No Legal Advice in Target Lawyer’s Artistic Effort

(CN) - Target made "baseless" claims of attorney-client privilege in a lawsuit over its credit card program to shield 400 documents, including a doodle drawn by in-house counsel, a federal judge ruled.

The class action alleges alleging violations of consumer-protection laws in a Target "Autosub" program in which the retail giant sent unsolicited Visa cards to customers with Target guest cards. Once activated, the more restrictive Visa card replaced the guest cards. The Visa cards had higher interest rates, higher late fees, a shorter grace period and other less advantageous terms, according to the complaint.

Lead plaintiffs Richard Acosta and Jennifer Roman say that they would have rejected the Visa offer if they knew activation would cancel their guest cards and expose them to greater late fees.

As the case proceeded to discovery, Target claimed privilege over 400 documents.

But after reviewing the documents in camera, U.S. Magistrate Judge Geraldine Brown said Target's claims were not up to snuff.

The claim of privilege, which grants a party the right to withhold documents from the opposing party, "must be made and sustained on a question-by-question or document-by-document basis; a blanket claim of privilege is unacceptable," Brown said.

"In many cases, Target asserted privilege for documents as to which it has submitted no factual basis to demonstrate that the distribution of the allegedly privileged communications was restricted, as required to sustain the privilege," the 22-page decision states.

For example, regarding certain project spreadsheets, "Target has submitted no factual material to demonstrate that the allegedly privileged entries from or relating to 'legal' were created and maintained as confidential legal advice. In fact, Target has failed to show that the distribution of the spreadsheets was limited in any way. Target lists the author of the spreadsheets as 'unknown' and the recipients as 'N/A,' presumably meaning that Target has no idea who authored or received them."

"It appears that Target's counsel did no review to ensure that what it claimed as 'legal advice' could even arguably be characterized as such," Brown said. "It appears that Target redacted every entry on every document that had the word 'legal' or 'law' associated with it, and every marking its in-house counsel Kristin Watnemo made on a document."

Brown attached "the most dramatic illustration" of Target's "simply baseless" privilege claims as Appendix A to her opinion. It consists of a freehand drawing, apparently by Watnemo, that Target redacted entirely.

"Again, Target described this document as 'legal advice' without providing any explanation as to why it might be so," Brown said. "The court concludes that Target's claim of privilege for that drawing is frivolous."

Target must brief the court as to why it should not have to pay for two-thirds of its opponents' legal fees connected to the discovery issue, the decision states.

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