describing and adopting the “primary purpose” test for dual-purpose 13 communications
How later courts described this case
- describing and adopting the “primary purpose” test for dual-purpose 13 communications
- “Briefs, declarations or 9 other proof may establish the purpose of the communication or the specific role of the sender and 10 each individual recipient.”
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
8 IN RE TELESCOPES ANTITRUST Case No. 20-cv-03639-EJD (VKD)
LITIGATION Case No. 20-cv-03642-EJD (VKD)
9
Re: Case No. 20-cv-3639
10 Dkt. Nos. 304, 305, 321
11 ORDER DENYING PLAINTIFFS’
MOTION TO COMPEL PRODUCTION
12 OF DOCUMENTS WITHHELD AS
PRIVILEGED;
13 GRANTING ADMINISTRATIVE
MOTION TO SEAL
14
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16 Indirect Purchaser Plaintiffs (“IPPs”) and Direct Purchaser Plaintiffs (“DPPs”)
17 (collectively, “Plaintiffs”) move to compel the production of certain documents that Defendants
18 claim are protected from disclosure. See Dkt. No. 305.1 Specifically, Plaintiffs argue that
19 Defendants should be required to produce (1) communications that Plaintiffs contend were shared
20 with third parties and (2) attachments to attorney-client communications that Plaintiffs contend are
21 not privileged. Id. at 2. The Court finds this motion suitable for resolution without oral argument.
22 Civil L.R. 7-1(b).
23 For the reasons explained below, the Court denies the motion to compel.2
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1 Although the motion is made on behalf of both IPPs and DPPs, it was filed only in the IPP
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action, Case No. 20-cv-03639, and does not appear on the docket for the DPP action, Case No. 20-
cv-03642. Unless otherwise noted, this order refers only to filing in the IPP action, Case No. 20-
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cv-3639. The IPP action is currently stayed. See Dkt. No. 386.
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2 Defendants also ask the Court to seal portions of Plaintiffs’ motion to compel (Dkt. No. 304-3)
1 I. BACKGROUND
2 On November 29, 2022, the Court issued an order addressing Plaintiffs’ challenges to
3 Defendants’ then-current privilege logs. See Dkt. No. 297. As relevant to this motion, the Court
4 directed Plaintiffs to “first select no more than 20 entries from each of the two disputed privilege
5 log categories (i.e., Third Party Communications and Attachments) for a total of no more than 40
6 entries from among those entries previously identified as within these disputed categories,” and to
7 communicate their selections to Defendants. Id. at 9. The Court then directed Defendants to
8 “submit for in camera review the documents corresponding to the disputed entries at the time they
9 file their opposition to the motion” if they opposed Plaintiffs’ motion as to any of the selected
10 entries. Id. at 10.
11 Plaintiffs identified 37 representative privilege log entries in December 2022, and filed a
12 motion to compel their production on March 1, 2023. Dkt. No. 305. Defendants opposed the
13 motion on March 23, 2023, but did not submit the representative documents for in camera review
14 until April 28, 2023, after prompting by the Court. See Dkt. Nos. 322, 332, 333. After further
15 prompting, Defendants submitted a log that clearly identifies the 37 documents in dispute. See
16 Dkt. Nos. 353, 363.
17 II. LEGAL STANDARD
18 No party contends that the documents at issue are relevant only to claims or defenses
19 arising under state law. Therefore, federal law governs Defendants’ assertions of privilege.
20 “The attorney-client privilege protects confidential communications between attorneys and
21 clients, which are made for the purpose of giving legal advice.” United States v. Sanmina Corp.,
22 968 F.3d 1107, 1116 (9th Cir. 2020). The privilege extends to a client’s confidential disclosures
23 to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such
24
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321 (Defendants’ statement respecting Plaintiffs’ motion). Plaintiffs do not oppose the sealing of
this information. See Dkt. No. 304. The portions of the motion to compel and exhibits at issue are
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“unrelated, or only tangentially related, to the underlying cause of action” and the Court finds
good cause to seal them. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir.
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2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).
1 disclosures. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (citations and quotations
2 omitted). “Because it impedes full and free discovery of the truth, the attorney-client privilege is
3 strictly construed.” Id. (citations and quotations omitted). In the Ninth Circuit, whether
4 information is protected by the attorney-client privilege is determined using an eight-part test:
5 (1) Where legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
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to that purpose, (4) made in confidence (5) by the client, (6) are at
7 his instance permanently protected (7) from disclosure by himself or
by the legal adviser, (8) unless the protection be waived.
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9 Sanmina, 968 F.3d at 1116. Where a communication has more than one purpose, it may be
10 protected as privileged if the primary purpose of the communication is to give or receive legal
11 advice, as opposed to business or some other non-legal advice. In re Grand Jury, 23 F.4th 1088,
12 1092 (9th Cir. 2021) (describing and adopting the “primary purpose” test for dual-purpose
13 communications).
14 The attorney work product doctrine protects from discovery materials that are prepared by
15 or for a party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). The
16 doctrine provides qualified protection against discovery of the legal strategies and mental
17 impressions of a party’s counsel. Hickman v. Taylor, 329 U.S. 495, 508-10 (1947); Upjohn Co. v.
18 United States, 449 U.S. 383, 390-91 (1981). It does not protect facts from disclosure unless
19 disclosure of those facts would inherently reveal an attorney’s strategies or mental impressions.
20 See, e.g., O’Toole v. City of Antioch, No. 11-cv-01502 PJH MEJ, 2015 WL 1848134, at *3 (N.D.
21 Cal. Apr. 14, 2015); Hamilton v. RadioShack Corp., No. 11-cv-00888 LB, 2012 WL 2327191, at
22 *4-5 (N.D. Cal. June 18, 2012).
23 A party claiming that a document or information is privileged or protected from disclosure
24 has the burden to establish that the privilege or protection applies. See United States v. Martin,
25 278 F.3d 988, 999-1000 (9th Cir. 2002). In particular, a party asserting privilege or work product
26 protection must “describe the nature of the documents . . . in a manner that, without revealing
27 information itself privileged or protected, will enable other parties to assess the claim.” Fed. R.
1 408 F.3d 1142, 1148 (9th Cir. 2005). The Ninth Circuit has held a party meets its burden by
2 providing a privilege log that identifies “(a) the attorney and client involved, (b) the nature of the
3 document, (c) all persons or entities shown on the document to have received or sent the
4 document, (d) all persons or entities known to have been furnished the document or informed of
5 its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury
6 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3
7 (9th Cir. 1989)). However, a party may substantiate a claim of privilege by other means. See
8 Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“Briefs, declarations or
9 other proof may establish the purpose of the communication or the specific role of the sender and
10 each individual recipient.”).
11 III. DISCUSSION
12 The parties have made this dispute extraordinarily difficult to resolve. Plaintiffs challenge
13 Defendants’ privilege claims by category; they do not refer to specific documents or their
14 corresponding privilege log entries, see Dkt. No. 305-1, while Defendants label and refer to the
15 documents at issue in a manner that does not correspond to Plaintiffs’ briefing or supporting
16 exhibits, see Dkt. No. 322; Dkt. No. 322-2.
17 Plaintiffs contend that Defendants have logged as privileged both (1) documents that
18 appear to have been disclosed to third parties outside the attorney-client relationship and (2)
19 documents that are not privileged, but are merely appended to privileged communications. The
20 Court considers each argument.
21 A. Third Party Communication
22 Plaintiffs argue that Defendants have improperly withheld from production documents that
23 include communications with third parties who are either “outside financial consultants” or
24 Defendants’ “family members.” Dkt. No. 305. They do not identify the specific documents in
25 question or their corresponding privilege log entries, leaving the Court to guess at which of the 37
26 documents are subject to this challenge. See Dkt. No. 305-1.3 Defendants respond that the “third
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1 parties” are in fact either (1) employees or representatives of Defendants who facilitated the
2 communications in question or assisted counsel in providing legal advice to Defendants, or (2)
3 consultants whose advice was required to assist counsel in providing legal advice to Defendants.
4 Dkt. No. 322 at 4, 9. Defendants do not support their assertions with declarations, even though the
5 Court specifically invited such support. See Dkt. No. 297 at 10. In their brief reply, Plaintiffs do
6 not engage with any of the specific information Defendants point to in support of their privilege
7 claims, but respond only at a high level of generality. See Dkt. No. 323.
8 Ordinarily, a voluntary disclosure of privileged material to a third party destroys the
9 privilege. In re Pacific Pictures Corp., 679 F.3d 1121, 1126-27 (9th Cir. 2012). However, there
10 are exceptions, such as when a third party’s participation is necessary to facilitate effective
11 communication between attorney and client, or when the third party is assisting the attorney in
12 providing legal advice to the client. See, e.g., In re Lidoderm Antitrust Litig., No. 14-MD-02521-
13 WHO, 2015 WL 7566741, at *4 (N.D. Cal. Nov. 25, 2015) (collecting authority).
14 The Court has reviewed the relevant documents in camera. While some of the documents
15 contain text that is in untranslated Chinese, the Court has relied on the English text in those
16 documents for context. In addition, the Court has considered Defendants’ privilege log entries and
17 briefing about the specific documents. The explanations contained in Defendants’ briefing
18 regarding the so-called “third party communications” are adequate to support Defendants’ claim
19 that the challenged communications are protected from disclosure by the attorney-client privilege
20 and/or the work product doctrine, and that the protection is not destroyed by the unnecessary
21 presence of a third party outside the attorney-client relationship. See Dkt. No. 322 at 9-17. As
22 Plaintiffs did not mount a document-or entry-specific challenge to Defendants’ privilege or work
23 product claims, Plaintiffs’ arguments are insufficient to undermine Defendants’ assertions.
24 B. Non-Privileged Attachments
25 Plaintiffs devote only a few lines of their motion to the argument that Defendants have
26 withheld non-privileged documents from production merely because the documents are attached to
27 a privileged communication. See Dkt. No. 305 at 7. Plaintiffs do not even identify the privilege
1 privileged merely because it was sent to an attorney. Dkt. No. 322 at 17. However, Defendants
2 || explain for each document at issue why the attachment is itself protected from disclosure by the
3 attorney-client privilege or work product doctrine. See id. at 17-19. Plaintiffs do not respond
4 specifically to these explanations.
5 Having reviewed the documents identified by Defendants in camera, together with
6 || Defendants’ privilege log entries and document-specific briefing, the Court concludes that
7 Defendants have provided adequate support for their claim that the challenged communications
8 are protected from disclosure by the attorney-client privilege and/or the work product doctrine.
9 || Plaintiffs’ arguments fall short.
10 || IV. CONCLUSION
11 The Court denies Plaintiffs’ motion to compel production of the documents corresponding
12 || to the 37 privilege log entries the identified in the briefing as “third party communications” or
13 “non-privileged attachments.” As Plaintiffs have not made a persuasive showing that Defendants
14 || have improperly logged documents falling within these two categories, the Court sees no need to
15 order further proceedings. See Dkt. No. 297 at 10.
a 16 IT IS SO ORDERED.
2 17 |) Dated: February 13, 2024
19 VuragviaZ, LuMarche
VIRGINIA K. DEMARCHI
20 United States Magistrate Judge
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