United States Securities and Exchange Commission v. Aktiengesellschaft

Background

The SEC served Volkswagen with an interrogatory asking it to identify each Volkswagen officer, director, or employee whom the Volkswagen defendants believed knew, before May 22, 2015, about Volkswagen’s use of a defeat device. The SEC also asked Volkswagen to state in meaningful detail the basis for each belief. Volkswagen asserted protection under the work-product doctrine, which generally protects materials prepared for litigation, especially an attorney’s mental impressions, conclusions, and opinions.

Analysis

The court explained that attorneys’ involvement in gathering facts does not by itself make those facts protected work product. Facts learned through document review, interviews, or an internal investigation generally remain discoverable. The disputed interrogatory, however, did not merely request facts. It required Volkswagen’s attorneys to evaluate the results of investigations, weigh potentially conflicting evidence, and form opinions about which employees knew about the defeat device. The court treated those judgments as opinion work product, a highly protected category of work product.

The SEC argued that Federal Rule of Civil Procedure 33(a)(2) permits contention interrogatories asking for opinions or contentions related to facts or the application of law to facts. The court disagreed that this was a true contention interrogatory. Contention interrogatories seek information about an opponent’s theories, claims, or defenses, while the SEC’s request sought information to help build the SEC’s case. The court noted that Volkswagen planned to argue that the people who prepared the challenged statements in its bond offering materials lacked knowledge of the defeat device. To understand that defense, the SEC could ask who prepared those statements, rather than require Volkswagen to identify everyone it believed knew about the device.

The court also found that Volkswagen had not waived work-product protection. According to Volkswagen, it shared documents and factual information with the Department of Justice but did not share its judgments about who knew about the defeat device. The court further concluded that disclosure of some information in Australian proceedings, when compelled by a court order, did not waive the protection.

Disposition

Judge Alex G. Tse sustained Volkswagen’s work-product objection. The court ruled that the SEC’s interrogatory sought Volkswagen’s opinion work product and that Volkswagen did not have to answer it. The court stated that the SEC could pursue the underlying factual information through traditional discovery, including document discovery, depositions, fact interrogatories, and requests for admission. This was a discovery ruling and did not decide the SEC’s securities-fraud claims or Volkswagen’s defenses.