relying on 7 briefing, declarations, and in camera review of challenged documents
How later courts described this case
- relying on 7 briefing, declarations, and in camera review of challenged documents
- “Briefs, declarations or other 25 proof may establish the purpose of the communication or the specific role of the sender and each 26 individual recipient.”
- privilege log that included information on the subject 10 matter of each document exceeded what was required
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 IN RE GOOGLE RTB CONSUMER Case No. 21-cv-02155-YGR (VKD)
PRIVACY LITIGATION
8
ORDER RE OCTOBER 21, 2022
9 DISCOVERY DISPUTE RE GOOGLE'S
PRIVILEGE ASSERTIONS
10
Re: Dkt. No. 339
11
12
13 Plaintiffs and defendant Google LLC (“Google”) ask the Court to resolve a dispute
14 concerning the sufficiency of Google’s privilege logs and the merits of its privilege assertions.
15 Dkt. No. 339. The Court finds this dispute suitable for resolution without oral argument. Civil
16 L.R. 7-1(b).
17 For the reasons explained below, the Court denies without prejudice the relief plaintiffs
18 seek and orders further proceedings described in detail below.
19 I. BACKGROUND
20 Google’s privilege logs include nearly 10,500 entries. Dkt. No. 339, Exs. 1, 2. Plaintiffs
21 challenge 5,470 of these entries as insufficient to support Google’s assertions of attorney-client
22 privilege or attorney work product protection. Id. at 1-4. They ask the Court to order Google to
23 produce all of the challenged documents, or in the alternative, to supplement its logs with
24 additional information regarding Google’s assertions of privilege or work product protection. Id.
25 at 1. Google opposes plaintiffs’ challenges to the sufficiency of its privilege log entries on the
26 merits and as inconsistent with provisions of the ESI Order entered in this case at Dkt. No. 125.
27 Id. at 4-6.
II. LEGAL STANDARD
1
Federal common law generally governs claims of privilege. “But in a civil case, state law
2
governs privilege regarding a claim or defense for which state law supplies the rule of decision.”
3
Fed. R. Evid. 501. In this action, subject matter jurisdiction is premised on federal question
4
jurisdiction (28 U.S.C. § 1331) for Counts 9-12, supplemental jurisdiction (28 U.S.C. § 1367) for
5
the remaining state law claims, and jurisdiction under the Class Action Fairness Act (28 U.S.C.
6
§ 1332(d)) as to the entire action. Dkt. No. 92 ¶¶ 34-36. Where an action asserts both federal and
7
state law claims, and the evidence at issue relates to both, federal privilege law applies. Wilcox v.
8
Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). No party contends that Google’s disputed privilege
9
entries concern documents relevant only to claims or defenses arising under state law.
10
Accordingly, federal law governs Google’s assertions of privilege.
11
“The attorney-client privilege protects confidential communications between attorneys
12
and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina
13
Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). The privilege extends to a client’s confidential
14
disclosures to an attorney in order to obtain legal advice, as well as an attorney’s advice in
15
response to such disclosures. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (citations
16
and quotations omitted). “Because it impedes full and free discovery of the truth, the attorney-
17
client privilege is strictly construed.” Id. (citations and quotations omitted). In the Ninth Circuit,
18
whether information is protected by the attorney-client privilege is determined using an eight-part
19
test:
20
(1) Where legal advice of any kind is sought (2) from a professional
21 legal adviser in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client, (6) are at his
22 instance permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection be waived.
23
24 Sanmina, 968 F.3d at 1116. Where a communication has more than one purpose, it may be
25 protected as privileged if the primary purpose of the communication is to give or receive legal
26 advice, as opposed to business or some other non-legal advice. In re Grand Jury, 23 F.4th 1088,
27 1092-94 (9th Cir. 2021), cert. granted sub nom. In re Jury, No. 21-1397, 2022 WL 4651237 (U.S.
1 communications).
2 The attorney work product doctrine protects from discovery materials that are prepared by
3 or for a party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). The
4 doctrine provides qualified protection against discovery of the legal strategies and mental
5 impressions of a party’s counsel. Hickman v. Taylor, 329 U.S. 495, 508–10 (1947); Upjohn Co. v.
6 United States, 449 U.S. 383, 390–91 (1981). It does not protect facts from disclosure unless
7 disclosure of those facts would inherently reveal an attorney’s strategies or mental
8 impressions. See, e.g., O’Toole v. City of Antioch, No. 11 CV 01502 PJH MEJ, 2015 WL
9 1848134, at *3 (N.D. Cal. Apr. 14, 2015); Hamilton v. RadioShack Corp., No. C 11-00888 LB,
10 2012 WL 2327191, at *4–5 (N.D. Cal. June 18, 2012).
11 A party claiming that a document or information is privileged or protected from disclosure
12 has the burden to establish that the privilege or protection applies. See United States v. Martin,
13 278 F.3d 988, 999–1000 (9th Cir. 2002). In particular, a party asserting privilege or work product
14 protection must “describe the nature of the documents . . . in a manner that, without revealing
15 information itself privileged or protected, will enable other parties to assess the claim.” Fed. R.
16 Civ. P. 26(b)(5)(A); see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of
17 Mont., 408 F.3d 1142, 1148 (9th Cir. 2005). The Ninth Circuit has held a party meets its burden
18 by providing a privilege log that identifies “(a) the attorney and client involved, (b) the nature of
19 the document, (c) all persons or entities shown on the document to have received or sent the
20 document, (d) all persons or entities known to have been furnished the document or informed of
21 its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury
22 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3
23 (9th Cir. 1989)). However, a party may substantiate a claim of privilege by other means. Apple
24 Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“Briefs, declarations or other
25 proof may establish the purpose of the communication or the specific role of the sender and each
26 individual recipient.”). The Advisory Committee Note to Rule 26 provides useful guidance about
27 how a party should assert a claim of privilege or protection:
parties to evaluate the applicability of the claimed privilege or
1
protection. Although the person from whom the discovery is sought
2 decides whether to claim a privilege or protection, the court
ultimately decides whether, if this claim is challenged,
3 the privilege or protection applies. Providing information pertinent
to the applicability of the privilege or protection should reduce the
4 need for in camera examination of the documents.
5
The rule does not attempt to define for each case what information
6 must be provided when a party asserts a claim of privilege or work
product protection. Details concerning time, persons, general
7 subject matter, etc., may be appropriate if only a few items are
withheld, but may be unduly burdensome when voluminous
8 documents are claimed to be privileged or protected, particularly if
the items can be described by categories. A party can seek relief
9
through a protective order under subdivision (c) if compliance with
10 the requirement for providing this information would be an
unreasonable burden.
11
Fed. R. Civ. P. 26, Advisory Committee Note to 1980 amendment.
12
III. DISCUSSION
13
Plaintiffs challenge Google’s privilege assertions on several grounds. For the most part,
14
the parties do not disagree about the law governing the scope of the attorney-client privilege or the
15
attorney work product doctrine; they disagree about the sufficiency of Google’s showing that the
16
logged documents are, in fact, privileged or protected as Google claims. Accordingly, the Court
17
first addresses the parties’ arguments regarding the sufficiency of Google’s privilege logs, and
18
then discusses the further proceedings necessary to resolve this dispute.
19
A. Sufficiency of Google’s Privilege Log Entries
20
Plaintiffs argue that Google’s privilege logs contain only generic descriptions that do not
21
enable other parties or the Court to assess its privilege assertions. Dkt. No. 339 at 1. They say
22
that if the Court does not order Google to produce all documents corresponding to disputed
23
entries, it should order Google to provide the following additional information for all disputed
24
entries: (1) the document title or subject line, (2) the positions of the authors and recipients, and
25
(3) more detail about the issue, regulation, or policy that is the subject of the document. Id. at 2.
26
Google responds that its privilege log entries are not generic assertions of privilege, but include
27
1 require disclosure of any of the additional information plaintiffs demand. Id. at 4-5. Google also
2 argues that plaintiffs ask for information that is inconsistent with the ESI Order entered in this
3 action. Id. at 4.
4 A privilege log is one vehicle by which a party may make a prima facie showing that a
5 privilege or protection applies. In re Grand Jury Investigation, 974 F.2d at 1071; Dole, 889 F.2d
6 at 890 (describing other means to assert privilege). Google is correct that the Ninth Circuit does
7 not require disclosure of the title or subject line of a document, the organizational positions held
8 by its senders or recipients, or a description of the subject matter of the document. See In re
9 Grand Jury Investigation, 974 F.2d at 1071 (privilege log that included information on the subject
10 matter of each document exceeded what was required). On the other hand, Google’s privilege
11 logs do not include, for every disputed entry, all of the information that the Ninth Circuit found
12 sufficient for a prima facie showing of privilege in In re Grand Jury Investigation and Dole.
13 Consider, for example, the four entries plaintiffs cite in their discussion of this issue:
14 Entries #41, #7390, #9028, and #9856. Entries #41 and #9028 include a date, the
15 author/custodian’s email address, and a description of the nature of the document and its general
16 subject matter; they do not include the author/custodian’s name, the attorney involved, or all
17 persons or entities known to have received the document or been informed of its substance.1 Entry
18 #7390 is more complete. It includes a date, the author/custodian’s name and email address, the
19 recipients’ names and email addresses, and a description of the nature of the document and its
20 general subject matter; it does not include the attorney involved. At the other end of the spectrum,
21 Entry #9856 includes only a date, a corporate (not individual) author/custodian, and a description
22 of the nature of the document and its general subject matter; it does not include the name of the
23 person who authored the document, all persons or entities known to have received the document or
24 been informed of its substance, or the attorney involved.
25 Google explains that, as required by the ESI order, its log identifies the author and
26 recipients of a privileged communication only where such information is “electronically
27
1 extractable from the relevant document,” and that the description it provides of each document is
2 otherwise sufficient. See Dkt. No. 339 at 4, 5 (citing ESI order, Dkt. No. 125 at 8). Google notes
3 that the Court rejected plaintiffs’ proposal with respect to redacted documents that “[u]pon
4 reasonable request, the Producing Party agrees to provide additional information supporting the
5 claim of privilege if it is not clear from the face of the redacted document.” See Dkt. No. 116 at 4;
6 Dkt. No. 95 at 3-4, Ex. 1 (sec. 11(d)). Plaintiffs respond that neither the ESI order nor any other
7 order defines precisely what the contents of Google’s privilege logs should be or relieves Google
8 of its obligation to comply with Rule 26(b)(5)(A). Dkt. No. 339 at 2. Plaintiffs are correct. In
9 addressing the parties’ dispute about privilege assertions for ESI, the Court wrote:
10 A party claiming privilege or work product protection must describe
the materials being withheld “in a manner that, without revealing
11 information itself privileged or protected, will enable other parties to
assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). If the parties
12 disagree about whether a withheld or redacted document is
privileged or protected, they will have to discuss the matter before
13 bringing the dispute to the Court’s attention, and this discussion may
well involve the exchange of additional information.
14
To the extent plaintiffs’ proposed text is intended as a statement of
15 what may be necessary to resolve certain disputes about privilege
claims, the Court finds it unnecessary to include such a statement in
16 the ESI protocol.
17 Dkt. No. 116 at 4-5. The joint discovery dispute submission contains no indication that the parties
18 have exchanged or discussed any additional information about any of the disputed entries, with the
19 possible exception of the distribution list membership information Google says it will provide to
20 plaintiffs.
21 Given the very large number of logged documents, the Court is sympathetic to Google’s
22 argument that it would be unduly burdensome to include for every entry the level of detail that
23 might be appropriate when only small numbers of documents are withheld from production. See
24 Rule 26, Advisory Committee Note to 1980 amendment (“Details concerning time, persons,
25 general subject matter, etc., may be appropriate if only a few items are withheld, but may be
26 unduly burdensome when voluminous documents are claimed to be privileged or protected . . . .”).
27 Nevertheless, for at least some of the disputed entries, it is difficult to conclude that Google has
1 provided no additional information to plaintiffs even about the four entries plaintiffs raise as
2 examples (Entries #41, #7390, #9028, and #9856). On the other hand, plaintiffs’ demand for
3 information about the document title or subject line, the organizational positions of the authors and
4 recipients, and detail about the issue, regulation, or policy that is the subject of the document are
5 unlikely to make it easier for plaintiffs or the Court to assess whether a document actually seeks or
6 contains legal advice. Rather, plaintiffs’ demand for this information seems calculated to help
7 them assess whether the contents of a withheld document might be important for the merits of the
8 case. Likewise, plaintiffs’ suggestion that the Court should find a waiver and order Google to
9 produce all disputed documents is inconsistent with the Ninth Circuit’s direction in Burlington.
10 See 408 F.3d at 1148-1149 (discussing “holistic approach”).
11 The very large number of otherwise responsive documents that Google has withheld as
12 privileged, particularly when compared to the number of nonprivileged documents Google has
13 produced, raises questions about whether Google’s privilege assertions—i.e., its decisions to
14 withhold documents in whole or in part from production—are more expansive than Ninth Circuit
15 law permits. Those questions cannot be answered for all disputed entries simply by referring to
16 Google’s privilege logs, particularly for those entries that do not clearly indicate (by name or
17 otherwise) the attorney or attorneys whose advice was sought or provided, or whose work product
18 is reflected in the logged document. In any event, it is impossible for the Court to conduct a
19 meaningful evaluation of the 5,470 entries in dispute.2
20 Because this dispute cannot be resolved on the basis of the parties’ joint discovery dispute
21 submission, the Court orders further proceedings, described in detail below.
22 B. Further Proceedings
23 The expedited dispute resolution procedure the Court requires parties to use for discovery
24 disputes is not well-suited to resolving the parties’ present dispute regarding Google’s privilege
25 assertions. Given the number of disputed entries and the likelihood that resolution may require the
26
27
2 Because the Court adopts further proceedings, as set forth below, the Court denies plaintiffs’
1 application of well-established legal principles to complex facts, the Court concludes that the
2 matter should be briefed as a regularly noticed motion under Civil Local Rule 7-2, supported by
3 declarations and other evidence as necessary. Unless the parties agree otherwise, plaintiffs will be
4 the moving party. In addition, the Court will require Google to submit for in camera review the
5 documents corresponding to representative disputed entries, as explained more fully below. See,
6 e.g., United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002) (relying on
7 briefing, declarations, and in camera review of challenged documents); Klein v. Meta Platforms,
8 Inc., No. 20-CV-08570-JD (VKD), 2022 WL 767096 (N.D. Cal. Mar. 11, 2022) (same). Before
9 plaintiffs file their motion, the parties shall comply with the following directions:
10 In their joint submission, the parties refer to the following 18 disputed entries as examples:
11 #4, #41, #268, #285, #660, #1095, #1231, #1262, #2813, #3265, #4712, #4835, #7390, #9028,
12 #9865, #9886, #9955, and #10217. The Court will consider these to be representative examples.
13 For each of these 18 entries, Google must provide to plaintiffs at least the following
14 information: (1) date, (2) author/sender/custodian name,3 (3) all known recipients, (4) the
15 attorney(s) involved, (5) the nature of the document, (6) the subject matter of the document, and
16 (7) the privilege or protection claimed.4 If the sender or recipient of an email communication is a
17 distribution list, Google need only provide the current membership of the list (as it has already
18 proposed to do), a description of the nature of the list (e.g., company-wide, specific department,
19 executive team, etc.), and a statement indicating whether, at the time of the communication, the
20 list included any recipients who were not Google employees. Google shall provide this
21 information to plaintiffs no later than December 1, 2022.
22 If, after receiving the additional information from Google, plaintiffs dispute Google’s
23 assertion of privilege or work product protection for any of the 18 disputed entries, they may file a
24 regularly noticed motion addressing these entries. The motion need not be limited to the
25 sufficiency of Google’s supporting disclosures (i.e., whether Google has made a prima facie
26
27
3 The disclosures should identify an individual or individuals, not “Google,” if known.
1 showing of privilege) but may challenge the privilege assertion on the merits.
2 If Google opposes plaintiffs’ motion, it must submit for in camera review the documents
3 corresponding to the disputed entries at the time it files its opposition.>
4 After the Court decides plaintiffs’ motion it will consider whether any further proceedings
5 are necessary to address any remaining disputes regarding Google’s privilege assertions.
6 IV. CONCLUSION
7 The Court denies without prejudice plaintiffs’ request for relief and orders further
8 || proceedings as set forth in this order.
9 IT IS SO ORDERED.
10 Dated: November 17, 2022
11
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12 ‘
VIRGINIA K. DEMARCHI
13 United States Magistrate Judge
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28 > For now, the Court’s in camera review will be limited to whichever of the 18 disputed entries
remain in dispute at the time of Google’s opposition.