OPINION & ORDER This lawsuit was brought by the Securities and Exchange Commission (“SEC”) against Collector’s Coffee Inc., d/b/a Collectors Café (“CCI”), and Mykalai Kontilai, the founder, President and Chief Executive Officer of CCI, alleging that the defendants violated federal securities laws by defrauding investors. See Amended Complaint, filed Nov. 4, 2019 (Docket #134). CCI has now brought a motion to compel the SEC to produce certain documents.1 These documents consist of (1) SEC notes from twenty-one witness interviews taken during the SEC’s fact-finding investigation; (2) notes taken by SEC staff from an Federal Bureau of Investigation (“FBI”) “FD-302″ created during a joint SEC and Department of Justice (“DOJ”) interview of Gail Holt;2 and (3) the actual FD-302 of Holt’s interview, Def. Mem. at 2, which was presumably prepared by the FBI.3 I. BACKGROUND A. Facts In May 2017, the SEC learned of a complaint indicating that CCI had violated federal securities laws. See Moessner Decl. 6. The SEC opened a “Matter Under Investigation” on June 28, 2017, and issued a “Formal Order of Investigation” on September 18, 2017. Id. 7-8. During this investigation, between January 2018 and May 2019, SEC staff interviewed twenty one witnesses. Id. 11; Am. Privilege Log. The SEC interviewed Gail Holt, the former Chief Operating Officer of CCI, on March 20, 2019. Moessner Decl. 15. Holt was interviewed by the SEC and the DOJ and FBI in a joint proffer session. See id.
15-17. The SEC was later permitted to review and takes notes of the FD-302 that the FBI made of that joint interview. See id. 17. B. Procedural Background This discovery dispute was first raised before the Court on August 19, 2020. See Pre Motion Conference Letter, filed August 19, 2020 (Docket #525). CCI filed the instant motion to compel on September 11, 2020. The SEC filed opposition papers but CCI never filed a reply memorandum. While the SEC’s privilege log had asserted several privileges in withholding the documents (see Am. Privilege Log), its opposition memorandum relies only on the work-product doctrine. See Opp. Mem. at 2-15. II. LAW GOVERNING WORK-PRODUCT DOCTRINE “Federal law governs the applicability of the work-product doctrine in all actions in federal court.” Wultz v. Bank of China Ltd., 304 F.R.D. 384, 393 (S.D.N.Y. 2015) (citing Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252 F.R.D. 163, 173 (S.D.N.Y. 2008)). Federal Rule of Civil Procedure 26(b)(3) codifies the doctrine in part, providing that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent),” unless “the party shows that it has substantial need for the materials…and cannot, without undue hardship, obtain their substantial equivalent by other means.” The work-product rule is designed “to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)); accord United States. v. Nobles, 422 U.S. 225, 238-39 (1975). The doctrine protects factual material, “including the result of a factual investigation” — commonly referred to as fact work product — as well as material that “reveals the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative’” — commonly referred to as opinion work product. In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007). The party asserting work-product protection must demonstrate that the material at issue “(1) [is] a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by his representative.” Allied Irish Banks, P.L.C., 252 F.R.D. at 173 (internal quotation marks and citation omitted). “In anticipation of litigation” means that “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Adlman, 134 F.3d at 1202 (citation omitted). Thus, even where “[t]here is little doubt under the evidence that [a party] had the prospect of litigation in mind when it directed the preparation of the” documents, id. at 1204, or that “such documents might also help in preparation for litigation,” id. at 1202, work-product protection is not available for “documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation,” id.; accord Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 2015 WL 3450045, at *5 (S.D.N.Y. May 28, 2015). III. DISCUSSION A. FBI FD-302 As to the FD-302 of the interview of Holt, the SEC provides evidence that the FD-302 is not currently in its possession, Moessner Decl. 17, and contends that the document is not otherwise in its “custody, or control,” Opp. Mem. at 18. CCI argues that “[a]ny contention by the SEC that it cannot access the FBI’s FD-302s is…baseless.” Def. Mem. at 3. It asserts that the SEC and FBI conducted a “joint investigation” and that this obligates the SEC to produce the document. Def. Mem. at 15-16. To support its argument, CCI cites to U.S. v. Martoma, 990 F. Supp. 2d 458 (S.D.N.Y. 2014), which required the DOJ to search the files of the SEC for exculpatory material in a criminal case on the ground that the SEC and DOJ had conducted a “joint investigation” in that case. Id. at 461-62; see also U.S. v. Gupta, 848 F. Supp. 2d 491, 494 (S.D.N.Y. 2012) (“it is enough” for Brady purposes “that the agencies are engaged in joint fact-gathering, even if they are making separate investigatory or charging decisions”) (citation and internal quotation marks omitted). CCI also cites, Def. Mem. at 15, to an unpublished decision in a civil matter in which the district judge required the SEC to produce FD-302′s generated by the FBI on the ground that there had been “joint fact-gathering,” see Order dated May 27, 2020 in SEC v. Sason, et al., 19 Civ. 1459 (Docket #86). The question of whether the SEC should be ordered to turn over the Holt FD-302 turns on whether there has been a joint “investigation” or joint “fact-gathering” sufficient to justify a finding that the document is in the “possession, custody, or control” of the SEC within the meaning of Fed. R. Civ. P. 34(a)(1). As was true in Martoma, this is a fact-specific inquiry involving the “consideration of the ‘degree of cooperation between agencies.’” 990 F. Supp. 2d at 461 (quoting United States v. Ferguson, 478 F. Supp. 2d 220, 238 (D. Conn. 2007)). Here, there is no evidence of any ongoing cooperation. Rather, the evidence is that the FBI and SEC engaged in a single joint interview — that of Holt. Perhaps realizing that this does not constitute the sort of joint investigation that would justify the order it seeks, CCI points out that the SEC gave contact information for the FBI to a witness and that the SEC was able to take notes of the FD-302 long after the interview itself. Def. Mem. at 15-16. But this is insufficient to find that the FD-302 is in the SEC’s custody or control. In Martoma, the court required production of the other agency’s documents where the SEC and the United States Attorney’s Office “jointly conducted twenty interviews of twelve witnesses.” 990 F. Supp. 2d at 461. Additionally, the SEC had provided documents it acquired to the United States Attorney’s Office, and the agencies coordinated and updated each other on depositions. Id. In this case, the SEC and FBI engaged in one joint interview. Moessner Decl. 16. Moreover, “the SEC did not conduct any interviews, ask specific questions, or take any investigative steps at the direction or request of DOJ.” Id. 18. The SEC attorney present at Holt’s joint interview was later permitted to review the FD-302 but not make a copy or remove it from the FBI’s possession. Id. 17. The fact that the SEC at one point disclosed FBI contact information to a witness and that the FBI allowed the SEC’s attorney to review the FD-302 is not enough to find the SEC and the FBI have engaged in joint fact-gathering. The circumstances here are the same in all material respects as those in S.E.C. v. Stanard, 2007 WL 1834709, at *1-2 (S.D.N.Y. June 26, 2007), in which the SEC and FBI interviewed a single witness together and the SEC was later permitted to review notes taken by the FBI during the interview. 2007 WL 1834709, at *2-3. Stanard refused to require the SEC to produce the FD-302. Id. The same result is appropriate here. In sum, we do not find that the FD-302 is in the SEC’s possession, custody or control and thus, for this reason alone, we will not order its production. B. The Twenty-One Witness Interviews 1. Anticipation of Litigation CCI argues that the witness interview notes prepared by the SEC were not prepared in “anticipation of litigation.” Def. Mem. at 12-13. CCI notes that the SEC characterized the investigation as a “non-public fact-finding inquiry,” March 2019 SEC Cover Letter, annexed as Exhibit 6 to Morris Decl., and that significant time elapsed between the interviews and the actual initiation of litigation, Def. Mem. at 13. The SEC argues that it in fact anticipated litigation at the time the witnesses were interviewed, Opp. Mem. at 5, and has submitted a sworn declaration on this question from an SEC attorney, Jacqueline Moessner, who interviewed witnesses as part of the investigation, see Moessner Decl.
