In a legal disappointment for American Express Co., Judge Barbara S. Jones ruled Thursday that internal Amex documents related to the company's conversations with the Department of Justice could be introduced as evidence.
A public transcript of the judge's ruling said, "It is quite clear that [the documents] were written to aid the Department of Justice in its investigation and litigation against the defendants," Visa and MasterCard.
In a closed-door meeting in the judge's chambers, Amex lawyers had argued that the documents - which include transcripts of meetings and Powerpoint presentations about the card industry - were protected by attorney-client privilege and by a "work product doctrine" that shields material prepared in anticipation of litigation.
Judge Jones deleted two words that she said might have compromised attorney-client privilege but admitted the rest of the documents, saying that none of them "mentions any litigation supposedly anticipated." Though it was aiding the Justice Department, Amex was also considering a private lawsuit against Visa and MasterCard.
"The defendants argue that the trial record already shows that American Express intended to misrepresent information to the Department in an effort to promote a lawsuit that would help American Express achieve its business goals," Judge Jones said. "I am making no such finding at the moment. But the defendants have convincingly argued at least that they should be entitled to show the full extent of these alleged misrepresentations, not simply for the purpose of impeaching individual American Express witnesses as to specific facts but also to demonstrate the extent to which American Express - because of its bias - and obviously individual witnesses of American Express - because of their bias - attempted to influence the DOJ to serve their own interests."
She also said, "Let me add, there is nothing wrong with American Express urging the Department of Justice [to file suit] or providing information to the Department of Justice."