The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on Minebea's remaining objections to the Special Master's Report and Recommendation No. 6 ("R&R 6"). The Court has reviewed R&R 6, Minebea's objections, Papst's opposition and Minebea's reply, and has concluded that the majority of the Special Master's rulings should be upheld. This Opinion addresses Minebea's objections to the Special Master's conclusions with respect to (a) the joint defense privilege, (b) Seagate documents, (c) Ringi documents, (d) incomplete translations, and (e) other documents described in the Naka declaration.*fn1
A. Joint Defense Privilege
The Special Master ruled that communications between Minebea and third parties could be protected under the "joint defense" privilege only if they occurred after Minebea and the third party in question entered into a "relevant arrangement." See R&R 6 at 78. The Special Master found that the first joint defense agreement was entered into with Fujitsu, Samsung, NEC and Hitachi on January 22, 1998, and with others on later specified dates. He therefore concluded that Minebea must produce:
any document as to which Minebea asserts joint defense privilege or joint defense work product protection, and relating to or embodying (a) any alleged "joint defense" communication before January 22, 1998, (b) any such communication with Seagate before February 6, 1998, with IBM, Toshiba or Maxtor before March 3, 1998, or with Western Digital before March 10, 1998, and (c) any such communication with any entity other than Fujitsu, Samsung, NEC, Hitachi and those named in (b), regardless of date.
"The joint defense privilege, often referred to as the common interest rule, is an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement." United States v. Hsia, 81 F. Supp. 2d 7, 16 (D.D.C. 2000). It protects communications between the parties where they are "part of an on-going and joint effort to set up a common defense strategy" in connection with actual or prospective litigation. In re Bevill, Bresler & Schulman Asset Management, 805 F.2d 120, 126 (3d Cir. 1986); see also In re Grand Jury Subpoena, 274 F.3d 563, 575 (1st Cir. 2001).*fn2 "It permits a client to disclose information to [its] attorney in the presence of joint parties and their counsel without waiving the attorney-client privilege and is intended to preclude joint parties and their attorneys from disclosing confidential information learned as a consequence of the joint defense without permission." United States v. Hsia, 81 F. Supp. 2d at 16. "[T]he rule applies not only to communications subject to the attorney-client privilege, but also to communications protected by the work-product doctrine." In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990); see also Lugosch v. Congel, 219 F.R.D. 220, 240 (N.D.N.Y. 2003) ("The exchange of work product among attorneys with identical litigation perspectives should not render such tangible information vulnerable to pretrial discovery.")
"[T]he joint defense or common interest rule presupposes the existence of an otherwise valid privilege." In re Grand Jury Subpoenas, 902 F.2d at 249. All attorney-client communications or work product therefore must first satisfy the traditional requisites for the attorney-client or work product privilege before they become or remain privileged. Once these requirements are satisfied, shared or jointly created material must pass an additional test: It must be disclosed pursuant to a common legal interest and pursuant to an agreement to pursue a joint defense. Cf. Gregory J. Kopta, Applying the Attorney-Client and Work Product Privileges to Allied Party Exchange of Information in California, 36 U.C.L.A. L. REV. 151, 197 (1988). It is also established that the party asserting the attorney-client or work product privilege always bears the burden of demonstrating that the communications/documents sought to be shielded are, in fact, privileged. See, FED. R. CIV. P. 26(b)(5); In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998). The same is true in the context of the joint defense privilege. See In re Bevill, Bresler & Schulman Asset Management, 805 F.2d at 126.
"In order to establish the existence of a joint defense privilege, the party asserting the privilege must show that (1) the communications were made in the course of a joint defense effort, (2) the statements were designed to further the effort, and (3) the privilege has not been waived." In re Bevill, Bresler & Schulman Asset Management, 805 F.2d 120 at 126. It is incumbent on a party claiming the joint defense privilege, therefore, to establish that "the parties had agreed to pursue a joint defense strategy." Id. "Some form of joint strategy is necessary to establish a [joint defense agreement] rather than merely the impression of one side." United States v. Weissman, 195 F.3d 96, 100 (2d Cir. 1999). Obviously, a written agreement is the most effective method of establishing the existence of a joint defense agreement, although an oral agreement whose existence, terms and scope are proved by the party asserting it, may be enforceable as well. See United States v. Hsia, 81 F. Supp. 2d at 17. As Professor Saltzburg has suggested:
The parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal. Nonetheless, it is certainly prudent practice to execute a written agreement before significant communications are exchanged. This would eliminate any doubt about whether the parties to the discussion were pursuing a common goal with respect to the matters communicated. Without a written agreement, the party's burden of proving that a statement was made in the common interest will undoubtedly be more difficult.
2 STEPHEN A. SALTZBURG, ET AL., FEDERAL RULES OF EVIDENCE MANUAL at 501-35-36 (8th ed. 2002).
If a joint defense agreement has been proved to exist and the scope of the agreement is clear, the party seeking to claim privilege still must demonstrate that the specific communications at issue were designed to facilitate a common legal interest; a business or commercial interest will not suffice. See, e.g., Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995). "The privilege arises out of the need for a common [legal] defense, as opposed merely to a common problem." Medcom Holding Company v. Baxter Travenol Laboratories, 689 F. Supp. 841, 844 (N.D. Ill. 1988). The joint defense privilege thus requires evidence of a "coordinated legal strategy" between two or more parties. Shamis v. Ambassador Factors Corporation, 34 F. Supp. 2d 879, 893 (S.D.N.Y. 1999).
Assuming that the final written agreements entered into by Minebea with each of the companies identified are substantially identical to the draft Joint Defense Agreement attached to letters sent to various third parties and submitted to the Court,*fn3 the Court is satisfied that the joint defense agreement or agreements in question were entered into with the intent to formulate a common legal defense. With respect to the majority of the third parties in question, however, Minebea has not demonstrated that a joint defense agreement was effective on some date prior to the execution of the written agreement. While Minebea's initial objections offered no substantiation for its claim that the joint defense privilege should apply to documents predating the execution of the joint defense agreements, Minebea's reply offers documents, company by company, in an attempt to show earlier dates at which a joint defense arrangement was already in existence. With respect to all but one of the third parties, Minebea also has informed the Court of the date on which the written joint defense agreement was signed by that party. Minebea has failed to submit copies of the executed agreements, and several of the dates conflict with the dates suggested by the Special Master in R&R 6.*fn4 The Court nevertheless accepts, for purposes of this Opinion, that the joint defense agreements were executed on the dates suggested by Minebea in its in camera submission. Minebea will, however, be directed to submit to the Court an affidavit confirming that all of the dates on which Minebea maintains the that various joint defense agreements were executed, as set forth in this Opinion, are correct and attach to that affidavit the signature page from each of the aforementioned joint defense agreements.
The Court agrees with the Special Master that, generally, a joint defense privilege begins on the date the agreement was executed. Minebea repeatedly points to letters sent to third parties proposing a joint defense agreement and attaching a draft joint defense agreement as evidence of "cooperation." See Minebea's In Camera Exhibits to its Objections to the Special Master's Report and Recommendation No. 6 ("MIC") 1. The fact that a person or entity proposes a joint defense agreement, however, is not evidence that a joint defense agreement is actually in place. See United States v. Hsia, 81 F. Supp. 2d at 16 (parties must be "participating in a joint defense agreement" for communications to be protected). The intent of one of the parties to enter into an agreement is insufficient to establish the existence of a joint defense privilege. United States v. Weissman, 195 F.3d at 100 ("Some form of joint strategy is necessary to establish a [joint defense agreement] rather than merely the impression of one side."). Rather, there must be evidence of a "coordinated legal strategy" between the two parties. Shamis v. Ambassador Factors Corporation, 34 F. Supp. 2d at 893. Proposing to another that a joint defense agreement be executed is not evidence of such a coordinated strategy or an agreement to jointly mount one.
While a written, signed document is the best evidence that a joint defense agreement exists, as noted, there may sometimes be facts and circumstances other than a writing that prove there was a firm understanding that certain kinds of shared information is to be treated as privileged. See United States v. Hsia, 81 F. Supp. 2d at 15. The Court has reviewed all of the documents that Minebea has submitted in camera and concludes that with respect to only three companies - Fujitsu, Iomega and Seagate - is Minebea entitled to claim the joint defense privilege for any document predating that company's signing of the Joint Defense Agreement: • Fujitsu. Fujitsu signed the Joint Defense Agreement in January 1998. Minebea has submitted a letter dated January 2, 1997, which indicates Fujitsu's understanding that its communications with Minebea are protected under joint defense doctrine. The Court concludes that communications after that date are within the privilege. Minebea must produce any documents prior to January 2, 1997 which it purports to withhold under a joint defense agreement with Fujitsu.
• Hewlett Packard. While Minebea has submitted several letters indicating an exchange of information with HP. Minebea has not shown that HP ever signed or otherwise indicated that it was entering into a joint defense agreement. All documents which Minebea purports to withhold under a joint defense agreement with HP must be produced.
• Hitachi. Hitachi signed the Joint Defense Agreement on January 22, 1998. Minebea has submitted no evidence to show that an understanding was reached prior to the signing of the Joint Defense Agreement. All documents which Minebea purports to withhold under a joint defense agreement with Hitachi prior to January 22, 1998 must be produced.
• IBM. IBM signed the Joint Defense Agreement on March 3, 1998. Minebea has submitted no evidence to show that an understanding was reached prior to the signing of the Joint Defense Agreement. All documents which Minebea purports to withhold under a joint defense agreement with IBM prior to March 3, 1998 must be produced.
• Iomega. Iomega signed the Joint Defense Agreement on February 20, 1998. On January 12, 1998, however, counsel for Iomega sent a letter to Minebea requesting that its communications "be accorded the confidential protection contemplated by the draft Joint Defense Agreement that you sent us." The Court concludes that communications after that date are within the privilege. All documents which Minebea purports to withhold under a joint defense agreement with IBM prior to January 12, 1998 must be produced.
• Maxtor. Maxtor signed the Joint Defense Agreement on March 4, 1998. While Minebea has submitted a document indicating an exchange of information with Maxtor, there is no evidence to show that an understanding was reached prior to the signing of the Joint Defense Agreement. All documents which Minebea purports to withhold ...