ROGUE WAVE SOFTWARE, INC., Plaintiff, v. BTI SYSTEMS INC., and JUNIPER NETWORKS INC., Defendants 16-CV-7772 (VM) (KNF) United States District Court, S.D. New York Filed September 07, 2017 Fox, Kevin Nathaniel, United States Magistrate Judge MEMORANDUM AND ORDER INTRODUCTION In this action, the plaintiff alleges copyright infringement under the Copyright Act, 17 U.S.C. §§ 101 et seq. In a letter, dated June 12, 2017, the plaintiff set forth unresolved discovery issues, including that the defendants failed to “disclose information responsive to Interrogatory No. 25 and Request for Production No. 23,” namely, “information related to Defendants' due diligence efforts specifically concerning the at-issue software.” The plaintiff asserted that “communications and documents that were shared by and between BTI and Juniper, and their respective counsel prior to Juniper's acquisition of BTI are discoverable,” and the defendants' claim “that such information is ‘attorney-client privileged’ and protected by the ‘business strategy privilege’ ” is meritless because “there is no privilege that would protect such communication's from disclosure.” In their response letter, dated June 16, 2017, the defendants asserted, in connection with “Due Diligence Records and Communications”: With respect to those documents and communications withheld on the basis of the Attorney-Client and Common Interest/Business Strategy Privileges, Defendants have already addressed Rogue Wave's argument in a letter to Rogue Wave's counsel dated May 4, 2017. In that letter, Defendants advised Rogue Wave that, simply because a Juniper lawyer and a Juniper employee are included in communications listed on Defendants' Privilege Log does not mean that such communications occurred prior to Juniper's acquisition of BTI, making them potentially not privileged. To the contrary, those particular documents are categorized thematically with others, ranging from February 25, 2016 - June 1, 2016, which includes [sic] communications exchanged after Juniper's acquisition of BTI, which would be privileged. All communications after April 1, 2016 - the date of acquisition - are protected by the Attorney-Client Privilege and are properly withheld as such. Despite the claims in Rogue Wave's letter, Defendants have produced all responsive, non-privileged documents in response to Rogue Wave's requests and accordingly, Rogue Wave's request for an order requiring Defendants to further respond should be denied. On July 13, 2017, the Court conducted a telephonic conference with the parties to address the outstanding discovery issues raised in the plaintiff's June 12, 2017 letter. At that conference, the Court inquired of the defendants' counsel about binding authority for the “Common Interest/Business Strategy Privileges,” referenced in the defendants' June 16, 2017 letter. Counsel stated: They are two different privileges but one that's involved with this particular email. Maybe I should set the framework your Honor. What we are talking about is an email from a lawyer at BTI to the lawyer at Juniper on the eve of the purchase of BTI by Juniper. The email references this dispute. And because Juniper was buying BTI they [sic] were inheriting the dispute and any liability or problems associated with it. It's our position that the common interest privilege, which used to be called the joint defense privilege, is fully applicable to that. *2 The plaintiff's counsel stated that the defendants' did not invoke common interest privilege in the privilege log and more documents than one email are at issue. The Court directed the plaintiff to make a formal motion challenging the privilege log and the defendants to submit, for an in camerareview, any documents from the privilege log that are challenged by the motion, so that the Court could review them in the context of supporting affidavits and memoranda of law. Before the Court is the plaintiff's motion to compel the defendants “to produce communications, information, and documents exchanged as part of Defendants' pre-acquisition due diligence that relate to the at-issue software in this copyright infringement matter.” The defendants oppose the motion. PLAINTIFF'S CONTENTIONS The plaintiff contends that “[t]he crux of the current discovery dispute is Defendants' objection to providing documents and information concerning their due diligence efforts in connection with Juniper's acquisition of BTI that relate to the at-issue software.” According to the plaintiff, the defendants asserted that “the due diligence information is protected from disclosure under three theories: (1) attorney-client privilege; (2) attorney work product; and (3) business strategy privilege.” However, “these privileges do not apply to pre-acquisition communications or documents shared during the due diligence phase when BTI and Juniper were adverse to each other and the acquisition itself is more than a year stale.” The defendants failed to respond to the plaintiff's Interrogatory No. 25, requesting that the defendants “[i]dentify all Persons, Communications or Documents regarding any due diligence efforts in connection with Juniper's acquisition of BTI that relate to the Application License Agreement, the Licensed Software or JTGO, whether those documents were generated by BTI, Juniper or any of their attorneys, accountants, consultants, or advisors.” In response to the plaintiff's Request for Production No. 23, seeking “all documents related to any due diligence efforts in connection with Juniper's acquisition of BTI that relate in any way to the Application License Agreement, the Licensed Software or JTGO, whether those documents were generated by BTI, Juniper or any of their attorneys, accountants, consultants or advisers,” the defendants objected that the request was: (1) “ ‘unlikely to lead to the discovery of relevant information,’ a standard that no longer dictates the scope of discovery under the Federal Rules of Civil Procedure [; and (2) ] duplicative of other requests.” The defendants also objected to Request for Production No. 23 “to the extent that it requests privileged information.” The plaintiff asserts that, on April 6, 2017, the defendants disclosed their privilege log, but “[i]t is unclear what specific documents Defendants are claiming privilege over in response to Interrogatory No. 25 and Request for Production No. 23,” so the plaintiff is “left to guess what ‘category’ of documents contain [sic] the due diligence information requested in discovery, as Defendants logged nearly 800 documents or communications in just five categories.” The plaintiff assumes, for the purpose of its motion, “that Category Nos. 3 & 4 contain the due diligence information, but it is unclear based on the information contained in the log.” The plaintiff contends that the identification of persons, communications or documents, requested by the plaintiff's Interrogatory No. 25, does not reveal information that would be protected from disclosure by privilege, and the information requested “is not the subject of any claim of privilege.” The defendants “had an obligation to identify with sufficient particularity the documents they produced in response to Request for Production No. 23,” but it is unclear from their response whether any documents were produced. The plaintiff contends that “communications and documents that were shared by and between BTI and Juniper, and their respective counsel prior to Juniper's acquisition of BTI are discoverable” because information was shared at a time when the Defendants were adverse to each other and “Juniper clearly did not share a common interest with BTI in pending or anticipated litigation involving BTI's copyright infringement during the pre-acquisition period.” Even assuming that such communications and documents are protected by the work-product doctrine, disclosure should be ordered because: (1) the doctrine does not protect the underlying facts and documents prepared in the ordinary course of business, even if those documents also may be useful in the event of litigation; and (2) the plaintiff has a substantial need for the materials in preparation of its case and it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Moreover, pre-acquisition communications and information are not protected by the business strategy immunity, which “[n]either the Second Circuit nor New York appears to recognize.” Even where recognized, the business strategy immunity “only protects companies' ongoing strategies still being contemplated but not deals already consummated.” *3 The plaintiff contends that the April 6, 2017 privilege log is insufficient to allow evaluation of the defendants' assertions because it includes broad “category descriptions” that provide no means of evaluating whether the claimed privilege should apply. For example, Category No. 3 in the log asserts attorney-client privilege and attorney-work product protection for 172 documents. The plaintiff contends that the defendants identified senders and recipients from both Juniper and BTI and the time period from January 5, 2016, through April 2016; however, Juniper and BTI were adversaries in a negotiated purchase until at least late March 2016, when Juniper acquired BTI, making any privilege or work-product protection for communications prior to that date sent to both entities inapplicable. Moreover, “there is no way to determine from this log whether both BTI and Juniper clients and/or attorneys were involved in each and every communication predating the acquisition, and if so, whether their inclusion destroys the privileges being claimed by Defendants.” Similarly, Category No. 4 contains 380 communications and documents shared by or between Juniper, BTI and their counsel, including pre-acquisition, but “there is no way to tell from the face of defendants' log whether Juniper was included in communications pre-acquisition or only later.” The plaintiff asserts that it “is impossible to discern which of the logged communications are withheld on the basis of ‘attorney client’ versus ‘work product’ versus ‘business strategy’ or whether any of them occurred during the regular course of business years before any litigation was anticipated.” The plaintiff seeks an order compelling the defendants to produce “all due diligence information, including communications and documents, related to Rogue Wave's software that was [sic] shared between or among Juniper and BTI pre-acquisition.” Alternatively, “if the Court finds that some of that information is privileged, it should find waiver due to Defendants' insufficient privilege log and also require Defendants to supplement their log with the necessary information.” The plaintiff seeks reasonable attorney's fees incurred in making the motion. DEFENDANTS' CONTENTIONS The defendants contend, in a footnote in their memorandum of law, that they “have now answered” the plaintiff's Interrogatory No. 25. According to the defendants, the plaintiff seeks “pre-acquisition communications and information shared between BTI and Juniper concerning Rogue Wave's software,” and “[a] review of all documents listed in Defendants' Privilege Log reveals that Plaintiff's request for such pre-acquisition documents encompasses a single e-mail chain consisting of six (6) distinct emails dated between March 10, 2016 and March 15, 2016,” between “Cheryl Beckett [‘Beckett’], BTI in-house counsel, and Emily Chang [‘Chang’], Juniper in-house counsel. BTI's outside counsel, Michael Morgan, and several BTI and Juniper executives are copied on the e-mails. The substance of the e-mail chain is the lapsed license for the JTGO code.” The defendants maintain that “this e-mail chain is privileged” and included in Category No. 4 in the defendants' privilege log. In a footnote in their memorandum of law, the defendants assert that the “Plaintiff's Motion to Compel attaches as Exhibit 3 what Plaintiff asserts is Defendants' Privilege Log. In fact, that is not the current version of Defendants' Privilege Log. Defendants' current Privilege Log is appended hereto as Exhibit 3.” The defendants assert that their privilege log complies with the Federal Rules of Civil Procedure and the rules of this court because: (a) the defendants “have identified the names of all authors and recipients, whether each is a client or attorney, and their employer”; (b) “the roles of each author/recipient” are specified; and (c) “specific descriptions of the types of documents within each category are included.” The defendants contend that the “Plaintiff was able, based on Defendants' Privilege Log, to make determinations about privilege,” and “[i]f for any reason the Court determines that Defendant [s'] Privilege Log is not sufficient, the proper action is to direct supplementation to cure any perceived deficiency.” The defendants assert that the e-mail chain at issue is protected by the attorney work-product doctrine because it contains “the opinions, judgments and thought processes of BTI's in-house lawyer,” Beckett. According to the defendants, the work-product doctrine protection was not waived “when Ms. Beckett shared her opinions with Ms. Chang,” because: (i) “a common interest exists here because Juniper and BTI anticipated becoming coparties to a copyright lawsuit to be brought by Rogue Wave”; and (ii) “the disclosures in the e-mail chain were made in the course of formulating a common legal strategy” because the e-mail chain “related to the ‘legal process' anticipated by the parties due to the lapsed license, rather than a common business interest.” Accordingly, the email chain is protected from disclosure by the common interest doctrine. Exhibit No. 1, attached to the defendants' memorandum of law, contains an excerpt from the “Supplemental Objections and Responses of Defendants BTI Systems Inc. and Juniper Networks, Inc. to Plaintiff's First Set of Interrogatories,” dated July 24, 2017, including responses to the plaintiff's Interrogatory No. 25. Exhibit No. 2, attached to the defendants' memorandum of law, is a declaration by Chang, an assistant general counsel for Juniper Network, Inc. Chang states that “Juniper had been a significant shareholder in BTI Systems, Inc.,” and on January 26, 2016, it “entered into a ‘Definitive Agreement’ to acquire BTI in its entirety with the acquisition to be effective on or about April 1, 2016.” Chang asserts that, on April 1, 2016, “BTI became a wholly owned subsidiary of Juniper.” Chang contends that, at the time of the e-mail chain, “BTI and Juniper believed that Rogue Wave would move forward with a lawsuit against them,” and “[i]n anticipation of this litigation, Ms. Beckett, in this e-mail chain, sought to convey to me her thinking regarding this dispute.” According to Chang, “Ms. Beckett conveyed her opinion work product to me at this time because BTI and Juniper shared a common interest in defending against Rogue Wave's anticipated copyright lawsuit and, we needed to coordinate legal strategy going forward.” Exhibit 3, attached to the defendants' memorandum of law, contains the defendants' privilege log, dated July 14, 2017, which is identical to the defendants' privilege log dated April 6, 2017, except that in the July 14, 2017 privilege log's Category No. 4, the defendants added “Common Interest Privilege,” which was not asserted in the defendants' objections to the plaintiff's Request for Production No. 23, or their April 6, 2017 privilege log. PLAINTIFF'S REPLY *4 The plaintiff asserts that “it is nearly impossible to glean much of anything from Defendants' categorical privilege log that contains nearly 600 documents within two categories that appear relevant to this discovery dispute,” and “[a]ll of these documents should be disclosed, or at minimum, the Court should conduct an in camera review beyond the six emails that Defendants recently announced are the only documents at issue here.” The plaintiff contends that the defendants “appear to have abandoned their assertions of the attorney-client privilege and business strategy immunity over the documents and communications at-issue” and they “failed to respond in entirety to Rogue Wave's Motion with respect to those privileges. As such, those should be deemed waived.” Moreover, those privileges are inapplicable, as the plaintiff argued in its motion. The plaintiff contends that the defendants “argue that all of the documents logged in Category 4 are protected from disclosure under a single theory: the common interest doctrine.” However, the defendants “never before asserted the common interest doctrine - whether in discovery responses or in their privilege log”; thus, their untimely assertion of the “common interest doctrine” constitutes a waiver. The plaintiff contends that, at the time it filed the instant motion, the defendants' “operative privilege log was the one submitted as Exhibit 3 to Rogue Wave's Motion,” dated April 6, 2017. According to the plaintiff, [i]t was not until 11:50 p.m. EDT on July 27, 2017 that Defendants served for the first time what they now claim is the “current version of Defendants' Privilege Log.” ... Despite having no record that the supplemental privilege log (last modified on July 27, 2017 per metadata) was ever served on Rogue Wave's counsel and Rogue Wave's counsel confirming that they have no record of ever receiving such log, defense counsel stated that it was being “resen [t].” ... Defendants' late “supplementation” must be ignored for purposes of the privilege review, as well as the Rule 37 analysis here. The plaintiff asserts that the communications at issue “were made and information exchanged to further a common commercial, not legal interest: Juniper's acquisition of BTI. Defendants cannot establish that, at the time the communications were made, Juniper and BTI shared a common legal interest.” Moreover, “[t]hat BTI may have discussed with Juniper potential litigation or discussions with Rogue Wave does not render those communications privileged where disclosure was made at [the] time when Juniper had no litigation objective that it shared with BTI.... Just because Juniper assumed BTI's liabilities post-acquisition does not render its pre-acquisition exchange of information for business reasons privileged or protected under the common interest doctrine.” The plaintiff contends that the defendant failed to respond to the plaintiff's challenge to 172 documents logged in Category No. 3, which “relates to documents and information concerning the License Agreement at-issue in this case,” and they do not assert that those documents are protected by the common interest doctrine. Thus, the Court should find that the defendants abandoned any argument with respect to Category No. 3 and “order disclosure of any and all communications between BTI and Juniper, or their respective counsel, prior to April 1, 2016 related to the expired license agreement and BTI's continued use of the licensed software for nearly four years without paying for it.” The plaintiff maintains that the defendants did not respond to its written discovery requests until after the instant motion was filed, and their supplemental response is deficient because “it fails to identify communications or documents,” and no privilege applies to identification of persons; thus, the belated response is not justified, let alone substantially justified. Furthermore, the defendants' assertion that the plaintiff's motion “is aimed at a single email chain” is not accurate since the motion seeks disclosure of “nearly 600 documents,” logged in Category Nos. 3 and 4 of the defendants' privilege log and the plaintiff's Interrogatory No. 25 and Request for Production No. 23 show that the plaintiff requested more than “a single email chain.” *5 Attached to the plaintiff's reply is Exhibit 1, containing an e-mail message from the defendants' counsel to the plaintiff's counsel, dated “July 27, 2017 9:51 PM,” stating: “After a thorough search, I cannot locate my email to you of July 14th, transmitting Defendants' Supplemental Privilege Log. I am hereby resending the attached Supplemental Privilege Log, which supplements category #4.” Exhibit 3 to the plaintiff's reply contains an e-mail message from the plaintiff's counsel to the defendants' counsel, dated “July 27, 2017 10:00 PM,” stating“ thank you for sending just now (but let's be clear - not ‘resending’) your clients' supplemental privilege log. We will, of course, review it.” LEGAL STANDARD Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Fed. R. Civ. P. 26(b)(3)(A). “If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: (1) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Fed. R. Civ. P. 26(b)(5)(A). In an action, such as this one, brought under federal law, “[t]he common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege,” unless the United States Constitution, a federal statute or rules prescribed by the Supreme Court provide otherwise. Fed. R. Evid. 501. “The attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance.” Brennan Ctr. For Justice v. Dept' of Justice, 697 F.3d 184, 207 (2d Cir. 2012) (quoting United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011)). “The attorney work product doctrine ‘provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.’ ” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (quoting In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003)). “The party invoking the privilege bears the heavy burden of establishing its applicability.” Id.“Documents prepared in anticipation of litigation are work product, even when they are also intended to assist in business dealings,” and “work-product protection would be withheld only from documents that were prepared in the ordinary course of business in a form that would not vary regardless of whether litigation was expected.” Schaeffler v. United States, 806 F.3d 34, 43-44 (2d Cir. 2015). *6 “[A] party may serve on any other party no more than 25 written interrogatories.” Fed. R. Civ. P. 33(a)(1). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by responding party into a reasonably usable form. Fed. R. Civ. P. 34(a)(1)(A). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). “A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if... a party fails to answer an interrogatory submitted under Rule 33; or ... a party fails to produce documents.” Fed. R. Civ. P. 37(a)(3)(B). “For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed— the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). Motions to compel, pursuant to Fed. R. Civ. P. 37, are left “to the sound discretion of the district court.” United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000). APPLICATION OF LEGAL STANDARD Plaintiff's Interrogatory No. 25 The plaintiff's Interrogatory No. 25 requested that the defendants identify certain “Persons, Communications or Documents.” On April 26, 2017, the defendants objected to the plaintiff's Interrogatory No. 25, invoking “the attorney-client privilege, business strategy immunity and other applicable privileges,” without identifying the “other applicable privileges.” The defendants' April 6, 2017 privilege log challenged by the plaintiff's motion does not identify what, if any, items included in it are responsive to the plaintiff's Interrogatory No. 25. On July 24, 2017, after the instant motion was made, the defendants responded to the plaintiff's Interrogatory No. 25, as follows: *7 In addition to the General Objections and the specific objections to Interrogatory No. 25 set forth in the Reponses, Defendants further object to Interrogatory No. 25 to the extent that it calls for the production of information protected from disclosure by the common interest privilege. Subject to the foregoing, Defendants identify the following Persons as being principally involved in due diligence efforts performed in connection with Juniper's acquisition of BTI that related to the Application License Agreement, the Licensed Software or JTGO: (i) Kieran Dalton, (ii) Jeff Godin, (iii) Scott Eaton, (iv) Jennifer Draper, (v) Cheryl Beckett, (vi) Emily Chang, and (vii) Protecode Inc. Defendants further identify the numerous reports prepared by Protecode Inc. related to the ProNX Applications (such as, without limitation, 26004_JNPR_BTI00001339-1372), as well as the various email communications related hereto, included within Defendants' document production. The defendants' response to the plaintiff's Interrogatory No. 25, identifying certain persons and mentioning certain documents and communications occurred after the plaintiff filed the instant motion. Other than mentioning, in a footnote in their memorandum of law in opposition to the motion, that they “have now answered that interrogatory,” the defendants failed to explain what, if anything, prevented them from providing timely their answer to the plaintiff's Interrogatory No. 25, prior to the plaintiff's filing of the instant motion. The defendants assert, in their July 24, 2017 response to Interrogatory No. 25, contained in their Exhibit 1, “Supplemental Objections and Responses of Defendants BTI Systems Inc. and Juniper Networks, Inc. to Plaintiff's First Set of Interrogatories,” that they maintain their April 26, 2017 “specific objections to Interrogatory No. 25,” namely, “the attorney-client privilege” and “business strategy immunity.” However, in their opposition to the plaintiff's motion, the defendants do not even mention “the attorney-client privilege” and “business strategy immunity” objections to the plaintiff's Interrogatory No. 25, nor do they explain how or why “the attorney-client privilege” and “business strategy immunity” are applicable to the plaintiff's Interrogatory No. 25, requesting that the defendants identify certain “Persons, Communications or Documents.” The defendants' April 6, 2017 privilege log does not refer to the plaintiff's Interrogatory No. 25 and it appears to assert protection solely for documents, not for identifying information. However, the plaintiff's Interrogatory No. 25 does not seek documents, only the identification of “Persons, Communications or Documents.” The Court finds that the defendants' April 26, 2017 objections to the plaintiff's Interrogatory No. 25, namely, “the attorney-client privilege” and “business strategy immunity,” have been waived because the defendants failed to oppose the plaintiff's challenge to them, including the plaintiff's argument that the information requested by Interrogatory No. 25 “is not the subject of any claim of privilege.” Alternatively, the Court overrules the defendants' April 26, 2017 objections to the plaintiff's Interrogatory No. 25, namely, “the attorney-client privilege” and “business strategy immunity,” because they are inapplicable to the identification of certain persons, communications and documents, as requested in Interrogatory No. 25. The defendants' July 24, 2017 objection to Interrogatory No. 25, based on “the common interest privilege,” is waived because it was not stated timely and no good cause was shown by the defendants to excuse the failure, as required by Rule 33(b)(4) of the Federal Rules of Civil Procedure. The Court finds that the following part of the defendants' belated response to the plaintiff's Interrogatory No. 25 is deficient because it is unresponsive: Defendants further identify the numerous reports prepared by Protecode Inc. related to the ProNX Applications (such as, without limitation, 26004_JNPR_ BTI00001339-1372), as well as the various email communications related hereto, included within Defendants' document production. *8 Although the defendants assert in their belated response to the plaintiff's Interrogatory No. 25 that they “identify the numerous reports” as well as “the various email communications,” they failed to provide any specific identifying information. The defendants must provide specific, identifying, descriptive information, including but not limited to dates, authors, subjects, senders, receivers and attachments, pertaining to each communication and each document responsive to the plaintiff's Interrogatory No. 25, including: (i) “the numerous reports prepared by Protecode Inc. related to the ProNX Applications (such as, without limitation, 26004_JNPR_BTI00001339-1372), as well as the various email communications related hereto, included within Defendants' document production”; and (ii) any other responsive “Communications or Documents,” as described in the plaintiff's Interrogatory No. 25. Plaintiff's Request for Production No. 23 The plaintiff's Request for Production No. 23 seeks “all documents related to any due diligence efforts in connection with Juniper's acquisition of BTI that relate in any way to the Application License Agreement, the Licensed Software or JTGO, whether those documents were generated by BTI, Juniper or any of their attorneys, accountants, consultants or advisers.” The defendants objected to the plaintiff's Request for Production No. 23, interalia, “to the extent it requests privileged information,” without identifying the privilege invoked. The April 6, 2017 privilege log contains the following columns: (a) “Category No.”; (b) “Date Range”; (c) “Document Type”; (d) “Sender(s) Recipient(s)/ Copyee(s)”; (e) “Category Description”; (f) “Privilege Justification”; (g) “Documents Withheld (Total Documents: 799)”; and (h) “Documents Withheld, Including Families.” Category descriptions indicate as follows: (i) Category No. 1, “Discussions with counsel regarding IBM audit of BTI's use of IBM software”; (ii) Category No. 2, “Discussions with counsel regarding third party software scans”; (iii) Category No. 3, “Discussions with counsel regarding iLog license assessment and remediation (including preliminary discussions with Rogue Wave)”; (iv) Category No. 4, “Discussions and evaluations with counsel regarding Rogue Wave proposal and response(s) thereto”; and (v) Category No. 5, “Discussions with outside counsel regarding retention.” The defendants asserted “Attorney-Client Privilege” with respect to Category Nos. 1-4, “Attorney Work Product” with respect to Category Nos. 2, 3 and 4, and “Business Strategy Privilege” with respect to Category No. 4. The following footnote explanations appear in the April 6, 2017 privilege log: (1) “Date ranges in the log are a subset of this range and reflect the date of the earliest document and the date of the last document in the category,” appended to “Date Range”; (2) “Total Document represents the total document count,” appended to “Total Documents: 799”; and (3) “Documents Withheld represents [sic] the number of documents to which privilege applies in each category; Documents Withheld, Including Families includes these documents with families, which may not be privileged,” appended to “Documents Withheld, Including Families.”[1] The defendants' April 6, 2017 privilege log challenged by the plaintiff's motion does not identify what, if any, items included in it are responsive to the plaintiff's Request for Production No. 23. The plaintiff “assumes that Category Nos. 3 & 4 contain due diligence information, but it is unclear based on the information contained in the log.” The Court agrees with the plaintiff that it is unclear from the April 6, 2017 privilege log what category and what documents within what category are responsive to the plaintiff's Request for Production No. 23. *9 The defendants submitted “a single e-mail chain consisting of six (6) distinct emails dated between March 10, 2016 and March 15, 2016,” for the Court's in camera review, contending it is the only document at issue because: (a) the plaintiff does not challenge “the communications of BTI's in-house lawyers to Juniper's in-house lawyers”; and (b) the plaintiff seeks “pre-acquisition communications and information shared between BTI and Juniper concerning Rogue Wave's software.” The defendants' contentions are erroneous. The plaintiff seeks what is requested in its Request for Production No. 23, which includes, as the plaintiff explains in its motion, “communications and documents that were shared by and between BTI, Juniper, and their counsel prior to Juniper's acquisition of BTI.” Contrary to the defendants' contention that the plaintiff does not challenge “the communications of BTI's in-house lawyers to Juniper's in-house lawyers,” the plaintiff challenges the attorney-client privilege asserted in the defendants' response to its Request for Production No. 23, in the first argument of its memorandum of law entitled “Pre-Acquisition Communications and Information Shared between BTI and Juniper Concerning Rogue Wave's Software Are Not Protected from Disclosure by the Attorney-Client Privilege or Work Product Doctrine.” The plaintiff also challenges the defendants' assertion of the “Business Strategy Privilege” in the second argument of its memorandum of law entitled “Pre-Acquisition Communications and Information Shared between BTI and Juniper Concerning Rogue Wave's Software Are Not Protected from Disclosure by the Business Strategy Immunity,” contending that no such privilege exists. The defendants did not address the plaintiff's challenges articulated in separate arguments in the plaintiff's memorandum of law, to the defendants' April 6, 2017 privilege log's assertions of the “Attorney-Client Privilege” and the “Business Strategy Privilege,” in connection with the plaintiff's Request for Production No. 23. The plaintiff is correct in asserting that, under federal common law applicable here, no “Business Strategy Privilege” exists. The Court finds that the defendants failed to carry their burden of establishing that the attorney-client privilege applies to documents responsive to the plaintiff's Request for Production No. 23. Accordingly, the defendants' objections to the plaintiff's Request for Production No. 23, based on the attorney-client privilege and the non-existent “Business Strategy Privilege” are overruled. The defendants assert that the single e-mail chain they provided for the Court's in camera review is protected by the work-product doctrine because it “contains ‘opinion work product’ - the opinions, judgments and thought processes of BTI's in-house lawyer, Cheryl Beckett,” and, the work-product protection “was not waived when Ms. Beckett shared her opinion with Ms. Chang,” under “the common interest doctrine.” In support of this contention, the defendants submitted Chang's declaration, in which she contends that “Ms. Beckett, in this e-mail chain, sought to convey to me her thinking regarding the dispute.” It is not clear what the basis is for Chang's statements concerning BTI Systems, Inc. given that, during the relevant time period, she was an in-house counsel for Juniper Networks, Inc., not BTI Systems, Inc.; thus, she has not shown that she has personal knowledge about BTI Systems, Inc., including whether and when “it became clear to BTI that an amicable resolution of this dispute with Plaintiff could not be reached,” what BTI Systems, Inc. “believed,” and what, if anything, “Ms. Beckett” sought to convey “in this e-mail chain.” A review of the e-mail chain submitted by the defendants indicates that it was initiated by an e-mail message, dated “March-10-16 5:35 PM,” from the plaintiff's general counsel to Beckett, BTI Systems, Inc.'s counsel, with the subject “JTGO Compliance Matter,” and it included two attached files entitled “BTI Compliance Letter 2016-Mar-10” and “ILOG License Agreement.” The communications included in the e-mail chain, in which various persons whom Chang did not identify participated, concern: (i) rescheduling a telephone call between BTI Systems Inc. and the plaintiff; and (ii) BTI Systems Inc.'s position with respect to negotiating the renewal of the license fee for using the plaintiff's software, including BTI Systems, Inc.'s “obligation to pay a commercially reasonable fee for the back license.” Beckett reported to Chang, in an e-mail message dated “March 15, 2016 1:57 PM,” that “[t]he BTI team had the call with Rogue Wave today. The expected things were discussed - 1 application versus 2, pricing, etc.” and “they've said they will go and think about the information we provided and probably make a revised offer.” The communications in the e-mail chain indicate, clearly, that they were prepared to assist a business decision, namely, BTI Systems Inc.'s renewal of the license agreement with the plaintiff, in the ordinary course of business, and not “because of the prospect of litigation.” Schaeffler, 806 F.3d at 43. The Court finds that the communications in the e-mail chain were not created in anticipation of litigation because they would have been created in the same form irrespective of the prospect of litigation. Consequently, the e-mail chain communications submitted by the defendants, for the Court's incamera review, are not protected by the work-product doctrine and they must be disclosed to the plaintiff. The defendants did not carry their burden of establishing that the work-product protection applies to any other documents withheld in response to the plaintiff's Request for Production No. 23. Accordingly, the defendants' objections to the plaintiff's Request for Production No. 23, based on the work-product protection, are overruled. The defendants must disclose all communications and documents in response to the plaintiff's Request for Production No. 23, that were withheld from the plaintiff based on the work-product doctrine. Attorney's Fees *10 The Court finds that the defendants failed to provide any justification for not responding to the plaintiff's Interrogatory No. 25, prior to the filing of the instant motion, and they did not show that other circumstances make an award of reasonable attorney's fees unjust. Moreover, the defendants failed to show that their objections to the plaintiff's Request for Production No. 23 were substantially justified because they failed even to discuss, in their memorandum of law in opposition to the motion, their April 6, 2017 assertions of “Attorney-Client Privilege” and “Business Strategy Privilege,” let alone establish that these privileges are applicable to the communications and documents withheld in response to the plaintiffs' Request for Production No. 23. The Court finds that the defendants' assertion of the work-product protection in connection with the e-mail chain was not substantially justified. The defendants' invocation of “the common interest doctrine” in connection with their assertion of the work-product protection is puzzling. The defendants failed to assert “the common interest doctrine” or “the Common Interest Privilege” in their specific objections to the plaintiff's Interrogatory No. 25 and Request for Production No. 23. The first time the defendants mentioned the “Common Interest Privilege” was in their June 16, 2017 letter responding to the plaintiff's June 12, 2017 letter. When pressed during the July 13, 2017 telephonic conference to provide binding authority in support of the “Common Interest/Business Strategy Privileges,” the defendants' counsel stated they are two separate privileges and “[i]t's our position that the common interest privilege, which used to be called the joint defense privilege, is fully applicable to” the e-mail chain. The defendants' counsel failed to provide any binding authority in support of the defendants' assertion of the “Business Strategy Privilege,” and failed to oppose the plaintiff's challenge to it. Similarly, the defendants failed to articulate “the Common Interest Privilege,” notwithstanding their belated invocation of that privilege, in the defendants' July 14, 2017 privilege log, as separate and distinct from their assertion of the “Work Product” protection; rather, in their memorandum of law, the defendants asserted “the common interest doctrine” as the basis for baring any waiver of “the work product privilege.” However, asserting “the common interest doctrine” exception to the waiver of “the work product privilege” is not the same as asserting “the Common Interest Privilege” in addition to “the work product privilege.” That the defendants created a “Supplemental Privilege Log” the day after the Court inquired about binding authority respecting “the Common Interest/Business Strategy Privileges” is telling, as they must have realized, at that time, that they failed to assert in their objections or the April 6, 2017 privilege log “the Common Interest Privilege,” since adding the “Common Interest Privilege” to Category No. 4 was the only change the defendants made to their April 6, 2017 privilege log. Although neither party submitted any statements under oath, the e-mail communications contained in Exhibit Nos. 2 and 3 to the plaintiffs' reply suggest that: (1) the plaintiffs did not receive the defendants' July 14, 2017 privilege log until July 27, 2017, after the plaintiff's motion was made; and (2) the defendants do not have evidence that they disclosed the July 14, 2017 privilege log prior to July 27, 2017, after the plaintiff's motion was made. The defendants' behavior described above is indicative of intentional delay, lack of good faith and implicates Rule 11 of the Federal Rules of Civil Procedure. The Court finds that no other circumstances make an award of reasonable attorney's fees incurred in connection with the instant motion unjust. Awarding the plaintiff the reasonable attorney's fees it incurred in connection with the instant motion, to be born in equal parts by the defendants and their counsel, is warranted. CONCLUSION *11 For the foregoing reasons, the plaintiffs' motion, Docket Entry No. 41, is granted. It is ORDERED that: 1. on or before September 14, 2017, the defendants must respond to the plaintiff's Interrogatory No. 25 and Request for Production No. 23; 2. on or before September 14, 2017, the plaintiff shall file its request for reasonable attorney's fees; 3. on or before September 21, 2017, the defendants may file any challenge to the reasonableness of the attorney's fees sought by the plaintiff; and 4. on or before September 26, 2017, any reply may be filed. SO ORDERED: Footnotes [1] The defendants do not explain the meaning of “Including Families” and “documents with families” anywhere in the April 6, 2017 privilege log or their opposition to the motion, notwithstanding that the privilege log's column containing the word “Families” appears to include 1, 184 documents.