“Briefs, declarations or other 4 proof may establish the purpose of the communication or the specific role of the sender and each 5 individual recipient.”
How later courts described this case
- “Briefs, declarations or other 4 proof may establish the purpose of the communication or the specific role of the sender and each 5 individual recipient.”
- describing and adopting the “primary purpose” test for dual-purpose 7 communications
- relying on briefing, declarations, and in camera review of challenged documents
Written by the judges who cited it.
The opinion
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2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
8 IN RE TELESCOPES ANTITRUST ORDER RE OCTOBER 28, 2022
LITIGATION DISCOVERY DISPUTE RE
9 DEFENDANTS' PRIVILEGE CLAIMS
10 Case No. 20-cv-03639-EJD (VKD)
Re: Dkt. Nos. 287, 288
11
12 Case No. 20-cv-03642-EJD (VKD)
Re: Dkt. Nos. 267, 268
13
14
15 Direct Purchaser Plaintiffs (“DPPs”) and Indirect Purchaser Plaintiffs (“IPPs”)
16 (collectively “Plaintiffs”) and Defendants ask the Court to resolve their disputes concerning
17 documents Defendants have withheld as privileged and the sufficiency of Defendants’ privilege
18 log. Dkt. Nos. 287, 288.1 The Court finds these disputes suitable for resolution without oral
19 argument. Civil. L.R. 7-1(b).
20 For the reasons explained below, the Court grants in part and denies in part the relief
21 Plaintiffs seek and orders further proceedings described in detail below.
22 I. BACKGROUND
23 Defendants’ privilege log includes over 1,000 entries. See Dkt. Nos. 287-1, 288-1.
24 Plaintiffs appear to challenge more than half of these entries as insufficient to support Defendants’
25 assertions of attorney-client privilege or attorney work product protection. Id.2 They ask the
26
1 For convenience, all citations are to Case No. 20-3639 unless otherwise noted.
27
1 Court to order Defendants to produce all of the challenged documents or, for some entries, to
2 produce the documents for in camera review. Defendants argue that their privilege log entries are
3 sufficient, and they oppose Plaintiffs’ challenges to specific categories of documents withheld as
4 privileged.
5 II. LEGAL STANDARD
6 Federal common law generally governs claims of privilege. “But in a civil case, state law
7 governs privilege regarding a claim or defense for which state law supplies the rule of decision.”
8 Fed. R. Evid. 501. In these related cases, subject matter jurisdiction is premised on federal
9 question jurisdiction (28 U.S.C. §§ 1331, 1337) for claims based on the federal antitrust laws,
10 supplemental jurisdiction (28 U.S.C. § 1367) for claims based on state law, and (with respect to
11 IPPs’ complaint) jurisdiction under the Class Action Fairness Act (28 U.S.C. § 1332(d)). See No.
12 20-3639, Dkt. No. 251; No. 20-3642, Dkt. No. 188. Where an action asserts both federal and state
13 law claims, and the evidence at issue relates to both, federal privilege law applies. Wilcox v.
14 Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). No party contends that Defendants’ disputed privilege
15 claims concern documents relevant only to claims or defenses arising under state law.
16 Accordingly, federal law governs Defendants’ assertions of privilege.
17 “The attorney-client privilege protects confidential communications between attorneys
18 and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina
19 Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). The privilege extends to a client’s confidential
20 disclosures to an attorney in order to obtain legal advice, as well as an attorney’s advice in
21 response to such disclosures. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (citations
22 and quotations omitted). “Because it impedes full and free discovery of the truth, the attorney-
23 client privilege is strictly construed.” Id. (citations and quotations omitted). In the Ninth Circuit,
24 whether information is protected by the attorney-client privilege is determined using an eight-part
25 test:
26 (1) Where legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
27
to that purpose, (4) made in confidence (5) by the client, (6) are at his
1 instance permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection be waived.
2
3 Sanmina, 968 F.3d at 1116. Where a communication has more than one purpose, it may be
4 protected as privileged if the primary purpose of the communication is to give or receive legal
5 advice, as opposed to business or some other non-legal advice. In re Grand Jury, 23 F.4th 1088,
6 1092-94 (9th Cir. 2021) (describing and adopting the “primary purpose” test for dual-purpose
7 communications), cert. granted sub nom. In re Jury, No. 21-1397, 2022 WL 4651237 (U.S. Oct. 3,
8 2022).
9 The attorney work product doctrine protects from discovery materials that are prepared by
10 or for a party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). The
11 doctrine provides qualified protection against discovery of the legal strategies and mental
12 impressions of a party’s counsel. Hickman v. Taylor, 329 U.S. 495, 508–10 (1947); Upjohn Co. v.
13 United States, 449 U.S. 383, 390–91 (1981). It does not protect facts from disclosure unless
14 disclosure of those facts would inherently reveal an attorney’s strategies or mental
15 impressions. See, e.g., O’Toole v. City of Antioch, No. 11 CV 01502 PJH MEJ, 2015 WL
16 1848134, at *3 (N.D. Cal. Apr. 14, 2015); Hamilton v. RadioShack Corp., No. C 11-00888 LB,
17 2012 WL 2327191, at *4–5 (N.D. Cal. June 18, 2012).
18 A party claiming that a document or information is privileged or protected from disclosure
19 has the burden to establish that the privilege or protection applies. See United States v. Martin,
20 278 F.3d 988, 999–1000 (9th Cir. 2002). In particular, a party asserting privilege or work product
21 protection must “describe the nature of the documents . . . in a manner that, without revealing
22 information itself privileged or protected, will enable other parties to assess the claim.” Fed. R.
23 Civ. P. 26(b)(5)(A); see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of
24 Mont., 408 F.3d 1142, 1148 (9th Cir. 2005). The Ninth Circuit has held a party meets its burden
25 by providing a privilege log that identifies “(a) the attorney and client involved, (b) the nature of
26 the document, (c) all persons or entities shown on the document to have received or sent the
27 document, (d) all persons or entities known to have been furnished the document or informed of
1 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3
2 (9th Cir. 1989)). However, a party may substantiate a claim of privilege by other means. Apple
3 Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“Briefs, declarations or other
4 proof may establish the purpose of the communication or the specific role of the sender and each
5 individual recipient.”). The Advisory Committee Note to Rule 26 provides useful guidance about
6 how a party should assert a claim of privilege or protection:
7 The party must also provide sufficient information to enable other
parties to evaluate the applicability of the claimed privilege or
8
protection. Although the person from whom the discovery is sought
9 decides whether to claim a privilege or protection, the court
ultimately decides whether, if this claim is challenged,
10 the privilege or protection applies. Providing information pertinent
to the applicability of the privilege or protection should reduce the
11 need for in camera examination of the documents.
12
The rule does not attempt to define for each case what information
13 must be provided when a party asserts a claim of privilege or work
product protection. Details concerning time, persons, general
14 subject matter, etc., may be appropriate if only a few items are
withheld, but may be unduly burdensome when voluminous
15 documents are claimed to be privileged or protected, particularly if
the items can be described by categories. A party can seek relief
16
through a protective order under subdivision (c) if compliance with
17 the requirement for providing this information would be an
unreasonable burden.
18
Fed. R. Civ. P. 26, Advisory Committee Note to 1980 amendment.
19
III. DISCUSSION
20
Plaintiffs challenge Defendants’ privilege claims on several grounds. First, Plaintiffs say
21
that many of Defendants’ privilege log entries are insufficiently descriptive to support a claim of
22
privilege. Dkt. No. 288 at 2-4. Second, Plaintiffs say Defendants should be required to produce
23
any document reflecting a communication disclosed to a third party. Dkt. No. 287 at 2-3. Third,
24
Plaintiffs say that Defendants have improperly withheld responsive documents on the basis of a
25
non-existent “tax privilege.” Id. at 3-4. Fourth, Plaintiffs say Defendants should not be permitted
26
to clawback privileged documents because they failed to satisfy all requirements of Rule 502(b) of
27
1 withheld nonprivileged documents attached to privileged communications. Id. at 5.
2 The Court first addresses the parties’ arguments regarding the sufficiency of Defendants’
3 privilege log, and then discusses Plaintiffs’ challenges to specific categories of withheld
4 documents.
5 A. Sufficiency of Defendants’ Privilege Log Entries
6 Plaintiffs argue that many of Defendants’ privilege log entries do not identify the author or
7 recipient of the allegedly privileged communication, fail to properly identify the attorneys
8 involved and the clients they represent, and contain only conclusory descriptions that do not
9 enable other parties or the Court to assess its privilege assertions. Dkt. No. 288 at 2-4.
10 Defendants respond that if an entry is missing an author or recipient, the document listed either
11 has no recipient or is an attachment to an email that immediately precedes it in the log. Id. at 5.
12 Defendants insist that they have already fully complied with their obligation to identify all
13 attorneys and the clients involved in the privileged communications they have logged. Id.
14 Finally, Defendants say that they should not be required to provide more detailed descriptions of
15 the documents withheld, particularly those that clearly reflect communications with outside
16 litigation counsel. Id. at 5-6.
17 With respect to the question of whether Defendants have properly identified (or accounted
18 for the absence of) an author or recipient, Defendants’ explanations for the disputed entries seem
19 plausible. However, it is difficult to tell for any given entry in the privilege log whether it refers to
20 a set of notes with no recipient or to a standalone document or to an attachment to some other
21 document. Defendants do not explain how Plaintiffs are to know what is being represented based
22 on the log itself. See, e.g., Dkt. No. 288-1 at ECF 6 (Priv Log 1, Entries #178-180); id. at ECF 24
23 (Priv Log 3, Entry #41). Defendants should amend their privilege log to make clear “the nature of
24 the document,” such as a memo or attachment to an email, and “all persons or entities shown on
25 the document to have received or sent the document.” In re Grand Jury Investigation, 974 F.2d at
26 1071.
27 With respect to the question of whether Defendants have identified the attorneys and
1 entries are “plainly” deficient, but they point to no particular entries that suffer from this defect.
2 The Court is not going to do Plaintiffs’ work for them. Suffice it to say that for each privilege
3 claim, the privilege log should disclose the attorney and client involved in the communication.
4 See In re Grand Jury Investigation, 974 F.2d at 1071. The indication of the attorney-client
5 relationship need not be set out in each privilege log entry but may be explained in a separate
6 document—e.g., Attorney A represents Client B, whose representatives are C, D, and E or
7 personnel with the email domain xyz.com.
8 With respect to the question of whether Defendants have adequately described the subject
9 matter of the disputed privilege log entries, the Court is not persuaded that Defendants’ entries are
10 insufficient. For most of the disputed entries, Defendants have provided the subject line of each
11 email communication in addition to a short description of the subject of the document in the
12 “privilege description” column of the log. The Ninth Circuit does not necessarily require a
13 description of the subject matter of the document. See In re Grand Jury Investigation, 974 F.2d at
14 1071 (privilege log that included information on the subject matter of each document exceeded
15 what was required). Plaintiffs do not identify any specific entries for which a more detailed
16 description of the subject matter of the allegedly privileged communication is necessary for them
17 to assess Defendants’ claim of privilege. The Court will not require Defendants to supplement
18 their log to include additional information regarding subject matter at this time.
19 B. Third Party Communications
20 Plaintiffs have identified numerous privilege log entries that appear to indicate that an
21 allegedly privileged communication was sent to a person or entity who is a third party outside the
22 attorney-client relationship. Dkt. No. 287 at 2. Defendants argue that the “third parties” are in
23 fact employees or representatives of defendants, an attorney representing one or more defendants,
24 a family member of a defendant, or consultants of some sort. Id. at 5-6. Plaintiffs’ portion of the
25 joint submission does not address Defendants’ explanations about the roles of the purported third
26 parties
27 Ordinarily, a voluntary disclosure of privileged material to a third party destroys the
1 are exceptions, such as when a third party’s participation is necessary to facilitate effective
2 communication between attorney and client, or when the third party is assisting the attorney in
3 providing legal advice to the client. See, e.g., In re Lidoderm Antitrust Litig., No. 14-MD-02521-
4 WHO, 2015 WL 7566741, at *4 (N.D. Cal. Nov. 25, 2015) (collecting authority).
5 Where the privilege log entry clearly reflects that the purported third party is the client, an
6 employee of the client, and/or an attorney representing the client, Defendants have made at least a
7 prima facie showing that the privilege has not been waived by virtue of disclosure to a third party.
8 However, it is not clear from the parties’ joint submission whether the other roles Defendants
9 identify—e.g., family member, tax or financial consultant, non-employee technical staff or
10 technical consultant—are necessarily within the attorney-client relationship, and Defendants’
11 privilege log entries do not provide an adequate basis for this assessment. Accordingly, the Court
12 will order further proceedings regarding this category of disputed entries, as set forth below.
13 C. Tax Documents
14 Plaintiffs argue that Defendants have improperly withheld from production documents
15 relating to taxes or tax returns, some of which are labeled “tax privilege” on Defendants’ privilege
16 log. Dkt. No. 287 at 3-4. Defendants do not dispute that there is no privilege that protects tax
17 returns from discovery, but they argue that the tax documents logged as privileged are not
18 responsive to any of Plaintiffs’ document requests, and even if they were, such documents are not
19 discoverable unless Plaintiffs show a compelling need for their production. Id. at 6-7.
20 As the parties agree that no privilege protects the disputed tax documents from production,
21 Defendants must remove these documents from their privilege log and may not withhold them as
22 privileged. To the extent there is a dispute regarding whether the tax documents are responsive to
23 Plaintiffs’ documents requests or whether there is some other reason they should not be produced,
24 the parties must confer on this point and if they continue to disagree, they must submit this dispute
25 to the Court using the expedited dispute resolution procedures.
26 D. Clawback Documents
27 Plaintiffs argue that Defendants should not be permitted to clawback and withhold from
1 Plaintiffs do not dispute that the production of these documents was inadvertent, but they say that
2 Defendants have failed to show that they took reasonable steps to prevent the disclosure and to
3 rectify the error. Dkt. No. 287 at 4. Defendants respond that they have already provided a
4 declaration attesting to the reasonable steps they took to prevent disclosure and correct the
5 inadvertent production promptly upon learning of it. Id. at 7 (citing No. 20-3642, Dkt. No. 245,
6 declaration). Plaintiffs’ portion of the joint submission does not address Defendants’ reference to
7 this declaration.
8 As the parties have not proposed, and the Court has not entered, an order pursuant to Rule
9 502(d) of the Federal Rules of Evidence, Rule 502(b) provides the rule of decision here:
10 [T]he disclosure does not operate as a waiver in a federal . . .
proceeding if:
11 (1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to
12 prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error
13 . . . .
14 Fed. R. Evid. 502(b). Rule 502(b) does not require a producing party to engage generally in a
15 post-production review to determine whether any privileged documents or information have been
16 produced by mistake. See AdTrader, Inc. v. Google LLC, 405 F. Supp. 3d 862, 866 (N.D. Cal.
17 2019). However, “the rule does require the producing party to follow up on any obvious
18 indications that a protected communication or information has been produced inadvertently.” Fed.
19 R. Evid. 502, Advisory Committee Notes, explanatory note revised 11/28/2007, subsection (b).
20 As they explain in the joint submission and in Mr. Frost’s prior declaration, Defendants
21 took steps to screen for privileged materials and immediately asked to clawback the documents
22 that had been produced without being screened once they learned of the mistaken production. See
23 Dkt. No. 287 at 7; No. 20-3642, Dkt. No. 245-1 ¶¶ 4-6. Plaintiffs do not explain why this showing
24 is insufficient under Rule 502(b). For this reason, the relief they request is denied.
25 E. Attachments
26 Plaintiffs argue that Defendants have improperly withheld documents attached to
27 privileged communications where the attachments themselves are not privileged. Dkt. No. 287 at
1 reflect attorney work product and litigation strategy, were exchanged among clients at the request
2 of counsel, and that others were sent to counsel for the purpose of seeking legal advice. Id. at 8.
3 Again, Plaintiffs’ portion of the joint submission does not address Defendants’ arguments about
4 specific privilege log entries.
5 While Plaintiffs are correct that documents are not privileged merely because they are
6 provided to counsel, Plaintiffs’ failure to engage with Defendants’ arguments on specific privilege
7 log entries makes it difficult for the Court to resolve using the expedited dispute resolution
8 procedures. At the same time, Plaintiffs’ privilege log entries are insufficient in most cases to
9 demonstrate that the attachments are indeed privileged or work product. Accordingly, the Court
10 will order further proceedings regarding this category of disputed entries, as set forth below.
11 IV. CONCLUSION
12 Defendants must serve an amended privilege log (or logs) that complies with the Court’s
13 direction in sections III.A and C above by December 20, 2022. If Defendants elect to make other
14 changes to their privilege log, they shall inform Plaintiffs of the other changes.
15 With respect to the disputed Third Party Communications and Attachments addressed in
16 sections III.B and E above, the Court concludes that these matters should be briefed as a regularly
17 noticed motion under Civil Local Rule 7-2, supported by declarations and other evidence as
18 necessary. See, e.g., United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal.
19 2002) (relying on briefing, declarations, and in camera review of challenged documents); Klein v.
20 Meta Platforms, Inc., No. 20-CV-08570-JD (VKD), 2022 WL 767096 (N.D. Cal. Mar. 11, 2022)
21 (same). Unless the parties agree otherwise, Plaintiffs will be the moving party.3 In connection
22 with such briefing, Plaintiffs must first select no more than 20 entries from each of the two
23 disputed privilege log categories (i.e., Third Party Communications and Attachments) for a total of
24 no more than 40 entries from among those entries previously identified as within these disputed
25 categories. Plaintiffs shall communicate this selection to Defendants no later than December 13,
26 2022. After making this communication, Plaintiffs may file a regularly noticed motion
27
1 challenging Defendants’ privilege claims as to the selected entries. If Defendants oppose
2 Plaintiffs’ motion as to any of the selected entries, they must submit for in camera review the
3 documents corresponding to the disputed entries at the time they file their opposition to the
4 || motion. After the Court decides Plaintiffs’ motion it will consider whether any further
5 proceedings are necessary to address any remaining disputes regarding Defendants’ privilege
6 || claims.
7 Except as set forth above, the Court denies Plaintiffs’ remaining requests for relief.
8 IT IS SO ORDERED.
9 Dated: November 29, 2022
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VIRGINIA K. DEMARCHI
12 United States Magistrate Judge
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