“Briefs, declarations or other proof may establish the purpose of the communication or the 5 specific role of the sender and each individual recipient.”
How later courts described this case
- “Briefs, declarations or other proof may establish the purpose of the communication or the 5 specific role of the sender and each individual recipient.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
8 RAJA KANNAN, Case No. 17-cv-07305-EJD (VKD)
9 Plaintiff,
ORDER RE DISCOVERY DISPUTE RE
10 v. PLAINTIFF’S PRIVILEGE LOG
11 APPLE INC., Re: Dkt. No. 152
Defendant.
12
13 The parties ask the Court to resolve a dispute regarding the adequacy of plaintiff Raja
14 Kannan’s privilege log. Dkt. No. 152. The Court directed Mr. Kannan to submit the documents
15 corresponding to entries #1-20 for in camera review. Dkt. No. 154. Mr. Kannan instead
16 submitted the documents corresponding to entries #1-2, 4-15, 17-23, and 25.1
17 For the following reasons, the Court concludes that Mr. Kannan has substantiated his
18 claims of attorney-client privilege or work product protection as to the documents submitted for in
19 camera review corresponding to entries #1-2, 4-15, 17-20, and his claim of spousal privilege in
20 entries #21-23 and 25 in his October 16, 2019 privilege log. Mr. Kannan has not substantiated his
21 claims of privilege or protection for entries #3 and 16.
22 I. BACKGROUND
23 Following this Court’s prior order finding his privilege log inadequate, Mr. Kannan served
24 an amended privilege log on October 16, 2019. See Dkt. No. 120 at 4–5; Dkt. No. 152, Ex. C.
25 Mr. Kannan contends that he has properly asserted claims of privilege and work product
26
27
1 Mr. Kannan represents that he cannot locate copies of the documents corresponding to entry #3
1 protection by providing a privilege log that meets the requirements of Rule 26(b)(5) of the Federal
2 Rules of Civil Procedure, and that he should not be deemed to have waived any such privileges or
3 protections. Apple contends that the privilege log does not meet the requirements of Rule
4 26(b)(5), and therefore Mr. Kannan has not adequately asserted any privileges or protections. In
5 addition, the parties dispute Mr. Kannan’s reliance on the work product doctrine with respect to
6 certain materials that he prepared on his own in anticipation of litigation but without any direction
7 or involvement of counsel.
8 II. LEGAL STANDARD
9 The attorney-client privilege applies only where the communication concerns legal advice
10 sought from an attorney in his or her capacity as a professional legal advisor, and where the
11 communication is made in confidence, is intended to be maintained in confidence by the client,
12 and is not disclosed or waived. United States v. Martin, 278 F.3d 988, 999–1000 (9th Cir. 2002)
13 (citing 8 John H. Wigmore, Evidence § 2292, at 554 (McNaughton rev. 1961)). The privilege
14 protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as
15 well as an attorney’s advice in response to such disclosures. United States v. Ruehle, 583 F.3d
16 600, 607 (9th Cir. 2009) (citations and quotations omitted). However, not all communications
17 with an attorney are privileged. Id. Because it impedes full and free discovery of the truth, the
18 attorney-client privilege is strictly construed. Id.
19 The party claiming the privilege has the burden to establish that it applies. Martin, 278
20 F.3d at 999–1000. In particular, a party asserting privilege must “describe the nature of the
21 documents . . . in a manner that, without revealing information itself privileged or protected, will
22 enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A); see also Burlington N. &
23 Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005)
24 (explaining that a party claiming privilege must “provide sufficient information to enable other
25 parties to evaluate the applicability of the claimed privilege or protection.”). Typically, this is
26 done using a privilege log that identifies “(a) the attorney and client involved, (b) the nature of the
27 document, (c) all persons or entities shown on the document to have received or sent the
1 its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury
2 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). However, a party may substantiate a claim of
3 privilege by other means. Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal.
4 2015) (“Briefs, declarations or other proof may establish the purpose of the communication or the
5 specific role of the sender and each individual recipient.”).
6 The work product doctrine protects from discovery materials that are prepared by or for a
7 party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3)). Typically, the
8 doctrine provides qualified protection against discovery of the legal strategies and mental
9 impressions of a party’s counsel. Hickman v. Taylor, 329 U.S. 495, 508–10 (1947); Upjohn Co. v.
10 United States, 449 U.S. 383, 390–91 (1981). However, Rule 26(b)(3) extends the qualified work
11 product protection to materials “prepared in anticipation of litigation or for trial by or for another
12 party or its representative . . . .” Fed. R. Civ. P. 26(b)(3) (emphases added); see also Fed. R. Civ.
13 P. 26(b)(3) advisory committee note to 1970 amendment; 8 Charles Alan Wright, Arthur R. Miller
14 & Richard L. Marcus, Federal Practice and Procedure § 2024 (3d ed.) (“The 1970 amendment
15 also extended the work product protection to documents and things prepared for litigation or trial
16 by or for the adverse party itself or its agent. Prior to the adoption of Rule 26(b)(3), some cases
17 had held that documents of this kind were not within the immunity, but the protection exists under
18 the rule.”). Although courts regarding whether or to what extent the protection extends to
19 materials prepared by a pro so litigant, compare McKenzie v. McNeil, No. 4:11CV45-RH/WCS,
20 2012 WL 695108, at *1 (N.D. Fla. Mar. 1, 2012) (expressing skepticism about the extent to which
21 a pro se plaintiff may assert work product protection) with Dessault Systemes v. Childress, No. 09-
22 10534, 2013 WL 12181774, at *1 (E.D. Mich. Nov. 22, 2013) (acknowledging pro se litigant’s
23 right to assert work product protection), this Court concludes that a party may assert work product
24 protection regardless of whether he is represented by counsel, so long as the assertion meets the
25 requirements of Rule 26(b)(3).
26 The work product doctrine does not protect facts from disclosure. See, e.g., O’Toole v.
27 City of Antioch, No. 11 CV 01502 PJH MEJ, 2015 WL 1848134, at *3 (N.D. Cal. Apr. 14, 2015);
1 18, 2012). The party asserting the protections of the doctrine bears the burden of showing that the
2 documents at issue qualify for protection. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d
3 573, 577 (9th Cir. 1992). As with claims of attorney-client privilege, the party asserting work
4 product protection must party “describe the nature of the documents . . . in a manner that, without
5 revealing information itself privileged or protected, will enable other parties to assess the claim.”
6 Fed. R. Civ. P. 26(b)(5)(A).
7 The “marital communications” privilege protects private, confidential communications
8 between spouses. United States v. Montgomery, 384 F.3d 1050, 1056 (9th Cir. 2004). The
9 privilege must be construed narrowly. Id.
10 III. DISCUSSION
11 Presumably, Mr. Kannan has provided for in camera review all of the responsive
12 documents he is withholding on grounds of privilege: 22 documents. His privilege log, however,
13 is not document-specific. For example, Exhibit 1 submitted in camera is an email exchange
14 between Mr. Kannan and one prospective counsel dated October 12-13, 2016. This exhibit is
15 presented in camera as corresponding to entry #1 in Mr. Kannan’s privilege log, which reads:
16
date author recipient description privilege
17
Communications with specific
18 attorneys concerning potential
representation of Kannan and/or
19 Specific consulting on legal issues involved in
2015 potential this litigation. These communications,
20
approx. attorneys to the extent now known, to Plaintiff, Attorney
21 November who would are individually listed below. Failure client
through possibly to list is not a waiver as to any item privilege,
22
August represent which may fall in this category. Not work
23 2018 R Kannan Kannan saved to Apple laptop. product
24 This is not an accurate description of the document submitted for in camera review.
25 Mr. Kannan’s privilege log appears to misrepresent the documents Mr. Kannan is
26 withholding because it does not accurately describe those documents with the specificity Rule
27 26(b)(5) requires. The Court previously ordered Mr. Kannan’s counsel to personally review and
1 privilege or protection. See Dkt. No. 120 at 4–5. The Court expected that that review would
2 result in a revised, document-specific privilege log, or at the very least that Mr. Kannan would
3 provide an explanation for why preparation of a document-specific log would be unduly
4 burdensome. Given the non-specific nature of most of the entries on the privilege log, the Court
5 has undertaken an in camera review of all documents Mr. Kannan says he has withheld on grounds
6 of privilege or some other protection.
7 Based on that review, the Court orders as follows:
8 Several of the documents associated with entries on Mr. Kannan’s privilege log are
9 communications and other documents that reflect his efforts to obtain counsel in this matter.
10 These documents are protected from disclosure by the attorney-client privilege and correspond to
11 entries #1, 2, 4, 5, 9, 10, 12, 18, 20.
12 Several of the documents associated with entries on Mr. Kannan’s privilege log are
13 documents he prepared himself in anticipation of litigation. These documents are protected from
14 disclosure by the work product doctrine, as Apple has made no showing that it has a substantial
15 need for these documents: entries #5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20.
16 Mr. Kannan asserts “spousal privilege” with respect to entries #21, 22, 23 and 25. The
17 privilege log descriptions for these entries are more specific than others on the log, providing
18 reasonable notice to Apple of the nature of the documents and the reasons for assertion of the
19 privilege. These documents appear to be private, confidential communications between Mr.
20 Kannan and his wife. Apple does not contend otherwise. The Court concludes that the marital
21 communications privilege protects these documents from discovery.
22 Apple refers in passing to the fact that the privilege log sometimes states that a particular
23 document or category of documents was “not saved to [Mr. Kannan’s] Apple laptop” but
24 otherwise is silent on that point. To the extent Apple contends that saving these documents to an
25 Apple-owned computer means that such documents were not maintained in confidence, that
26 argument is not well-developed in Apple’s portion of the joint submission. See Dkt. No. 152 at 5.
27 Apple’s single citation to Long v. Marubeni Am. Corp., No. 05Civ.639, 2006 WL 2998671
1 this case, is not persuasive. Other courts in this district have applied the four-factor analysis
2 described in In re Asia Global Crossing, Ltd., 322 B.R. 247 (2005), for determining whether the
3 attorney-client privilege or other protection may apply to an employee’s communications
4 || transmitted or stored on an employer’s computer, but neither party engages in that analysis here.
5 In re High-Tech Employee Antitrust Litig., No. 11-cv-2509-LHK-PSG, 2013 WL 772668 (N.D.
6 Cal. Feb. 28, 2013); Flatworld Interactives v. Apple Inc., No. C-12-019560 JSW (EDL), 2013 WL
7 11319071 (N.D. Cal. Dec. 24, 2013). For his part, Mr. Kannan says that he “believed that under
8 || Apple’s policies and practices his private material saved to the laptop would be protected.” Dkt.
9 |} No. 152 at 8. Apple does not dispute Mr. Kannan’s characterization of Apple’s policies and
10 || practices. Accordingly, the Court concludes that Mr. Kannan has not waived any privilege or
11 protection by saving documents or communications to his Apple-owned computer.
12 The Court concludes that the documents submitted for in camera review corresponding to
5 13 entries #1-2, 4-15, 17-23, and 25 need not be produced. However, the Court will require Mr.
14 Kannan to prepare a privilege log that accurately describes the responsive documents he is
3 15 currently withholding from production. For example, Mr. Kannan may not rely on broad date
16 || ranges or generic descriptions of the parties to a collection of communications. Mr. Kannan shall
3 17 serve an amended privilege log on Apple by November 6, 2019. Mr. Kannan has a continuing
18 duty to amend this log if additional responsive documents are withheld on grounds of privilege or
19 some other protection.
20 The Court concludes that Mr. Kannan has not established a claim of privilege or protection
21 for documents corresponding to entries #3 and 16. However, it is unclear whether any such
22 || documents actually exist and whether Mr. Kannan is withholding them from production. If they
23 || do exist and Mr. Kannan is withholding them, Mr. Kannan must produce them by November 6,
24 || 2019.
25 IT IS SO ORDERED.
26 Dated: October 30, 2019
28 VIRGINIA K. DEMARCHI
United States Magistrate Judge