1. The Plaintiff’s Privilege Log. The Defendant contends that the Plaintiff’s privilege log includes two (2) categories of documents, which the Plaintiff has improperly withheld on the basis of privilege.
See, Defendant’s Memorandum in Support, supra at 8. For the sake of simplicity, we address each category separately.
a. Category Two Documents. In this category, the Defendant seeks a single document which consists of “an email from [one of the Plaintiff’s] employee[s] to a [CCC] end user customer to which was attached a legal memorandum prepared by [the Plaintiff’s] attorneys[.]” Plaintiff’s Memorandum in Opposition, supra at 7.
The Plaintiff maintains that the referenced document is protected by the attorney-client privilege, and the common interest doctrine, even though it was shared with a third party, Global Conference Partners (“Global”). Id. In response, the Defendant asserts that the document is not protected by the attorney-client privilege because the Plaintiff failed to maintain secrecy, and that, even if the privilege is established, any privilege was waived when the communications were shared with Global, and the Plaintiff’s employees. See, Defendant’s Memorandum in Support, supra at 10. Notwithstanding the Defendant’s arguments to the contrary, we find that the communication, between the Plaintiff and Global, is subject to the common interest doctrine.
*4 1) Common Interest Doctrine. Our Court of Appeals has explained the “common-interest doctrine,” also known as the joint defense privilege, as follows:
If two or more clients with a common interest in a litigated or non-litigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged * * * that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.
In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997), cert. denied, 521 U.S. 1105 (1997).
“[A] ‘joint-defense’ or ‘common-interest’ privilege protects confidential communications made by the client or his lawyer to a lawyer representing another in a matter of common interest.” UltiMed, Inc. v. Becton, Dickson and Co., 2008 WL 4849034 at *3 (D. Minn., November 6, 2008), citing John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 555-56 (8th Cir. 1990); see also, In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001)(“The joint defense privilege protects communications between an individual and an attorney for another when the communications are part of an ongoing and joint effort to set up a common defense strategy.”)[internal quotations and citations omitted], citing United States v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20, 28 (1st Cir. 1989)[citation omitted]; In re QTL Phototherapeutics, Inc., 25 Fed.Appx. 825, 826 (Fed. Cir. 2001) (“[W]hen two parties communicate to each other through their attorneys and share a sufficient common interest, those communications may be protected by the attorney-client privilege insofar as they are sought by a party that was not involved in the communications.”).
“This doctrine softens the ordinary requirement that the lawyer-client communications must be made in confidence in order to be protected by the privilege.” In re Grand Jury Subpoena Duces Tecum, supra at 922. Moreover, “[i]t is fundamental that ‘the joint defense privilege cannot be waived without the consent of all parties to the defense.’ ” John Morrell & Co. v. Local Union 304A, supra at 556, quoting Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 29 (N.D. Ill. 1980). A common legal interest can be legal, factual, or strategic, in nature. See, Pucket v. Hot Springs School Dist. No. 23-2, 239 F.R.D. 572, 583 (D.S.D. 2006),quoting In re Grand Jury Subpoena Duces Tecum, supra at 922.
Further, the common interest privilege extends to work created or shared with a common interest party. See, In re Grand Jury Subpoena Duces Tecum, supra at 939; John Morrell & Co. v. Local Union 304A, supra at 555-56 (finding that clients and others shared the joint defense privilege because they were aligned on the same side of the litigation); see also, Hanson v. United States Agency for Intern. Development, 372 F.3d 286, 292 (4th Cir. 2004)(“[T]he common interest doctrine applies when two or more parties consult or retain an attorney concerning a legal matter in which they share a common interest,” and “[i]n this context the communications between each of the clients and the attorney are privileged against third parties[.]”)[internal citations and quotations omitted]; In re Regents of University of California, 101 F.3d 1386, 1391 (Fed. Cir. 1996)(“When such pre-litigation advice and assistance serve a shared legal interest, the parties to that interest do not lose the privilege when litigation arises.”), cert. denied, sub. nom., Genentech, Inc. v. Regents of the University of California, 520 U.S. 1193 (1997); Haines v. Liggett Group, Inc., 975 F.2d 81, 94 (3rd Cir. 1992)(“This joint defense privilege enables counsel for clients facing a common litigation opponent to exchange privileged communications and attorney work product in order to adequately prepare a defense without waiving either privilege.”)[citation omitted]; In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990)(The joint defense privilege applies “not only to communications subject to the attorney-client privilege, but also to communications protected by the work-product doctrine.”).
*5 Here, the Plaintiff contends that the common interest doctrine protects the legal memorandum because Global shared a common interest with the Plaintiff. As pertinent, the Plaintiff and Global were co-defendants in a previous action brought against them by the AT&T Corporation (“AT&T”) in this District. See, Plaintiff’s Memorandum in Opposition, supra at 9; Affidavit of James Moskowitz (“Moskowitz Aff.”), Docket No. 49, Exhibit C. In that action, AT&T sought to “stop [the defendants’] deceitful and unlawful schemes through which AT&T unlawfully is billed exorbitant fees for call termination services that are not provided.” Moskowitz Aff., supra, Exhibit C at 1-3. In response to AT&T’s litigation, the Plaintiff hired the law firm of Kelley Drye and Warren LLP (“KDW”) for its representation. See, Plaintiff’s Memorandum in Opposition, supra at 9-10.
In the course of that representation, an attorney from KDW prepared a legal memorandum dated June 12, 2007, which contained a proposed ligation strategy, the counsel’s mental impressions, and other issues which were central to the Plaintiff’s defense. Id. at 10. On June 13, 2007, one of the Plaintiff’s employees shared the memorandum with a representative of Global, even though Global had yet to retain KDW as its counsel. Id. at 7. Subsequently, on August 1, 2007, Global retained KDW as counsel. Id. In addition, the Plaintiff advises that, prior to August 1, 2007, KDW had communications with the Plaintiff, and other defendants, including Global, in which joint representation and common interests related to the AT&T litigation were discussed. Id.
Given these circumstances, we find that the Plaintiff and Global had a common interest when the memorandum was shared. The Plaintiff and Global were both defendants in AT&T’s litigation, and they shared a common interest in defending against, if not defeating, AT&T’s claims. Such commonality entitles their communications concerning AT&T’s litigation, including KDW’s memorandum, to the protection of the common interest doctrine. See, John Morrell & Co. v. Local Union 304A, supra at 555-56; Haines v. Liggett Group, Inc., supra at 94.
At the Hearing, however, the Defendant asserted that the Plaintiff and Global could not rely on the common interest doctrine because Global was not yet represented by KDW, or any other legal counsel, when the Plaintiff shared the legal memorandum with Global. In support of that argument, the Defendant contends that “[a] person who is not represented by a lawyer and who is not himself or herself a lawyer cannot participate in a common-interest arrangement within this Section.” Restatement (Third) of the Law Governing Lawyers, § 76, Comment D. The Defendant maintains that, since Global was unrepresented when the memorandum was forwarded, Global could not participate in a common interest arrangement. We disagree.
In Pucket v. Hot Springs School Dist. No. 23-2, supra at 578, the plaintiffs sought to reinstate busing to the defendant school district. In its Motion to Compel, the defendant requested that the plaintiffs be compelled to answer deposition questions, which concerned the plaintiffs’ conversations with a co-client, Beth Spitzer, prior to the plaintiffs’ representation by their joint counsel, the Becket Fund. As is the case here, the defendant argued that the plaintiffs’ conversations were not protected by the common interest doctrine, because the plaintiffs were not represented by the Becket Fund during the disputed conversations. Id. The Court rejected the defendant’s argument, and concluded that the plaintiffs and Spitzer had a common interest; namely, the reinstatement of busing to the school district, even though the plaintiffs were not yet represented by the Becket Fund at the time of the conversations. Id. As a consequence, the Court denied the defendant’s Motion to Compel.
*6 Similarly, the Plaintiff and Global shared a common interest in defeating AT&T’s claims, prior to KDW’s representation of Global. Therefore, the legal memorandum shared by the Plaintiff and Global is subject to the common interest doctrine, regardless of when KDW’s representation of Global commenced. See, e.g., In re Grand Jury Subpoena, supra at 572; In re Auclair, 961 F.2d 65, 70 (5th Cir. 1992)(“It necessarily follows that when more than one person seeks consultation with an attorney on a matter of common interest, the parties and the attorney may reasonably presume that the parties are seeking representation of a common or joint matter.”); cf., United States v. LeCroy, 348 F. Supp.2d 375, 381 (E.D. Pa. 2004)(“A person need not be a litigant to be a party to a joint defense agreement.”), citing Russell v. General Electric, 149 F.R.D. 578 (N.D. Ill. 1993)(noting that the joint defense privilege applies to parties, or potential parties, sharing a common interest in the outcome of a particular claim); Lugosch v. Congel, 219 F.R.D. 220, 238 (N.D. N.Y. 2003)(finding that “a non-party to the litigation can join a joint defense agreement, receive all of the benefit inured under such agreement, and be obligated to the same degree as the co-parties.”); In re Regents of University of California, supra at 1391; Schachar v. American Academy of Ophthalmology, Inc., 106 F.R.D. 187, 191 (N.D. Ill. 1985)(“Although originally limited to cases of actual co-defendants, courts have applied the joint defense privilege to cases of ‘potential’ litigation as well.”).
We decline the Defendant’s invitation to exalt form over substance, as the practical effect of the shared interest privilege is to allow commonly situated litigants, or imminently prospective litigants, to share a common defense. While the privilege is frequently effected by communications between counsel, the Defendant offers no cogent reason why this privilege is not as equally important to unrepresented litigants who share the same liability exposure, and may well be in search of counsel. Since, under the circumstances here, we conclude that the memorandum is subject to the common interest doctrine, we proceed to consider whether the memorandum is entitled to protection under the attorney-client privilege, or the work product doctrines.
2) Attorney-Client Privilege and Work Product. “The party asserting attorney-client privilege or the work product doctrine bears the burden to provide a factual basis for its assertions.” Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 527 (D. Minn. 2002), citing Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985). “Questions of privilege are to be determined by federal common law in federal question cases.” Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998), cert. denied, 525 U.S. 820 (1998); see also, Hollins v. Powell, supra at 196, citing Rule 501, Federal Rules of Evidence.
The attorney-client privilege provides absolute protection from the disclosure of confidential communications between an attorney and his client. See, Triple Five of Minnesota, Inc. v. Simon, supra at 527. “The elements of the attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.” Reed v. Baxter, supra at 355-56; see also, Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601-02 (8th Cir. 1977). The purpose of the attorney-client privilege is “to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
In turn, the work product doctrine is codified in Rule 26(b)(3), Federal Rules of Civil Procedure, which provides, in pertinent part, that “[o]rdinarily, 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).” “In order to protect work product, the party seeking protection must show the materials were prepared in anticipation of litigation, i.e., because of the prospect of litigation.” PepsiCo, Inc. v. Baird, Kurtz, & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002), citing Binks Mfg. Co. v. Nat’l Presto Industries, Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983).
*7 Two different kinds of work product are encompassed in the language of the rule -- namely, ordinary work product, which includes “raw factual information,” and opinion work product, which includes an attorney’s “mental impressions, conclusions, opinions or legal theories.” Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). As the language of the Rule, and of the relevant case law makes clear, the privilege which attaches to ordinary work product may be defeated by an appropriate showing that “the party seeking discovery has a substantial need for the materials and the party cannot obtain the substantial equivalent of the materials by other means.” Id.; see also, Marvin Lumber v. PPG Indus., Inc., 168 F.R.D. 641, 644 (D. Minn. 1996), citing Petersen v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir. 1992).
Thus, “while Rule 26(b)(3) affords protection for documents and tangible things, the underlying facts are not protected by the work-product doctrine.” Onwuka v. Federal Express Corp., 178 F.R.D. 508, 512-13 (D. Minn. 1997), and cases cited therein. As we explained, in Onwuka:
Only when the party seeking discovery attempts to ascertain “historical” facts, which inherently reveal the attorney’s mental impressions, does the ordinary work-product privilege extend to protect the intangible interests. See, Shelton v. American Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986). While the distinction is a fine one, it represents a tenable footing between “unwarranted inquiries into the files and the mental impressions of an attorney,” Hickman v. Taylor, [329 U.S. 495], 510 [ (1947) ] * * * and the intolerable prospect that the work-product protections will be employed to shroud otherwise discoverable corporate affairs in a veil of secrecy.
Id. at 513.
Unlike ordinary work product, “opinion work product enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Baker v. General Motors Corp., supra at 1054; see also, In re Chrysler Motors Corp. Overnight Evaluation, 860 F.2d 844, 846 (8th Cir. 1988), quoting In re Murphy, 560 F.2d 326, 336 (8th Cir. 1977).
The Plaintiff has proffered the disputed legal memorandum for our in camera review and, after that review, we find that the memorandum is entitled to protection under both the attorney-client privilege, and the work product doctrine. See, Moskowitz Aff. supra, Exhibit D. The document contains opinion work product of the Plaintiff’s counsel, including counsel’s mental impressions, legal theories, legal strategy, and conclusions relating to the AT&T litigation. The opinions expressed were for the benefit of a client, and were communicated as a part of the relationship between that attorney, and his client. Accordingly, the Defendant’s Motion is denied with respect to the Category Two document.
b. Category Three Documents. The Defendant has also requested access to emails that were exchanged amongst the Plaintiff, the employees of Arvig Enterprises Affiliates (“Arvig Affiliates”), which are subsidiaries of the Plaintiff’s parent company, Arvig Enterprises, Inc., and with other third parties, concerning the Plaintiff’s settlement agreements with AT&T, XO Communications, Inc. (“XO”), and Verizon Communications, Inc. (“Verizon”), all of whom are all non-parties to this action. See, Defendant’s Memorandum in Support, supra at 10. The Plaintiff advises that those settlement agreements were “to resolve disputes relating to the payment of access charges to [the Plaintiff] for the termination of traffic to CCCs.” Plaintiff’s Memorandum in Opposition, supra at 11-12.
*8 The Plaintiff advises that it has not provided the settlement agreements because they include confidentiality clauses, which preclude the Plaintiff from voluntarily disclosing any of the settlement terms. Id. at 13. However, the Plaintiff notes that the confidentiality clause contains an exception, which allows for disclosure when required by a Court Order. Id. Accordingly, the Plaintiff agrees to disclose the settlement agreements, pursuant to a Court Order, which includes the following limitations:
(1) Only [the Defendant’s] attorneys may see the XO, Verizon, and AT&T Settlement Agreements (i.e., the XO, Verizon, and AT&T Settlement Agreements should be for ‘attorneys’ eyes’ only) and [the Defendant’s] attorneys may not share the contents of the XO, Verizon, and AT&T Settlement Agreements with any [Defendant] business personnel; and (2) [the Defendant’s] attorneys may not share the contents of the XO, Verizon and AT&T Settlement Agreements or use the XO, Verizon, and AT&T Settlement Agreements for any purpose outside of this proceeding.
At the Hearing, the Plaintiff specifically requested that the Defendant be precluded from sharing the terms of the settlement agreements with the Defendant’s in-house counsel. The Plaintiff contends that such a limitation is necessary because the settlement agreements include information which is “competitively sensitive and would give another carrier to whom the information is disclosed a competitive advantage in the market for interexchange services.” Id. The Defendant agreed to the Plaintiff’s proposed limitations, except for the Plaintiff’s request to exclude the Defendant’s in-house counsel from reviewing the agreements.
At the outset, we note that the parties have entered a Protective Order, see, Docket Nos. 26, 29, which contains provisions that enable the parties to designate certain documents as “confidential,” in order to limit the disclosure of those documents to a specific group of individuals. See, Docket No. 26, at 2-4. However, the Protective Order does not include provisions which would allow the designation of documents as “Attorney’s Eyes Only,” or which would allow the parties to exclude in-house counsel from the discovery process.
As a result, finding good cause for the same, we grant the Plaintiff’s request to exclude the Defendant’s in-house counsel from access to the contents of the settlement agreements. While we recognize that the Defendant would prefer to have the terms of the settlement agreements available to all of its legal counsel, inclusive of those who are the employees of the Defendant, we are concerned that the terms of the settlement agreements might include highly competitive, or otherwise commercially sensitive information. Of course, such an exclusion does not limit the Defendant’s retained legal counsel from accessing, viewing, and analyzing, the terms and conditions of the settlement agreements, but solely for the purposes of this litigation.
If, at a later date, the Defendant concludes that, for reasons not now apparent, its in-house counsel requires access to the terms of the settlement agreements, the Defendant is free to file a Motion to seek such access. However, absent the issuance of such an Order, the Defendant’s retained counsel are precluded from disclosing the terms of the settlement agreements, either directly or indirectly, to the Defendant’s in-house counsel. See, Kia Motors America, Inc. v. Autoworks Distributing, 2007 WL 844674 at *2 (D. Minn., March 19, 2007)(approving a Protective Order which limited the access to the plaintiff’s external counsel because the plaintiff and the defendant were head-to-head competitors).
*9 As a consequence, we grant the Defendant’s Motion with respect to the Plaintiff’s settlement agreements with AT&T, XO, and Verizon, but subject to the following limitations: 1) that only the Defendant’s retained counsel may see the XO, Verizon, and AT&T settlement agreements (i.e., the XO, Verizon, and AT&T settlement agreements should be for the eyes of the Defendant’s external counsel), and the Defendant’s retained attorneys are prohibited from sharing the contents of the XO, Verizon, and AT&T settlement agreements, either directly or indirectly, with any the Defendant’s business personnel, inclusive of the Defendant’s in-house counsel; and 2) that the Defendant’s attorneys may not share, or disclose, the contents of the XO, Verizon and AT&T settlement agreements, or use the XO, Verizon, and AT&T settlement agreements for any purpose outside of this proceeding.
Apart from the settlement agreements, the Plaintiff asserts that several other Category Three documents, which are identified as Document Nos.1, 4, 8, and 11, are protected by the attorney-client privilege. See, Plaintiff’s Memorandum in Opposition, supra at 14. In addition, the Plaintiff contends that all of the documents in Category Three are protected by the settlement communications doctrine. See, e.g., Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 983 (6th Cir. 2003)(determining that “any communications made in furtherance of settlement are privileged.”). We first consider the Plaintiff’s claim of attorney-client privilege.
Our attempt at an in camera review of Document Nos. 1, 4, 8, and 11, was entirely frustrated by our inability to identify the precise documents that have been identified as 1, 4, 8 and 11. We attempted to triangulate that identity be reference to the Plaintiff’s Privilege Log, but the abstruse descriptions of the documents which the Plaintiff did provide, and we even went so far as to direct the Plaintiff to provide non redacted versions of the documents -- all to no avail. Rather than to further delay the issuance of this Order, we direct the Plaintiff to forward to this Court, an unredacted copy of each document claimed to be privileged, with each document marked “1,” “4,” “8,” and “11.” Appended to each document should be a brief recitation of the precise privilege being claimed, and the specific bases therefore. Over the course of our seventeen (17) years as a Judicial Officer, we have found in camera reviews to present formidable problems but, here, a full and proper disclosure of the document, plainly identified, would cure the difficulties we have confronted. Accordingly, we defer a ruling on these specific documents until the Plaintiff complies with this directive. At that time, we will address, if the need arises, the Defendant’s arguments that, even if privileged, the privilege as to those documents were waived by the disclosure of those documents to the Plaintiff’s employees, as well as the Plaintiff’s argument that the documents are protected under a settlement communications privilege.
2. The Defendant’s Requests for Discovery from the Arvig Affiliates. Prior to its Motion, the Defendant issued Interrogatories, which requested that the Plaintiff obtain documents from other Arvig Affiliates. See, Defendant’s Memorandum in Support, supra at 11-13. At first, the Plaintiff objected to the Interrogatories, but eventually, the Plaintiff provided the Defendant with information that, assertedly, the Plaintiff could easily obtain from the Arvig Affiliates.
See, Plaintiff’s Memorandum in Opposition, supra at 15-16. However, since those disclosures, the Plaintiff has objected to the remainder of the Defendant’s discovery requests, which relate to the Arvig Affiliates, on the basis that such requests are irrelevant, and constitute an undue burden. See, Defendant’s Memorandum in Support, supra at 12; Plaintiff’s Memorandum in Opposition, supra at 16.
*10 The Defendant asserts that the requested documents are relevant, and necessary, to a determination as to whether the Plaintiff has engaged in “traffic pumping.” See, Defendant’s Memorandum in Support, supra at 6, citing Qwest Communications Corporation v. Farmers and Merchants Mutual Telephone Company, No. ED-07-MD-001, FCC 08-29, at 3 (2008)(the FCC granted the plaintiff’s Motion to Compel documents that the plaintiff believed demonstrated that the defendant had not charged CCCs for the services billed to the plaintiff because it was “important to consider all the facts underlying this case.”).
In support of its argument, the Defendant has provided copies of a service agreement and emails, which purportedly reveal that the Plaintiff’s operations, and customer relationships, are actually controlled by the Plaintiff’s parent company, Arvig Enterprises, Inc. See, Affidavit of Phillip R. Schenkenberg (“Schenkenberg Aff.”), Docket No. 38, Exhibits I and J. As a result, the Defendant contends that the Plaintiff has access to, and control over, the requested documents, and that its requests are not an undue burden.
Despite the Defendant’s argument, we do not glean the same conclusions from the service agreement or emails. Nor will we open the separate corporate structures of the Plaintiff, and the Arvig Affiliates, to investigation, on the basis of a solitary service agreement, and the ambiguous emails. Moreover, the Defendant has failed to produce any other agreement, or documentation, which demonstrates that the Plaintiff, and the Arvig Affiliates, exchange documents or billing information.
More importantly, we conclude that the Defendant has failed to employ the proper procedure so as to secure discovery from the Arvig Affiliates. Rule 34(c), Federal Rules of Civil Procedure, explains that, “[a]s provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.” Under Rule 45(a)(2)(B-C), Federal Rules of Civil Procedure, a party may issue a Subpoena to a non-party when requesting that non-party’s attendance at a deposition, or the production and inspection of the non-party’s documents. See, Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975)(“If the person is a non-party, production of documents can be compelled only by a subpoena duces tecum issued under” Rule 45.); Studnicka v. Pinheiro, 2007 WL 1589527 at *4 (D. Minn., June 1, 2007)(“Rule 45 of the Federal Rules of Civil Procedure governs production of documents in the possession of nonparties through the use of subpoenas.”); McCraven v. Sanders, 2008 WL 447515 at *2 (W.D. Ark., February 14, 2008)(“[I]f the person from whom discovery is sought is not a party to the litigation, production of documents can be compelled only by a subpoena duces tecum issued under Rule 45 of the Federal Rules of Civil Procedure.”)[citations omitted]; Geiger v. Cox, 2006 WL 3524486 at *1 (D. Neb., December 6, 2006)(Rule 45 “provides for the issuance of subpoenas on non-parties for obtaining evidence and testimony.”). Therefore, the Defendant’s Motion is denied with respect to the Arvig Affiliates.
3. Defendant’s Requests for Discovery from the Plaintiff.
*11 a. Interrogatory No. 4. The Defendant’s Interrogatory No. 4 states as follows:
For each Call Connection Company to which you route call traffic, identify the nature and a brief description of all services, goods, or products you provide to the Call Connection Company, including: the specific tariff or contract provision pursuant to which the service, good, or product is provided; the estimated or projected call volumes that you have forecast or expect to receive for delivery to each Call Connection Company, and the telephone number(s) or block of telephone numbers that you assigned to the Call Connection Company. To the extent that the answer to this Interrogatory has changed over time for particular Call Connection Companies, please answer the question for each discrete period and identify the dates to which your answers apply.
See, Schenkenberg Aff, supra, Exhibit D at 8.
The Defendant asserts that such information is necessary in order to determine whether it was billed for services described in the Plaintiff’s tariff. See, Defendant’s Memorandum in Support, supra at 15. The Plaintiff responds that it does not separately maintain the information requested by the Defendant, and that the requested information is readily available in the business records which have been provided. See, Plaintiff’s Memorandum in Opposition, supra at 23-24.
In this respect, the Plaintiff cites Rule 33(d), Federal Rules of Civil Procedure, which provides as follows:
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by * * * specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and * * * giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
In order to comply with the Rule, the Plaintiff “may not simply refer generically to past or future production of documents * * * [for it] must identify in [its] answers to the interrogatories specifically which documents contain the answer.” Pulsecard, Inc v. Discover Card Services, Inc., 168 F.R.D. 295, 305 (D. Kan. 1996); see also, Medtronic, Inc. v. Guidant Corp., 2003 WL 23864972 at *4 (D. Minn., January 8, 2003); Rainbow Pioneer No. 44-18-04A v. Hawaii-Nevada Investment Corp., 711 F.2d 902, 906 (9th Cir. 1983); Cambridge Electronics Corp. v. MGA Electronics, Inc., 227 F.R.D. 313, 323 (C.D. Cal. 2004); In re GI-Holdings, Inc., 218 F.R.D. 428, 438 (D. N.J. 2003); Sabel v. Mead Johnson and Co., 112 F.R.D. 211, 212-213 (D. Mass. 1986).
The reasoning behind the specificity requirement of Rule 33(d) is articulated in the Advisory Committee Notes to the 1980 Amendments to that Rule, which provide as follows:
The Committee is advised that parties upon whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available, justifying the response by the option provided by that subdivision. Such practices are an abuse of the option. * * * The final sentence is added to make it clear that a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived.
*12 Rule 33, Federal Rules of Civil Procedure, Advisory Committee Notes -- 1980 Amendment.
Here, the Plaintiff contends that the burden of creating the request information falls equally on both parties, since the Plaintiff does not keep the requested information in the format requested by the Defendant. See, Plaintiff’s Memorandum in Opposition, supra at 24; Affidavit of Michael Blaso (“Blaso Aff.”), Docket No. 43, at 4.
The Plaintiff argues that, in order to fully answer the Defendant’s request, it would be required to extensively review numerous billings to CCCs so as to determine the services rendered to each CCC. See, Blaso Aff., supra at 4. Moreover, the Plaintiff asserts that it has already provided, and specified the necessarily relevant documents to the Defendant, which are needed to compile the requested information. See, Plaintiff’s Memorandum in Opposition, supra at 25. For its part, the Defendant contends that the information provided by the Plaintiff does not enable them to determine the services provided to the CCCs. See, Affidavit of Randy G. Farrar (“Farrar Aff.”), Docket No. 39, at 6.
Although the Plaintiff contends that the burden would fall equally on both parties, we do not find that to be the case. We accept the Plaintiff’s representation, that it does not maintain the information in the format requested by the Defendant, but we find that the Plaintiff will have a distinct advantage in the compilation of the requested information, because of its intrinsic familiarity with its billing methods, its relationship with the CCCs, and its specialized knowledge of its tariffs, infrastructure, and services. See, Ayers v. Continential Cas. Co., 240 F.R.D. 216, 226 (N.D. W.Va. 2007)(An Interrogatory Answer which merely references documents “is inappropriate where the interrogatory calls for ‘the exercise of particular knowledge and judgment on the part of the responding party.’ ”), quoting United Oil Co. v. Parts Assocs., Inc., 227 F.R.D. 404, 419 (D. Md. 2005); T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136 F.R.D. 449, 455 (W.D. N.C. 1991)(finding that the defendant could not answer the plaintiff’s interrogatories with business records because the burdens of ascertaining the requested information were not equal given that the defendant’s “familiarity with its records and methods of organization [would] facilitate the necessary review of those records in ways unavailable to Plaintiff.”). Therefore, with respect to Interrogatory No. 4 the Defendant’s Motion is granted.
*13 b. Defendant’s Interrogatory No. 8. The Defendant’s Interrogatory No. 8 states as follows:
Identify all tariff provisions on which you rely as a basis for billing [the Defendant] charges for call traffic that is routed to a Call Connection Company, or otherwise rely upon as a basis for your claims of breach of traffic obligations.
See, Schenkenberg Aff, supra, Exhibit D at 9.
Here, the Defendant contends that the Plaintiff has not identified the relevant tariff provisions with sufficient detail. See, Defendant’s Memorandum in Support, supra at 19.
At the Hearing, the parties were directed to engage in a responsible “meet and confer,” in an attempt to resolve this dispute. In addition, the parties were directed to advise the Court, by way of our informal Motion practice, if they required any further assistance, with respect to this specific Interrogatory. Unfortunately, the parties have not complied with our directive, and we are uncertain as to whether any dispute remains between them. Accordingly, the parties are directed to inform the Court, forthwith, whether the dispute has been resolved, or if they have any remaining disagreement.
c. Interrogatory No. 10, and Document Request No. 26. Interrogatory No. 10 inquires into the Plaintiff’s financial relationships with the CCCs, and other carriers, as follows:
Identify any and all entities or persons to which you have made payments or provided compensation or from which you have received payments or other compensation related to a Call Connection Service or Call Connection Company (including, for example, any payments or brokers for facilitating agreements with Call Connection Companies or based on traffic generated by Call Connection Companies), or which otherwise resulted from or were caused by the calls within the scope of the Complaint or Counterclaim and identify the terms of any agreements, understandings or tariff provisions relating to such payments.
See, Schenkenberg Aff, supra, Exhibit D at 10.
The Defendant’s Document Request No. 26 states as follows:
Produce all documents relating to settlement(s) between you and other companies relating to issues similar to those raised in the Complaint, including specifically the settlement in the litigation captioned AT&T Corp. v. Tekstar, et. Al. Minnesota Dist. Ct. File No. 07-2563.
Id., Exhibit D at 15.
The Plaintiff advises that it has provided “all non-privileged responsive information and documents in its possession, custody and control.” Plaintiff’s Memorandum in Opposition, supra at 32. In addition, we have already determined that the Defendant is entitled to the Plaintiff’s settlement agreements, subject to a limited number of restrictions. Accordingly, with respect to Interrogatory No. 10, and Document Request No. 26, we deny the Defendant’s Motion as moot.
That the Defendant’s Motion to Compel [Docket No. 35] is GRANTED in part and DENIED in part as detailed in the text of this Order.