Priceline Judge Defines Scope of Discovery

Who’s the winner here? Well, it seems Plaintiffs and Defendants can claim both victory and defeat in two separate decisions issued by Judge Squatrito (D. Conn.) in the Priceline.com securities class action. In a victory for Plaintiffs, the Court found that the identity of any confidential witnesses identified in their amended complaint, as well as the identity of any witnesses interviewed during Plaintiffs’ investigation, is protected by the work product doctrine, and if revealed would allow defendants to “possibly gain insight into counsel's thought process.” However, this victory turned out to be bittersweet, as Judge Squatrito (while acknowledging the conflicting authority) held that under Fed.R.Civ.P. 26(b)(3) “defendants' need for the information substantially outweighs the potential for an intrusion into plaintiffs' counsel's case preparation.” Thus, at least this time around, it appears Plaintiffs will have to reveal the identity of the witnesses.

Fortunately for Plaintiffs, the Court wasn't willing to go quite that far with Defendants’ attempt to obtain documents regarding Plaintiffs’ investigation of the amended complaint. Although the Court ordered Plaintiffs to produce a privilege log listing these documents, it did not find that the documents themselves must be turned over. The Court did tell Plaintiffs that they must produce documents showing both their investment strategies and the composition of their portfolios though.

As for Plaintiffs’ interrogatory requesting Defendants to “identify all individuals or entities who received stock, stock options or warrants of Priceline,” the Court found Defendants’ attempt to rely on Rule 33(d) by merely pointing plaintiffs to certain records inadequate, and ordered Defendants to properly comply with the rule.

For more details, you can read these decisions at 2005 U.S. Dist. LEXIS 11142 and 2005 U.S. Dist. LEXIS 10989.

Nugget: “The objecting party must do more than simply intone the familiar litany that the interrogatories are burdensome, oppressive or overly broad. Instead, the objecting party must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each request is not relevant or how each question is overly broad, burdensome or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.”