilege assertions (by either the passage of time or by agreement).[1] The court directed the parties to confer and try to reach an agreement whereby the court would review in camera a sample of the documents “from each category over which plaintiffs have expressed concern, such that the parties may extrapolate the court's privilege rulings on the subset of reviewed documents to all documents in the withheld categories.”[2] The parties agreed to submit-and did submit-44 documents, falling into five categories, as a representative sample for the court's in camera review.[3] Having carefully reviewed those documents, the undersigned sustains in part and overrules in part Syngenta's privilege assertions.

         I. Legal Standards

         The parties cite and apply federal privilege law to the instant dispute. Because no federal claim remains in this litigation, [4] however, the court questions the applicability of federal law. When jurisdiction is based on diversity of citizenship, “state law supplies the rule of decision on privilege” by operation of Fed.R.Evid. 501.[5] “Since this is a multidistrict proceeding, the question arises as to what state's law of privilege the court should apply.”[6] Because the parties seem to agree that federal common-law standards should govern the privilege determinations in this case, because “no real conflict between federal and Kansas law regarding the attorney-client privilege [exists], ”[7] and because “the Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions, ”[8] the court will apply federal law in reaching its determinations on privilege issues.

         The essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection is waived.[9] Although this description suggests that the privilege only operates to protect the client's communications to a lawyer, the Tenth Circuit recognizes that a lawyer's communication to a client is also protected if it is “related to the rendition of legal services and advice.”[10] “A party claiming the attorney-client privilege must prove its applicability, which is narrowly construed.”[11]

         Caselaw provides a wealth of guidance as to what is-and is not-protected by the attorney-client privilege. First, it is important to note that “personal, confidential, [or] private information” is not necessarily privileged.[12] “As this Court has held repeatedly, ‘confidential' does not equate to ‘nondiscoverable' or privileged.”[13] Second, it is clear that “[u]nderlying facts are not protected by the privilege.”[14] “Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not ‘communications.'”[15] Nor are “general topics of attorney-client discussions” or ultimate “legal conclusions” of counsel protected.[16] Thus, for example, this court has held that the subject matters of an in-house attorney's discussions with company executives are not privileged.[17] Fourth, where a communication contains both legal advice and business advice, attorney-client protection only applies if the legal advice predominates over the business advice; the privilege does not apply where legal advice is merely incidental to business advice.[18] Fifth, “[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege.”[19] On the other hand, drafts of memoranda prepared for a client are protected.[20] Sixth, the attorney-client privilege does not attach to simple editing or “word-smithing” by counsel.[21]

         Finally, it bears mentioning that under the eighth element, absence of waiver, the party claiming the privilege must demonstrate that “the substance of an otherwise privileged communication” is not revealed to a third party.[22] The burden of showing the privilege has not been waived remains with the party claiming the privilege.[23] “Because confidentiality is key to the privilege, ‘[t]he attorney-client privilege is lost if the client discloses the substance of an otherwise privileged communication to a third party.'”[24]

         The work-product privilege is governed by the uniform federal standard set forth in Fed.R.Civ.P. 26(b)(3). Rule 26(b)(3) provides:

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).

         For documents to be protected under this doctrine, the party claiming the protection must demonstrate that “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.”[25] The purpose of the doctrine is to allow attorneys to prepare for litigation with a ‘certain degree of privacy, ' and without undue interference or fear of exploitation of one's work by an adversary.[26] Once a document is deemed initially subject to work-product protection, the parties must determine if it is nevertheless discoverable. “The privilege derived from the work-product doctrine is not absolute, ” and may be waived.[27] In contrast to the attorney-client privilege, “the party asserting waiver of work product immunity, rather than the party asserting the work product protection, [has] the burden to establish waiver.”[28]

         II. Analysis

         Syngenta has identified 441 withheld documents on its comprehensive privilege log.[29]It has withheld 320 of the documents in full, and 121 of the documents in part (producing redacted versions of the documents). For purposes of their motion to compel, plaintiffs have divided the documents into five categories: (1) documents involving a third-party consulting firm called Informa Economics, Inc. (“Informa”); (2) documents involving other third parties; (3) documents for which the privilege-log description allegedly is inadequate to determine whether the privilege applies; (4) documents containing redactions which, based on the surrounding context, appear improper; and (5) documents for which the metadata allegedly does not support Syngenta's claimed basis for redaction or withholding. The parties have selected documents from each category for the court's in camera review. Syngenta has submitted to the court copies of the selected documents, as well as the declarations of Alan B. Nadel, its lead counsel for litigation in North America, in support of its privilege assertions.[30] Applying the legal standards set forth above, the court concludes as follows.

         1. Documents Involving Third Party Informa Economics, Inc.

         Plaintiffs challenge Syngenta's privilege assertions over documents that were generated by, or relate to an analysis generated by, Informa. For the court's review, Syngenta has submitted Informa's analysis (PRIV003591) and an e-mail to Syngenta counsel from a Syngenta employee about potentially sharing the analysis (PRIV000425).

         In support of its privilege assertions, Syngenta states it hired Informa to analyze an April 2014 study published by the National Grain and Feed Association (“NGFA”). The study alleged China's rejection of U.S. corn shipments containing Viptera caused several billions of dollars of damage to the U.S. corn industry.[31] Nadel asserts that Syngenta requested the analysis to help Syngenta's legal department understand the reliability and relevance of the study, such that it could “formulate Syngenta's legal strategy in response to the NGFA's allegations.”[32] As Syngenta notes, this court has ruled that communications by third-party consultants “working at the direction of” attorneys, may be protected by the attorney-client privilege if the communications are “for the purpose of assisting [the] attorneys in rending legal advice.”[33]

         Plaintiffs argue Syngenta's privilege assertions are belied by documents showing Syngenta retained Informa to help Syngenta develop business strategy, not to provide legal advice. The court agrees. Although Nadel states in his declaration that the Informa analysis was for the purpose of formulating legal strategy, this assertion is unsupported by any documents in the record. The analysis itself contains no legal analysis. And Syngenta has submitted no documents indicating that anyone on Syngenta's legal team worked with Informa on the analysis. Rather, the record indicates Informa was contacted by T. Lynn Sandlin, a non-attorney whose signature bears the tag line “Market Insight, N.A., ” to undertake the analysis.[34] In an April 16, 2014 e-mail to other non-attorney Syngenta employees, Sandlin states that she informed Informa that Syngenta “has interest in understanding the [NGFA] report in its entirety and having a global ag analyst firm review the findings and in the spirit of transparency evaluate the accuracy and validity of the information.”[35] The e-mail further states that Sandlin told Informa that Syngenta would like to discuss the study's “assumptions and extrapolations as soon as possible in order to prepare ourselves when they distribute their analysis.”[36] A month later, on May 16, 2014, Sandlin sent an e-mail to ten non-attorneys[37] stating, On April 16th, Market Insight was requested to enlist a third party to complete an assessment of the NGFA analyses on Agrisure Viptera and Duracade traits. Over the past two weeks drafts of the output has been provided and reviewed by all. The final output is attached for your use and reference.

         The attachments are:

• Memorandum by Informa Economics of key talking points which Syngenta can use in discussions regarding the NGFA analyses
• Assessment of the NGFA analyses completed in detail by Informa Economics

         The documents are the property of Syngenta and should be used by team members specific to the Viptera and Duracade discussions. Any communications of the developed documents are to be discussed with Alan Nadel, Syngenta Legal Counsel prior to distribution.[38]

         This e-mail did not state that the documents are confidential or attorney-client communications.

         Syngenta has failed to satisfy its burden of proving the applicability of the attorney-client privilege to the Informa analysis. The fact that Syngenta's “Market Insight” group, rather than legal group, appears to have sought and used the analysis suggests the analysis was commissioned and communicated primarily for business, rather than legal, purposes. The sentence in Sandlin's May 16, 2014 e-mail directing non-attorney employees to discuss distribution of the related documents with Nadel does not change the business nature of the documents. Even if the court were to find some legal purpose in the communication, the attorney-client privilege would not protect the document because the legal purpose would not predominate over the business purpose.[39] Syngenta's privilege assertion over PRIV003591 is overruled, and Syngenta shall produce this document.[40]

         The second document related to the Informa analysis provided the court for in camera review is a May 20, 2014 e-mail to Nadel from a Syngenta non-attorney employee asking for Nadel's thoughts about sharing the analysis with two “key stakeholders” outside Syngenta for use in “their newsletters, etc.” (PRIV000425). Syngenta argues the e-mail is privileged because it seeks Nadel's legal advice.[41] Based on the content and context of the e-mail, there is no evidence that legal, rather than business, advice was sought or given. The court holds this document deals predominantly with business information and therefore is not privileged. In addition, two non-attorneys were copied on the e-mail, a potential waiver consideration that Syngenta does not address. Syngenta's privilege assertion over PRIV00425 is overruled, and Syngenta shall produce this document.

         2.Documents Involving Other Third Parties

         Plaintiffs also challenge Syngenta's privilege assertions over documents that were shared with non-attorney third parties. These documents fall into two sub-sets.

         The first sub-set of documents relate to individuals at the University of Rhode Island (“URI”) and at a company called Vanasse Hangen Brustlin, Inc. (“VHB”). Syngenta asserts it engaged these individuals as consultants “to provide Syngenta with specific, scientific assistance sought by Syngenta's legal department regarding regulatory requirements.”[42]Syngenta states they assisted Syngenta with regulatory filings.[43] Syngenta has submitted one document from this sub-set for the court's in camera review: PRIV003553.

         PRIV003553 is an e-mail discussion (a two-e-mail string) between two Syngenta employees and Syngenta's outside legal counsel at Dorsey & Whitney LLP. The court's review of the document indicates the e-mail discussion is clearly a communication between a client and counsel, seeking and giving legal advice. To be privileged, however, the communication must also have been made in confidence.[44] Copied on the communication were three VHB employees and one URI employee. The question for the court is whether the presence of these third parties destroyed the privilege.

         As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege.[45] However, “[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses ‘a commonality of interest with the client.'”[46] “The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .”[47]

         Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants “to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.”[48] The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.

         The second sub-set of documents involving other third parties includes documents that plaintiffs believe are drafts of documents prepared for submission to third parties, and which Syngenta later publicly disclosed. At plaintiffs' request, Syngenta has submitted PRIV000255 as an example for the court's review.

         Plaintiffs are correct that drafts of documents prepared for submission to third parties, although prepared by counsel, are not generally privileged once the draft is submitted to the third party.[49] But the court has reviewed PRIV000255 and finds that it does not fall into this category. PRIV000255 is a confidential e-mail communication between a few Syngenta employees conveying Syngenta's legal advice on how Syngenta should respond in a very limited way to ...

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