No. 04 Civ. 7844 BSJDFE, 04 Civ. 8967 BSJDFE
United States District Court, S.D. New York
November 29, 2006
MEMORANDUM AND ORDER
*1 My Memorandum and Order dated November 8, 2006 ended as follows:
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.
A similar situation has now been brought to me. One of the Bank Defendants (Capital One) and two of the Network Defendants (MasterCard International and Visa U.S.A.) ask me to compel American Express to search for electronic documents that were sent from and to certain executives who are no longer employed by American Express. On November 17, 2006, Gary R. Carney (an attorney for MasterCard International) sent me a joint letter (19 pages plus Exhs. 1-17). He also signed for his adversary Richard A. Feinstein (an attorney for American Express); I am sure he had authority but I strongly prefer that an adversary's actual signature be obtained (a fax signature is acceptable). Strangely, Mr. Carney did not provide any signature line for the attorneys for Capital One and Visa U.S.A. Five days later, Daniel S. Pariser (an attorney for Visa U.S.A.) wrote me a 3-page letter dated November 22. He says that “due to a miscommunication, Visa U.S.A. did not have an opportunity to review American Express's response ... and to provide input concerning revisions to Defendants' portion of the [joint] letter....” This defeats the purpose of my joint-letter requirement; when I receive a joint letter, I am being told that it contains the input of all concerned parties, and that the dispute is ready for decision. I do not know why it took so long for Mr. Pariser to realize that Mr. Carney had left him out of the loop. Mr. Pariser then caused more delay because he did not send me his letter by fax but rather by “hand delivery,” which normally reaches me on the next business day; due to the four-day Court holiday, this was November 27.
I now move from procedure to substance. Mr. Carney asked me “to order Amex to produce responsive, non-privileged [electronic] documents of David House, Harvey Golub, James Cracchiolo, and James Li and all other similarly situated former employees who held the title of Vice President or above and were identified by Amex in their June 5 Interrogatory Responses.” (Nov. 17 joint letter, p. 1.) American Express noted that such an order would apply to 76 former executives. (Id.,
p. 7 n. 3.) Mr. Pariser has apparently persuaded Mr. Carney to reduce the request to House, Golub, Cracchiolo and Li and to “reserve [Defendants'] rights as to” some 72 other former executives. Such a compromise should be discussed with the adversary before the dispute is brought to me. In any event, I have considered the compromise request and I deny it for the following reasons.
*2 First. The Defendants have provided no response to American Express's most powerful argument: the Defendants have not agreed to search for electronic documents that were sent from or to their own former executives. In the joint letter, at pages 15-17, American Express supplies the following details, which no Defendant has contradicted. Capital One did not collect any electronic documents from its former President Nigel Morris, and did not produce any documents (electronic or hardcopy) from Catherine West (President of its U.S. Card Business 2004-06) or from Rick White (its former Vice President for New Business Development). Wells Fargo has produced no documents (electronic or hard copy) from any former employee. U.S. Bank has produced no documents from its CFO David Moffett and others. Providian has produced no electronic documents from its former Executive Vice President Sami Siddiqui and others. MasterCard has said orally that as a general rule it is not producing e-mail from its former employees; it has produced no e-mail from its former CEO Eugene Lockhart, three former CFO's, two former EVP's and others. At page 15, n. 7, American Express explains why it is unclear whether Visa has searched for electronic documents from its former executives; Mr. Pariser has not addressed this point.
Second. The Defendants have not disputed American Express's statement that “27,501 e-mails listing Messrs. House, Golub, Cracchiolo, and/or Li as the author or a recipient have been already produced [by American Express] from the e-mail files of other custodians.” (Nov. 17 joint letter, p. 14.) These other custodians include: (1) the individual files of the current executives who took over the positions of those former executives, (2) the group files of the business units where those executives formerly worked, and (3) the numerous files that American Express produced to the Department of Justice starting ten years ago.
For the reasons stated above, I deny the motion for an order compelling American Express to conduct the requested additional search for electronic documents. It is unlikely that I would compel one party to conduct such a search, unless all parties stipulated to conduct a comparable search.
End of Document.