Hart v. TWC Product and Technology LLC

• Court: District Court, N.D. California
• Decided: April 11, 2022
• Docket: 4:20-cv-03842
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JON HART, et al., Case No. 20-cv-03842-JST (JSC)

8 Plaintiffs, ORDER RE: PRVILEGE DISPUTE v. 9 Re: Dkt. Nos. 113, 114, 115, 117, 120 10 TWC PRODUCT AND TECHNOLOGY LLC, 11 Defendant.

12 13 Now pending before the Court is a discovery dispute joint letter regarding Defendant’s 14 privilege log. (Dkt. No. 114.) The Court previously ordered Defendant to submit the documents 15 for in camera review. (Dkt. No. 115.) Having reviewed the documents, and the parties’ 16 memoranda (Dkt. Nos. 117, 120 ), the Court finds that the attorney-client privilege protects much, 17 but not all, of the withheld documents. 18 LEGAL STANDARD 19 As Plaintiffs bring California state law claims, California law governs Defendant’s 20 invocation of the privilege. See Fed. R. Evid. 501. Defendant bears the burden of proving that the 21 attorney-client privilege applies. Holley v. Gilead Scis., Inc., No. 18-CV-06972 JST (JSC), 2021 22 WL 2371890, at *3 (N.D. Cal. June 10, 2021).

23 Under California Evidence Code section 952 protected attorney-client “confidential communications include information transmitted to 24 persons ‘to whom disclosure is reasonably necessary for the transmission of the information,’ and those to whom disclosure is 25 reasonably necessary for ‘the accomplishment of the purpose for which the lawyer is consulted. 26 Id. Thus, “[t]he first relevant inquiry is whether the document contains a discussion of legal 27 advice or strategy of counsel.” Zurich Am. Ins. Co., 155 Cal. App. 4th 1485, 1503 (2007). 1 “[O]therwise routine, non-privileged communications between corporate officers or employees 2 transacting the general business of the company do not attain privileged status solely because in- 3 house or outside counsel is “copied in” on correspondence or memoranda.” Zurich American Ins. 4 Co. v. Superior Court, 155 Cal.App.4th 1485, 1504 (2007). Further, Defendant “may not shield 5 facts, as opposed to communications, from discovery. Any relevant fact may not be withheld 6 merely because it was incorporated into a communication involving an attorney.” Id. 7 IN CAMERA REVIEW 8 A. Emails 9 Log Entry 28: Privileged communications regarding the seeking of legal advice. 10 Log Entry 29: Privileged document setting forth information gathered to obtain legal advice. 11 Log Entry 33: Privileged. Emails seeking or in regards to the seeking of legal advice. 12 Log Entries 36 & 37: Privileged. Emails regarding legal advice. 13 Log Entry 45: Privileged communications gathering information for legal advice, except for the 14 second half of the April 17, 2017 email (forwarded on May 29, 2017) which expressly states is not 15 for privacy review. That discussion is purely business related and does not involve lawyers. 16 Defendant’s submission does not establish that this portion of the email is privileged. (Dkt. No. 17 117 at 7.) 18 Log Entry No. 48: Privileged. Emails expressly discussing legal advice. 19 Log Entry No. 49: Privileged. Email discussing legal advice. 20 Log Entry 53: Privileged. Email forwarding a discussion among attorneys and clients regarding 21 what information attorneys need to provide legal advice. 22 Log Entry 58: Not privileged. 23 Log Entry 60: Not privileged. December 12, 2018 email does not involve attorneys and does not 24 discuss legal advice; instead, it reflects the drafter’s understanding of current business practices. 25 The rest of the emails in the thread (to the extent they are part of the log entry) are privileged. 26 Log Entry 61: Privileged. Email discussing legal advice. 27 Log Entry 69: Privileged. Emails related to legal advice. 1 Log Entry No. 79: Same as Entry No. 29. 2 || Log Entry No. 80: The power point prepared for the Privacy Review Board is privileged; 3 however, to the extent other documents reflect the same information (and there must be other such 4 || documents) they are not privileged. 5 Log Entry No. 106: January 31, 2019 message is not privileged nor are any of the messages in 6 || the string. The messages discuss a technical matter, not legal advice, and they do not discuss the 7 technical matter for the purpose of obtaining legal advice. That an attorney first noticed the 8 technical issue does not make the entire string privileged. 9 Log Entry No. 113: The December 21, 2018 at 14:26 email and December 20, 2018 email from 10 || Mary Glackin are not privileged. These emails reflect TWC’s policy on the use of location data. 11 That the policy may have been developed with input from attorneys does not make emails 12 || reflecting what the policy actually is privileged. The rest of the thread is privileged as it discusses 5 13 the seeking of legal advice. 14 PRIVACY REVIEW BOARD MINUTES 3 15 Log Entries 10, 20, 22: Defendant offers evidence that the primary purpose of the Privacy 16 || Review Board was to offer legal advice. (Dkt. No. 114-2.) The minutes reflect the information 3 17 that was presented to the Board for the purpose of obtaining legal advice and guidance on 18 || proposed business conduct and thus is privileged. However, as explained above, other documents 19 || reflecting “Use Cases”; that is, proposals for the use of user data, are merely business documents 20 || not protected by the attorney-client privilege. The Court understands that Defendant has not 21 withheld such documents to the extent they are responsive. 22 The Administrative to Seal (Dkt. No. 113) is GRANTED as supported by the Declaration 23 at Docket No. 116-1. 24 This Order disposes of Docket Nos. 113, 114. 25 IT IS SO ORDERED. 26 || Dated: April 11, 2022 | pl , St re 27 28 JACQUELINE SCOTT CORL United States District Judge