I essentially agree with the positions stated by Ms. Zgliniec at pages 14-29 of the joint letter, with the following exceptions.
In 1996, the Department of Justice's Antitrust Division (the “DOJ”) served Civil Investigatory Demands upon Wells Fargo and other banks. The DOJ obtained extensive documents and depositions from Wells Fargo and all the major players in the credit card industry. In 1998, the DOJ filed suit to enjoin the Exclusionary Rules. However, the DOJ decided to sue only the Network Defendants (Visa and MasterCard). Hence the banks were not defendants in the DOJ Case.
In my view, it is self-evident that Wells Fargo, and the other major banks, anticipated that, if the DOJ won the DOJ Case,
then American Express would bring a follow-on lawsuit and might sue them. The potential damages were so enormous that American Express might find it insufficient to sue only the Network Defendants.
On the other hand, American Express waited until November 1998 before sending any “litigation hold” notice to its employees telling them to retain documents relevant to the DOJ Case
or American Express's potential follow-on lawsuit. (Exh. R, testimony of Julie K. Sweedler, who manages American Express's “litigation hold” process.) Moreover, American Express has not claimed that it did anything to warn any of the banks (prior to filing this suit on November 15, 2004) that it believed that the banks were obliged to hold onto any documents other than the documents that had been shown to the DOJ. In view of (a) Wells Fargo's extensive production of documents to the DOJ, and (b) American Express's conduct, I find nothing materially wrong with Wells Fargo's conduct-waiting until it was served with a summons and complaint before issuing an oral notice to any of its employees to preserve documents, and waiting until April 2005 before issuing such a notice in writing. (Exh. D, pp. 6-7.)
At page 12 of the joint letter, American Express says that Wells Fargo gathered documents from some 96 individual custodians but “[m]ost notably, Wells Fargo omitted Richard Kovacevich, who has been Wells Fargo or Norwest's CEO for almost the entire time (1991-present) of its document production, and who voted for Visa's bylaw 2.10(e) when he served as Wells Fargo's representative on the Visa board.” Wells Fargo does not dispute this; it merely says, at footnote 17, that it produced 19 documents from 1991 through 2000 that “mention” Kovacevich. I direct Wells Fargo to cause a search of Richard Kovacevich's office and home files for any documents (including electronic documents) that may be responsive to document requests served to date by American Express, and to serve, no later than November 30, 2006, all responsive non-privileged documents found by such search.
*2 Pursuant to F.R.Civ.P. Rule 26(b)(2), I direct that American Express may take no more than one deposition of a Wells Fargo representative which is devoted to American Express's Topics 1 and/or 2, and such a deposition may not exceed 3 hours. American Express may, of course, notice depositions of other persons on other topics; if it wishes, it may ask any such person questions concerning Topics 1 and/or 2, but with a limit of 10 questions per deponent concerning Topics 1 and/or 2.
By stipulation (and with no court order), the parties may modify any of the directives in the preceding two paragraphs.
At any time prior to the close of discovery, American Express may take advantage of my Memorandum and Order dated May 11, 2006, which said: “After American Express receives at least some of the resulting electronic documents from any particular Bank Defendant, then American Express, as of right, may direct this Bank Defendant to run one additional electronic search using up to 10 additional search terms chosen by American Express. If American Express believes that 10 additional search terms would be inadequate, then it must confer with the pertinent Bank Defendant and, if necessary, initiate a joint letter to me devoted solely to that topic.”
American Express and Wells Fargo have each declined to produce certain information, for example, the content of their “litigation hold” notices. In such situations, it is unlikely that I would compel one party to produce such information, unless American Express and all of the Bank Defendants stipulate to simultaneous exchange of all their information concerning a given topic.