Sacramento Downtown Arena LLC v. Factory Mutual Ins. Co.

• Court: District Court, E.D. California
• Decided: August 25, 2023
• Docket: 2:21-cv-00441
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SACRAMENTO DOWNTOWN ARENA No. 2:21-cv-0441 KJM DB LLC, et al., 12 13 Plaintiffs, ORDER 14 v. 15 FACTORY MUTUAL INSURANCE COMPANY, et al., 16 17 Defendants. 18 19 This matter came before the undersigned on August 18, 2023, for hearing of defendant’s 20 motion to compel pursuant to Local Rule 302(c)(1). (ECF No. 75.) Attorney Sean Coyle 21 appeared via Zoom on behalf of plaintiffs. Attorney Bryce Friedman appeared via Zoom on 22 behalf of defendant Factory Mutual Insurance Company (“Factory Mutual”). Oral argument was 23 heard, and defendant’s motion was taken under submission. 24 The parties’ dispute concerns defendant’s subpoena to non-party Hub-International 25 Insurance Services, Inc., (“Hub”). (JS (ECF No. 76) at 2.) Hub is plaintiff’s insurance advisor 26 and broker. (Id.) According to defendant, “Hub agreed to produce documents” but “Sacramento 27 intercepted Hub’s documents” and instead responded by, eventually, producing “a revised 28 Privilege Log” asserting the documents were protected pursuant to attorney-client privilege and 1 as work product. (Id.) Defendant argues that it “has reason to believe Sacramento is withholding 2 not privileged documents.” (Id. at 3.) Defendant “requests the Court grant in camera review of 3 the 31 Hub documents that Sacramento has logged and order Sacramento to produce all 4 documents it is improperly withholding.” (Id.) 5 “‘The party asserting the privilege has the burden of making a prima facie showing that 6 the privilege protects the information that the party intends to withhold.’” Diamond State Ins. Co. 7 v. Rebel Oil Co., Inc., 157 F.R.D. 691, 698 (D. Nev. 1994) (quoting In re Grand Jury 8 Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992)). “In considering whether a proponent of the 9 privilege is entitled to protection, the Court must place the burden of proof squarely upon the 10 party asserting privilege. Accordingly, the proponent must provide the court with enough 11 information to enable the court to determine privilege, and the proponent must show by affidavit 12 that precise facts exist to support the claim of privilege.” North Carolina Elec. Membership Corp. 13 v. Carolina Power & Light Co., 110 F.R.D. 511, 515 (M.D. N.C. 1986) 14 “In requiring a party to prove the factual basis for its claims of privilege, the courts 15 generally look to a showing based on affidavits or equivalent statements that address each 16 document at issue,” however, a party may instead rely on “an adequately detailed privilege log in 17 conjunction with evidentiary submissions to fill in any factual gaps.” Bowne of New York City, 18 Inc. v. AmBase Corp., 150 F.R.D. 465, 473-74 (S.D. N.Y. 1993). The privilege log should state 19 (a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities 20 shown on the document to have received or sent the document, (d) all persons or entities known 21 to have been furnished the document or informed of its substance, and (e) the date the document 22 was generated, prepared, or dated, as well as provide information of the subject matter of each 23 document. See In re Grand Jury Investigation, 974 F.2d at 1071; see also Allendale Mut. Ins. Co. 24 v. Bull Data Systems, Inc., 145 F.R.D. 84, 88 (N.D. Ill. 1992) (privilege log “should identify the 25 date, the author and all recipients, along with their capacities. The log should also describe the 26 document’s subject matter, purpose for its production, and a specific explanation of why the 27 document is privileged or immune from discovery. These categories, especially this last 28 //// 1 category, must be sufficiently detailed to allow the court to determine whether the discovery 2 opponent has discharged its burden.”). 3 Here, defendant does not challenge the adequacy of plaintiff’s revised privilege log. In 4 fact, at the August 18, 2023 hearing, defense counsel conceded that the revised privilege log 5 “meets the technical requirements of a privilege log[.]”1 Nonetheless, defendant asks the 6 undersigned to review in camera plaintiff’s withheld documents. 7 “In Camera review is not generally favored” and “the court should not conduct such a 8 review solely because a party begs it to do so.” Nishika, Ltd. v. Fuji Photo Film Co., Ltd., 181 9 F.R.D. 465, 467 (D. Nev. 1998). “In camera review should not replace the effective adversarial 10 testing of the claimed privileges and protections.” Diamond State Ins. Co. v. Rebel Oil Co., Inc., 11 157 F.R.D. 691, 700 (D. Nev. 1994). 12 Defendant argues it has a “good faith basis” for believing that plaintiff has improperly 13 withheld documents based on an inadvertently produced July 16, 2020 email between non- 14 attorney Hub employees. (JS (ECF No. 76) at 7.) Defense counsel reviewed this inadvertently 15 produced email before plaintiff’s “claw back.” (Id.) Based on that review defendant “disagrees 16 with Sacramento’s characterization that the email chain discusses ‘counsel’s advice and 17 strategy.’” (Id.) Plaintiff, not surprisingly, disagrees. (Id. at 19-20.) Defendant also argues that 18 it has “a good faith basis for believing the remainders of the withheld documents contain not 19 privileged information” based on “the totality of Sacramento’s document production to date, and 20 the small number of disputed documents[.]” (Id. at 8.) 21 Defendant’s good faith belief alone, however, does not justify in camera review. In this 22 regard, a court may review disputed discovery in camera where the party opposing the privilege 23 shows “a factual basis sufficient to support a reasonable, good faith belief that in camera 24 inspection may reveal evidence that information in the materials is not privileged.” In re Grand

25 1 Even where a privilege log is in fact deficient, in camera review is not the sole remedy. “When a party provides an inadequate or untimely privilege log, the Court may choose between four 26 remedies: (1) give the party another chance to submit a more detailed log; (2) deem the 27 inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld documents; and (4) inspect in camera a sample of the withheld documents.” Johnson v. Ford Motor Company, 28 309 F.R.D. 226, 234-35 (S.D. W. Va. 2015). 1 | Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992). “Although the burden is relatively 2 | minimal, an evidentiary threshold must first be met by the party requesting review before the 3 | court may exercise its discretion.”” Id. at 1072; see also Dickson v. Century Park East 4 | Homeowners Association, Case No. 2:20-cv-512 JWM MAAx, 2021 WL 3148878, at *11 (C.D. 5 | Cal. Mar. 9, 2021) (‘that standard provides that the Court may conduct an in camera review of 6 | disputed documents only if the party that is opposing the assertion of privilege has shown, 7 | through nonprivileged evidence, a factual basis sufficient to support a reasonable, good faith 8 | belief that in camera inspection may reveal evidence that information in the materials is not 9 | privileged”). 10 Here, defendant has not challenged plaintiff's privilege log and has not presented 11 || evidentiary support to justify in camera review. Instead, defendant relies on argument and its 12 | disagreement with plaintiffs characterization. That is not sufficient. Defendant’s motion will, 13 || therefore, be denied. 14 CONCLUSION 15 For the reasons stated above and at the August 18, 2023 hearing, IT IS HEREBY 16 | ORDERED that defendant’s June 12, 2023 motion to compel (ECF No. 75) is denied. 17 | Dated: August 24, 2023

19 0 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 | DLB:6 DB/orders/orders.civil/sacramento0441.oah.081823

25 26 |—$_ ——_——_ > Even if a party makes the requisite showing, “the decision whether to conduct the review rests 28 | within the discretion of the district court.” In re Grand Jury Investigation, 974 F.2d at 1075.