SARAH NETBURN, Magistrate Judge.
Plaintiffs seek the non-privileged information associated with the loans and RMBS trusts at issue in Wells Fargo's Issue Management Module ("IMM") Database. On November 22, 2016, the Court denied plaintiffs' motion to compel production of the IMM Database.
The Court has reviewed the following materials: (1) excerpts of the IMM Database reports for issues relating to five trusts selected by plaintiffs after a meet and confer with Wells Fargo on February 16, 2017 (Exhibit 1 of Wells Fargo's submission); (2) excerpts of the February 1, 2017 IMM Database report selected by Wells Fargo (Exhibit 2 of Wells Fargo's submission); and (3) secondary documents surrounding the creation and purpose of the Database, such as the CTS Watchlist Committee Charter, Wells Fargo's May 2013 Issue Management and Consulting Process Training presentation, and the DRG's Event of Default reporting guidelines (Exhibit 3 of Wells Fargo's submission and Exhibits 1 and 2 of plaintiffs' submission, respectively).
Applying the attorney-client privilege depends on "whether the communication was generated for the purpose of obtaining or providing legal advice as opposed to business advice."
At the outset, the Court addresses the plaintiffs' contention that the information in the IMM Database cannot be privileged because the contact person for an issue entry was almost always a member of the DRG (i.e., a business person), not internal or external counsel. But just because non-lawyers are responsible for maintaining and updating the information in the Database does not automatically qualify the contents of the issue entries as business advice. Plaintiffs' assertion overlooks the reality that a member of the DRG may consult with attorneys in recording and generating responses for the IMM Database.
Based on the Court's review, the IMM Database consists of both privileged legal advice and attorney impressions, and non-privileged factual descriptions of the issues. With regards to the former category, the "Updates," "Reserve Amount," and "Potential Exposure" sections of each entry reflect counsel's strategies, impressions, and opinions, and are therefore presumptively privileged. For instance, the "Updates" for a lawsuit by a municipal plaintiff references external counsel's ongoing research into case law. Other "Updates" include notifications from counsel on tolling agreements, deal document amendments, and evaluation of settlement agreements. These sections do not relate to ordinary business matters and constitute predominantly legal advice. Therefore, they are appropriately withheld on the basis of privilege, and Wells Fargo is not required to conduct an independent privilege review.
The "Description of Issue," however, appears in large measure to be a recording of facts as they existed at the time the entry was created. In other words, much of this section contains raw factual data, such as the role of Wells Fargo for a particular trust, the date on which a lawsuit was commenced, the specific allegations, the identity of external counsel, etc. But the "Description of Issue" is not 100 percent factual. The section also includes legal impressions and attorney advice that will need to be redacted. For example, the Description of Issue for the Serve All Help All, Inc. Litigation contains counsel's characterization of the allegations ("Beyond the . . ."). Regarding the Natixis 07-HE2 Litigation, the Description of Issue includes discussion of the similarity in language between the claims against Wells Fargo and the claims asserted in a thirdparty complaint. To the extent portions of the Database are produced in accordance with the Court's instructions below, Wells Fargo is directed to review the Description of Issue sections for each of the relevant entries, to redact all attorney impressions and opinions, and to produce all underlying factual information.
Plaintiffs have represented that they are seeking all non-privileged information in the IMM Database associated with the Trusts and loans in the Trusts at issue in this consolidated action. Wells Fargo represents that the volume of issue entries for the Trusts would total approximately 980 issue entries.
Accordingly, Wells Fargo is ORDERED to complete production of the IMM Database entries associated with the Trusts and loans in those Trusts at issue in this consolidated action, consistent with this Court's ruling, by March 27, 2017. Production shall be made on a rolling basis.