Upon review of the parties’ submissions and for the reasons set forth in detail below, it is hereby ORDERED that HBO’s motion is DENIED IN PART AND GRANTED IN PART, and Mitre’s letter application is DENIED IN PART AND GRANTED IN PART.

INTRODUCTION

HBO moves pursuant to Rule 37 of the Federal Rules of Civil Procedure for an order compelling Mitre to provide testimony and to produce documents withheld by Mitre on the basis of, inter alia, the federal work-product doctrine and the United Kingdom’s litigation or legal professional privilege. HBO makes three arguments in support of its motion.[1] First, HBO claims that Mitre improperly instructed witnesses not to answer questions and withheld certain documents although, according to HBO, the testimony and withheld documents were not subject to any privilege or protection. Second, HBO claims that, to the extent the undersigned finds that the testimony and documents at issue are subject to some privilege or protection, Mitre waived such privilege or protection by: (i) disclosing the material at issue to certain third parties not aligned with Mitre; (ii) disclosing the same subject matter in deposition testimony; or (iii) putting the material at issue in this action. Third, HBO claims that even if the undersigned finds that the testimony and documents are subject to some privilege or protection and that such privilege or protection has not been waived, HBO has a substantial need for the testimony and withheld documents. Mitre opposes HBO’s motion claiming mainly that the challenged testimony and documents are protected from disclosure principally on the basis of the federal work-product doctrine as well as the United Kingdom’s litigation or legal professional privilege.[2] Both side’s arguments are analyzed below.

Mitre also moves pursuant to Rule 37 for an order compelling HBO to produce unredacted versions of certain redacted documents. Mitre claims in its letter application that HBO: (1) improperly redacted from documents in its production entire e-mails including the names of authors, recipients, dates and subject lines, all on the basis of privilege as well as deficiently described the basis for its privilege or work-product protection claims in its February 22, 2010 privilege log, and (2) improperly redacted information on the basis of its irrelevance to this action.[3] HBO opposes Mitre’s application as to the redactions it made on the basis of irrelevance, arguing that Judge Pitman denied this same request in an Amended Order dated October 16, 2009, which was affirmed by the Honorable George B. Daniels by Order dated November 23, 2009. HBO also argues that its privilege log provides sufficient information for Mitre to evaluate whether the challenged documents are potentially protected from disclosure.[4]

HBO’S MOTION TO COMPEL

*2 This is a defamation action arising out of HBO’s September 16, 2008 broadcast of “Real Sports with Bryant Gumbel,” which included a segment entitled “Children of Industry” or “Childhood Lost” (the “Segment”). See Compl. at 1. Mitre alleges that the Segment is false and defamatory because, according to Complaint, it falsely portrays Mitre as a company that employs child labor in India to stitch Mitre-branded soccer balls. See id. at 1-2. Mitre claims that it does not use child labor for the manufacture of its soccer balls in India. See Compl. ¶¶ 44-45. HBO claims, among other things, that the program is true and accurate. Discovery is ongoing.

The issues raised in HBO’s motion rise or fall largely on a determination of whether Mitre conducted an investigation into the truth of the allegations in HBO’s Segment “in anticipation of litigation” and, accordingly, whether materials prepared either by Mitre or by third parties for Mitre during its investigation were “prepared in anticipation of litigation” as required for work-product protection. See Fed. R. Civ. P. 26(b)(3)(A).[5] HBO argues that the challenged information is not entitled to work-product protection, claiming that Mitre would have conducted its own investigation and that the challenged materials “would have been created regardless of the prospect of litigation.” HBO’s Mem. at 14-15; see also id. at 16 (arguing that Mitre’s investigation “was done either to provide evidence to HBO or as part of the ordinary course of Mitre’s business”). HBO also argues that the work-product doctrine does not apply to those challenged documents dated before the Segment was broadcast on September 16, 2008. HBO’s Mem. at 16. HBO asserts that prior to the broadcast, Mitre “had no reason to believe [the Segment] was inaccurate and thus had no information that would support a litigation strategy when these documents were created.” Id. As discussed below, HBO’s arguments are misguided.

HBO claims that it has been “impeded” in its ability to obtain information relevant to its defense by Mitre’s refusal to provide testimony and to produce documents in response to certain deposition questions posed by HBO to two Mitre investigators, namely James Boocock and Kam Raghavan, who conducted an investigation into the allegations in HBO’s Segment at the direction of Mitre’s counsel. See HBO Mem. at 1. HBO complains that Mitre’s counsel: (1) “instructed Mr. Boocock not to testify about conversations he had with Ms. Raghavan ... simply because the discussion was purportedly about this litigation,” id. at 4; (2) “specifically instructed Ms. Raghavan not to disclose the purpose of the January 2009 trip [to India, post-Complaint filing], her activities on that trip, or the content of discussions she had with Mr. Purewal” of the Sports Goods Foundation of India (“SGFI”), who was separately deposed, id. at 5; (3) “redacted Ms. Raghavan’s handwritten notes taken during meetings” while conducting her investigation, id. at 8; (4) “instructed Ms. Raghavan not to answer questions about her initial trip to Jalandhar, India in September 2008 to investigate” the allegations in the HBO’s Segment, id.; (5) “instructed Ms. Raghavan not to testify about conversations that she had on that trip with third parties, including employees of SGFI or Mayor & Co.,” id.; and (6) “instructed Ms. Raghavan not to testify about Mitre’s efforts to identify the children depicted in HBO’s footage and obtain video interviews and affidavits from the children’s parents or guardians on the grounds that her efforts were privileged [or protected].” Id. HBO’s objections as to Mitre’s above instructions and the redaction of Ms. Raghavan’s notes are analyzed below.

*3 HBO also challenges Mitre’s withholding or redacting certain documents mainly on basis of work-product protection.[6] As to the challenged documents, given the similarities and overlap between some of the documents and Mitre’s bases for withholding each, it is more efficient to distill the documents into categories (e.g., by author-recipient) for analysis.[7]

ANALYSIS

I. Choice of Law

First, as the parties concede,[8] “[f]ederal law rather than state law governs the applicability of the work-product doctrine in all actions in federal court.” Mount Vernon Fire Ins. Co. v. Try 3 Bldg. Servs., Inc., No. 96 Civ. 5590 (MJL) (HBP), 1998 WL 729735, at *4 (S.D.N.Y. Oct. 16, 1998); see also Allied Irish Banks, P.L.C. v. Bank of America, N.A., 252 F.R.D. 163, 173 (S.D.N.Y. 2008) (“While state law governs the question of attorney-client privilege in a diversity action, federal law governs the applicability of the work product doctrine.”). Thus, no choice of law analysis is required for Mitre’s assertion of the work product doctrine as “the scope of work product protection is determined by federal, not state, law.” Weber v. Paduano, No. 02 Civ. 3392 (GEL), 2003 WL 161340, at *6 (S.D.N.Y. Jan. 22, 2003).

Second, the parties concede that England’s legal advice privilege and New York’s attorney-client privilege, at least to the extent that either of these privileges is asserted by Mitre here, are substantively identical.[9] Thus, no choice of law analysis is warranted with respect to Mitre’s assertion of the attorney-client privilege. See Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir. 2005) (no choice-of-law analysis is needed “in the absence of an ‘actual conflict’ between the applicable rules of two relevant jurisdictions”).

However, England also has a litigation or legal professional privilege that is distinct from its legal advice privilege, but is quite similar to the federal work-product doctrine (which is not a privilege, but a protection). See In re Murphy, 560 F.2d 326, 334 (8th Cir. 1977) (“The English concept of professional privilege, which is related to but not co-extensive with the work product privilege in the United States, see 4 Moore’s Federal Practice P 26.63(2.-0) (2d ed. 1976), was noted and discussed by the Supreme Court in Hickman.”).[10] There is no litigation or legal professional privilege under New York privilege law; thus, English law may provide Mitre with a basis to assert this privilege—rather than qualified work-product protection—where application of the federal work-product doctrine is questionable. Therefore, a choice of law analysis is required as to Mitre’s assertion of England’s litigation or legal professional privilege.

*4 Judge Pitman’s analysis in Kiobel v. Royal Dutch Petroleum Co., is particularly apt: “Where, as here, alleged privileged communications took place in a foreign country or involved foreign attorneys or proceedings, this court defers to the law of the country that has the ‘predominant’ or ‘the most direct and compelling interest’ in whether those communications should remain confidential ....” No. 02 Civ. 7618 (KMW) (HBP), 2005 WL 1925656, at *2 (S.D.N.Y. Aug. 11, 2005) (quoting Aktiebolag v. Andrx Pharm., Inc., 208 F.R.D. 92, 97-98 (S.D.N.Y. 2002)). As Judge Pitman further explained: “The jurisdiction with the ‘predominant interest’ is either ‘the place where the allegedly privileged relationship was entered into’ or ‘the place in which that relationship was centered at the time the communication was sent.’ ” Id. Considering these factors, I find that on balance English privilege law applies.[11] Mitre is organized under the laws of England and has its principle place of business in London, England. Compl. ¶ 2. Mitre’s counsel is a member of the English bar. Importantly, the privileged relationship between Mitre’s investigators and Mitre’s counsel was entered into in England, not New York. The challenged communications were not between Mitre and its New York counsel who filed this action. Rather, Mitre’s English counsel was leading and supervising the investigation from England and, accordingly, the privileged relationship was centered in England at the time the communications were made.[12] It was reasonable for Mitre’s counsel and its investigators to expect that their privileged communications would be governed by the laws of the jurisdiction where their communications were made. See, e.g., Lego v. Stratos Lightwave, Inc., 224 F.R.D. 576, 579 (S.D.N.Y. 2004) (“In cases requiring a choice of privilege law, the interest analysis usually had led New York courts to apply the law of the jurisdiction in which the assertedly privileged communications were made,” and reasoning that “[t]he most common rationale is the parties who made the communications expected that those communications would remain confidential under the law of that jurisdiction”). HBO’s main argument in support of applying New York privilege law is that this action was filed in federal court in New York. HBO cites declarations of Mitre employees, stating that the materials HBO seeks were prepared “to further the above-captioned lawsuit.” This helps inform why federal work-product protection is also at issue here. It is not, by itself, dispositive of whether English or New York privilege law applies to the challenged communications which, notably, do not involve Mitre’s New York counsel who filed the action. HBO’s argument also does little to address what jurisdiction’s privilege law governed communications prior to the decision that New York would be the venue.

Given the overlap between England’s litigation privilege and federal work-product protection, coupled with Mitre’s invocation of both as to the information challenged here, and given that federal law is obviously more developed as to the application of its own work-product doctrine, my analysis focuses primarily on whether work-product protection is appropriate. Judicial restraint counsels against unnecessary analysis of English law where work-product protection is equally applicable. Accordingly, the undersigned will apply English law only in circumstances, if any, where work-product protection is arguably questionable.

II. Overview of the Federal Work-Product Doctrine

The scope of the federal work-product doctrine, originally recognized in Hickman v. Taylor, 329 U.S. 495 (1947), is now codified in Federal Rule of Civil Procedure 26(b)(3). As the text of Rule 26(b)(3) provides, only “documents [or] tangible things ... prepared in anticipation of litigation” qualify as protected material. While the text of Rule 26(b)(3) does not expressly protect intangible material, courts have recognized that “the work-product doctrine as articulated in Hickman ... is broader than Rule 26(b)(3).” Abdell v. City of New York, No. 05 Civ. 8453 (KMK) (JCF), 2006 WL 2664313, at *3 (S.D.N.Y. Sept. 14, 2006); see also Allied Irish Banks, 252 F.R.D. at 173 (“ ‘[T]he inapplicability of Rule 26(b)(3) does not preclude granting similar immunity under the common-law work-product doctrine [i.e., Hickman] ....’ ”). Accordingly, courts have found that Hickman provides protection for intangible work product. See, e.g., United States v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010) (“Hickman provides work-product protection for intangible work product independent of Rule 26(b)(3).”) (citing 329 U.S. at 511)); accord In re Grand Jury Subpoena, 220 F.R.D. 130, 143-44 (D. Mass. 2004).

It is also well settled that the work product doctrine protects materials prepared by non-attorneys acting at the direction of counsel. As the Supreme Court recognized, “attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial.” United States v. Nobles, 422 U.S. 225, 238-39 & n.13 (1975) (finding it “necessary that the [work-product] doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself”); see also S.E.C. v. Strauss, No. 09 Civ. 4150 (RMB) (HBP), 2009 WL 3459204, at *6 (S.D.N.Y., Oct. 28, 2009) (explaining that non-attorney agents may fall within the protection of the work-product doctrine). Put another way, documents created by a party’s investigator, acting under the direction and control of counsel during their investigatory efforts and in anticipation of litigation, may be protected by the work-product doctrine, while documents created by an investigator acting independently, rather than under counsel’s direction and control, may not qualify for work-product protection. See, e.g., In re Grand Jury Proceedings, No. M-11-189, 2001 WL 1167497, at *19 (S.D.N.Y. Oct. 3, 2001).

*5 For materials to be protected under the federal work-product doctrine, the party opposing production must show that they were “prepared in anticipation of litigation or for trial.” Fed. R. Civ. P. 26(b)(3). The Second Circuit has explained that: “[D]ocuments should be deemed prepared ‘in anticipation of litigation’ ... if ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (quoting Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, 8 Federal Practice & Procedure § 2024, at 343 (1994)). Materials “prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation” are not protected by the work product doctrine. Adlman, 134 F.3d at 1202. Mitre, as the party asserting work product protection, “bears the burden of establishing its applicability to the case at hand.” In re Grand Jury Subpoenas, 318 F.3d 379, 384 (2d Cir. 2003). Thus, Mitre must demonstrate that the doctrine applies and also that it has not been waived. See Allied Irish Banks, 240 F.R.D. at 105. The burden is a “heavy one.” In re Grand Jury Subpoenas, 318 F.3d at 384. Accordingly, Mitre, which asserts work product protection over most of the challenged materials, bears the burden of establishing its applicability as to each challenged document.

Most of the documents HBO challenges generally fall under the category of fact, rather than opinion, work product. “Fact work product may encompass factual material, including the result of a factual investigation.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (noting the two types of work product—fact and opinion—and that opinion work product “is entitled to greater protection than fact work product”). In contrast, opinion work product “discloses the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of the party, [and] a far greater showing is required to pierce the doctrine’s protection ....” Bruker v. City of New York, No. 93 Civ. 3848 (MGC) (HBP), 2002 WL 484843, at *4 (S.D.N.Y. Mar. 29, 2002). And, courts have recognized, as to investigations, that sometimes “materials produced or information possessed by an agent working for an attorney, such as an investigator, may be protected as work product, particularly when disclosure of such information would reveal the attorney’s thinking and strategy, i.e., opinion work product.” United States v. District Council of New York City, No. 90 Civ. 5722 (CSH) (THK), 1992 WL 208284, at *9 (S.D.N.Y. Aug. 18, 1992) (collecting cases).

Mitre also seeks to protect from disclosure documents that were not created by Mitre, its counsel or its investigators but, rather, reflect e-mail communications between Mitre and third-parties. It is settled law that a party “cannot avoid disclosure based upon the simple fact that counsel obtained certain documents from third parties.” Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 236 (E.D.N.Y. 2007) (discussing documents “ ‘prepared by third parties contemporaneous[ly] with the events to which the documents relate’ ” and provided to a party) (quoting Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 41 (S.D.N.Y. 1984)). And, in a case cited by HBO,[13] a Court in this District also explained that “it is a stretch to apply the attorney work product [protection] to documents created by a third party and then sent to counsel for a party.” Ricoh Co., Ltd. v. Aeroflex Inc., 219 F.R.D. 66, 68-70 (S.D.N.Y. 2003) (explaining that “[c]ourts have routinely held that documents prepared by one who is not a party to the case at bar are not protected by Rule 26(b)(3)”) (citing, e.g., Ramsey v. NYP Holdings, Inc., No. 00 Civ. 3478 (VM) (MHD), 2002 WL 1402055, at *6 (S.D.N.Y. June 27, 2002) (collecting cases)). In performing its analysis, the Court in Ricoh noted the absence of a confidential relationship between the third-party sender and the recipient, as well as noting that the third party was not a consultant retained by the party or its counsel in connection with the litigation. See 219 F.R.D. at 68-70 (also finding waiver as to the same e-mails “when counsel shared his observations with a third-party who was likely to be an independent witness in the case”). Another Court in this District, however, distinguished Ricoh[14] on its facts and found that work-product protection was applicable with respect to e-mail correspondence exchanged between a third party and a defendant for the purpose of eliciting information from a third party pertinent to defending against plaintiff’s claims in the litigation. See Plew v. Limited Brands, Inc., No. 08 Civ. 3741 (LTS) (MHD), 2009 WL 1119414, at *2-3 (S.D.N.Y. Apr. 23, 2009). In Plew, Judge Dolinger denied a motion to compel the e-mail traffic both from the litigant to the third party and from the third party to the litigant, finding that these e-mails “constitute[d] documents prepared because of litigation” and concluding that the e-mails therefore “fit squarely within the protective ambit of Rule 26(b)(3).” Id. As discussed below, the e-mail traffic at issue in Plew is analogous to many of e-mails challenged in HBO’s motion.

III. Overview of the United Kingdom’s Litigation or Legal Professional Privilege

*6 As noted above, English law may provide Mitre with a basis to assert privilege, in addition to work-product protection, over certain communications challenged by HBO. Mitre invokes the litigation or legal professional privilege as another basis to oppose disclosure mainly in connection with communications between Mitre’s investigators and certain third parties (e.g., SGFI, Mayor and other soccer ball manufacturers). See Mitre Opp. Mem. at 10-11. Mitre also relies on English law because, according to Mitre, the litigation privilege “protects both documents and communications,” id. at 10, and affords “broader protection in that it protects the disclosure of oral communications, which the work product generally does not.” June 18 Kapoor Letter at 1. As outlined above (see, supra, p. 9), however, while the text of Rule 26(b)(3) does not expressly protect intangible material, courts have recognized that the work-product doctrine articulated in Hickman is broader than Rule 26(b)(3), Abdell, 2006 WL 2664313, at *3, and thus Hickman provides protection for intangible work product. See, e.g., Deloitte, 610 F.3d at 136.

Although similar to work-product, the litigation or legal professional privilege applies to “ ‘[c]ommunications passing between a client and his legal adviser together, in some cases, with communications passing between these persons and third parties.’ ” In re Grand Jury Proceedings, 473 F.2d at 845 (quoting 8 Wigmore, Evidence § 2318, n.3 (McNaughton rev. 1961)); see also Hickman, 329 U.S. at 510 n.9(explaining that “[t]he English courts have developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation”); accord Three Rivers Dist. Council v. Bank of England, [2004] UKHL 48, at ¶ 27, [2005] 1 A.C. 610 (H.L.) (appeal taken from Eng.) (U.K.) (“[T]the litigation privilege can extend to communications between the lawyer or the lawyer’s client and a third party or to any document brought into existence for the dominant purpose of being used in litigation.”).[15]

English courts also adopt the general rule that the U.K. litigation privilege is “absolute” or, put another way, “once privileged, always privileged.” In re Murphy, 560 F.2d at 334 n.14 (discussing English law) (citing Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 483-84 n.14 (4th Cir. 1974)); see also Three Rivers, [2004] UKHL 48, at ¶ 25 (“[I]f a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest.”). Although this means a “substantial need” argument is not appropriate under English law, the litigation or legal professional privilege can be waived. See Three Rivers, [2004] UKHL 48, at ¶ 25 (noting that the legal professional privileged “can be waived by the person, the client, entitled to it ....”).

IV. Application of the Federal Work-Product Doctrine

Although the Segment was first broadcast on September 16, 2008, both sides agree that on or about August 19, 2008, HBO informed Mitre that it intended to produce a Segment concerning the use of child labor in India to manufacture Mitre-branded soccer balls.[16] Both sides also agree that over the next few weeks, Mitre employees investigated whether the allegations in HBO’s Segment were accurate.[17] HBO concedes that Mitre began its investigation shortly after HBO notified Mitre that it was planning to broadcast the Segment,[18] and that Mitre’s investigation continued after this action was commenced on October 23, 2008.[19] Some of the challenged documents were created by Mitre (or by third parties for Mitre) after this action was commenced when it was more likely that they were created in “in anticipation of litigation.”

*7 The record also reflects that shortly after HBO contacted Mitre about the Segment, Mitre’s in-house counsel became involved in Mitre’s investigation. Jamie Meikleham, Mitre’s in-house counsel, testified that as part of Mitre’s “legal investigation into the show” certain documents concerning child labor in India were provided to Mitre by the Sports Goods Foundation of India or SGFI.[20] HBO’s claim that, prior to the broadcast, Mitre had no reason to believe the Segment was inaccurate is also belied by Mr. Meikleham’s testimony. In response to a question regarding Mitre’s “legal investigation into the HBO broadcast,” Mr. Meikleham testified that Mitre’s “initial findings” confirmed its “original suspicion that the show was fabricated.”[21] Mr. Meikleham also testified that based on the initial results of the investigation, the next step of Mitre’s general counsel, Ean Brown, “was to try and locate appropriate counsel to represent us in the matter in the United States ....”[22] Mr. Meikleham, along with Mr. Brown and Mitre’s senior counsel, Marcel Apfel, then called HBO, just prior to the Segment’s broadcast on September 16,[23] and during that call, Mr. Brown explained that “on the information [Mitre] had ... we sought to reach out to HBO and alert them to the fact that they may well be airing information which was erroneous, potentially defamatory ... and damaging to our company.”[24] Indeed, in a declaration provided by Peter Rienecker, Vice President and Senior Counsel at HBO, used in connection with another application in support of HBO’s basis for its assertion of work product, Mr. Rienecker confirmed that “the substance of the call” with Mr. Brown and Mr. Apfel “indicated a potential claim from Mitre were the concerns they raised not adequately addressed.”[25] This testimony also illustrates that Mitre anticipated litigation early on.

The record further reflects that around the same time Mitre’s in-house counsel called HBO, Mitre had considered but was unsuccessful in obtaining an injunction in order to prevent HBO from broadcasting the Segment while Mitre continued its investigation.[26] Mr. Meikleham also testified that Mitre’s in-house counsel “continued to conduct [its] legal investigation into the HBO show” by “coordinating a team to go to India to investigate the show and the contents of the show further.”[27] Even the questions posed during Mr. Meikleham’s deposition help illustrate HBO’s awareness that in-house and outside counsel were involved in Mitre’s continuing investigation: “Other than engaging Mr. Constantine ... what other steps did you take to continue the legal investigation after your conversation with HBO?”[28] And, Kam Raghavan—whose deposition is at issue in HBO’s motion—testified that her investigation was conducted at the direction and under the supervision of Mitre’s counsel, Mr. Meikleham.[29] Indeed, Ms. Raghavan testified that the purpose of her meeting with SGFI, for example, “was to gather information for the litigation.”[30] Furthermore, Ms. Raghavan’s declaration, as well as the declarations of other Mitre employees, prepared in opposition to HBO’s motion, also illustrate that the purpose and reason for sending and receiving certain of the e-mail messages at issue “was to fulfill requests by [Mr. Meikleham] ... 1) to investigate accusations by HBO that Mitre branded balls were being stitched by children in India, in order to prepare for a possible legal response to those accusation; and 2) to further the above-captioned lawsuit.”[31] Likewise, the record also reflects that James Boocock, the other deponent at issue here, made two investigative trips to India “entirely as a result of communications [he] had with Jamie Meikleham, [Mitre’s] counsel.”[32] Mitre attempts to minimize this testimony, presumably, in response to HBO’s waiver arguments. Mitre Mem. at 6 (claiming that Mr. Boocock “was not acting under any specific instruction from Mitre’s counsel”). Mr. Boocock’s testimony belies Mitre’s claim.[33]

*8 In sum, Mitre has shown that its investigative efforts concerning HBO’s Segment, beginning shortly after HBO notified Mitre that it was planning to broadcast the Segment, were conducted in anticipation of litigation, and that the documents HBO seeks (see App. A, attached, outlining each) were prepared by Mitre at the direction of its counsel in anticipation of litigation during the investigation. Absent waiver of work-product protection or a showing of “substantial need” by HBO—both of which HBO claims and are discussed below—materials generated by Mitre’s investigators in connection with their investigative efforts qualify as work product.

As to those materials authored by third-parties, such as SGFI and Mayor & Co., whom Mitre’s investigator’s contacted at the direction of counsel during Mitre’s investigation, the record reflects that Mitre did not withhold, nor does HBO challenge, documents “ ‘prepared by third parties contemporaneous[ly] with the events to which the documents relate.’ ” Strauss, 242 F.R.D. at 236. For example, Mitre produced copies (without Ms. Raghavan’s handwritten notes on them) of the “Monthly Child Found Stitching Detail” prepared by SGFI contemporaneously with the events reported in the “Detail” and independently of Mitre’s investigation. Mitre did, however, withhold many of its e-mail exchanges between Mitre’s investigators and certain third-parties during the course of Mitre’s investigation (e.g., e-mails between manufacturers of Mitre-branded products and Mitre’s investigators often in response to the investigators’ questions). These e-mail exchanges were the product of Mitre’s investigator’s contacting third-parties, like Mitre’s manufacturers, during their investigation at the direction of counsel, to request information pertinent to and in anticipation of this litigation. Thus, these documents also qualify for work product protection (see App. A). Judge Dolinger’s analysis in Plew, denying a motion to compel and finding that e-mail exchanges similar to those challenged here “fit squarely within the protective ambit of Rule 26(b)(3)” is particularly apt where, as here, a litigant elicited certain information from a third party to assist in litigation and that information was exchanged between the third party and litigant by e-mail. See2009 WL 1119414, at **2-3.

And, even assuming arguendo that work-product protection is not appropriate for those e-mail exchanges between third-parties and Mitre’s investigators that were initiated by Mitre’s investigators during the course of its investigation, England’s litigation or legal professional privilege applies to “ ‘[c]ommunications passing between a client and his legal adviser together, in some cases, with communications passing between these persons and third parties.’ ” In re Grand Jury Proceedings, 473 F.2d at 845 (quoting 8 Wigmore, Evidence § 2318, n.3); see also Three Rivers, [2004] UKHL 48, at ¶ 27 (explaining that the litigation privilege “can extend to communications between the lawyer or the lawyer’s client and a third party or to any document brought into existence for the dominant purpose of being used in litigation”) (emphasis added). Thus, the litigation or legal professional privilege provides Mitre with an additional basis to assert privilege, not just work-product protection, over some communications.

V. HBO’s Arguments Against Application of the Work-Product Doctrine

HBO makes two main arguments in support of its contention that work-product protection is unavailable. First, HBO argues that “the information gathered and documents prepared regarding [Mitre’s] investigation were not prepared principally or exclusively to assist in anticipated litigation.”[34] Putting aside that HBO’s argument is not supported by the record as discussed above, it also finds no support in law. The Second Circuit, recognizing that documents may be created for more than one purpose, has explained that work-product protection is still applicable when a document was prepared “because of”—albeit not primarily or exclusively to assist in—litigation. Adlman, 134 F.3d at 1198 (“Nowhere does Rule 26(b)(3) state that a document must have been prepared to aid in the conduct of litigation in order to constitute work product, much less primarily or exclusively to aid in litigation.”). HBO claims that work-product protection is unavailable because the documents were prepared for business-related purposes, citing testimony concerning Mitre’s “obligation and responsibility” to verify the Segment.[35] The Second Circuit has dismissed similar arguments. See id. at 1200 (“The fact that a document’s purpose is business-related appears irrelevant to the question whether it should be protected under Rule 26(b)(3).”). Accordingly, as both the Second Circuit and Judge Pitman have explained: “[D]ocuments prepared for both litigation and business purposes generally enjoy work-product protection.” Mount Vernon Fire Ins. Co., 1998 WL 729735, at *5.

*9 In connection with this argument, HBO also claims that the declarations Mitre submitted in opposition to HBO’s motion are insufficient to meet Mitre’s burden, claiming that the declarations are conclusory. See HBO Reply Mem. at 3. Far from making “mere conclusory or ipse dixit assertions,” id., the declarations provide sufficient information as to key points, namely: why the investigators authored or received the challenged documents, and that these documents were sent or received to fulfill requests by Mitre’s counsel, Mr. Meikleham, in support of his investigatory efforts in order to prepare a legal defense and in furtherance of this litigation. And, when these declarations are coupled with the same declarant’s deposition testimony, outlined above, the picture becomes clearer that litigation was anticipated by Mitre.

Second, HBO argues that “Mitre gathered the information not to prosecute this action, but specifically to give to HBO.” HBO Mem. at 16; see also id. at 14 (stating that “HBO simply seeks facts, gathered either by non-lawyers from third parties or contained in internal Mitre documents involving non-lawyers ....”). HBO and Mitre agree that the underlying facts are not protected, and HBO concedes that it was not impeded in learning the underlying facts from Mitre’s interviewees.[36] However, it is not the law that “otherwise protected documents lose their work product status merely because they contain factual information. If a document constitutes protected work product, the party possessing the document generally need not produce it—even if the document contains only factual information.” ECDC Environmental v. New York Marine and General Ins. Co., 96 Civ. 6033 (BSJ) (HBP), 1998 WL 614478, at *16 (S.D.N.Y. Jun. 4, 1998) (quoting Atlantic Richfield Co. v. Current Controls, Inc., 93-CV-0950E(H), 1997 WL 538876, at *3 (W.D.N.Y. Aug. 21, 1997)). HBO seeks disclosure of Mitre’s work product that “may encompass factual material, including the result of a factual investigation.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d at 183. But, the Second Circuit noted a viable objection to seeking such information from a party’s investigator:

In re Grand Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156, 161 (2d Cir. 2002).

Accordingly, when investigators, like Ms. Raghavan, are tasked by counsel, as Mitre did, with conducting an investigation in anticipation of litigation “the product of such an investigation,” such as her handwritten notes, “would be regarded as quintessential work product.” Feacher v. Intercontinental Hotels Group, No. 06-CV-0877 (TJM/DEP), 2007 WL 3104329, at *2 (N.D.N.Y. Oct. 22, 2007) (“The work product doctrine serves to encourage vigorous investigation of disputed claims, unfettered by fear that the products of such efforts will be compromised and fall into an adversary’s hands.”) (citing Adlman, 134 F.3d at 1196)).

*10 HBO seeks discovery of information created during Mitre’s factual investigation, at the request of counsel, in anticipation of litigation. Through such discovery, HBO could gain insight into Mitre’s counsel’s and its investigators’ thought processes during the course of Mitre’s investigation that was conducted in preparation for this litigation. “[W]hile the facts are not protected by work product protection, the facts must generally be discovered from a source other than the adversary’s attorney or investigators.” Laney v. Schneider Nat. Carriers, Inc., No. 09-CV-389-TCK-FHM, 2010 WL 1490181, at *2 (N.D. Okla. Apr. 12, 2010). Here, too, HBO seeks to learn the “facts” by questioning Mitre’s investigators and reviewing their documents.

It is important to note that HBO had ample opportunity to develop the facts here from sources other than Mitre’s investigators. For example, HBO took the depositions of many of the same interviewees and affiants that Mitre’s investigators contacted.[37] Having questioned the witnesses who provided information to Mitre during its investigation, HBO also wants to question and review documents from the investigators who, at the request of Mitre’s counsel, contacted potential witnesses during Mitre’s own investigation. HBO’s request, however, goes to heart of what Hickman was attempting to protect as Hickman addressed “the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party’s counsel in the course of preparation for possible litigation after a claim has arisen.” 329 U.S. at 497; see also id. at 510-11 (explaining that “[t]his work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways”). HBO’s requests, if granted, would undercut and discount the purpose of the doctrine, which “is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy.” Adlman, 134 F.3d at 1196 (quoting Hickman, 329 U.S. at 511); see also United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995) (the doctrine “establish[es] a zone of privacy for strategic litigation planning and [ ] prevent[s] one party from piggybacking on the adversary’s preparation”).

VI. HBO’s Arguments that Work-Product Protection Has Been Waived

HBO’s three waiver arguments are equally unavailing. First, HBO claims that Mitre waived work product protection by disclosing work product to third parties. Namely, HBO challenges materials involving communications between Mitre, on the one hand, and SGFI (an organization that monitors the use of child labor in the manufacture of sporting goods) and Mayor & Co. (as well as other manufacturers of Mitre-branded soccer balls), on the other. See HBO Mem. at 18-20. The documents HBO seeks involve Mitre’s investigators’ correspondence with third parties during the course of Mitre’s factual investigation. But, it was the investigator’s communications with these third parties during the course of Mitre’s factual investigation which lead to the creation of the now challenged investigative work product in the first place.

It cannot be the law, as HBO suggests, that exchanging e-mails with a third party in furtherance of Mitre’s investigatory efforts could both create the challenged work product and, at the same time, based on a third party’s involvement in that exchange, constitute an act that waives the protection accorded those e-mail exchanges. Faced with an analogous argument, Judge Dolinger recognized this flaw of logic: “Putting to one side the odd notion that the creation of the work-product—that is, a set of e-mails—waives the protection otherwise afforded to those same documents, we conclude that plaintiff misapplies the waiver rule that governs work product.” Plew, 2009 WL 1119414, at *3(explaining that waiver requires disclosure either to an adversary or to someone likely to reveal its contents to an adversary).

*11 And, contrary to HBO’s arguments, Mitre’s efforts in reaching out to third parties in order to investigate the factual allegations in HBO’s Segment “did not make it more likely the [protected information] would be disclosed to a party of adverse interest.” S.E.C. v. Beacon Hill Asset Mgmt., LLC, 231 F.R.D. 134, 146-47 (S.D.N.Y. 2004) (explaining that disclosure of work-product protected material to a third party “is substantially different” from disclosure of attorney-client privileged material); see Bank of Am., N.A. v. Terra Nova Ins. Co., 212 F.R.D. 166, 170 (S.D.N.Y. 2002) (disclosure of work product to a non-adversary will result in waiver only if the disclosure “substantially” or “materially” increases the likelihood that an adversary will obtain the information). The record here does not reflect that Mitre and the third parties are adversaries; indeed, their interests appear to be aligned given that, for example, manufacturers of Mitre-branded soccer balls, like Mayor, not only have a contractual relationship with Mitre but also have an interest, as does Mitre and SGFI, in both ferreting out and not facilitating child labor.

Second, HBO claims that broad subject matter waiver should apply as to Mitre’s efforts in November 2008 and January 2009 to investigate the truth of the statements in HBO’s Segment given that Mr. Boocock testified about Mitre’s investigative efforts. See HBO Mem. at 20-21. Although presenting an investigator as a witness in order to make affirmative testimonial use of protected material may waive protection “with respect to matters covered in his testimony,” Nobles, 422 U.S. at 239, n.14, HBO has not pointed to where in Mr. Boocock’s testimony he affirmatively discussed protected material without objection,[38] as compared to discussing unprotected facts. See HBO Mem. at 20, n.57. Here, too, Mitre was not attempting to make affirmative offensive use of any work-product protected material through Mr. Boocock’s testimony. HBO, not Mitre, was putting questions to Mr. Boocock, Mitre objected to many of HBO’s questions concerning protected material, and no protected material was ever disclosed.[39] In Nobles, the Court found that a defendant waived work-product protection as to a report compiled by a defense investigator when the defense called that investigator to testify about the report and the Court “found it crucial that the defense elected to make affirmative use of the report and then shield it from scrutiny.” In re Grand Jury Proceedings, 219 F.3d 175, 191 (2d Cir. 2000). The Second Circuit, applying Nobles, noted that a key aspect of Nobles was that the party “did not have to call his investigator as a witness or ask him about his report,” while in the case before it, the witness was not proffered by the party claiming work-product protection, was answering questions put to him by opposing counsel, and was not putting on his own defense. Id. (questioning whether there was any waiver as to notes taken at a meeting, that was not itself privileged, when “there was no actual disclosure of any privileged documents” and, therefore, no “deliberate, affirmative and selective use of privileged work-product materials by a party”).

*12 HBO also claims that subject-matter waiver should apply because, according to HBO, Mitre waived work product by voluntarily “producing hundreds of pages of documents about its investigation into the allegations in the HBO Segment.” HBO Mem. at 21-22, nn.59-60. A review of the documents HBO cites as examples of Mitre’s putative selective disclosures, see id., reflects that most do not even qualify as work-product protected material. One document reflects a Mitre employee making travel plans to India (e.g., scheduling hotel reservations and train arrivals) for many reasons, one of which concerns a “follow-up on HBO” and “go[ing] through HBO issues.” SeeMIT00066554-57. It would be a stretch to find that any reference to “HBO” in a Mitre document, no matter how innocuous, qualifies as protected material. See MIT00066386-88 (Sept. 20-22, 2008 e-mails containing largely irrelevant personal discussions). Another e-mail chain HBO cites is between business people at Mitre, attaching publicly available information. See MIT00045802-05 (Sept. 17, 2008 e-mail chain to/from Duncan Anderson and Lesley Roberts of Mitre referencing the YouTube link “made yesterday by Mayor having found the two girls” and attaching summaries of web postings regarding the HBO Segment). Another e-mail chain HBO cites is between Duncan Anderson of Mitre and Soccer India representatives, manufacturers of Mitre-branded soccer balls. See MIT00020522-23 (Sept. 19, 2008 discussing Mr. Anderson’s upcoming trip to India and requesting information from Soccer India on, e.g., “current contractors used,” “current stitching centres used,” and “the August monitoring report of the SGFI”). Although the last two documents appear related to Mr. Anderson’s investigatory efforts, there is no indication of counsel’s involvement in the creation of these e-mails nor does Mitre assert, like it does for similar e-mails, that they were created at counsel’s direction in anticipation of litigation. Materials created independently, rather than at counsel’s direction, do not qualify as work-product. See In re Grand Jury Proceedings, 2001 WL 1167497, at *19.

Two of the examples HBO cites may constitute work product, namely: two emails sent from one of Mitre’s investigators, Kam Raghavan, which post-date the filing of the Complaint. See MIT00044899-90 (Nov. 20, 2008 e-mail from Kam Raghavan at Mitre to Ravi Purewal at SGFI seeking “further information on cases that we found on the Monthly Child Found Stitching report”); MIT00066349-54 (Feb. 12-15, 2009 e-mail chain to/from Kam Raghavan and Ravi Purewal seeking “the names of your team members who helped us last month, and also the ones who helped us find the kids and their families”). Nevertheless, courts in this Circuit only permit the type of broad subject-matter waiver that HBO seeks where the documents “have affirmatively been put at issue or when the [party] seeks to exploit the doctrine for a purpose inconsistent with the privilege, such as for the unilateral testimonial use of privileged communications.” Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 365-67 (E.D.N.Y. 2009) (collecting cases and denying subject-matter waiver). There is no evidence in the record here that any of the documents HBO cites were proffered by Mitre for offensive “testimonial use” or that Mitre has otherwise selectively placed these documents “at issue” for its benefit, and then refused to disclose related documents. There is also no evidence that Mitre selectively disclosed these documents as affirmative favorable support for its position, while selectively withholding, as work product, documents that are unfavorable. Indeed, these emails, in and of themselves, do not appear to have substantive significance given that the cases reported in the Monthly Child Found Stitching Detail have been disclosed to HBO as have the names of the children from whom Mitre obtained affidavits. On this record, principles of fairness do not call for broad subject-matter waiver based on the innocuous examples HBO cites.

Finally, HBO claims that Mitre waived work-product protection by putting its investigative efforts “at issue in this action” by attaching “the fruits of that investigation ... to the complaint by which [Mitre] instituted this litigation.” HBO Mem. at 22-23 (arguing that Mitre used its investigation “as both a sword and a shield”). HBO’s argument proves too much. Indeed, it further supports that the “in anticipation of litigation” prong has been satisfied given, as HBO concedes, that the fruits of Mitre’s investigation were used to support the institution of this action.[40] Although a party’s affirmative reliance upon the adequacy of an investigation can result in waiver, Mitre has not raised the adequacy of its investigation in support of its claims and, as such, the investigation itself (not to be confused with the facts learned from the investigation) is not being used offensively by Mitre as a “sword” such that the investigation should be opened to scrutiny. See Robinson v. Time Warner, Inc., 187 F.R.D. 144, 146-47 (S.D.N.Y. 1999) (finding no waiver of work product protection even though certain filings discussed an investigation and its findings). HBO’s arguments are distinguishable from the case law it cites, see HBO Mem. at 22, as HBO conflates a key point: Although Mitre put facts stemming from its investigation at issue in this action, it did not put the reasonableness or adequacy of its investigation at issue in this action. Thus, this record does not reflect waiver.

VII. HBO’s Arguments That “Substantial Need” Overcomes Work-Product Protection

*13 HBO also claims that “Mitre should be compelled to turn over the requested documents and testimony because HBO can demonstrate substantial need for the requested discovery.” HBO Mem. at 23. To obtain discovery of work-product protected information, the party seeking disclosure must demonstrate that it “has [a] substantial need of the materials in the preparation of [his] case and that [he] is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed. R. Civ. P. 26(b)(3). As a result, factual material may be ordered produced “upon a showing of substantial need and inability to obtain the equivalent without undue hardship.” Upjohn Co. v. United States, 449 U.S. 383, 400 (1981). Far from supporting its burden, HBO side-steps the applicable test and, instead, argues that the material is “directly relevant to a central issue in this case,” that is, HBO’s defense “that the Segment is true,” and therefore “work product privilege ... must yield to HBO’s substantial need for the discovery.” HBO Mem. at 24. HBO’s arguments effectively equate relevance with substantial need, but “relevancy alone is not enough to establish substantial need.” Madanes v. Madanes, 199 F.R.D. 135, 150 (S.D.N.Y. 2001) (citing 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2025, at 374 (2d ed. 1994) (substantial need is “something more than relevancy sufficient to satisfy Rule 26(b)(1)”)).

Furthermore, “substantial need” is not satisfied where, as here, the parties have an equal opportunity to interview the same witnesses. The case law cited by HBO makes this clear. See Cohen v. City of New York, 255 F.R.D. 110, 125 (S.D.N.Y. 2008) (“This is not like the situation where an investigator’s notes retain their confidentiality because all parties have an equal opportunity to make the same relevant observations or interview the same witnesses.”) (citing, e.g., Feacher, 2007 WL 3104329, at *5) (finding no substantial need for witness interview notes where the requesting party had equal access to witnesses)). Unlike Cohen, HBO does not seek disclosure of “contemporaneous observations” by third parties. Id. Rather, such third parties documents, like SGFI’s Monthly Child Found Stitching Detail, have already been disclosed to HBO. See HBO Mem. at 3, 13 (discussing the “Child Found Stitching Detail”); Mitre Opp. Mem. at 4-6, 10 (same). What HBO is really seeking is to question, and review documents from, Mitre’s investigators concerning their communications with certain third parties during their investigation. HBO has confirmed repeatedly that it has had equal opportunity to question the same third parties that Mitre interviewed during its investigation. See, e.g., HBO Mem. at 18, n.52; see also id. at 8-9 and HBO Reply Mem. at. 7 (all noting HBO’s examination of Mitre affiants); Mitre Opp. Memo. at 7 (noting HBO’s examination of those Mitre’s investigators contacted, including representatives of SGFI, Mayor, and the children and guardians who appeared in taped interviews and provided affidavits). Having questioned the same third parties who provided information to Mitre during its investigation, HBO now wants to question and review documents from Mitre’s investigators about their discussions with these third parties. But, since the factual material contained in Mitre’s work product is otherwise equally available to HBO, it is difficult to see how HBO can support a claim of substantial need.

Furthermore, given that many of the communications between the investigators and third parties in furtherance of Mitre’s counsel’s investigative efforts are also protected by England’s litigation or legal professional privilege, those communications are not subject to a “substantial need” exception. Under English law, the litigation privilege is “absolute” or, more succinctly stated, “once privileged, always privileged.” In re Murphy, 560 F.2d at 334 n.14 (discussing English law) (citing Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 483-84 n.14 (4th Cir. 1974)); see also Three Rivers, [2004] UKHL 48, at ¶ 25 (“[I]f a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest.”). Thus, litigation privileged documents are entitled to even greater protection against HBO’s “substantial need” arguments.

CONCLUSIONS AS TO HBO’S MOTION TO COMPEL

*14 For the foregoing reasons, I find that Mitre has sustained its burden and shown that the documents described in detail in Appendix A(attached) were prepared in anticipation of litigation, at the request of Mitre’s counsel, by its investigators or communications exchanged between Mitre’s investigators and third parties in response to Mitre’s queries during its investigation into the truth of the allegations in HBO’s Segment. Therefore, the documents outlined in Appendix A qualify for federal work-product protection as well as for litigation or legal professional privilege under English law. Mitre has not affirmatively waived these protections or privileges, and HBO has not adequately supported its claim that substantial need justifies production of the materials. Thus, HBO’s motion to compel production of the documents listed in Appendix A is DENIED.

With respect to those documents outlined in Appendix B (attached), I find that Mitre has not sustained its burden to establish that those documents qualify as work product. The e-mails listed in Appendix B were all authored by a third party, Ravi Purewal of SGFI, and were all sent to other third parties, namely other SGFI members. Most of these e-mails relate to Mr. Purewal scheduling of SGFI “Core Committee” meetings. And, many of the e-mail threads also contain other SGFI member’s responses to Mr. Purewal. Mitre is merely copied on some of these e-mails or referenced in the subject line. Unlike many of the e-mails in Appendix A, Mitre’s investigators neither initiated nor responded to the e-mail threads. The only Mitre declaration that even references these documents does not mention Mr. Purewal or SGFI, nor does it specifically address the purpose for which Mr. Purewal or SGFI sent these e-mail exchanges. See Anderson Decl. at ¶ 4; cf. id. (addressing responses Mr. Duncan received from Mayor & Co.—not SGFI). Given the dearth of testimony as to these documents, Mitre has not sustained its burden to show that these purely third-party e-mail exchanges were prepared at the direction of Mitre’s counsel in furtherance of this litigation, rather than prepared independently. HBO’s motion to compel production of the documents listed in Appendix B is GRANTED. Mitre must provide HBO with unredacted copies of the documents within 20 days of this order.

As to the challenged testimony, I find that Mitre’s counsel’s instructions as to the following deposition questions to be proper: (1) Mr. Boocock need not testify about conversations he had with Ms. Raghavan concerning this litigation, her investigatory efforts, or her discussions with Mitre’s counsel; (2) Ms. Raghavan need not to disclose the purpose of her January 2009 trip to India, her activities on that trip, or the content of discussions she had with Mr. Purewal of SGFI; (3) Ms. Raghavan need not answer questions put to her about her initial trip to Jalandhar, India in September 2008 to investigate the allegations in the HBO Segment; (4) Ms. Raghavan need not testify about conversations that she had during her trips to India with third parties, including employees of SGFI or Mayor & Co., whom she contacted as part of her investigation; and (5) Ms. Raghavan need not testify about her efforts to identify the children in the HBO Segment or to obtain interviews and affidavits from the children’s parents or guardians. HBO’s motion to compel responses to the above questions posed during depositions is DENIED.

MITRE’S MOTION TO COMPEL

Mitre also moves pursuant to Rule 37 for an order compelling HBO to produce unredacted versions of certain redacted documents. Mitre claims that HBO: (1) improperly redacted information on the basis of irrelevance and (2) improperly redacted the names of authors, recipients and subject lines from certain documents on the basis of privilege and deficiently described its bases for withholding documents listed in its February 22, 2010 log.[41]

I. Mitre’s Challenges To HBO’s Redaction On the Basis of Irrelevance

*15 As HBO properly contends,[42] Mitre’s application as to the redactions HBO made on the basis of irrelevance has already been decided—not once, but twice. Judge Pitman denied the very same application in an Amended Order dated October 16, 2009, which was later affirmed by the Honorable George B. Daniels by Order dated November 23, 2009. See Oct. 16, 2009 Order (“[Mitre’s] motion is denied to the extent [HBO] has redacted irrelevant material from its documents ....”); see also Transcript of Hearing dated Oct. 13, 2009, at 25:11-21 (finding that Mitre was “not entitled to irrelevant information under Rule 26” because “one of the fundamental limitations in Rule 26 is the discovery sought has to be relevant to a claim or defense ....”). Mitre confirms that it is challenging HBO’s relevance-based redactions as to certain documents.[43] HBO has also represented repeatedly that it has not withheld information or documents from Mitre relevant to the Segment.[44] Given the prior rulings from this Court, affirmed by Judge Daniels, permitting HBO to redact irrelevant information, coupled with HBO’s representation that it has not redacted information relevant to the Segment at issue, the undersigned will not allow Mitre yet another bite at rearguing this same issue. Thus, Mitre’s application for production of documents HBO redacted on the basis of irrelevance is DENIED.

II. Mitre’s Challenges To HBO’s February 22, 2010 Privilege Log

As to Mitre’s challenges regarding HBO’s February 22 privilege log, the entries in HBO’s log contain information reflecting the date of the document, its author, its recipients, persons copied, if any, and a “description of redacted information.” As required by Fed. R. Civ. P. 26(b)(5), an index of withheld documents must provide sufficient information “to assess the applicability of the privilege or protection.” Courts in this Circuit have held that including information similar to that HBO provided in its February 22 log is sufficient as it provides “enough detail ‘to permit a judgment as to whether the document is at least potentially protected from disclosure.’ ” Allied Irish Banks, 252 F.R.D. at 167(quoting United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)); see also Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993) (“[T]ypically [privilege] logs will identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.”).[45] It has also been observed that “[c]ases rejecting claims of privilege based on the inadequacy of the privilege log alone typically involve an absence of basic information such as names of recipients, dates, or subject matters of documents—or a failure to produce a log at all.” Allied Irish Banks, 252 F.R.D. at 167 (collecting cases). HBO provides this basic information.

As to Mitre’s specific challenges, although Mitre concedes that HBO’s February 22 log “provides some author, recipient, and date information,”[46] Mitre claims that it needs to see the information on the actual document in order to “verify the accuracy of HBO’s log.” The issue here is whether the information provided in HBO’s log—not on the face of the redacted documents themselves—provides enough detail to permit a judgment as to whether the logged documents are at least potentially protected from disclosure. If Mitre was correct, parties could never entirely withhold documents on the basis of privilege. A review of HBO’s log reveals that it provides sufficient information, i.e., document date, author, recipients, persons copied (if any), and a description of redacted information, to permit a judgment that the challenged documents are potentially protected from disclosure. See, e.g., Allied Irish Banks, 252 F.R.D. at 167.

*16 In addition, and as Judge Pitman explained in S.E.C. v. Beacon Hill Asset Management LLC, identifying e-mails in a privilege log as “seeking, transmitting or reflecting legal advice”—which is how HBO describes many e-mails—provides a sufficient description to sustain an assertion of privilege. 231 F.R.D. 134, 144-45 (S.D.N.Y. 2004) (explaining that although the subject matter of the legal advice was not described, disclosure of additional information as to the subject matter “would come perilously close to requiring disclosure of the substance of the privileged communication”); see also Carl Zeiss Vision Intern. Gmbh v. Signet Armorlite Inc., 07-cv-0894-DMS (POR), 2009 WL 4642388, at * 4 (S.D. Cal. Dec. 1, 2009) (citing Beacon Hill and finding that although the log did not provide certain “particulars” to identify the subject matter of the documents, a seeking “legal advice” description was sufficient). Mitre does not request an in camera review of the documents HBO’s claims as privileged or work-product protected, although Mitre does request one for HBO’s irrelevance-based redactions. And, it does not appear that one is warranted as it is reasonable to assume given the timing of many of these e-mails—for example, on or around the day the Segment was first broadcast on September 16, 2008[47]—that these communications seek legal advice or were made in response to threatened litigation by Mitre as they involve communications with HBO’s in-house counsel around the time of Mitre’s dispute. See, e.g., Beacon Hill, 231 F.R.D. at 144-45 (finding aspects of a challenged privilege log’s descriptions to be sufficient and noting that “given the circumstances” it was fair to “presume that the advice related to potential claims”).

In sum, HBO’s February 22 privilege log reveals that HBO provided a sufficient description of the following documents to permit a judgment as to whether the challenged documents are potentially protected from disclosure, namely: Item Numbers 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 70, and 82. Accordingly, Mitre’s application for production of the unredacted copies of the above-listed documents is DENIED.

As to Item Number 14, HBO may not redact the “[n]ames of individual HBO’s attorneys blind copied in and e-mail that was sent in response to threatened litigation,” on the basis of work product. Counsel’s identity is not privileged, and merely blind copying counsel on an e-mail sent to an adversary is not protected by the work-product doctrine. See Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975) (“[T]he identity of a consulted attorney is not privileged and can be the subject of judicial inquiry.”); D.O.T. Connectors, Inc. v. J.B. Nottingham & Co., Inc., No. 4:99CV311-WS,. 2001 WL 34104929, at * 3 (N.D. Fla. Jan. 22, 2001) (“The identity of a lawyer and the fact of obtaining legal advice is not privileged.”). Mitre’s application for production of an unredacted copy of Item Number 14 is GRANTED, and HBO is ordered to provide Mitre with an unredacted copy of that document within 20 days.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that HBO's motion is DENIED IN PART AND GRANTED IN PART, and Mitre' s letter application is DENIED IN PART AND GRANTED IN PART.

SO ORDERED

Devin F. Ryan Special Master

Simpson Thacher & Bartlett LLP

425 Lexington Ave.

New York, New York 10017-3954

(212) 455-2000

dryan @stblaw.com

Appendix A

(Documents HBO Challenges That May Be Withheld)

• The following documents are similar sets of e-mails dated November, 12, 2008, authored by Kam Raghavan, and sent to Jim Boocock, attaching Ms. Raghavan handwritten notes taken on SGFI’s “Monthly Child Found Stitching Detail” for 2007 and 2008. According to Ms. Raghavan’s declaration the purpose for preparing her handwritten notes and for sending these e-mails to Mr. Boocock was to fulfill requests by Jamie Meikleham, Mitre’s in-house counsel, to investigate the allegations in HBO’s Segment “in order to prepare for a possible legal response to those accusations” and to further this litigation. Raghavan Decl. at ¶¶ 2-4.

• The following documents are part of an e-mail dated January 27, 2009, authored by Kam Raghavan, and sent to Ravi Purewal of SGFI, in which Ms. Raghavan forwards the e-mail and attachments discussed above to Mr. Purewal. According to Ms. Raghavan’s declaration, the purpose for forwarding this e-mail to Mr. Purewal was to fulfill requests by Mitre’s in-house counsel, Jamie Meikleham, to investigate the allegations in HBO’s Segment “in order to prepare for a possible legal response to those accusations” and to further this litigation. Raghavan Decl. at ¶¶ 2-4.

• The following documents are e-mails exchanged between Kam Raghavan and Jim Boocock. As noted above, according to Ms. Raghavan’s declaration, the purpose for sending these emails to and receiving e-mails from Mr. Boocock was to fulfill requests by Mitre’s in-house counsel to investigate the allegations in HBO’s Segment “in order to prepare for a possible legal response to those accusations” and to further this litigation. Raghavan Decl. at ¶¶ 2-5.

• The following documents are e-mails that were either prepared by, sent to, or exchanged between Gary Hibbert and/or Duncan Anderson of Mitre and contain e-mails in the same thread that were authored by or sent to other Mitre employees or to employees at third parties, such as Mayor & Company and Ace International (manufacturers of Mitre-branded sports equipment). According to Mr. Hibbert’s declaration, the purpose for his sending these e-mails or for receiving e-mails from manufacturers of Mitre-branded sports equipment was to fulfill requests by Mitre’s in-house counsel “to assist in [counsel’s] investigation” into the allegations in HBO’s Segment and “to aid Mitre in determining a possible legal response.” Hibbert Decl. at ¶¶ 3-4. Likewise, according to Mr. Anderson’s declaration, the purpose for his sending e-mails to or receiving e-mails from manufacturers of Mitre-branded sports equipment was to fulfill requests by Mitre’s in-house counsel to investigate the allegations in HBO’s Segment “in order to prepare for a possible legal response to those accusations” and to further this litigation. Anderson Decl. at ¶¶ 2-3. Mr. Anderson also declared that the emails he received from manufacturers of Mitre-branded sports equipment, such as Mayor & Company, were “made for the purpose of advancing the investigation,” including responses from Mayor as to “Mitre’s requests for information concerning HBO’s accusations.” Id. at ¶ 4. Accordingly, as discussed in the attached opinion, the documents listed below qualify for work-product protection and U.K. litigation or legal professional privilege as Merrs. Hibbert and Anderson were acting at the direction of counsel and in anticipation of litigation in sending e-mails to and receiving responses from Mitre employees and manufacturers of Mitre-branded equipment during Mitre’s investigation into the HBO’s Segment.

• The following documents are e-mails authored by Nicola Lesirge, a Marketing Manager at Mitre, and sent to Duncan Anderson, Gary Hibbert, or manufacturers of Mitre-branded sports equipment, along with response e-mails from certain addressees (e.g., from Mr. Anderson). No declaration was provided by Ms. Lesirge. Mr. Anderson, however, declares that he sent the e-mails he authored and received e-mails from Ms. Lesirge that “contain communications made for the purpose of advancing the investigation ... and the above-captioned lawsuit,” as requested by Mitre’s counsel. Anderson Decl. at ¶¶ 2-4. Accordingly, the documents listed below qualify for work-product protection and U.K. litigation or legal professional privilege as Mr. Anderson was acting at the direction of counsel and in anticipation of litigation in sending e-mails to and receiving e-mails from Ms. Lesirge during the course of Mitre’s investigation into the allegations in HBO’s Segment.

Appendix B

(Documents HBO Challenges That Must Be Produced)

Mitre is ordered to provide HBO with unredacted copies of the following documents, unless a specific exception is set forth below, within 20 days of the date of this Order.

See Memorandum of Law of Defendant HBO in Support of Its Motion to Compel Discovery, dated April 6, 2010 (“HBO’s Mem.”), at 1; see also Reply Memorandum of Law of Defendant HBO in Further Support of Its Motion to Compel, dated April 22, 2010 (“HBO’s Reply Mem.”).

See Mitre’s Opposition of HBO’s Motion to Compel Discovery, dated April 13, 2010 (“Mitre’s Opp. Mem.”), at 2.

See Mitre’s Letter Application, dated April 13, 2010 (“Mitre’s Lt. Appl.”), at 1-5; see also Mitre’s Reply Letter in Further Support of its April 13 Letter Application, dated May 5, 2010.

See HBO’s Response to Mitre’s Application, dated April 30, 2010 (“HBO’s Resp. Lt.”), at 1-6.

Mitre also invokes the United Kingdom’s similar litigation or legal professional privilege.

Namely, Mitre’s December 9, 2009 privilege log with the twenty-two (22) documents HBO challenges highlighted (HBO Mem. at 10-11, n.28) and Mitre’s December 15, 2009 log with the thirty-three (33) documents HBO challenges highlighted (id. at 12, n.36). HBO also challenges, albeit belatedly, 338 documents in Mitre’s March 29, 2010 privilege log (id. at 12, n.38).

Appendices A and B, attached hereto, outline the categories of challenged documents, provide relevant declaration testimony regarding each, and list each document falling into that category.

See, e.g., Letter from Katherine M. Bolger, counsel for HBO, dated June 18, 2010 (“June 18 Bolger Lt.”), at 1 (“United States federal law applies to Mitre’s work-product assertion.”); Letter from Ankur Kapoor, counsel for Mitre, dated June 18, 2010 (“June 18 Kapoor Lt.”), at 3 (because “this action is pending in federal court, the work-product doctrine applies as well”).

See June 18 Bolger Letter at 2 n.4 (noting that the second prong of the conflict of laws analysis “never need be reached” given the substantive similarities between U.K. and U.S. privilege law); June 18 Kapoor Letter at 1 (also noting that the attorney-client privilege and U.K.’s legal advice privileges are “substantively identical”).

See also Hickman v. Taylor, 329 U.S. 495, 510 n.9 (1947) (“The English courts have developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation.”); In re Grand Jury Proceedings, 473 F.2d 840, 845 (8th Cir. 1973) (noting in England there is a “ ‘legal professional privilege’ which covers ‘[c]ommunications passing between a client and his legal adviser together, in some cases, with communications passing between these persons and third parties’”) (quoting Wigmore, Evidence § 2318, n.3 (McNaughton rev. 1961)).

This finding is limited to the communications at issue in HBO’s motion to compel. Because no communications between Mitre and its New York counsel, Constantine Cannon LLP, are at issue, the undersigned expresses no opinion on the choice of law applicable to any such communication.

See, e.g., note 38, infra (citing deposition testimony from James Boocock, where he explains that certain questions he posed during his investigation interviews “had obviously been discussed with counsel back in London, Jamie Meikleham in particular, and the results of those discussions obviously were referred back to our counsel in London.” Boocock Dep. Tr. at 186:1-7).

See HBO Reply Mem. at 4-5.

In Plew, which also concerned a motion to compel, the Court noted that, unlike Ricoh and the cases it cited, which concerned motions to quash third-party subpoenas, “the e-mails sent by [the third party] to defendants were created for the defendants and because of the very litigation in which defendants invoke the work-product protection.” 2009 WL 1119414, at *3.

In Three Rivers, although deferring the issue “for another day,” Lord Scott flagged an open issue of law: “As to the justification for litigation privilege, I would respectfully agree that the need to afford privilege to the seeking or giving of legal advice for the purposes of actual or contemplated litigation is easy to understand. I do not, however, agree that that is so in relation to those documents or communications which although having the requisite connection with litigation neither constitute nor disclose the seeking or giving of legal advice. Communications between litigant and third parties are the obvious example.” [2004] UKHL 48, at ¶ 29 (emphasis added).

See HBO Mem. at 2; Mitre Opp. Memo. at 2.

See HBO Mem. at 2; Mitre Opp. Memo. at 2-3.

See HBO Mem. at 2, n.3 (discussing HBO’s emails to Mitre on August 15, 19 and September 8, 2008); see also id. at 2 (noting that Mitre began an investigation, by requesting information from manufacturers of Mitre-branded product, “almost as soon as it received information from HBO”).

See id. at 2 (HBO concedes that Mitre “continued their investigation into the truth of the HBO segment, traveling to Jalandhar, India in September and November 2008 and January 2009 to conduct these inquires”); see also Mitre Opp. Memo. at 3 (“After filing the Complaint, Mitre continued to investigate the allegations in HBO’s story.”).

See Declaration of Jim Kim in Support of Mitre’s Opposition to HBO’s Motion to Compel Discovery (“Kim Decl.”), Ex. 8, Transcript of the Deposition of Jamie Meikleham, Esq., dated January 20, 2010 (“Meikleham Dep. Tr.”), 36:13-21.

Kim Decl., Ex. 8 (Meikleham Dep. Tr., 65:6-18).

Id. (Meikleham Dep. Tr., 71:13-20).

See id. (Meikleham Dep. Tr., 70:6-71:20).

Declaration of Katherine M. Bolger in Support of Defendant HBO’s Motion to Compel Discovery (“Bolger Decl.”), Ex. 5, Transcript of the Deposition of Ean Brown, Esq., dated January 20, 2010 (“Brown Dep. Tr.”), 98:1-8; see also id. (Brown Dep. Tr. at 99:18-100-9).

Kim Decl., Ex. 18 (Declaration of Peter Rienecker, executed November 23, 2009, at ¶ 5).

Id. (Meikleham Dep. Tr., 252:18-25) (“[W]e tried to get the program stopped going out while the rest of the images could be checked out and more information could be provided.”)).

Id. (Meikleham Dep. Tr., 88:3-89:2-6).

Id. (Meikleham Dep. Tr., 88:9-11); see id. (Meikleham Dep. Tr., 89:4-6 (“Then working with our lawyers. Our external lawyers I guess ... formulated a legal strategy to advance the matter.”)).

See Kim Decl., Ex. 3, Transcript of the Deposition of Kam Raghavan, dated December 16, 2009 (“Raghavan Dep. Tr.”), 124:17-126:21, 140:24-142:3, 144:6-19, 171:22-172:17, 179:14-2, 181:10-19, 192:12-14. See also Kim Decl., Ex. 3, Raghavan Dep. Tr. 196:12-16 (“Basically all of the trips that I have taken to Jalandhar have been under guidance from counsel to carry out specific instructions and relay that back to counsel.”).

See Kim Decl., Ex. 3, Raghavan Dep. Tr. 144:14-19 (Q: “I thought you told me the point of your meeting with Mr. Purewal [SGFI] was about the litigation, right? A: Yes, it was to gather information for the litigation.”).

Declaration of Kam Raghavan in Support of Mitre’s Opposition to HBO’s Motion to Compel Discovery, executed April 13, 2010 (“Raghavan Decl.”), at ¶¶ 4-5.

Kim Decl., Ex. 2, Transcript of the Deposition of James Boocock, dated December 15, 2009 (“Boocock Dep. Tr.”), at 136:10-12.

See, e.g., Kim Decl., Ex. 2, Boocock Dep. Tr. 135:7-12 (noting that, with respect to his first trip to India, “there were general directions given by [Mr. Meikleham]”). Mr. Boocock also testified that his second trip to India “was a result of [his] discussion with Jamie Meikleham that I went back to Jalandhar with Kam” id. 266:9-18, and Mr. Boocock explained that “[Mr. Meikleham] was doing the running on this. He was responsible for lead.” Id. 268:6-18.

HBO Mem. at 16.

HBO Mem. at 15-16. Mitre also cites deposition testimony from Mitre’s counsel, Mr. Meikleham, concerning Mitre’s “duty to investigate [the HBO segment] from an ethical perspective.” HBO, however, takes this sound bite out of context as it fails to mention that Mr. Meikleham’s testimony was in response to questions about how Mitre prepared for this litigation, and is both preceded and followed by testimony about engaging Mr. Constantine and conducting a “legal strategy to advance the matter.” Kim. Decl., Ex. 8 (Meikleham Dep. Tr., 88:9-89:6).

HBO concedes that it “was able to question current and former employees of SGFI and Mayor who freely discussed their communications with Mitre ... and their investigations into the use of child labor in the manufacture of Mitre-branded soccer balls and the circumstances surrounding the children who appeared in the Segment.” Id. at 18, n.52.

See, e.g., Mitre Opp. Memo. at 7 (discussing HBO’s examination of the same parties that Mitre’s investigators contacted, including representatives of SGFI, Mayor & Co. and the children and guardians who appeared in the taped interviews and provided affidavits); see HBO Mem. at 8-9 (discussing the deposition of Prema Singh, a Mitre affiant, where HBO challenged her affidavit).

Mr. Boocock was cautioned by his counsel and objections were made during his deposition not to “reveal the contents of communications concerning this litigation ... [made] for the purpose of conveying that information to counsel for Mitre.” Bolger Decl., Ex. 8 (Boocock Dep. Tr. 185:11-12). In response, Mr. Boocock said his “questions had obviously been discussed with counsel back in London, Jamie Meikleham in particular, and the results of those discussions obviously were referred back to our counsel in London.” Thus, he explained why he could not answer the question and did not reveal any protected material or conversations in the process. Id. at 186:1-7.

The parties entered into a so ordered stipulation where HBO agreed that it would not use Mitre’s production of certain documents listed in the stipulation as a basis to argue that Mitre waived privilege or protection with respect to other documents not listed or as to the subject matter of the listed documents. See Kim Decl., Ex. 12. The parties agreed to supplement this stipulation at Ms. Raghavan’s deposition to include two exhibits marked at Mr. Boocock’s deposition, Exhibits 16 and 17. See Kim Decl., Ex. 3 (Raghavan Tr. 122:8-123:17, 174:2-179:12; 204:16-205:3).

It is axiomatic that parties perform investigations in anticipation of litigation and, as a result of their investigations, use the facts learned in support of their claims by, for example, referencing the facts learned in the complaint or attaching affidavits. Indeed, Rule 11 of the Federal Rules of Civil Procedure imposes a duty to perform an adequate prefiling investigation into the facts.

See Mitre’s Lt. App. at 1-5.

See HBO’s Resp. Lt. at 1-4.

Letter from Ankur Kapoor, dated May 5, 2010, at 1 (whether specific or general, at bottom, Mitre is still challenging HBO’s relevance-based redactions—an issue that has been decided already).

Letter from Katherine M. Bolger, dated June 25, 2010, at 1; see HBO’s Resp. Lt. at 3, n.2 (“The February 22 Log makes clear that HBO has not withheld any evidence related to this lawsuit on Shield Law grounds ... Mitre cannot escape the simple fact that its seeks to obtain irrelevant information in the face of clear rulings from this Court and Judge Daniels that it cannot do so.”).

It is proper to “withhold the title of documents ... on grounds of privilege if the document title, without reference to the document’s contents, reveals privileged information.” United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 943 (D.D.C. 2006). Notably, however, many of the e-mails Mitre challenges concern only one redacted e-mail at the end of a longer e-mail thread in which HBO has not redacted the subject line of the other emails within that same e-mail thread.

Mitre’s Lt. App. at 2, n.2.

HBO’s asserts work-product protection over many e-mails dated September 16, 2008 and claims that these e-mails are “in response to threatened litigation.” See, e.g., February 22 Privilege Log at p. 2-3, 5-6. HBO’s invocation of work-product protection as of September 16 “in response to threatened litigation” from Mitre further belies HBO’s argument in its motion to compel that Mitre was not anticipating litigation prior to the Segment’s broadcast on September 16.