United States District Court, District of Columbia
Emmet G. Sullivan United States District Judge
Defendants Staples, Inc. and Office Depot, Inc. (“Defendants”) seek to compel production of factual information collected by Plaintiffs from third parties during the course of the 2013 investigation of the Office Depot-Office Max merger and the 2015 investigation of the Staples-Office Depot merger. Defs.’ Mem. Supp. Mot. Compel (“Defs.’ Mem. Supp.”), Docket No. 64. Plaintiffs argue the material sought is protected by the attorney work-product doctrine and the deliberative process privilege. Pls.’ Opp. Mem., Docket No. 66 at 4. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, Defendants’ motion is DENIED.
In February 2015, shortly after Defendants announced their intent to merge, Plaintiffs began an investigation into the likely effects of the merger. Defs.’ Mem. Supp. at 2. On December 7, 2015, Plaintiffs filed suit seeking to enjoin the proposed merger, pursuant to Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53 (b), until the FTC’s administrative proceedings are complete. Pls.’ Mot. Prelim. Inj., Docket No. 5 at 1. The parties have agreed to a compressed discovery schedule, with fact discovery closing February 12, 2016 and expert discovery closing March 15, 2016. Sched. Order, Docket No. 54 at 2. A hearing on Plaintiffs’ Motion for a Preliminary Injunction is scheduled to commence March 21, 2016.
A. Defendants’ Document Request and Interrogatory seeking factual information about third parties.
On December 17, 2015, Defendants served Plaintiffs with the following Document Request and Interrogatory:
All Documents Concerning [the Plaintiffs’] contact, or considered or contemplated contact, with any non-parties Related to the Merger and/or [the Plaintiffs’] investigation of the Merger, including Documents Related to telephone conferences, in-person conferences, meetings, interviews, or correspondence with customers or competitors of the Defendants, or any other Persons in connection with the Merger or office supply industry.
Identify each Person interviewed by each of the Plaintiffs (either together or independently) in connection with the Merger and provide all factual information obtained from these individuals and entities through such interviews that is relevant to Plaintiffs’ claims in this case.
Defs.’ First Set of Document Requests, Request No. 4, Docket No. 64, Ex. 2; Defs.’ First Set of Interrogatories, Int. No. 2, Docket 64 at Ex. 3. Plaintiffs produced the following responsive documents: (1) all documents obtained from, or sent to third parties during Plaintiffs’ 2013 and 2015 investigations; (2) all communications with third parties from both investigations; and (3) names and contact information for all third parties with whom Plaintiffs communicated during both investigations. Pls.’ Opp. Mem. at 2; Xenakis Decl., Docket No. 66 (“Xenakis Decl.”), Ex. 2 at ¶ 15.
Plaintiffs withheld approximately 850 documents from the 2013 and 2015 investigations. Pls.’ Opp. Mem. at 4; Xenakis Decl. at ¶ 6. The documents are comprised of attorney interview notes and internal memoranda resulting from interviews with third parties. Xenakis Decl. at ¶ 17; Jin Decl., Docket No. 66, Ex. 4 (“Jin Decl.”) at ¶ 5; Feinstein Decl., Docket No. 66, Ex. 5. (“Feinstein Decl.”) at ¶¶ 5-7.
By this motion, Defendants seek to compel production of all segregable factual information contained in the withheld documents. Defs.’ Mem. Supp. at 5 (“Plaintiffs should be compelled to produce factual information discovered in the course of their communications with third party customers, competitors, and industry participants.”).
On January 19, 2016, the Court received a representative sample of the documents at issue for in camera review. See ...