KENNARD P. FOSTER, Magistrate Judge.
In this Cause, the plaintiffs allege that the defendant violated federal and state antitrust laws through its formation of a marketing affiliate and its denial of access to its essential facilities to the plaintiffs. The defendant received a Civil Investigative Demand ("C.I.D.") requesting information relating to the defendant and the affiliate from the United States Department of Justice ("D.O.J.").
The plaintiffs served a request for production on the defendant for "any and all documents received from or provided to the United States Justice Department from 1995 to the present." The defendant objects on the grounds of relevancy, work product privilege, attorney-client privilege, and 15 U.S.C. § 1313(c)(3).
"Cloned discovery", requesting all documents produced or received during other litigation or investigations, is irrelevant and immaterial unless the fact that particular documents were produced or received by a party is relevant to the subject matter of the instant case. The plaintiffs in this Cause have not shown that the fact that any particular document was produced by the defendant to the D.O.J. or received by defendant from the D.O.J. is relevant to the subject matter of this Cause. Instead, the plaintiffs are interested in the content of documents and for that they must make proper requests describing the information in which they are interested. The plaintiffs' counsel must do their own work and request the information they seek directly. The motion to compel is therefore denied.
Alternatively, the Court makes the following rulings and comments regarding the discovery issues surrounding a C.I.D. which will likely be reasserted should the plaintiffs serve revised requests for production.
The defendant argued that 15 U.S.C. § 1313(c)(3) establishes a privilege for the documents requested by the plaintiffs. Although § 1313(c)(3)'s text prohibits the United States from disclosing documents that are produced in compliance with a C.I.D., the defendants argue that the privilege should extend to the same documents in the hands of the producer and should extend to documents received from the United States in relation to the C.I.D. in the same way that Fed.R.Crim.P. 6(e) prohibits disclosures by grand jury targets. The analogy is not convincing. The interests in maintaining the secrecy of grand jury criminal investigations are significantly more important than for civil investigations by officers of the D.O.J.. We agree with the authorities cited by the plaintiff holding that § 1313(c)(3) does not create a privilege for C.I.D. materials in the hands of a private person. The defendant cited no decision holding that § 1313(c)(3) created such a privilege and the Court concludes that it does not.
The defendant also contended that the documents produced to the D.O.J. in response to the C.I.D. constitute work product and attorney-client privileged material. We are unable to determine whether the privileges apply based on the defendant's inadequate privilege log and, at any rate, we will wait to confront the issue if and when the plaintiffs move to compel compliance with a new request for production. The Court notes at this time that any pre-existing documents that were produced in compliance with the C.I.D. do not gain any additional privileged status because of that production. In fact, production in response to a C.I.D. might have effected a waiver of any pre-existing work product and attorney-client protections because such privileges apply to C.I.D. requests just as they apply in federal court. 15 U.S.C. § 1312(c); In re Steinhardt Partners, L.P., 9 F.3d 230 (2nd Cir. 1993). Further, there is a split of authority on whether documents newly created or acquired in order to respond to a governmental agency's civil investigation qualifies as work product under Fed.R.Civ.P. 26(b)(3). Compare Pacamor Bearings, Inc. v. Minebea Co., Ltd., 918 F. Supp. 491, 513 (D.N.H. 1996) (parties reasonably anticipate litigation from fact of agency investigation), with State of Florida v. Industrial Chemicals, Inc., 145 F.R.D. 585, 587-88 (N.D.Fla. 1991) (agencies can issue civil investigative demands for purely investigative purposes without any reasonable anticipation of litigation); Abel Investment Co. v. United States, 53 F.R.D. 485, 489-90 (D.Neb. 1971). We prefer to receive briefing on this question if and when the plaintiffs move again to compel production of these documents.
If, on any future motion to compel, the defendant claims privileges with respect to documents submitted to the D.O.J., and the documents number no more than those listed in their current privilege log, then the defendant may submit the documents to the Court for in camera inspection along with a revised privilege log better describing the subject matter without revealing privileged content (e.g., "Civil Investigative Demand No. 18460" is too thin), with a copy of the log served on the plaintiffs. The defendant should provide full legal and factual support for any claim of privilege. The plaintiffs' motion is DENIED.
Done this ___ day of March, 2000.