Boston Ret. Sys. v. Uber Techs., Inc., 2024
The lead plaintiff, Boston Retirement System filed a motion to compel production of unredacted versions of 28 documents nonparty PricewaterhouseCoopers produced. Uber Technologies Inc. asserted that the work product doctrine shielded the redacted portions. The documents were in four categories: impairment assessments, forensic memoranda, emails, and management representation letters. The court ordered Boston Retirement System to provide one example of each category one, two, and four for in camera review. Uber was ordered to provide unredacted copies of all emails at issue. “Having reviewed the documents in camera, the court denies BRS’s motion to compel.”
Background.
Factual background. This securities class action arose from Uber’s IPO, through which over $8.1 billion was raised on May 10, 2019. The IPO valued Uber at $75.5 billion. Per the plaintiffs, Uber “premised the Company’s growth on an undisclosed, unsustainable, and often illegal ‘growth at any cost’ business model, putting growth first above profits, the law, and even its own passengers’ safety.… Uber also concealed that its growth at any cost business model was negatively impacting its financial condition.” In the same quarter as its IPO, Uber reported a $5.2 billion loss, and it was not growing as represented in its offering. The plaintiffs alleged that Uber made false or misleading statements and omissions in connection with its IPO in violation of the Securities Act of 1933.
Facts relevant to the present dispute. PwC, as Uber’s auditor, requested analyses as to potential or pending litigation. Uber gathered these analyses from in-house and outside counsel and shared them with PwC. PwC produced thousands of documents to Boston Retirement System in response to subpoenas. Boston Retirement System challenged Uber’s privilege assertions for some of these documents. The privilege log “shrunk from 432 entries to 114” and converted its assertions of “attorney-client privilege” to “protected work product.” Boston Retirement System moved to compel 29 documents PwC produced, reduced to 28 documents.
Work product. The parties agreed that federal privilege law applied to this dispute. The work product doctrine protected “materials prepared by an attorney in anticipation of litigation,” be they “by or for the attorney.” (United States v. Bergonzi) To qualify for work product protection, materials must “(1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that other party’s representative.” (Richey) “Dual purpose documents are deemed prepared because of litigation if ‘in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.’” (Richey) The party asserting work product has the burden of proof.
Discussion.
The court applied the “because of” standard to the documents in this case. Three different impairment assessments were prepared by Amy Cheng and reviewed by Paul Lewenberg, both PwC nonattorney employees. The documents were drafted as part of the 2018 impairment review of long-lived assets. The document redactions are the same on all three documents in a section describing “significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset (asset group), including an adverse action or assessment by a regulator.”
Stacey Grisby, outside counsel on loan to Uber in-house counsel, explained that, in response to PwC’s inquiries, she and other attorneys in Uber’s in-house counsel “assessed pending and potential litigation and regulatory matters and shared with PwC [their] assessment as to whether rulings in these matters might impact the value of Uber’s assets.”
Uber argued that PwC’s memorialization of Uber responses to PwC was protected opinion work product. In camera review of the documents confirmed they were prepared because of anticipated litigation. “[T]he court concludes that the redactions in the impairment assessments are protected by the work-product doctrine.” (Lawrence E. Jaffe Pension Plan v. Household Int’l, Inc.)
The second batch of documents were redacted emails between PwC and Uber attorneys. Allen explained that PwC often requested loss contingency letters from Uber counsel. His declaration “confirm[s] that the redacted content [in Exhibits V through Z] contains attorney opinions and mental impressions of [Allen] or other attorneys in Uber’s legal department working with [Allen] as to potential or pending litigation and investigation matters[.]” In camera review confirmed Allen’s assertions. The redacted information was thus protected work product.
The third group of documents consisted of internal PwC forensic memoranda. They involved matters of Uber’s incidents of possible noncompliance. The memoranda appear to have been prepared to “support PwC’s assessment of [Uber]’s ongoing response to possible illegal act(s)[.]” In camera review found that PwC’s forensic memoranda fell into two buckets, both of which were protected by the work product doctrine. “The court finds that these redactions are protected by the work product doctrine.”
The fourth group was management representation letters. The management representation letters were essentially the same for each letter. Per Allen, one of the purposes of the management representation letters was to allow PwC to assess the impact of litigation and investigations on Uber’s financial statements and internal controls. Boston Retirement System chiefly contended that these documents were not prepared in anticipation of litigation. The court’s in camera review did not support Boston Retirement System’s contention. “Accordingly, the court finds that the redactions in Exhibit Q are protected by the work product doctrine.”
Boston Retirement System argued that the documents should be produced because they were central to the plaintiffs’ theory that Uber’s business model was flawed. The work product doctrine can be overcome if a party showed need and undue hardship. Such as here, “materials reflecting mental processes receive greater, ‘nearly absolute’ protection.” Boston Retirement System devoted only a single paragraph to this argument in its opening and reply briefs. The court found that Boston Retirement System has not met its burden to show a substantial need for these documents.
Motion to seal.
The court denied Boston Retirement System’s motion to seal.