# Peterson v. Thomson International, Incorporated > District Court, E.D. California · December 5, 2024 URL: https://www.frixlaw.com/law-library/cases/10756655 ## Case - **Court:** District Court, E.D. California - **Decided:** December 5, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10756655 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW PETERSON, et al., Case No. 1:22-cv-00701-JLT-CDB 12 Plaintiffs, ORDER RE: REQUEST FOR RESOLUTION OF DISPUTED ISSUES 13 v. 14 (Doc. 99) THOMSON INTERNATIONAL, INC., 15 Defendant. 16 17 Currently before the Court is a discovery dispute that the parties have agreed to submit to 18 the Court for adjudication through the Court’s informal discovery dispute procedure. 19 Background 20 Plaintiffs are seven individuals from three different states and Canada that allege during 21 June and July 2020, they suffered damages after consuming Salmonella-contaminated onions that 22 Defendant Thomson International, Inc., introduced into the stream of commerce. They seek 23 recovery for medical and psychological care, lost income and pain and suffering. Plaintiffs claim 24 Thomson is strictly liable for selling an unreasonably dangerous and defective food product, and 25 that Thomson may also be liable under breach of warranty, negligence, and negligence per se 26 theories of recovery. Thomson contends its onions were not contaminated while in its possession, 27 custody and control and it did not cause any Salmonella outbreak that harmed Plaintiffs. 1 The scheduling order entered on August 18, 2022. (Doc. 19). On May 12, 2023, the 2 Court granted Defendant’s motion to extend case management dates. (Doc. 56). Nonexpert 3 discovery closed on February 19, 2024, and expert discovery closed on April 15, 2024. Id. The 4 expert discovery deadline was expanded briefly to facilitate the deposition of two expert 5 witnesses. (Doc. 70). Trial is confirmed to commence on January 22, 2025. (Doc. 85). 6 The Parties’ Discovery Dispute 7 Plaintiffs assert Thomson transmitted a privilege log with its initial document production 8 in February 2023, and at Plaintiffs’ request, a 92-page updated privilege log on January 31, 2024. 9 (Doc. 99 at 2). Counsel for Plaintiffs asserts she only recently became aware that certain redacted 10 documents in Thomson’s production were not identified in the privilege log, and because 11 Thomson has declined to update its log to include these documents, the delay constitutes a waiver 12 of privilege. Id. at 2-3. Counsel separately argues that certain e-mail communications produced 13 in redacted form by Thomson are improperly withheld on attorney-client privilege grounds 14 because they were disseminated to unnecessary third parties, thereby losing any protection that 15 may otherwise have been afforded by the privilege. Id. 16 Thomson contends Plaintiffs did not meet-and-confer regarding their dispute about the 17 privilege log and that their delay in raising challenges to the privilege log until long after the close 18 of discovery and on the eve of trial warrants rejection of the challenge. Id. at 4, 6. Thomson 19 separately counters that the challenged e-mail communications did not lose the protection of 20 attorney-client privilege because the non-lawyers to whom the protected communications were 21 disseminated – a founder of Thomson, a board member and a shareholder – were party-agents 22 involved in decision-making, not unnecessary third parties. (Doc 99 at 5; Doc. 99-5 at 4). 23 On November 27, 2024, the Court convened with the parties off the record to address the 24 discovery disputes. (Doc. 100). Lindsay Lien Amin appeared on behalf of Plaintiffs and Joshua 25 Gilliland appeared on behalf of Thomson. At the beginning of the conference, the parties agreed 26 to resolution of the identified discovery disputes outside the Local Rule 251 formal parameters, 27 agreed to proceed without record, and agreed to abide by an order of the Court after the 1 Given the parties’ divergent views of the nature of the communications at issue and 2 because the Court was “unable to [resolve the issue] without requiring [in camera] disclosure of 3 the information claimed to be privileged” (see Cal. Evid. Code § 915(b)), without objection by 4 counsel for Thomson during the discovery dispute conference, the Court directed Thomson to 5 submit the challenged communications to the Court for its ex parte and in camera review. (Doc. 6 100). The Court received and reviewed the documents submitted by Thomson and ordered that 7 they be filed under seal. (Doc. 103). 8 Discussion 9 A. Waiver of Privilege Through Delay in Providing Privilege Log 10 “Improper assertions of privilege in the privilege log, or an untimely privilege log, may 11 (but do not necessarily) result in waiver.” Sanchez v. Cnty. of Sacramento’s Sheriff’s Dept., No. 12 2:19-cv-01545 MCE AC, 2020 WL 3542328, at *2 (E.D. Cal. June 30, 2020) (citing Burlington 13 Northern & Santa Fe Railway Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th 14 Cir. 2005)). “Burlington instructs courts to consider the following factors: (1) ‘the degree to 15 which the objection or assertion of privilege enables the litigant seeking discovery and the court 16 to evaluate whether each of the withheld documents is privileged,’ (2) ‘the timeliness of the 17 objection and accompanying information about the withheld documents,’ (3) ‘the magnitude of 18 the document production,’ and (4) other circumstances that make responding to discovery 19 unusually easy or difficult. Id. (quoting Burlington, 408 F.3d at 1149). 20 Here, balancing the Burlington factors, the Court finds that any delay by Thomson to 21 identify a discrete universe of challenged documents in a privilege log does not implicate waiver 22 of the privilege. First, Plaintiffs identify a total of 15-pages of documents allegedly improperly 23 omitted from Thomson’s privilege log from a total production of some 87,500 pages. (Doc. 99 at 24 1, 3; Doc. 99-3). Second, Plaintiffs concede their challenge is untimely – coming as it does 25 approximately nine months after the close of nonexpert discovery and just two months before the 26 commencement of trial. (Doc. 99 at 3-4). Finally, during the discovery dispute conference, 27 counsel for Thomson agreed to and the Court ordered it to update its privilege log to include the 1 challenged documents and produce the updated log to Plaintiffs by December 4, 2024. (Doc. 2 100). 3 For these reasons, the Court finds Thomson did not waive its assertion of privilege over 4 the redacted documents not previously identified in its privilege log. 5 B. Waiver of Privilege Through Dissemination of Documents to Third Parties 6 In a case such as this predicated solely on diversity jurisdiction, the state law of privilege 7 applies. See Lite On It Corp. v. Toshiba Corp., No. CV 07-04758-SGL(AJWx), 2009 WL 8 10669760, at *3 (C.D. Cal. Mar. 4, 2009) (citing Weinstein’s Fed. Evid. § 501.02[2][b] at 501- 9 11); Fed. R. Evid. 501. Accordingly, this Court looks to authorities interpreting the right to 10 attorney-client privilege under California state law. 11 The attorney-client privilege “extends to communications which are intended to be 12 confidential, if they are made to attorneys, to family members, business associates, or agents of 13 the party or his attorneys on matters of joint concern, when disclosure of the communication is 14 reasonably necessary to further the interest of the litigant.” Hoiles v. Super. Ct., 157 Cal. App. 3d 15 1192, 1200-01 (Cal. App. 1984). The “involvement of an unnecessary third person in attorney- 16 client communications destroys confidentiality.” Zurich Am. Ins. Co. v. Super. Ct., 155 Cal. App. 17 4th 1485, 1496 (Cal. App. 2007) (quotation and citation omitted). 18 In Zurich Am. Ins. Co., a referee concluded that internal corporate communications that 19 discussed legal advice but did not directly involve an attorney were not protected by the attorney- 20 client privilege. Id. at 1495. On writ of mandate, the appellate court found the referee’s 21 definition was too narrow because California’s evidence code extends the protection of privilege 22 to non-lawyers where such disclosure is reasonably necessary for the accomplishment of the 23 purpose for which the lawyer is consulted. Id. 24 Here, the challenged email communications among Thomson-associated agents included 25 as a forwarded portion of the email the actual, privileged email communication directly between 26 an attorney and one of the agents. That one party agent forwarded to other party agents an 27 attorney’s communication is strong evidence that disclosure to the recipients of the forwarded 1 | consulted. Having reviewed the unredacted emails, the Court has no difficulty concluding that 2 | the emails retain the protection of attorney-client privilege notwithstanding the dissemination 3 | among party agents. 4 | Conclusion and Order 5 Accordingly, it is HEREBY ORDERED that Plaintiffs’ request for access to the 6 | challenged materials (Doc. 99 at 3) is DENIED as the materials are protected by the attorney- 7 | client privilege. 8 | IT IS SO ORDERED. Dated: _ December 5, 2024 | Ww Vv R~ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 « --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10756655. Public record. Not legal advice.