The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
THIS DOCUMENT APPLIES TO ALL DIRECT PURCHASER ACTIONS
Direct purchaser plaintiffs ("Plaintiffs") seek to compel defendant United Egg Producers, Inc. ("UEP") to produce or remove from sequestration certain documents and information involving defendant Sparboe Farms ("Sparboe").*fn1 UEP maintains the attorney-client privilege, the common-interest privilege, and the work-product doctrine shield the communications at issue from disclosure. All privilege questions, including those raised in this motion, have been referred to me for resolution pursuant to Rule 72(a) of the Federal Rules of Civil Procedure. See Order, In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Mar. 2, 2011) (Pratter, J.).*fn2
This case presents issues concerning the existence and scope of the attorney-client privilege in the context of a trade industry cooperative of egg producers and related entities. At issue are several communications involving UEP officials, one of its member entities, and, at various times, attorneys. Although the parties debate the contours of nearly every aspect of privilege law, resolution of the pending motion depends on one fundamental question: Were any of the communications at issue made for the purpose of obtaining or providing legal advice? If not, they cannot fall within the bounds of the attorney-client privilege, regardless whether UEP and its members are treated as a single corporate entity or a group of entities sharing a common legal interest.
For the reasons set forth below, I conclude UEP has failed to meet its burden of establishing the communications at issue are protected by the attorney-client privilege. Only one of the documents at issue was related to a confidential request for legal advice, and any privilege as to that document was waived. I further conclude the record does not permit resolution of the parties' disputes over information conveyed to Plaintiffs during interviews with Sparboe personnel. Accordingly, the motion to compel is granted in part and denied without prejudice in part.*fn3
The facts underlying this dispute are set forth in In re Processed Egg Products Antitrust Litigation, No. 08-md-2002, 2011 WL 4465355, at *1-3 (E.D. Pa. Sept. 26, 2011) (Pratter, J.), and I will not repeat them at length here.
Plaintiffs allege UEP, its members, and other defendants conspired to limit supply and fix prices of eggs in violation of federal antitrust laws. Id. at *1. To accomplish these violations, Plaintiffs allege UEP proposed, and its members adopted, an "animal welfare" program ("the Program"), which required egg producers to comply with guidelines reducing cage space densities for hens in order to sell "UEP-certified" eggs. Id. at *2. Sparboe, a member of UEP and a former participant in the Program, settled the claims against it by agreeing to cooperate and provide information to Plaintiffs. See Order on Preliminary Approval of Sparboe Settlement at 2-3, ECF No. 214, In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Oct. 23, 2009) (Pratter, J.). The information Sparboe disclosed to Plaintiffs -- both in documents and witness interviews -- in some instances included communications between Sparboe's officers and attorneys and UEP's officers and attorneys. See Pls.' Br. at 28-37; UEP's Br. at 18-44. Of particular interest here are communications from 2003 and later revealing Sparboe's concerns with, and objections to, the Program. See Pls.' Br. at 28-37; UEP's Br. at 18-44. UEP suggests those communications are protected by either the attorney-client privilege, the common-interest privilege, or the work-product doctrine. See generally UEP's Br.
Although Plaintiffs' motion to compel is focused on six specific documents and information conveyed in the interviews of four Sparboe witnesses, the parties assert much broader arguments. Specifically, Plaintiffs suggest UEP could not successfully invoke any privilege for communications between its counsel and any of its members before 2009. Pls.' Br. at 17-21. Conversely, UEP suggests all communications between its counsel or officers and any of its members are entitled to blanket protection under a "single-entity" theory based on Upjohn Co. v. United States, 449 U.S. 383 (1981). UEP's Br. at 4-15. Neither of these sweeping pronouncements is necessary or appropriate to resolve the issues presented in Plaintiffs' motion.*fn4
Plaintiffs' motion is properly resolved by examining the specific communications at issue and the circumstances under which they occurred. Upjohn, 449 U.S. at 396-97 (applying a "case-by-case" analysis, which "obeys the spirit of the Rules [of Evidence]"). Those communications are:
* A January 2003 memorandum from Sparboe's vice president to UEP officers, board members, and counsel about scientific committee recommendations, UEP's Br. at Ex. F (submitted in camera);
* June and July 2003 letters from Sparboe's president to UEP's president, neither of which were ever sent, raising questions about the wisdom and legality of the Program, UEP's Br. at Exs. C, D (submitted in camera);
* An October 2003 E-mail from Sparboe's in-house counsel to its outside counsel summarizing a meeting between Sparboe representatives and UEP's president at which Sparboe's concerns about the Program were discussed, UEP's Br. at Ex. E (submitted in camera);
* A September 2005 fax from UEP's counsel to UEP's president, which was later forwarded to Sparboe's counsel and Sparboe's president in response to Sparboe's belief that a UEP representative was interfering with relationships between Sparboe and its customers, UEP's Br. at Ex. 6 to Ex. A (submitted in camera); Pls.' Br. at Ex. F p.6;
* A series of October 2008 E-mails among Sparboe representatives summarizing a recent UEP meeting, including comments by UEP's counsel about topics at issue in this litigation, UEP's Br. at Ex. 7 to Ex. A (submitted in camera); and
* Information disclosed to Plaintiffs, following Sparboe's settlement, by Sparboe's counsel and three of its officers who were interviewed regarding Sparboe's concerns about the Program and the witnesses' interactions with UEP's counsel, Pls.' Br. at Exs. E, H, I.
Pursuant to its settlement agreement, Sparboe produced to Plaintiffs copies of all documents except the October 2003 and October 2008 E-mails. See Oral Arg. Tr. at 107.
A. The Attorney-Client Privilege
The attorney-client privilege is intended to encourage "full and frank communication between attorneys and their clients." Wachtel v. Health Net, Inc., 482 F.3d 225, 231 (3d Cir. 2007). The privilege "applies to any communication that satisfies the following elements: it must be '(1) a communication (2) made between [the client and the attorney or his agents] (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.'" In re Teleglobe Communications Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting the Restatement (Third) of the Law Governing Lawyers § 68 (2000)); accord In re Application of Chevron Corp., 650 F.3d 276, 289 (3d Cir. 2011).
The privilege protects "[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance." Fisher v. United States, 425 U.S. 391, 403 (1976). "[T]he 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, 449 U.S. at 390. However, it "only protects the disclosure of communications; it does not protect disclosure of the underlying facts." Id. at 385. The communication between lawyer and client "is not, in and of itself, the purpose of the privilege; rather, it only protects the free flow of information because it promotes compliance with law and aids administration of the judicial system." Teleglobe, 493 F.3d at 360-61 (emphasis ...