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Viacom, Inc. v. Sumitomo Corp. (In re Copper Mkt. Antitrust Litig.)

United States District Court for the Southern District of New York

April 30, 2001, Decided ; April 30, 2001, Filed

Index No. M8-85 (LTS), MDL Docket No. 1303 (W.D. Wisc.)

Opinion

 [*215]  LAURA TAYLOR SWAIN, United States District Judge

Plaintiffs Viacom Inc. and Emerson Electric Co. ("Plaintiffs") move to compel the production of documents listed on the privilege log (the "Privilege Log") produced by non-party Robinson Lerer & Montgomery ("RLM") in response to a subpoena issued from this Court on March 9, 2000. For the reasons set forth below, Plaintiffs' motion is denied.

FACTUAL BACKGROUND

This motion arises out of multi-district litigation pending in the Western District of Wisconsin. On or about September 27, 1999, Plaintiffs brought an action against Sumitomo Corporation [**2]  ("Sumitomo"), Sumitomo Corporation of America, Global Minerals and Metals Corporation and Credit Lyonnais Rouse, Ltd., alleging that the defendants conspired to manipulate global copper prices. By the subpoena dated March 9, 2000, Plaintiffs requested that RLM produce documents relating to RLM's public relations consulting work for Sumitomo. Because the March 9, 2000 subpoena issued from this Court, the Court has jurisdiction to determine Plaintiffs' motion. Fed. R. Civ. P. 45(c)(2)(B). Although the parties differ as to the legal significance of their respective factual proffers, none of the facts proffered is disputed in any material respect. The relevant factual background is as follows.

The signal event giving rise to the underlying antitrust litigation occurred during a deposition conducted in April 1996 by the Commodities Futures Trading Commission ("CFTC"), when Yasuo Hamanaka ("Hamanaka"), then head of Sumitomo's Non-Ferrous Metals Division, disclosed that he had executed an unauthorized power of attorney relating to hundreds of millions of dollars in copper trading. Anticipating a CFTC investigation and other litigation, Sumitomo retained RLM, a "crisis management" public [**3]  relations firm, on or about May 23, 1996, to handle public relations matters arising from the copper trading scandal. Declaration of Yasutomo Katsuno, dated August 30, 2000, P 2 (hereinafter "Katsuno Decl."); Affidavit of Elizabeth Sigler Mather, sworn to August 31, 2000, P 7 (hereinafter "Mather Aff."). Both the investigation and civil litigation ensued promptly.

Sumitomo hired RLM because it had no prior experience in dealing with issues relating to publicity arising from high profile litigation, and because Sumitomo lacked experience in dealing with the Western media. Only two of the three executives in Sumitomo's Corporate Communications Department had English language facility and those individuals' English language skills were not sufficiently sophisticated for media relations. Katsuno Decl., PP 4-5; Mather Aff., PP 11-15. Working largely out of Sumitomo's Tokyo headquarters with Sumitomo's Corporate Communications Department, RLM acted as Sumitomo's agent and its spokesperson when dealing with the Western press on issues relating to the copper trading scandal. Katsuno Decl., PP 8-9. The chief object of RLM's engagement was damage control, i.e., the management of press statements [**4]  in the  [*216]  context of anticipated litigation "to ensure that they do not themselves further damage the client." Mather Aff., P 2. "RLM's primary goal in representing Sumitomo was to help the Company make the statements it needed to make, but to do so within the necessary legal framework -- all with the realization, indeed the expectation, that each such statement might subsequently be used by Sumitomo's adversaries in litigation." Mather Aff., P 23. In the course of providing its services to Sumitomo, RLM conferred frequently with Sumitomo's outside counsel, Paul, Weiss, Rifkind, Wharton & Garrison ("Paul Weiss") (Mather Aff., P 24) and Sumitomo's in-house counsel. Katsuno Decl., P 10.

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200 F.R.D. 213 *; 2001 U.S. Dist. LEXIS 5269 **

IN RE: COPPER MARKET ANTITRUST LITIGATION; VIACOM, INC., as successor by merger to CBS Corp. (f/k/a Westinghouse Electric Corp.) and EMERSON ELECTRIC CO., Plaintiffs, -against- SUMITOMO CORPORATION, SUMITOMO CORPORATION OF AMERICA, GLOBAL MINERALS AND METALS CORPORATION, R. DAVID CAMPBELL, and CREDIT LYONNAIS ROUSE, LTD., Defendants.

Subsequent History: Summary judgment denied by, Summary judgment granted by, Motion denied by In re Copper Antitrust Litig., 153 F. Supp. 2d 996, 2001 U.S. Dist. LEXIS 15431 (W.D. Wis., 2001)

Prior History: Metallgesellschaft AG v. Sumitomo Corp. (In re Copper Antitrust Litig.), 117 F. Supp. 2d 875, 2000 U.S. Dist. LEXIS 20283 (W.D. Wis., 2000)

Disposition:  [**1]  Plaintiffs' motion to compel production of documents listed on privilege log denied.

CORE TERMS

documents, privilege log, communications, Supplemental, attorney-client, work-product, legal advice, corresponding, immunity, privilege claim, purposes, inadvertent, disclosure, public relations, consultant, advice, privileged, Disputed, scandal, memorandum, describes, redacted, trading, copper, subpoena, anticipation of litigation, preparing, withheld, waived, hired

Civil Procedure, Subject Matter Jurisdiction, Jurisdiction Over Actions, General Overview, Evidence, Privileges, Jurisdiction, Preliminary Considerations, Federal & State Interrelationships, Federal Common Law, Parties, Pro Se Litigants, Attorney-Client Privilege, Scope, Elements, Privileged Communications, Work Product Doctrine, Waiver of Protections, Discovery, Documentary Evidence, Transcripts & Translations, Translations