1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TRIBUO PARTNERS LLC, 7 Case No. 22-cv-02930-TLT (DMR) Plaintiff, 8 NOTICE OF REFERENCE AND v. ORDER RE: DISCOVERY 9 PROCEDURES; ORDER DENYING WILSON SONSINI GOODRICH ROSATI, 10 P.C., JOINT LETTER WITHOUT PREJUDICE 11 Defendant. Re: Dkt. No. 47
12 The above matter has been referred to Magistrate Judge Donna M. Ryu for resolution of 13 all discovery matters, including the parties’ joint discovery letter. [Docket Nos. 47, 48.] This 14 matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). 15 In the joint letter, Plaintiff Tribuo Partners LLC moves to compel Defendant Wilson 16 Sonsini Goodrich Rosati, P.C., to produce a privilege log for communications with Defendant’s 17 Office of General Counsel (“OGC”) to enable Plaintiff “to vet Defendants’ privilege claims.” Jt. 18 Letter 1. Defendant describes these communications as “relating to the lateral transition of 19 attorney Lyons, and similar post-claim communications”; asserts that the communications are 20 clearly privileged under applicable California law; and offers to “provide[ ] a declaration from the 21 OGC setting forth additional factual bas[e]s for assertion of privilege.” Id. at 3-4 (citing Edwards 22 Wildman Palmer LLP v. Superior Ct., 231 Cal. App. 4th 1214, 1235-36 (2014) (discussing factors 23 that a court may consider in analyzing whether an attorney-client relationship exists between a law 24 firm’s attorneys and the firm’s in-house counsel)). Defendant also asserts that the 25 communications “are not even relevant to [Plaintiff’s] theories in this case.” Jt. Letter 4. 26 In relevant part, Federal Rule of Civil Procedure 26 provides that “[w]hen a party 27 withholds information otherwise discoverable by claiming that the information is privileged . . . 1 the party must . . . describe the nature of the documents, communications, or tangible things not 2 produced or disclosed—and do so in a manner that, without revealing information itself privileged 3 or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5). “The most 4 common way to do this is with a privilege log.” Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 5 234, 237 (N.D. Cal. 2015). However, the Ninth Circuit has not explicitly held that a privilege log 6 is necessary to meet the requirements of Rule 26(b)(5)’s notice requirement, see Burlington N. & 7 Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005), and 8 district courts have discretion to “adopt the ‘privilege log’ approach.” See Brooks v. Agate Res., 9 Inc., 836 F. App'x 471, 474 (9th Cir. 2020) (citing Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 10 1989)). In any event, “boilerplate objections or blanket refusals inserted into a response to a Rule 11 34 request for production of documents are insufficient to assert a privilege.” Burlington, 408 12 F.3d at 1149. 13 Within seven days of the date of this order, Defendant shall provide a sworn declaration 14 from an individual with personal knowledge within its OGC regarding the factual bases for 15 Defendant’s assertion of the attorney-client privilege over the communications at issue. The 16 declaration should address the general subject matter of the communications to enable Plaintiff to 17 assess the relevance of the communications and confirm Defendant’s assertion that they are not 18 relevant. After production of the declaration, the parties shall immediately meet and confer. If 19 disagreements remain after meeting and conferring, the parties shall submit a joint letter in 20 accordance with the procedures in this order and shall submit Defendant’s declaration as an 21 attachment to the letter. The joint letter is denied without prejudice. 22 Going forward, the parties shall comply with the procedures in this order, the Federal 23 Rules of Civil Procedure, and the Northern District of California’s Local Rules, General Orders, 24 and Standing Orders. Local rules, general orders, standing orders, and instructions for using the 25 Court's Electronic Case Filing system are available at http://www.cand.uscourts.gov. Failure to 26 comply may result in sanctions. 27 RESOLUTION OF DISCOVERY DISPUTES 1 the court uses the following procedure. The parties shall not file formal discovery motions. 2 Instead, as required by the federal and local rules, the parties shall first meet and confer to try to 3 resolve their disagreements. The meet and confer session must be in person, by video, or by 4 telephone, and may not be conducted by letter, e-mail, or fax. If disagreements remain, the 5 parties shall file a joint letter no later than five business days after the meet and confer session, 6 unless otherwise directed by the court. Lead trial counsel for both parties must sign the letter, 7 which shall include an attestation that the parties met and conferred in person, by video, or by 8 telephone regarding all issues prior to filing the letter. The letter must also include a paragraph 9 listing relevant case management deadlines, including (1) the fact and expert discovery cut-off 10 dates; (2) the last day to hear or file dispositive motions; (3) claim construction or class 11 certification briefing deadlines and hearing dates; and (4) pretrial conference and trial dates. 12 Going issue-by-issue, the joint letter shall describe each unresolved issue, summarize each party’s 13 position with appropriate legal authority, and provide each party’s final proposed compromise 14 before moving to the next issue. The joint letter shall not exceed five pages (12-point font or 15 greater; margins no less than one inch) without leave of court. Parties are expected to plan for 16 and cooperate in preparing the joint letter so that each side has adequate time to address the 17 arguments. In the rare instance that a joint letter is not possible, each side may submit a letter not 18 to exceed two pages, which shall include an explanation of why a joint letter was not possible. 19 The parties shall submit one exhibit that sets forth each disputed discovery request in full, 20 followed immediately by the objections and/or responses thereto. No other information shall be 21 included in the exhibit. No other exhibits shall be submitted without prior court approval. The 22 court will review the submission(s) and determine whether formal briefing or proceedings are 23 necessary. Discovery letter briefs must be e-filed under the Civil Events category of Motions 24 and Related Filings > Motions - General > “Discovery Letter Brief.” 25 All exhibits to discovery disputes should be separately filed on ECF (for example, if the 26 motion is Docket No. 30, and the declaration with 10 exhibits is Docket No. 31, Exhibit A would 27 be filed as Docket No. 31-1, Exhibit B would be Docket No. 31-2, and so on). All exhibits shall 1 The court expects counsel to appear in person at discovery hearings, or on camera if the 2 hearing is conducted by video. This provides the opportunity to fully engage counsel in resolving 3 aspects of the dispute. If the court sets an in-person discovery hearing, permission to attend by 4 telephone may be granted upon advance written request if the court determines that good cause 5 exists. The facts establishing good cause must be set forth in the request. 6 Litigants and lawyers may provide their pronouns by filing a letter or adding pronouns 7 next to their names in their filings.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TRIBUO PARTNERS LLC, 7 Case No. 22-cv-02930-TLT (DMR) Plaintiff, 8 NOTICE OF REFERENCE AND v. ORDER RE: DISCOVERY 9 PROCEDURES; ORDER DENYING WILSON SONSINI GOODRICH ROSATI, 10 P.C., JOINT LETTER WITHOUT PREJUDICE 11 Defendant. Re: Dkt. No. 47
12 The above matter has been referred to Magistrate Judge Donna M. Ryu for resolution of 13 all discovery matters, including the parties’ joint discovery letter. [Docket Nos. 47, 48.] This 14 matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). 15 In the joint letter, Plaintiff Tribuo Partners LLC moves to compel Defendant Wilson 16 Sonsini Goodrich Rosati, P.C., to produce a privilege log for communications with Defendant’s 17 Office of General Counsel (“OGC”) to enable Plaintiff “to vet Defendants’ privilege claims.” Jt. 18 Letter 1. Defendant describes these communications as “relating to the lateral transition of 19 attorney Lyons, and similar post-claim communications”; asserts that the communications are 20 clearly privileged under applicable California law; and offers to “provide[ ] a declaration from the 21 OGC setting forth additional factual bas[e]s for assertion of privilege.” Id. at 3-4 (citing Edwards 22 Wildman Palmer LLP v. Superior Ct., 231 Cal. App. 4th 1214, 1235-36 (2014) (discussing factors 23 that a court may consider in analyzing whether an attorney-client relationship exists between a law 24 firm’s attorneys and the firm’s in-house counsel)). Defendant also asserts that the 25 communications “are not even relevant to [Plaintiff’s] theories in this case.” Jt. Letter 4. 26 In relevant part, Federal Rule of Civil Procedure 26 provides that “[w]hen a party 27 withholds information otherwise discoverable by claiming that the information is privileged . . . 1 the party must . . . describe the nature of the documents, communications, or tangible things not 2 produced or disclosed—and do so in a manner that, without revealing information itself privileged 3 or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5). “The most 4 common way to do this is with a privilege log.” Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 5 234, 237 (N.D. Cal. 2015). However, the Ninth Circuit has not explicitly held that a privilege log 6 is necessary to meet the requirements of Rule 26(b)(5)’s notice requirement, see Burlington N. & 7 Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005), and 8 district courts have discretion to “adopt the ‘privilege log’ approach.” See Brooks v. Agate Res., 9 Inc., 836 F. App'x 471, 474 (9th Cir. 2020) (citing Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 10 1989)). In any event, “boilerplate objections or blanket refusals inserted into a response to a Rule 11 34 request for production of documents are insufficient to assert a privilege.” Burlington, 408 12 F.3d at 1149. 13 Within seven days of the date of this order, Defendant shall provide a sworn declaration 14 from an individual with personal knowledge within its OGC regarding the factual bases for 15 Defendant’s assertion of the attorney-client privilege over the communications at issue. The 16 declaration should address the general subject matter of the communications to enable Plaintiff to 17 assess the relevance of the communications and confirm Defendant’s assertion that they are not 18 relevant. After production of the declaration, the parties shall immediately meet and confer. If 19 disagreements remain after meeting and conferring, the parties shall submit a joint letter in 20 accordance with the procedures in this order and shall submit Defendant’s declaration as an 21 attachment to the letter. The joint letter is denied without prejudice. 22 Going forward, the parties shall comply with the procedures in this order, the Federal 23 Rules of Civil Procedure, and the Northern District of California’s Local Rules, General Orders, 24 and Standing Orders. Local rules, general orders, standing orders, and instructions for using the 25 Court's Electronic Case Filing system are available at http://www.cand.uscourts.gov. Failure to 26 comply may result in sanctions. 27 RESOLUTION OF DISCOVERY DISPUTES 1 the court uses the following procedure. The parties shall not file formal discovery motions. 2 Instead, as required by the federal and local rules, the parties shall first meet and confer to try to 3 resolve their disagreements. The meet and confer session must be in person, by video, or by 4 telephone, and may not be conducted by letter, e-mail, or fax. If disagreements remain, the 5 parties shall file a joint letter no later than five business days after the meet and confer session, 6 unless otherwise directed by the court. Lead trial counsel for both parties must sign the letter, 7 which shall include an attestation that the parties met and conferred in person, by video, or by 8 telephone regarding all issues prior to filing the letter. The letter must also include a paragraph 9 listing relevant case management deadlines, including (1) the fact and expert discovery cut-off 10 dates; (2) the last day to hear or file dispositive motions; (3) claim construction or class 11 certification briefing deadlines and hearing dates; and (4) pretrial conference and trial dates. 12 Going issue-by-issue, the joint letter shall describe each unresolved issue, summarize each party’s 13 position with appropriate legal authority, and provide each party’s final proposed compromise 14 before moving to the next issue. The joint letter shall not exceed five pages (12-point font or 15 greater; margins no less than one inch) without leave of court. Parties are expected to plan for 16 and cooperate in preparing the joint letter so that each side has adequate time to address the 17 arguments. In the rare instance that a joint letter is not possible, each side may submit a letter not 18 to exceed two pages, which shall include an explanation of why a joint letter was not possible. 19 The parties shall submit one exhibit that sets forth each disputed discovery request in full, 20 followed immediately by the objections and/or responses thereto. No other information shall be 21 included in the exhibit. No other exhibits shall be submitted without prior court approval. The 22 court will review the submission(s) and determine whether formal briefing or proceedings are 23 necessary. Discovery letter briefs must be e-filed under the Civil Events category of Motions 24 and Related Filings > Motions - General > “Discovery Letter Brief.” 25 All exhibits to discovery disputes should be separately filed on ECF (for example, if the 26 motion is Docket No. 30, and the declaration with 10 exhibits is Docket No. 31, Exhibit A would 27 be filed as Docket No. 31-1, Exhibit B would be Docket No. 31-2, and so on). All exhibits shall 1 The court expects counsel to appear in person at discovery hearings, or on camera if the 2 hearing is conducted by video. This provides the opportunity to fully engage counsel in resolving 3 aspects of the dispute. If the court sets an in-person discovery hearing, permission to attend by 4 telephone may be granted upon advance written request if the court determines that good cause 5 exists. The facts establishing good cause must be set forth in the request. 6 Litigants and lawyers may provide their pronouns by filing a letter or adding pronouns 7 next to their names in their filings. 8 The court strongly encourages parties to contribute to the development of the bar by 9 permitting less experienced lawyers and lawyers from historically under-represented groups to 10 argue motions. 11 MOTIONS TO FILE UNDER SEAL 12 Parties are reminded that court proceedings are presumptively public, and no document 13 shall be filed under seal without request for a court order that is narrowly tailored to cover only the 14 document, the particular portion of the document, or category of documents under the governing 15 standard. If a party wishes to file a document under seal, that party shall first file an 16 administrative motion to seal in accordance with Local Rule 79-5. 17 The parties need not file paper copies of the administrative motion to seal with the clerk’s 18 office. The parties only need to submit chambers copies of the administrative motion to seal and 19 related filings. Chambers copies should include all material — both redacted and unredacted — 20 so that the chambers staff does not have to re-assemble the whole brief or declaration, although 21 chambers copies should clearly delineate which portions are confidential (via highlighting). 22 Chambers copies with confidential materials will be handled like all other chambers copies of 23 materials without special restriction, and will typically be recycled, not shredded. If the parties 24 wish to dispose of documents filed under seal in some other way, they must expressly indicate as 25 much in their sealing motion and make arrangements to pick up the documents upon disposition of 26 the motion. 27 PROTECTIVE ORDERS 1 the model stipulated protective orders (available at http://cand.uscourts.gov/model-protective- 2 orders). Parties shall file one of the following with their proposed protective order: (a) a 3 declaration stating that the proposed order is identical to one of the model orders except for the 4 addition of case-identifying information or the elimination of language denoted as optional; (b) a 5 declaration explaining each modification to the model order, along with a redline version 6 comparing the proposed protective order with the model order; or (c) a declaration explaining why 7 use of one of the model orders is not practicable. All protective orders, including the model 8 protective order, must be modified to reflect Judge Ryu’s standing order on judicial intervention in 9 discovery disputes. If the parties use one of the model stipulated protective orders, they must 10 modify section 6.3 by striking the remainder of the section after “If the Parties cannot resolve a 11 challenge without court intervention” and adding “the Parties shall follow the procedures for 12 resolving discovery disputes set forth in Magistrate Judge Donna M. Ryu’s standing order and 13 present the dispute in a joint letter to the court” or words to that effect. 14 CHAMBERS COPIES AND PROPOSED ORDERS 15 Parties must lodge an extra paper copy of the following filings pursuant to Civil L.R. 5- 16 1(d)(7): any of the motions listed under Civil L.R. 7-1(a) (except stipulations filed pursuant to 17 Civil L.R. 7-12), motions for attorneys’ fees filed under Civil L.R. 54-5, motions for temporary 18 restraining orders filed under Civil L.R. 65-1, and discovery letter briefs. If a District Judge refers 19 a discovery dispute to Judge Ryu for resolution, the parties must lodge a chambers copy of the 20 referred discovery letter or motion. The filings should be marked as a copy for “DMR 21 Chambers.” All chambers copies should be double-sided (when possible), three-hole punched 22 along the left side of the page, and should bear the ECF filing “stamp” (case number, docket 23 number, date, and ECF page number) along the top of the page. All exhibits shall be clearly 24 delineated with labels along the right side. If the filing includes exhibits over two inches thick, the 25 parties shall place the chambers copy in a binder. 26 Any stipulation or proposed order submitted by an e-filing party shall be submitted by 27 email to dmrpo@cand.uscourts.gov as a word processing attachment on the same day the 1 directed by the court. 2 PRIVILEGE LOGS 3 If a party withholds responsive information by claiming that it is privileged or otherwise 4 || protected from discovery, that party shall produce a privilege log as quickly as possible, but no 5 later than fourteen days after its disclosures or discovery responses are due, unless the parties 6 stipulate to or the court sets another date. Privilege logs must be sufficiently detailed for the 7 opposing party to assess whether the assertion of privilege is justified. Unless the parties agree to 8 alternative logging methods, the log should include: (a) the title and description of the document, 9 || including number of pages or Bates-number range; (b) the subject matter addressed in the 10 document; (c) the identity and position of its author(s); (d) the identity and position of all 11 addressees and recipients; (e) the date the document was prepared and, if different, the date(s) on ae 12 which it was sent to or shared with persons other than its author(s); and (f) the specific basis for
13 the claim that the document is privileged or protected.
v 14 Communications involving trial counsel that post-date the filing of the complaint need not © 15 be placed on a privilege log. Failure to promptly furnish a privilege log may be deemed a waiver A 16 || of the privilege or protection. SE DISTR I> Sy LO IT IS SO ORDERED Ay □ 19 Dated: January 23, 2023 Sg wT I - 7 < 20 □□ A Yves Ryu □□ Down MA na M- B 21 □□□ □ 186i UV otaieee LO NY 22 LY Vv 23 DISTRICS 24 25 26 27 28