District Court determining 3 that documents submitted for in camera review were protected by work product doctrine
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- District Court determining 3 that documents submitted for in camera review were protected by work product doctrine
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 KRYSTAL CASTILLO, No. 1:21-cv-01460-ADA-BAM
12 Plaintiff,
ORDER AFTER IN CAMERA REVIEW
13 v.
14 THE WELL COMMUNITY CHURCH, a
California corporation,
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Defendant.
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19 In this case, Plaintiff Krystal Castillo (“Plaintiff”) alleges employment discrimination,
20 retaliation, interference with prospective economic relations, and defamation by Defendant The
21 Well Community Church (“Defendant”). (Doc. 39.) In response to Plaintiff’s Requests for
22 Production No. 47-49 and 53, Defendant produced responsive documents but also withheld or
23 redacted approximately 20-25 emails that it claimed were protected by attorney-client privilege or
24 work product doctrine. (Doc. 55.) To resolve the remaining issues regarding whether these
25 documents were privileged, the Court directed Defendant to submit the identified emails and any
26 other similar emails located during Defendant's rolling production which do not have an attorney
27 as sender or recipient that are alleged to be privileged to the Court for in camera review. (Id.)
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1 The Necessity for In Camera Review
2 As it pertains to the in camera review, Defendant noted that all “responsive non-privileged
3 documents have been provided to Castillo in response to Requests for Production requests
4 numbered 47-49 and 53, arising out of the email search terms requested by plaintiff.” (Doc. 57 at
5 1.) However, Defendant withheld documents under privilege that were “attorney communications,
6 management discussions of attorney communications, and work product prepared in anticipation
7 of litigation.” (Id.) Plaintiff maintained that Defendant’s privilege log was overly broad and that
8 Defendant bore the burden of showing that the attorney-client privilege or work product doctrine
9 applied. (Doc. 49 at 2, Doc. 53 at 1, Doc. 56 at 1.)
10 The Court ordered Defendant to submit the identified 20-25 emails and any other similar
11 emails located during Defendant’s rolling production which do not have an attorney as sender or
12 recipient that are alleged to be privileged to the Court for in camera review. (Doc. 55.)
13 This Order is entered after considering the 21 exhibits submitted by Defendant and
14 conducting an in camera review.
15 Description of Documents Submitted for In Camera Review
16 On May 30, 2023, the Court received documents from Defendant submitted for in camera
17 review, which consist of 21 exhibits containing email discussions between Defendant’s
18 employees or between Defendant’s employees and counsel. Each exhibit will be addressed in
19 turn below.
20 Legal Standard
21 “A district court may conduct an in camera inspection of alleged confidential
22 communications to determine whether the attorney-client privilege applies.” Clarke v. Am. Com.
23 Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992). Attorney-client privilege applies “(1) [w]here legal
24 advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the
25 communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his
26 instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless
27 the protection be waived.” In re Grand Jury Investigation, 974 F.2d 1068, 1071 n. 2 (9th Cir.1992)
28 (quoting Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977)). “Because it impedes full and free
1 discovery of the truth, the attorney-client privilege is strictly construed.” United States v. Martin,
2 278 F.3d 988, 999 (9th Cir. 2002) (quoting Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d
3 18, 24 (9th Cir. 1981).
4 Attorney-client privilege “may attach to communications between nonlegal employees
5 where: (1) the employees discuss or transmit legal advice given by counsel; and (2) an employee
6 discusses her intent to seek legal advice about a particular issue.” Datel Holdings Ltd. v. Microsoft
7 Corp., No. C-09-05535 EDL, 2011 WL 866993, at *5 (N.D. Cal. Mar. 11, 2011) (quoting U.S. v.
8 ChevronTexaco Corp., 241 F. Supp. 2d. 1065, 1077 (N.D. Cal. 2002)) (internal quotation marks
9 omitted); see also AT & T Corp. v. Microsoft Corp., No. 02-cv-0164 MHP (JL), 2003 WL
10 21212614, at *3 (N.D. Cal. Apr. 18, 2003) (“Communications between non-lawyer employees
11 about matters which the parties intend to seek legal advice are likewise cloaked by attorney-client
12 privilege.”).
13 In applying this privilege, courts have required sufficiently detailed declarations to
14 demonstrate that the communications at issue were actually connected to the employees’ intent to
15 seek legal advice or upon attorneys’ instructions/direction of employees’ actions. See Datel, 2011
16 WL 866993, at *6 (Lange, the person who drafted the allegedly privileged email, “had participated
17 in a conference call with Shelley McKinley, Microsoft's in-house counsel, on that morning
18 concerning Microsoft's potential infringement claims against Datel… McKinley requested on that
19 call that Lange conduct an investigation into the potential claims and enlist other employees with
20 relevant technical expertise.”); U.S. ex rel. Schmuckley v. Rite Aid Corp., No. 2:12-CV-01699 KJM
21 JDP, 2023 WL 425841, at *3 (E.D. Cal. Jan. 26, 2023) (finding emails from internal auditor
22 conducting investigation at request of attorney to be privileged). Here, declarations from Defendant
23 about the communications which were privileged are unnecessary because the actual emails were
24 provided to the Court for review. Furthermore, courts have tailored the privilege specifically to the
25 portion of documents in which the attorney’s advice is conveyed or discussed. See Datel, 2011
26 WL 866993, at *6 (“the only portion of the ‘Re-auth’ email chain that is protected by the attorney-
27 client privilege is the original email from [the person who conveyed the attorney’s request for an
28 investigation into an issue]”).
1 A district court may also review documents to determine whether work product protections
2 apply. See, e.g., Lopes v. Vieira, 719 F. Supp. 2d 1199 (E.D. Cal. 2010) (District Court determining
3 that documents submitted for in camera review were protected by work product doctrine). “The
4 work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), protects ‘from
5 discovery documents and tangible things prepared by a party or his representative in anticipation
6 of litigation.’” In re Grand Jury Subpoena (Mark Torf/Torf Env't Mgmt.), 357 F.3d 900, 906 (9th
7 Cir. 2004) (quoting Admiral Ins. Co. v. United States District Court, 881 F.2d 1486, 1494 (9th
8 Cir.1989)). The Ninth Circuit has held that “to qualify for protection against discovery under [Rule
9 26(b)(3)], documents must have two characteristics: (1) they must be ‘prepared in anticipation of
10 litigation or for trial,’ and (2) they must be prepared ‘by or for another party or by or for that other
11 party's representative.’” Id at 907 (quoting In re California Pub. Utils. Comm’n, 892 F.2d 778,
12 780–81 (9th Cir.1989)). However, the “work product doctrine does not protect materials assembled
13 in the ordinary course of business.” Griffith v. Davis, 161 F.R.D. 687, 698 (C.D. Cal. 1995).
14 “Rather, the primary motivating purpose behind the creation of the materials must be as an aid in
15 possible future litigation.” Id.; see also Anderson v. Marsh, 312 F.R.D. 584, 593 (E.D. Cal. 2015)
16 (citing Griffith and noting that “the documents at issue are routinely created regardless of whether
17 there would be litigation regarding the incident” when finding that a party did not meet the burden
18 of showing the documents were prepared in anticipation of litigation.).
19 Analysis
20 The Court has evaluated the Exhibits 1-21 for third party privacy,1 attorney-client privilege
21 protection and for work product doctrine protection. In analyzing the Exhibits for attorney-client
22 privilege, the Court examined whether the documents were connected to Defendant’s employees’
23 intent to seek legal advice or to Defendant’s employees’ discussion or transmission of counsel’s
24 legal advice. See Datel, 2011 WL 866993, at *5.
25 Exhibit 1
26 Exhibit 1 contains a redacted portion within an email dated July 18, 2021. The redacted
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28 1 The Court did not identify any third party privacy concerns in its in camera review.
1 portion of Exhibit 1 is not privileged except for the sentence following the unprivileged sentence
2 “To be clear, the employment decision has already been made and isn’t part of the discussion.”
3 The privileged sentence is protected as it includes Defendant’s employee transmitting the legal
4 advice of counsel. Datel, 2011 WL 866993, at *5.
5 Exhibit 2
6 Exhibit 2 is an email thread consisting of messages from June 17, 2021 and June 18, 2021.
7 The June 18, 2021 email from Jeremy Vanderlinden is not privileged except for the final sentence
8 regarding counsel Chris Brown that shows Defendant’s employees seeking legal advice from
9 counsel. The June 18, 2021 email from Cindy Karraker is not privileged. The June 18, 2021 email
10 from Brad Bell, including the draft message within the email, is not privileged. The June 17, 2021
11 email from Jeremy Vanderlinden is privileged until the paragraph beginning “Dude…”, and the
12 clause starting with the word “just” and ending before the phrase “pray about them” is privileged.
13 Datel, 2011 WL 866993, at *5 (Attorney-client privilege “may attach to communications between
14 nonlegal employees where: (1) the employees discuss or transmit legal advice given by counsel”)
15 Exhibit 3
16 Exhibit 3 is duplicative of Exhibit 2 and consists of an email thread with messages from
17 June 17, 2021 and June 18, 2021. The June 18, 2021 email from Cindy Karraker is not privileged.
18 The June 18, 2021 email from Brad Bell, including the draft message within the email, is not
19 privileged. The June 17, 2021 email from Jeremy Vanderlinden is privileged until the paragraph
20 beginning “Dude…”, and the clause starting with the word “just” and ending before the phrase
21 “pray about them” is privileged. Datel, 2011 WL 866993, at *5.
22 Exhibit 4
23 Exhibit 4 consists of a June 17, 2021 email from Jeremy Vanderlinden that is a duplicate of
24 his June 17, 2021 email from Exhibits 2 and 3. This email is privileged until the paragraph
25 beginning “Dude …”, and the clause starting with the word “just” and ending before the phrase
26 “pray about them” is privileged. See Datel, 2011 WL 866993, at *5 (Attorney-client privilege
27 “may attach to communications between nonlegal employees where: (1) the employees discuss or
28 transmit legal advice given by counsel”)
1 Exhibit 5
2 Exhibit 5 consists of a June 9, 2021 email from Wendi Mooney. This email is not privileged
3 because it is Defendant’s employee’s description of an attorney’s characterization of organizational
4 structure rather than transmission of counsel’s legal advice or work product in anticipation of
5 litigation. Datel, 2011 WL 866993, at *5; Grand Jury Subpoena, 357 F.3d at 906.
6 Exhibit 6
7 Exhibit 6 consists of a June 9, 2021 email from Wendi Mooney that is duplicative of Exhibit
8 5. This email is not privileged because it is Defendant’s employee’s description of an attorney’s
9 characterization of organizational structure rather than transmission of counsel’s legal advice or
10 work product in anticipation of litigation. Id.
11 Exhibit 7
12 Exhibit 7 consists of a June 9, 2021 email from Brad Bell. This email is not privileged
13 because it contains Defendant’s employee’s description of an attorney’s characterization of
14 organizational structure rather than transmission of counsel’s legal advice or work product in
15 anticipation of litigation. Id.
16 Exhibit 8
17 Exhibit 8 consists of an email thread with multiple emails from June 7, 2021. The June 7,
18 2021 3:21 PM from Brad Bell to Brad Bell consisting of one sentence is not privileged and may be
19 produced. The June 7, 2021 2:47:35 PM email from Brent Taylor to Brad Bell is privileged as it
20 involves the transmission of attorney advice. The June 7, 2021 1:42 PM email from Christopher
21 Brown to Brent Taylor is privileged as Mr. Brown is providing advice as Defendant’s counsel. The
22 June 7, 2021 1:02 PM email from Brent Taylor to Christopher Brown is privileged as it seeks legal
23 advice from counsel. The June 7, 2021 12:21 PM email from Christopher Brown to Brent Taylor
24 is privileged as Mr. Brown is providing advice as Defendant’s counsel.
25 Exhibit 9
26 Exhibit 9 is duplicative of Exhibit 8 and consists of an email thread with multiple emails
27 from June 7, 2021. The June 7, 2021 3:21 PM from Brad Bell to Brad Bell consisting of one
28 sentence is not privileged and may be produced. The June 7, 2021 2:47:35 PM email from Brent
1 Taylor to Brad Bell is privileged as it involves the transmission of attorney advice. The June 7,
2 2021 1:42 PM email from Christopher Brown to Brent Taylor is privileged as Mr. Brown is
3 providing advice as Defendant’s counsel. The June 7, 2021 1:02 PM email from Brent Taylor to
4 Christopher Brown is privileged as it seeks legal advice from counsel. The June 7, 2021 12:21 PM
5 email from Christopher Brown to Brent Taylor is privileged as Mr. Brown is providing advice as
6 Defendant’s counsel.
7 Exhibit 10
8 Exhibit 10 is duplicative of Exhibits 8 and 9 and consists of an email thread with multiple
9 emails from June 7, 2021. The June 7, 2021 3:21 PM from Brad Bell to Brad Bell consisting of
10 one sentence is not privileged and may be produced. The June 7, 2021 2:47:35 PM email from
11 Brent Taylor to Brad Bell is privileged as it involves the transmission of attorney advice. The June
12 7, 2021 1:42 PM email from Christopher Brown to Brent Taylor is privileged as Mr. Brown is
13 providing advice as Defendant’s counsel. The June 7, 2021 1:02 PM email from Brent Taylor to
14 Christopher Brown is privileged as it seeks legal advice from counsel. The June 7, 2021 12:21 PM
15 email from Christopher Brown to Brent Taylor is privileged as Mr. Brown is providing advice as
16 Defendant’s counsel.
17 Exhibit 11
18 Exhibit 11 is a June 6, 2021 6:53 PM email from Brad Bell that does not indicate who
19 received the email. This is not privileged, as it does not appear to be seeking or transmitting
20 attorney advice nor does it appear to be drafted in anticipation of litigation. See Datel, 2011 WL
21 866993, at *5; Grand Jury Subpoena, 357 F.3d at 906.
22 Exhibit 12
23 Exhibit 12 consists of two emails from June 6, 2021 and June 7, 2021. The June 7, 2021
24 email from Steven & Candice Lapa is not privileged as it is not seeking or transmitting attorney
25 advice, and is not in anticipation of litigation. Datel, 2011 WL 866993, at *5; Grand Jury
26 Subpoena, 357 F.3d at 906. The June 6, 2021 email from Brad Bell is a duplicate of the email from
27 Exhibit 11 and is similarly not privileged as it is not seeking or transmitting attorney advice nor
28 does it appear to be drafted in anticipation of litigation. Id.
1 Exhibit 13
2 Exhibit 13 consists of a redacted portion of a June 7, 2021 email from Cindy Karraker to
3 Brad Bell. This email is not privileged under attorney-client privilege as it does not transmit or
4 discuss attorney advice, nor does it convey the intent to seek legal advice. Datel, 2011 WL 866993,
5 at *5. It is also not protected under the work product doctrine as it does not appear to be drafted in
6 advance of litigation. Grand Jury Subpoena, 357 F.3d at 906.
7 Exhibit 14
8 Exhibit 14 consists of a June 7, 2021 email from Brad Bell. This email is not privileged,
9 and Defendant has indicated that this email would be produced to Plaintiff.
10 Exhibit 15
11 Exhibit 15 consists of a forwarded June 7, 2021 email from Verla Oliver to Cindy Karraker
12 regarding a human resources investigation process. The redacted portions and investigation are not
13 privileged as they do not transmit, discuss, or seek attorney advice, and are also not protected under
14 the work product doctrine as it does not appear to be drafted in advance of litigation. See Datel,
15 2011 WL 866993, at *5; Grand Jury Subpoena, 357 F.3d at 906.
16 Exhibit 16
17 Exhibit 16 is duplicative of Exhibit 15, and consists of a forwarded June 7, 2021 email from
18 Verla Oliver to Cindy Karraker regarding an investigation process. For the same reasons as Exhibit
19 15, it is not privileged.
20 Exhibit 17
21 Exhibit 17 is duplicative of Exhibits 15 and 16, and consists of a forwarded June 7, 2021
22 email from Verla Oliver to Cindy Karraker regarding an investigation process. For the same
23 reasons as Exhibits 15 and 16, it is not privileged.
24 Exhibit 18
25 Exhibit 18 is duplicative of Exhibit 12, and consists of two emails from June 6, 2021 and
26 June 7, 2021. The June 7, 2021 email from Steven & Candice Lapa is not privileged as it is not
27 seeking or transmitting attorney advice, and is not in anticipation of litigation. See Datel, 2011 WL
28 866993, at *5; Grand Jury Subpoena, 357 F.3d at 906. The June 6, 2021 email from Brad Bell is
1 similarly not privileged as it is not seeking or transmitting attorney advice nor does it appear to be
2 drafted in anticipation of litigation.
3 Exhibit 19
4 Exhibit 19 is duplicative of Exhibit 13, and consists of a redacted portion of a June 7, 2021
5 email from Cindy Karraker to Brad Bell. This email is not privileged under attorney-client privilege
6 as it does not transmit or discuss attorney advice, nor does it convey the intent to seek legal advice.
7 See Datel, 2011 WL 866993, at *5. It is also not protected under the work product doctrine as it
8 does not appear to be drafted in advance of litigation. See Grand Jury Subpoena, 357 F.3d at 906.
9 Exhibit 20
10 The allegedly privileged portion of Exhibit 20 consists of two sentences in a June 3, 2021
11 email from Verla Oliver to Cindy Karraker. The email refers to an executive summary which is
12 not included in the documents that were provided to the Court for review. The Executive Summary
13 is not at issue or the subject of litigation, and the email referring to the document is not a
14 communication with an attorney or a communication between Defendant’s employees indicating
15 an intent to seek, transmit, or discuss legal advice from counsel. The email discussion also does
16 not appear to be work product created in anticipation of litigation, and is therefore not protected by
17 attorney-client privilege or work product doctrine.
18 Exhibit 21
19 Exhibit 21 consists of a May 28, 2021 email from Cindy Karraker to Jeremy Vanderlinden
20 in which human resources matters are discussed and Ms. Karraker notes that she has “refrained
21 from discussing too much and drawing any conclusions.” This is not a communication with an
22 attorney, transmission or discussion of counsel’s legal advice, or discussion of an intent to seek
23 legal advice, and is therefore not protected by attorney-client privilege. Datel, 2011 WL 866993,
24 at *5. This also appears to be a discussion done in the ordinary course of business rather than in
25 anticipation of litigation, and is therefore not protected by work product doctrine. Griffith v. Davis,
26 161 F.R.D. 687, 698 (C.D. Cal. 1995).
27 Conclusion and Order
28 Based on the above, the Court finds that certain portions of Exhibits 1-4 and 8-10 are
1 protected by attorney-client privilege and may be redacted by Defendant. The protected Exhibit
2 portions are: (1) Exhibit 1, the sentence in the June 18, 2021 email from Brad Bell following “To
3 be clear, the employment decision has already been made and isn’t part of the discussion” and
4 prior to “Unfortunately for the Counseling Center to take the next step towards autonomy we
5 (The Board) will need to clean up officers and move the process forward” is privileged; (2)
6 Exhibit 2, the final sentence of the June 18, 2021 email from Jeremy Vanderlinden regarding
7 counsel Christopher Brown is privileged; (3) Exhibit 2, the June 17, 2021 email from Jeremy
8 Vanderlinden is privileged until the paragraph beginning “Dude…”, and the clause in that email
9 starting with the word “just” and ending before the phrase “pray about them” is privileged; (4)
10 Exhibit 3, the June 17, 2021 email from Jeremy Vanderlinden is privileged until the paragraph
11 beginning “Dude…”, and the clause in that email starting with the word “just” and ending before
12 the phrase “pray about them” is privileged; (5) Exhibit 4, the June 17, 2021 email from Jeremy
13 Vanderlinden is privileged until the paragraph beginning “Dude…”, and the clause in that email
14 starting with the word “just” and ending before the phrase “pray about them” is privileged; (6)
15 Exhibit 8, the June 7, 2021 2:47 PM email from Brent Taylor to Brad Bell is privileged; (7)
16 Exhibit 8, the June 7, 2021 1:42 PM email from Christopher Brown to Brent Taylor is privileged;
17 (8) Exhibit 8, the June 7, 2021 1:02 PM email from Brent Taylor to Christopher Brown is
18 privileged; (9) Exhibit 8, the June 7, 2021 12:21 PM email from Christopher Brown to Brent
19 Taylor is privileged; (10) Exhibit 9, the June 7, 2021 2:47 PM email from Brent Taylor to Brad
20 Bell is privileged; (11) Exhibit 9, the June 7, 2021 1:42 PM email from Christopher Brown to
21 Brent Taylor is privileged; (12) Exhibit 9, the June 7, 2021 1:02 PM email from Brent Taylor to
22 Christopher Brown is privileged; (13) Exhibit 9, the June 7, 2021 12:21 PM email from
23 Christopher Brown to Brent Taylor is privileged; (14) Exhibit 10, the June 7, 2021 2:47 PM email
24 from Brent Taylor to Brad Bell is privileged; (15) Exhibit 9, the June 7, 2021 1:42 PM email from
25 Christopher Brown to Brent Taylor is privileged; (16) Exhibit 9, the June 7, 2021 1:02 PM email
26 from Brent Taylor to Christopher Brown is privileged; and (17) Exhibit 9, the June 7, 2021 12:21
27 PM email from Christopher Brown to Brent Taylor is privileged.
28 The remainder of the documents are not privileged and shall therefore be produced by
1 Defendant without redaction.
2 The Clerk of the Court is instructed to return to Defendant’s counsel of record the
3 documents submitted for in camera review, via US mail.
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IT IS SO ORDERED.
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6 Dated: June 22, 2023 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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