In Re Meta Pixel Healthcare Litigation

Opinion

IN RE META PIXEL HEALTHCARE Case No. 22-cv-03580-WHO (VKD) LITIGATION

This Document Relates To: ORDER RE MAY 8, 2024 DISCOVERY DISPUTE RE PRIVILEGE CLAIMS All Actions Re: Dkt. Nos. 428, 457, 475, 476

The parties ask the Court to resolve their remaining disputes concerning defendant Meta’s privilege claims. See Dkt. No. 476-3. Plaintiffs ask the Court to order Meta to produce all documents in unredacted form, or in the alternative, to submit all documents to the Court for in camera review. Id. at 1; Dkt. No. 428 at 3-4; Dkt. No. 457 at 2. Meta objects to producing documents that it says are protected from disclosure, in whole or in part, and to this Court conducting an in camera review. Dkt. No. 476-3 at 4; Dkt. No. 428 at 7; Dkt. No. 457 at 2. The Court finds this matter suitable for resolution without oral argument. Civil L.R. 7-1(b). For the reasons explained below, the Court denies plaintiffs’ request for an order requiring Meta to produce the disputed documents in unredacted form, with the following exceptions: (1) Meta has not shown that work product protection applies to PIXEL_HEALTH000300598 and PIXEL_HEALTH000301262; (2) the first two communications in PIXEL_HEALTH0003010801 are not protected by the attorney-client privilege; and (3) plaintiffs have provided the necessary justification for in camera review of subsequent similar communications in PIXEL_ HEALTH000301080. Further to the Court’s April 10 and April 18, 2024 orders (Dkt. Nos. 451, 458), the parties filed a further joint submission on May 8, 2024 addressing the following documents: 1. PIXEL_HEALTH000300598 2. PIXEL_HEALTH000301262 3. PIXEL_HEALTH000300667 4. PIXEL_HEALTH000300648 5. PIXEL_HEALTH000031247 6. PIXEL_HEALTH000301080 7. PRIV ID 106 8. PRIV ID 107 9. PRIV ID 108

The joint submission attaches excerpts from Meta’s privilege log describing the disputed documents, as well as redacted copies of the disputed documents that have been produced with redactions. See Dkt. Nos. 476-4, 476-6 through 476-11. In addition, Meta relies on a declaration of its outside counsel, Kory Hines, in support of its privilege claims. See Dkt. No. 476-5. As this action is premised on federal question jurisdiction, federal common law governs issues of privilege. Fed. R. Evid. 501; United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009). “The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). The privilege extends to a client’s confidential disclosures to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures. Ruehle, 583 F.3d at 607 (citations and quotations omitted). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” Id. (citations and quotations omitted). In the Ninth Circuit, whether information is protected by the attorney-client privilege is determined using an eight-part test: (1) Where legal advice of any kind is sought (2) from a professional 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 instance permanently protected (7) from disclosure by himself or Sanmina, 968 F.3d at 1116. Where a communication has more than one purpose, it may be protected as privileged if the primary purpose of the communication is to give or receive legal advice, as opposed to business or some other non-legal advice. In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021) (describing and adopting the “primary purpose” test for dual-purpose communications), cert. granted sub nom. In re Jury, 143 S. Ct. 80 (2022), cert. dismissed as improvidently granted, 143 S. Ct. 543 (2023). The attorney work product doctrine protects from discovery materials that are prepared by or for a party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). The doctrine provides qualified protection against discovery of the legal strategies and mental impressions of a party’s counsel. Hickman v. Taylor, 329 U.S. 495, 508-10 (1947); Upjohn Co. v. United States, 449 U.S. 383, 390-91 (1981). It does not protect facts from disclosure unless disclosure of those facts would inherently reveal an attorney’s strategies or mental impressions. See, e.g., O’Toole v. City of Antioch, No. 11-cv-01502 PJH (MEJ), 2015 WL 1848134, at *3 (N.D. Cal. Apr. 14, 2015); Hamilton v. RadioShack Corp., No. C 11-00888 LB, 2012 WL 2327191, at *4-5 (N.D. Cal. June 18, 2012). A party claiming that a document or information is privileged or protected from disclosure has the burden to establish that the privilege or protection applies. See United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002); Ruehle, 583 F.3d at 608. A party asserting privilege or work product protection may make a prima facie case that the privilege or protection applies by “describ[ing] the nature of the documents . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A); see also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005). The Ninth Circuit has held a party can meet this burden by providing a privilege log that identifies “(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury Investigation, 974 However, a party may substantiate a claim of privilege by other means. Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“Briefs, declarations or other proof may establish the purpose of the communication or the specific role of the sender and each individual recipient.”). A party challenging application of the attorney-client privilege may request in camera review. “Although in camera review of documents does not destroy the attorney-client privilege, it is an intrusion which must be justified.” In re Grand Jury Investigation, 974 F.2d at 1074. “To empower the district court to review the disputed materials in camera, the party opposing the privilege need only show a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged. If the party makes such a showing, the decision whether to conduct the review rests within the discretion of the district court.” Id. at 1075. The court’s discretion is guided by the following factors: (a) the amount of material to be reviewed, (b) the relevance of the material to the case, and (c) the likelihood that in camera review will reveal evidence establishing that the material is not privileged. Id. (citing United States v. Zolin, 491 U.S. 554, 572 (1989)). The Court follows the parties’ organization in addressing the issues that require resolution. A. PIXEL_HEALTH000300598 and PIXEL_HEALTH000301262 (“Thread E”) Meta has redacted several communications within two related email threads dated between July 5 and July 12, 2022 as protected from disclosure by the attorney-client privilege and the work product doctrine. See Dkt. No. 476-4 at ECF 3-19. The privilege log describes the redacted material as “Email requesting and providing legal advice, and requesting and providing information for the purpose of facilitating legal advice, regarding business tool data issues prepared in anticipation of regulatory review and potential litigation regarding data filtering/blocking issues” (and variations of this description). Id. In its portion of the joint submission and in the Hines declaration, Meta explains further that the redacted communications “were sent primarily for the purpose of requesting or providing legal advice related to . . . related legal matters.” Dkt. No. 476-3 at 4; see also Dkt. No. 476-5 ¶¶ 21-25. Plaintiffs concede that one of the redacted communications within the threads is privileged, see Dkt. No. 476-3 at 1 n.1, but they dispute the remaining redactions on the ground that “they primarily concern Meta’s business decisions regarding data and would have occurred regardless of litigation against Meta,” id. at 1-2. Specifically, plaintiffs contend that unredacted portions of the email threads reflect that the disputed communications concern Meta’s rather than communications seeking or obtaining legal advice regarding . Id. at 2. As an initial matter, the Court observes that Meta’s privilege log, together with its discovery dispute submission, satisfies the Ninth Circuit’s criteria for asserting attorney-client privilege in the first instance. Meta has identified: the attorneys and Meta employees involved in the communications; the nature, subject matter, and purpose of the communications; all persons known to have sent or received the communications or been informed of the contents of the communications; and the dates of the communications. There is no indication that these communications have been disclosed to anyone outside the attorney-client relationship, or that they have not otherwise been maintained in confidence. The Court concludes that Meta has met its burden to demonstrate that the privilege applies to the redacted contents of these email threads. See In re Grand Jury Investigation, 974 F.2d at 1071. Plaintiffs dispute Meta’s characterization of the purposes of the communications that have been redacted as privileged. While plaintiffs are correct that merely copying an attorney on an email communication and labeling it “a/c priv” does not make the communication privileged, the Court is not persuaded that this is what Meta has done. First, the initial email from Mr. Wooldridge includes a subject line that expressly states that he is “requesting legal advice.” Dkt. No. 476-11 at ECF 2. Meta represents that this was indeed the purpose of the initial email. Second, the email communications are not merely exchanges among non-attorney Meta employees but also include in-house counsel, two of whom actively participate in communications with these suggesting that in-house counsel are not just passively copied on these communications. Third, it appears from the context of one of the unredacted communications in the thread that Meta employees did engage in a but that this discussion involved a distinct set of exchanges led by a Meta employee (James Covey). See, e.g., Dkt. No. 476-11 at ECF 2 ( ). The fact that Mr. Covey is also included in the email communications at issue here does not automatically convert those exchanges to non- legal business or strategic discussions. The Court considers whether plaintiffs have shown a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that the redacted information in the email threads is not privileged. Plaintiffs’ principal contention is that the redacted information concerns non-legal, strategic or business-related matters, based on plaintiffs’ reading of unredacted text in the threads and the fact that several non-attorneys with business or strategic roles participated in the communications. See Dkt. No. 428 at 4 (referencing PRIV ID 57-70); see also Dkt. No. 476-3 at 2. As already noted, plaintiffs’ characterization of the communications at issue is not accurate. Beyond this characterization, plaintiffs have not provided a factual basis sufficient to support a belief that in camera review will yield evidence that the redacted information concerns business or other non-legal matters. For this reason, the Court finds no justification for in camera review of these documents. See, e.g., Rock River Commc’ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 353 (9th Cir. 2014) (denial of in camera review not an abuse of discretion when challenge to privilege is “based on little more than unfounded suspicion”). Plaintiffs also challenge Meta’s assertion of work product protection for the redacted material. Dkt. No. 476-3 at 2. Meta does not respond to plaintiffs’ work product protection arguments, beyond a passing reference to Schaeffer v. Gregory Vill. Partners, L.P., 78 F. Supp. 3d 1198, 1206 (N.D. Cal. 2016), and Meta has not established a basis for application of the work product doctrine with respect to any particular redaction. See id. at 5; see generally Dkt. No. 476- protection. Accordingly, the Court denies plaintiffs’ request for an order requiring Meta to produce redacted material withheld on the basis of attorney-client privilege. However, if any text has been redacted based solely on the assertion of work product protection, that text must be produced in unredacted form to plaintiffs. B. PIXEL_HEALTH000301080 (“Thread D”) Meta has redacted portions of several communications within a single email thread dated between December 20, 2021 and January 11, 2022 as protected from disclosure by the attorney- client privilege. See Dkt. No. 476-4 at ECF 21-25. The privilege log describes the redacted material in the first two communications in the thread as “Email reflecting legal advice regarding data retention period issues” and the redacted material in the later communications in the thread as “Email reflecting and requesting legal advice, and requesting information for the purpose of facilitating legal advice, regarding data retention period issues” (and variations of this description). Id. The first two communications in the email thread do not include any attorneys, while the remaining communications include three in-house counsel, Tim Lamb, Arif Dhilla, and Jack Chen. Id. Plaintiffs challenge Meta’s assertion of privilege as to all redacted portions of the email thread, arguing that the communications “reflect a business discussion to and do not seek or reflect legal advice. Dkt. No. 476-3 at 2-3. The Court first considers the redactions in the first two communications in the email thread: the December 20, 2021 email from Frank Jing (-301084-086) and the reply email on the same date from Tobias Wooldridge (-3001084). Plaintiffs argue that this exchange is an unprivileged discussion between two engineers about their understanding of a legal issue that is untethered to any request for legal advice. Dkt. No. 476-3 at 3. In the Hines declaration, Meta confirms that the redacted text in the first two communications contains an exchange between two non-attorney employees who are sharing Dkt. No. 476-5 ¶ 16. This exchange does not appear to include any request for legal employees of a corporation, see Dkt. No. 476-3 at 6, Meta has not shown that these employees are repeating to each other any “legal advice” obtained from counsel, see Dkt. No. 476-5 ¶ 16.2 Thus, the Court concludes that Meta has not established that the attorney-client privilege applies to the redacted portions of the first two communications. See In re Grand Jury Investigation, 974 F.2d at 1071 (describing criteria). Next, the Court considers the remaining redactions in the email thread, beginning with the December 20, 2021 email from David Capel adding and addressing in-house counsel Tim Lamb (- 301083). Plaintiffs argue that the communications are directed primarily to a business purpose, and that Meta has not made a “clear showing” that the purpose of the redacted text is obtaining or providing legal advice. Dkt. No. 476-3 at 2-3. In its portion of the joint submission and in the Hines declaration, Meta explains that the redacted text corresponds to requests for legal advice from Mr. Lamb and Mr. Dhilla, and includes a description of legal advice previously received , who is also added to later portions of the email thread. Dkt. No. 476-5 ¶¶ 17-19. This explanation, together with the information in the privilege log, is sufficient to establish that the attorney-client privilege applies to the redactions in communications directed to or sent by these in-house counsel. See In re Grand Jury Investigation, 974 F.2d at 1071. However, Meta also states: “The redacted portions of the emails sent by Mr. Jing and other Meta employees on December 21, 2021, January 4, 2022, and January 11, 2022 Dkt. No. 476-5 ¶ 18. This statement suggests that these redactions, like the redactions in the exchange between Mr. Jing and Mr. Wooldridge on December 20, 2021, are not privileged for the same reason. At the very least, Meta’s own discussion of these three employee communications provides a factual basis for the Court to conclude that in camera review of an unredacted version of these communications will yield evidence that the redacted information concerns unprivileged statements of and not the seeking or obtaining of legal advice. See also Dkt. No. 428 at 3-4 (referencing PRIV ID 77). Because the Court would be required to review only a few redactions, the underlying communications appear to be relevant to issues in the case (i.e. ), and review is likely to confirm that the redactions concern unprivileged material, the Court determines that in camera review is appropriate for these few redactions. See In re Grand Jury Investigation, 974 F.2d at 1074-75. Accordingly, the Court grants plaintiffs’ request for an order requiring Meta to produce redacted material withheld on the basis of attorney-client privilege in the first two communications in the email thread (the December 20, 2021 email from Frank Jing (-301084-086) and the reply email on the same date from Tobias Wooldridge (-3001084)). The Court denies plaintiffs’ request for an order requiring Meta to produce the redacted material in the remaining communications in the thread. However, the Court orders Meta to produce for in camera review the redacted portions of the emails sent by Mr. Jing and other Meta employees on December 21, 2021, January 4, 2022, and January 11, 2022, to which Meta refers in paragraph 18 of the Hines declaration, so that the Court can determine whether the material is privileged or unprivileged. C. Priv IDs 106-108 (“Thread C”) Meta has withheld from production several communications within a single email thread dated between September 25 and September 26, 2019 as protected from disclosure by the attorney-client privilege. See Dkt. No. 476-4 at ECF 27-29. The privilege log describes the material as “Email providing and requesting information for the purpose of facilitating legal advice regarding business tool data issues.” Id. In its portion of the joint submission and in the Hines declaration, Meta explains further that Meta employee, Stephanie Wang, states in the first communication in the thread that she is Dkt. No. 476-3 at 6; Dkt. No. 476-5 ¶ 14. Meta says that in subsequent communications in the thread, Meta employees respond to this request by providing and discussing the information requested. Dkt. No. 476-3 at 6; Dkt. No. 476-5 ¶¶ 13, 15. Plaintiffs challenge Meta’s assertion of privilege as insufficiently supported, arguing that Legal Department directed Ms. Wang to seek this information.” Dkt. No. 476-3 at 3. To the contrary, Meta’s privilege log, together with its discovery dispute submission, satisfies the Ninth Circuit’s criteria for asserting attorney-client privilege. Meta has identified the attorneys seeking information for purposes of providing legal advice (i.e. James Turner and Adam Shajnfeld), and it specifically attests that the first communication was sent by a non-attorney at counsel’s request seeking information to facilitate the provision of legal advice. See, e.g., United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002) (privilege extends to communications between non-attorney employees for purpose of seeking legal advice); AT&T Corp. v. Microsoft Corp., No. 02-cv-0164 MHP (JL), 2003 WL 21212614, at *3 (N.D. Cal. Apr. 18, 2003) (“Communications containing information compiled by corporate employees for the purpose of seeking legal advice and later communicated to counsel are protected by attorney-client privilege.”). Meta has identified all employees involved in the communications (including the two attorneys copied on the thread), and has also identified the dates, nature, subject matter, and purpose of the communications. Finally, Meta identifies all persons known to have sent or received the communications or been informed of the contents of the communications, and there is no indication that these communications have been disclosed to anyone outside the attorney-client relationship, or that they have not otherwise been maintained in confidence. The Court concludes that Meta has met its burden to demonstrate that the privilege applies to the redacted contents of these email threads. See In re Grand Jury Investigation, 974 F.2d at 1071 (discussing and applying standard). Plaintiffs provide no justification for in camera review of these documents. See Dkt. No. 428 at 4. Accordingly, the Court denies plaintiffs’ request for an order requiring Meta to produce this thread. D. PIXEL_HEALTH000300667 and PIXEL_HEALTH000300648 (“Thread A”) Meta has redacted several communications within two related email threads dated between April 11 and 12, 2017 as protected from disclosure by the attorney-client privilege. See Dkt. No. 476-4 at ECF 31-52. The privilege log describes the redacted material as “Email requesting and legal advice, regarding platform terms issues” (or some variation of this description). Id. In its portion of the joint submission, Meta explains further that the communications in the threads, which include in-house counsel James Turner, reflect employees stating a legal concern, providing information, and requesting legal advice from Mr. Turner. Dkt. No. 476-3 at 6-7. The Hines declaration elaborates on this explanation by describing each redacted communication in the two threads. Dkt. No. 476-5 ¶¶ 4-7. Plaintiffs challenge Meta’s assertion of privilege as insufficiently supported, arguing that “[t]hese communications appear to be primarily for the business purpose of discussing the Dkt. No. 476-3 at 3. This argument, which appears to be based solely on the subject line of the threads, entirely ignores both Meta’s privilege log and Meta’s portion of the joint submission, as well as the redacted communications themselves. While plaintiffs’ are correct that merely labeling an email “a/c priv” does not make the communication privileged, the Court is not persuaded that this is what Meta has done. To the contrary, the Court concludes that Meta’s privilege log, together with its discovery dispute submission, satisfies the Ninth Circuit’s criteria for asserting attorney-client privilege in the first instance. Meta has identified: the attorney and Meta employees involved in the communications; the nature, subject matter, and purpose of the communications; all persons known to have sent or received the communications or been informed of the contents of the communications; and the dates of the communications. There is no indication that these communications have been disclosed to anyone outside the attorney-client relationship, or that they have not otherwise been maintained in confidence. See In re Grand Jury Investigation, 974 F.2d at 1071. The Court considers whether plaintiffs have shown a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that the redacted information in the email threads is not privileged. Plaintiffs’ principal contention is that these emails are exchanges between non-attorneys discussing potential legal concerns about a business decision, and so are not privileged. Dkt. No. 476-3 at 4; Dkt. No. 428 at 4 (referencing PRIV IDs 162-181). However, given Meta’s explanations (which are consistent with the copy of the sufficient to support a belief that in camera review will yield evidence that the redacted information concerns such non-legal matters. For this reason, the Court finds no justification for in camera review of these documents. See, e.g., Rock River Commc’ns, 745 F.3d at 353. Accordingly, the Court denies plaintiffs’ request for an order requiring Meta to produce redacted material withheld on the basis of attorney-client privilege. E. PIXEL_HEALTH00031247 (“Thread B”) Meta has redacted several communications within a single email thread dated between May 17 and 18, 2017 as protected from disclosure by the attorney-client privilege. See Dkt. No. 476-4 at ECF 54-57. The privilege log describes the redacted material as “Email requesting and reflecting legal advice, and requesting information for the purpose of facilitating legal advice, regarding data retention period issues” (or some variation of this description). Id. In its portion of the joint submission and in the Hines declaration, Meta explains further that the first communication in the email thread identifies and discusses Dkt. No. 476-3 at 7; Dkt. No. 476-5 ¶ 8. Other communications later in thread reflect discussions between and among employees, , regarding Dkt. No. 476-5 ¶¶ 9-11. Plaintiffs challenge the redactions, arguing that “ are not substantive communications protected by privilege.” Dkt. No. 476-3 at 4. Plaintiffs contend that unredacted portions of the email thread show that the communications concern business discussions about Id. As Meta points out, the disputed thread is not merely . According to Meta, it contains communications about Plaintiffs’ argument that this thread is categorically unprivileged is not persuasive. Meta’s privilege log, together with its discovery dispute submission, satisfies the Ninth the attorney and Meta employees involved in the communications; the nature, subject matter, and purpose of the communications; all persons known to have sent or received the communications or been informed of the contents of the communications; and the dates of the communications. There is no indication that these communications have been disclosed to anyone outside the attorney- client relationship, or that they have not otherwise been maintained in confidence. The Court concludes that Meta has met its burden to demonstrate that the privilege applies to the redacted contents of these email threads. See In re Grand Jury Investigation, 974 F.2d at 1071. The Court considers whether plaintiffs have shown a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that the redacted information in this thread is not privileged. As noted, plaintiffs’ principal contention is that these emails are merely discussions about business matters and Dkt. No. 428 at 4; Dkt. No. 476-3 at 4. However, that explanation is not supported by the unredacted portions of the thread, and plaintiffs have not provided a factual basis sufficient to support a belief that in camera review will yield evidence that the redacted information concerns such non-legal matters. For this reason, the Court finds no justification for in camera review of these documents. See, e.g., Rock River Commc’ns, 745 F.3d at 353. Accordingly, the Court denies plaintiffs’ request for an order requiring Meta to produce redacted material withheld on the basis of attorney-client privilege. The Court denies plaintiffs’ request for an order requiring Meta to produce the disputed documents in unredacted form, with the following exceptions: 1. To the extent Meta has redacted any text solely on the basis that the work product doctrine protects the redacted material from disclosure in PIXEL_HEALTH000300598 and PIXEL_HEALTH000301262, Meta must produce that text in unredacted form to plaintiffs. 2. Meta must produce the first two communications in PIXEL_HEALTH0003010803 in 1 unredacted form to plaintiffs. 2 3. Meta must submit for in camera review the redacted portions of the emails in 3 PIXEL_HEALTH000301080 sent by Mr. Jing and other Meta employees on December 4 21, 2021, January 4, 2022, and January 11, 2022, to which Meta refers in paragraph 18 5 of the Hines declaration, so that the Court can determine whether the material is 6 privileged or unprivileged. 7 Meta shall comply with this order by June 28, 2024. 9 Dated: June 18, 2024 10 11 Virginia K. DeMarchi 12 United States Magistrate Judge

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