1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 WAGNER AERONAUTICAL, INC., et Case No.: 21-cv-0994-L-AGS 4 al., ORDER ON DEFENDANTS’ EX PARTE MOTION TO COMPEL 5 Plaintiffs, DISCOVERY (ECF 208 & 243) 6 v. 7 David DOTZENROTH, et al., 8 Defendants. 9 10 The Dotzenroth defendants asked the Court to determine if various documents 11 withheld by plaintiffs were in fact privileged. After an exhaustive in camera review, the 12 Court concludes that most documents were properly withheld, but a few nonprivileged 13 items must be disclosed. 14 BACKGROUND 15 Plaintiffs William Wagner and William Tarpley collaborated with defendant 16 David Dotzenroth to develop a program to convert passenger aircrafts into cargo freighters. 17 (ECF 132, at 11.) Dotzenroth later parted ways with Wagner and Tarpley. (Id. at 16.) In 18 December 2020, nonparty Fortress Investments created plaintiff Mammoth 19 Freighters, LLC, a jumbo-jet conversion program. (ECF 210, at 10.) Wagner and Tarpley 20 became employees of this Fortress subsidiary upon formation. (ECF 235, at 7.) Dotzenroth 21 then formed his own passenger-to-freighter conversion company, prompting plaintiffs to 22 sue him, his business partner Wiley Dotzenroth, and their enterprises Sequoia Aircraft 23 Conversions and CAI Consulting, Ltd., for alleged trade-secret misappropriation. 24 (ECF 132, at 1, 27.) 25 In response to various discovery requests, plaintiffs provided a privilege log. (See 26 ECF 243-2, at 3–34.) The Dotzenroth defendants were skeptical of several entries. They 27 requested and were granted in camera review of four document categories: 28 (1) communications between Tarpley and Wagner as well as Tarpley’s emails to himself, 1 (2) unsent documents drafted by Tarpley saved to his hard drive, (3) communications 2 between nonparties and non-attorneys, and (4) communications including Fortress’s 3 in-house counsel, nonparties, and non-attorneys. (ECF 208, at 1–2; ECF 258.) 4 DISCUSSION 5 A. Attorney-Client Privilege 6 Parties are generally entitled to discovery of “relevant” and “proportional” matters, 7 so long as they are “nonprivileged.” Fed. R. Civ. P. 26(b)(1). At issue here is the attorney- 8 client privilege. To determine if that privilege applies, courts employ an eight-part test: 9 (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 10 purpose, (4) made in confidence (5) by the client, (6) are at his instance 11 permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. 12 13 United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (quoting Upjohn Co. 14 v. United States, 449 U.S. 383, 389 (1981)). The attorney-client privilege protects both 15 “confidential disclosures made by a client to an attorney” and the “attorney’s advice in 16 response to such disclosures.” United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) 17 (citation omitted). 18 “A document need not be authored or addressed to an attorney in order to be properly 19 withheld on attorney-client privilege grounds.” Santrade, Ltd. v. Gen. Elec. Co., 150 F.R.D. 20 539, 545 (E.D.N.C. 1993). Corporate employees collecting information “about matters 21 which the parties intend to seek legal advice are likewise cloaked by attorney-client 22 privilege.” AT&T Corp. v. Microsoft Corp., No. 02-0164 MHP (JL), 2003 WL 21212614, 23 at *3 (N.D. Cal. Apr. 18, 2003). These communications are “comparable to notes a client 24 would make to prepare for a meeting with her lawyer” and so are protected. United States 25 v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002). The privilege may 26 also extend to noncommunications if the document “memorializes and reflects legal advice 27 rendered in a privileged conversation.” Chrimar Sys. Inc. v. Cisco Sys. Inc., No. 13-cv- 28 1300-JSW (MEJ), 2016 WL 1595785, at *3 (N.D. Cal. Apr. 21, 2016) (quotation omitted). 1 But “[p]ercipient facts cannot achieve the protected status under the attorney-client 2 privilege by merely repeating them to an attorney.” United States ex rel. Burroughs v. 3 DeNardi Corp., 167 F.R.D. 680, 683 (S.D. Cal. 1996). Likewise, “a single email of a ‘legal 4 nature’ does not privilege the entire email thread”; “subsequent emails in the thread should 5 only be withheld if they reveal legal advice or a request for such . . . .” In re Chase Bank 6 USA, N.A. Check Loan Cont. Litig., No. 3:09-MD-2032 MMC JSC, 2011 WL 3268091, 7 at *6 (N.D. Cal. July 28, 2011); see also Planned Parenthood Fed’n of Am., Inc. v. Ctr. for 8 Med. Progress, No. 16CV00236WHODMR, 2019 WL 1950381, at *4 n.2 (N.D. Cal. 9 May 1, 2019) (noting that while the initial email in the chain was “made for the purpose of 10 obtaining legal advice,” “the remaining emails in the thread pertain to simple scheduling 11 matters and are not privileged communications,” so “Defendants should have redacted the 12 portion of the thread that contains a privileged communication and produced the remaining 13 communications”). 14 Finally, the attorney-client privilege may be waived. The “voluntary disclosure of 15 the content of a privileged attorney communication constitutes waiver of the privilege as 16 to all other such communications on the same subject.” Weil v. Inv./Indicators, Rsch. & 17 Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981). But “the Ninth Circuit recognizes that there 18 is no waiver of the privilege where a party discloses privileged material to another with 19 whom it shares common interests.” United States v. Bergonzi, 216 F.R.D. 487, 495 (N.D. 20 Cal. 2003). This common-interest doctrine protects the confidentiality of communications 21 “made by separate parties in the course of a matter of common interest” that are “designed 22 to further that effort.” Id. (citation omitted). So “individuals involved in corporate decision- 23 making” or that are otherwise working together can share privileged documents without 24 waiving the protection. Santrade, 150 F.R.D. at 545 (citations omitted). Similarly, “two 25 parties who share a common legal interest may share legal advice with counsel concerning 26 their mutual interest without effecting a waiver.” MGA Ent., Inc. v. Nat’l Prod. Ltd., No. 27 CV 10-07083, 2012 WL 3150532, at *3 (C.D. Cal. Aug. 2, 2012) (citation omitted). 28 1 B. The Withheld Documents 2 1. Tarpley–Wagner Emails and Tarpley–Tarpley Emails 3 The Dotzenroth defendants raised concerns over the privilege designations for nine 4 privilege log entries consisting of emails between non-attorneys Wagner and Tarpley or 5 emails from Tarpley to himself. (ECF 243, at 3; PLE1 44, 102, 103, 108, 109, 111–14.) 6 The emails between Tarpley and Wagner are all terminal emails on a chain in which 7 their outside counsel gave them advice on a legal issue. (See PLE 44, 108–09, 111–14.) In 8 these emails, Tarpley and Wagner “reflect” the substance of that privileged legal advice in 9 their discussions. As parties “shar[ing] a common legal interest,” Tarpley and Wagner 10 “may share legal advice with counsel concerning their mutual interest without effecting a 11 waiver.” MGA Ent., Inc., 2012 WL 3150532, at *3 (citation omitted); see also Chrimar, 12 2016 WL 1595785, at *3 (noting a “document that is not communicated between an 13 attorney and a client may still be privileged” if it “memorializes and reflects legal advice 14 rendered in a privileged conversation” (citation omitted)).
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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 WAGNER AERONAUTICAL, INC., et Case No.: 21-cv-0994-L-AGS 4 al., ORDER ON DEFENDANTS’ EX PARTE MOTION TO COMPEL 5 Plaintiffs, DISCOVERY (ECF 208 & 243) 6 v. 7 David DOTZENROTH, et al., 8 Defendants. 9 10 The Dotzenroth defendants asked the Court to determine if various documents 11 withheld by plaintiffs were in fact privileged. After an exhaustive in camera review, the 12 Court concludes that most documents were properly withheld, but a few nonprivileged 13 items must be disclosed. 14 BACKGROUND 15 Plaintiffs William Wagner and William Tarpley collaborated with defendant 16 David Dotzenroth to develop a program to convert passenger aircrafts into cargo freighters. 17 (ECF 132, at 11.) Dotzenroth later parted ways with Wagner and Tarpley. (Id. at 16.) In 18 December 2020, nonparty Fortress Investments created plaintiff Mammoth 19 Freighters, LLC, a jumbo-jet conversion program. (ECF 210, at 10.) Wagner and Tarpley 20 became employees of this Fortress subsidiary upon formation. (ECF 235, at 7.) Dotzenroth 21 then formed his own passenger-to-freighter conversion company, prompting plaintiffs to 22 sue him, his business partner Wiley Dotzenroth, and their enterprises Sequoia Aircraft 23 Conversions and CAI Consulting, Ltd., for alleged trade-secret misappropriation. 24 (ECF 132, at 1, 27.) 25 In response to various discovery requests, plaintiffs provided a privilege log. (See 26 ECF 243-2, at 3–34.) The Dotzenroth defendants were skeptical of several entries. They 27 requested and were granted in camera review of four document categories: 28 (1) communications between Tarpley and Wagner as well as Tarpley’s emails to himself, 1 (2) unsent documents drafted by Tarpley saved to his hard drive, (3) communications 2 between nonparties and non-attorneys, and (4) communications including Fortress’s 3 in-house counsel, nonparties, and non-attorneys. (ECF 208, at 1–2; ECF 258.) 4 DISCUSSION 5 A. Attorney-Client Privilege 6 Parties are generally entitled to discovery of “relevant” and “proportional” matters, 7 so long as they are “nonprivileged.” Fed. R. Civ. P. 26(b)(1). At issue here is the attorney- 8 client privilege. To determine if that privilege applies, courts employ an eight-part test: 9 (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 10 purpose, (4) made in confidence (5) by the client, (6) are at his instance 11 permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. 12 13 United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (quoting Upjohn Co. 14 v. United States, 449 U.S. 383, 389 (1981)). The attorney-client privilege protects both 15 “confidential disclosures made by a client to an attorney” and the “attorney’s advice in 16 response to such disclosures.” United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) 17 (citation omitted). 18 “A document need not be authored or addressed to an attorney in order to be properly 19 withheld on attorney-client privilege grounds.” Santrade, Ltd. v. Gen. Elec. Co., 150 F.R.D. 20 539, 545 (E.D.N.C. 1993). Corporate employees collecting information “about matters 21 which the parties intend to seek legal advice are likewise cloaked by attorney-client 22 privilege.” AT&T Corp. v. Microsoft Corp., No. 02-0164 MHP (JL), 2003 WL 21212614, 23 at *3 (N.D. Cal. Apr. 18, 2003). These communications are “comparable to notes a client 24 would make to prepare for a meeting with her lawyer” and so are protected. United States 25 v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002). The privilege may 26 also extend to noncommunications if the document “memorializes and reflects legal advice 27 rendered in a privileged conversation.” Chrimar Sys. Inc. v. Cisco Sys. Inc., No. 13-cv- 28 1300-JSW (MEJ), 2016 WL 1595785, at *3 (N.D. Cal. Apr. 21, 2016) (quotation omitted). 1 But “[p]ercipient facts cannot achieve the protected status under the attorney-client 2 privilege by merely repeating them to an attorney.” United States ex rel. Burroughs v. 3 DeNardi Corp., 167 F.R.D. 680, 683 (S.D. Cal. 1996). Likewise, “a single email of a ‘legal 4 nature’ does not privilege the entire email thread”; “subsequent emails in the thread should 5 only be withheld if they reveal legal advice or a request for such . . . .” In re Chase Bank 6 USA, N.A. Check Loan Cont. Litig., No. 3:09-MD-2032 MMC JSC, 2011 WL 3268091, 7 at *6 (N.D. Cal. July 28, 2011); see also Planned Parenthood Fed’n of Am., Inc. v. Ctr. for 8 Med. Progress, No. 16CV00236WHODMR, 2019 WL 1950381, at *4 n.2 (N.D. Cal. 9 May 1, 2019) (noting that while the initial email in the chain was “made for the purpose of 10 obtaining legal advice,” “the remaining emails in the thread pertain to simple scheduling 11 matters and are not privileged communications,” so “Defendants should have redacted the 12 portion of the thread that contains a privileged communication and produced the remaining 13 communications”). 14 Finally, the attorney-client privilege may be waived. The “voluntary disclosure of 15 the content of a privileged attorney communication constitutes waiver of the privilege as 16 to all other such communications on the same subject.” Weil v. Inv./Indicators, Rsch. & 17 Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981). But “the Ninth Circuit recognizes that there 18 is no waiver of the privilege where a party discloses privileged material to another with 19 whom it shares common interests.” United States v. Bergonzi, 216 F.R.D. 487, 495 (N.D. 20 Cal. 2003). This common-interest doctrine protects the confidentiality of communications 21 “made by separate parties in the course of a matter of common interest” that are “designed 22 to further that effort.” Id. (citation omitted). So “individuals involved in corporate decision- 23 making” or that are otherwise working together can share privileged documents without 24 waiving the protection. Santrade, 150 F.R.D. at 545 (citations omitted). Similarly, “two 25 parties who share a common legal interest may share legal advice with counsel concerning 26 their mutual interest without effecting a waiver.” MGA Ent., Inc. v. Nat’l Prod. Ltd., No. 27 CV 10-07083, 2012 WL 3150532, at *3 (C.D. Cal. Aug. 2, 2012) (citation omitted). 28 1 B. The Withheld Documents 2 1. Tarpley–Wagner Emails and Tarpley–Tarpley Emails 3 The Dotzenroth defendants raised concerns over the privilege designations for nine 4 privilege log entries consisting of emails between non-attorneys Wagner and Tarpley or 5 emails from Tarpley to himself. (ECF 243, at 3; PLE1 44, 102, 103, 108, 109, 111–14.) 6 The emails between Tarpley and Wagner are all terminal emails on a chain in which 7 their outside counsel gave them advice on a legal issue. (See PLE 44, 108–09, 111–14.) In 8 these emails, Tarpley and Wagner “reflect” the substance of that privileged legal advice in 9 their discussions. As parties “shar[ing] a common legal interest,” Tarpley and Wagner 10 “may share legal advice with counsel concerning their mutual interest without effecting a 11 waiver.” MGA Ent., Inc., 2012 WL 3150532, at *3 (citation omitted); see also Chrimar, 12 2016 WL 1595785, at *3 (noting a “document that is not communicated between an 13 attorney and a client may still be privileged” if it “memorializes and reflects legal advice 14 rendered in a privileged conversation” (citation omitted)). 15 Likewise, in the emails from Tarpley to himself, Tarpley is forwarding an email 16 thread between himself and his lawyer that includes multiple emails regarding legal advice. 17 (See PLE 102–03.) Tarpley is once again merely “memorializ[ing]” the “legal advice 18 rendered in a privileged conversation.” See Chrimar, 2016 WL 1595785, at *3. So, both 19 the Tarpley-Wagner emails and Tarpley’s self-emails are privileged. 20 2. Tarpley’s Unsent Document Drafts 21 Defendants also challenge the privilege claims on two unsent documents drafted by 22 Tarpley and saved to his hard drive. (PLE 45, 110.) Both documents reflect legal advice. 23
24 1 “PLE” refers to a privilege-log entry (or entries). For the in camera review, 25 plaintiffs’ cover letter cross-referenced each PLE with its corresponding Bates-numbered document. Because defendants seek to compel specific PLEs, the Court will refer to each 26 item by its PLE number. The remainder of plaintiffs’ cover letter is disregarded as improper 27 ex parte communication. See, e.g., Apple Inc. v. Samsung Elec. Co., No. 11-CV-01846- LHK, 2015 WL 3863249, at *3 (N.D. Cal. June 19, 2015) (noting that a party’s “ex parte 28 1 The first document, PLE 45, is “comparable to notes a client would make to prepare for a 2 meeting with [his] lawyer.” See ChevronTexaco Corp., 241 F. Supp. 2d at 1077. Tarpley 3 spoke with his lawyer about the legal issue. (See PLE 16 (reflecting Tarpley’s 4 communications with his lawyer on the same issue).) He then drafted a document reflecting 5 that advice (PLE 45), which he sent to his lawyer for further advice. (See PLE 111 (email 6 to attorney attaching a copy of PLE 45).) And then his lawyer returned advice on the issue 7 in a Word document, which Tarpley saved to his hard drive. (PLE 110.) The second 8 document, PLE 110, directly “memorializes and reflects legal advice” rendered by his 9 attorney. See Chrimar, 2016 WL 1595785, at *3. Accordingly, both are privileged. 10 3. Communications Between Nonparties and Non-Attorneys 11 The Dotzenroth defendants also challenged the privilege designations for 23 entries 12 involving nonparties and non-attorneys. Nineteen of the entries are privileged entirely. The 13 remaining four must be turned over with redactions. 14 Tarpley’s employee, Gordon Graves, was tasked with helping Tarpley with the 15 conversion project. (ECF 235-1, at 4.) Tarpley forwarded Graves an email with a Vinson 16 & Elkins lawyer. (PLE 3.) “[V]oluntarily disclosing privileged documents to third parties 17 will generally destroy the privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 18 (9th Cir. 2012). But because Graves was Tarpley’s employee, the privilege persisted. See 19 ChevronTexaco Corp., 241 F. Supp. 2d at 1077 (“The privilege might protect a 20 communication between nonlegal employees in which the employees discuss or transmit 21 legal advice given by counsel.”). 22 Nevertheless, there must be privileged content to begin with. Although the 23 underlying emails are with a lawyer, there does not appear to be any legal advice offered. 24 The only emails from the lawyer to Tarpley relate to scheduling a phone call. Tarpley, 25 however, does provide some substantive information to the lawyer for legal advice. And 26 “confidential disclosures made by a client to an attorney in order to obtain legal advice” 27 are privileged. Bauer, 132 F.3d at 507 (citation omitted). Specifically, the September 30, 28 2020 email and the accompanying attachments fall within the attorney-client privilege. The 1 subsequent discussion about technical difficulties, however, fails to relate to any legal 2 advice. Accordingly, plaintiffs are ordered to produce PLE 3. Plaintiffs may withhold the 3 accompanying attachments and redact the September 30, 2020 conversation, the subject 4 line for that email, and the subject line for the later emails on the thread.2 5 The next nonparty at issue is Sam Goh. (See PLE 121, 124–25, 128–33, 137–39.) 6 Tarpley, Wagner, and Goh are all Mammoth employees. (ECF 235, at 8–9; ECF 235-1, 7 at 5.) Though none of them are attorneys, this Court concludes that all three Mammoth 8 employees were compiling information “for the purpose of seeking legal advice,” which is 9 privileged. AT&T Corp., 2003 WL 21212614, at *3. 10 In these emails, Tarpley acts as an intermediary between Goh and counsel, first 11 receiving information and legal questions from Goh that Tarpley relays to counsel and then 12 forwarding counsel’s responses back to Goh. (See PLE 121 (Goh asking Tarpley for 13 clarification on a legal issue), PLE 122 (Tarpley asking counsel for clarification on that 14 same issue), PLE 124 (Tarpley including Goh on the clarification email thread), PLE 125 15 (duplicate of PLE 124), PLE 128 (Goh asking for further clarification on the issue), 16 PLE 129 (Tarpley summarizing counsel’s response), PLE 130 (duplicate of PLE 129), 17 PLE 131 (Goh offering further information for the legal issue), PLE 132 (Tarpley 18 informing Goh of his conversations with counsel), PLE 133 (duplicate of PLE 132), 19 PLE 134 (Tarpley forwarding Goh’s input to counsel), PLE 137 (Tarpley forwarding legal 20 advice back to Goh), PLE 138 (Goh acknowledging receipt of advice and indicating 21 application of legal advice), PLE 139 (Goh requesting further clarification on the legal 22 advice Tarpley relayed).) Tarpley, Wagner, and Goh’s discussions were “about matters 23 which the parties intend[ed] to seek legal advice,” and so they are “cloaked by attorney- 24
25 2 As with some other nonprivileged items the Court identified, it is questionable whether the unredacted content here is relevant to any request for production. But since 26 plaintiffs' only relevance argument is a conclusory sentence that “the logged documents 27 are of minimal relevance to the issues in [defendants’] case” (ECF 235, at 10), the Court declines to consider it. See D.A.R.E. Am. v. Rolling Stone Mag., 270 F.3d 793, 793 (9th Cir. 28 1 client privilege.” AT&T Corp., 2003 WL 21212614, at *3. Similarly, when Tarpley 2 forwarded the legal advice back to Goh, the privilege survived so that Mammoth—“the 3 corporation”—could “be informed of legal advice and act appropriately.” See Santrade, 4 150 F.R.D. at 545. 5 Like the emails with Goh, plaintiffs’ email with Tom Blair, a “consultant[]” hired to 6 assist Tarpley and Wagner in securing funding, (ECF 235-1, at 5), is privileged. (See 7 PLE 6.) The email relates to a legal issue that Tarpley later submits to his attorney. (See 8 PLE 111.) Their discussion was also “about matters which the parties intend[ed] to seek 9 legal advice.” AT&T Corp., 2003 WL 21212614, at *3. 10 The conversations involving Tarpley, Wagner, and Fortress non-attorney personnel 11 are less clearly privileged. (PLE 62, 67, 69–71, 168, 178, 183, 187.) Defendants’ suspicion 12 that these communications were “made in the context of plaintiffs and Fortress negotiating 13 at arm’s length about their financial arrangement,” however, may be laid to rest. (ECF 210, 14 at 9.) In all these communications, Fortress and plaintiffs were pursuing a “common legal 15 interest . . . .” MGA Ent., Inc., 2012 WL 3150532, at *4. 16 The earliest of these emails is directed to Fortress lawyers who were mistakenly 17 omitted from the email. (PLE 62; cf. PLE 63 (immediately adding Fortress counsel to the 18 thread).) It is a direct, legal question targeting “a common legal” effort between Fortress 19 and plaintiffs. See Regents of Univ. of Cal. v. Affymetrix, Inc., 326 F.R.D. 275, 279 (S.D. 20 Cal. 2018). And the entire underlying email thread is aimed at “further[ing] that effort.” 21 See Bergonzi, 216 F.R.D. at 495 (citation omitted). So the communication is privileged. 22 But just because that earlier email is privileged does not mean the remaining 23 responses are. See In re Chase Bank, 2011 WL 3268091, at *6. The terminal email on 24 PLE 67 doesn’t include any legal advice, nor does it appear to be a discussion “about 25 matters which the parties intend to seek legal advice.” See AT&T Corp., 2003 WL 26 21212614, at *3. The same is true of PLE 71, where the terminal email is just a request to 27 add an item to the agenda. So plaintiffs are ordered to produce PLE 67, redacting all content 28 except for the January 8, 2021, 12:12 p.m. email, and to produce PLE 71, redacting all 1 content except for the January 8, 2021 email. For both, plaintiffs may redact the subject 2 lines of the unredacted emails. 3 PLEs 69, 70, 168, and 178, on the other hand, are entirely privileged. Like PLE 67, 4 they all include a terminal email between two nonlawyers on a thread with underlying 5 privileged content. For these entries, the last email discusses the legal advice received, 6 directing the actions to be taken based on the advice rendered. One of the purposes of the 7 attorney-client privilege is to protect “the giving of professional advice to those who can 8 act on it . . . .” Upjohn, 499 U.S. at 390. That is precisely the situation here: the legal advice 9 was relayed to the individuals who would act upon it. So these entries are privileged. 10 The final two communications in this category involve forwarded messages from 11 plaintiffs’ counsel to Tarpley or another Wagner Aeronautical employee. (PLE 183, 187.) 12 For PLE 183, the underlying emails from counsel to Wagner and a Fortress employee are 13 protected because they are discussions about specific information and aspects of the case 14 between the attorney and his client. The terminal email on the thread, however, doesn’t 15 reveal any of that substantive discussion—it’s just a scheduling issue. While it doesn’t 16 waive the attorney-client privilege, as Wagner and Tarpley are jointly represented, the 17 content itself isn’t privileged. So plaintiffs must produce PLE 183 with the May 12, 2021 18 email from Atkeson to Tarpley unredacted. They may redact the attachments, the 19 underlying emails, and the subject line. 20 But PLE 187 is entirely privileged. Plaintiffs’ current counsel submitted a question 21 to a Wagner Aeronautical employee, and that employee followed up with a coworker to 22 determine how to respond. (PLE 187.) Such correspondence is “comparable to notes a 23 client would make to prepare for a meeting with her lawyer.” ChevronTexaco Corp., 241 24 F. Supp. 2d at 1077. So, the entire communication is privileged. 25 4. Communications Including Attorneys, Nonparties, and Non-Attorneys 26 The Dotzenroth defendants question the privilege claims for 23 additional entries. 27 (See PLE 16, 26, 60, 61, 63–66, 68, 87, 120, 122, 123, 127, 134–36, 145–47, and 158–60). 28 Many of the attorneys included are Fortress attorneys. Because the negotiations between 1 plaintiffs and Fortress were still ongoing during this time, defendants suspect these 2 communications were “made in the context of negotiating their business relationship—not 3 formulating a joint legal strategy.” (ECF 210, at 10.) And the presence of nonparties 4 suggests a possibility of waiver. (Id.) Defendants’ concerns are, however, ultimately 5 unfounded. Plaintiffs and Fortress were communicating about a joint legal strategy, and all 6 the nonparties are Fortress or plaintiffs’ employees who share in that joint legal interest. 7 The entries are not entirely privileged though, because not all emails involve legal advice. 8 To start, Bill Yuen was hired as a consultant to assist Tarpley and Wagner in 9 obtaining funding for the conversion program. (ECF 235-1, at 5.) Because Yuen was 10 Tarpley’s agent, Tarpley could share the legal advice he received from attorney Bevans to 11 the extent necessary for Yuen to “act on it” without compromising privilege. See Upjohn, 12 499 U.S. at 390. So the legal advice proffered by Bevans in PLE 16 remains privileged. 13 But the terminal two emails contain no legal advice—they “pertain to simple scheduling 14 matters and are not privileged communications.” See Planned Parenthood, 2019 WL 15 1950381, at *4 n.2. So plaintiffs must produce PLE 16, but they may “redact[] the portion 16 of the thread that contains a privileged communication”—the opening two emails and the 17 subject line for all the emails on this thread. Id. 18 Similarly, the emails between plaintiffs and Fortress attorneys and employees are 19 generally privileged. They broadly regard a common legal strategy between Fortress and 20 plaintiffs, which triggers attorney-client protection. (PLE 26, 60, 61, 63–66, 68, 120, 122, 21 123, 127, 134–36, 145–47, and 158–60); see Bergonzi, 216 F.R.D. at 495 (noting that there 22 is “no waiver of the privilege” when the communications are “made by separate parties in 23 the course of a matter of common interest” that are “designed to further that effort”). And 24 because the individuals involved on each thread “are those who can act on it,” the privilege 25 isn’t waived. See Upjohn, 449 U.S. at 389. 26 The emails between plaintiffs and Fortress attorneys that compile information for 27 the purpose of seeking legal advice or directly solicit or receive the legal advice are 28 privileged in their entirety. See Upjohn, 449 U.S. at 390 (“[T]he [attorney-client] privilege 1 || exists to protect not only the giving of professional advice to those who can act on it but 2 ||also the giving of information to the lawyer to enable him to give sound and informed 3 |}advice.”); AT&T Corp., 2003 WL 21212614, at *3 (“Communications containing 4 ||information compiled by corporate employees for the purpose of seeking legal advice and 5 || later communicated to counsel are protected by attorney-client privilege.”). This category 6 ||includes PLEs 26, 60, 61, 63-66, 68, 122, 123, 127, 134-36, 145-47, and 158-60. 7 || Likewise, those emails disseminating the legal advice to “those who can act on it” are 8 || privileged. See Upjohn, 449 U.S. at 390. So PLE 120 is privileged too. 9 But PLE 87 is an unprivileged business discussion. A business-oriented conversation 10 not shielded from disclosure simply because lawyers were copied on it. See United States 11 || v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (“The fact that a person is a lawyer does not 12 make all communications with that person privileged.”’). “Under the ‘primary purpose’ test, 13 || courts look at whether the primary purpose of the communication is to give or receive legal 14 ||advice, as opposed to business or tax advice.” In re Grand Jury, 23 F. 4th 1088, 1091 15 || (9th Cir. 2021) (citations omitted). For PLE 87, business advice appears to be the only 16 || purpose. So plaintiffs must produce PLE 87 in its entirety, including the attached proposal. 17 CONCLUSION 18 The Dotzenroth defendants’ motion to compel is GRANTED IN PART and 19 DENIED IN PART. The foregoing documents are protected under the attorney-client 20 ||privilege and common-interest doctrines to the extent stated. By September 15, 2022, 21 || plaintiffs must produce the privilege-log-related documents as set forth in the attached 22 || Appendix. 23 || Dated: September 1, 2022 24 A-—_ 25 Hon. ndrew G. Schopler United States Magistrate Judge 26 27 28 10
1 APPENDIX 2 PLE Result PLE Result PLE Result 3 3 Compelled in parta 121 Denied 135 Denied 6 Denied 122 Denied 136 Denied 4 16 Compelled in partb 123 Denied 137 Denied 5 26 Denied 124 Denied 138 Denied 6 44 Denied 125 Denied 139 Denied 45 Denied 127 Denied 145 Denied 7 60 Denied 128 Denied 146 Denied 8 61 Denied 108 Denied 147 Denied 9 62 Denied 109 Denied 158 Denied 10 63 Denied 110 Denied 159 Denied 64 Denied 111 Denied 160 Denied 11 65 Denied 112 Denied 168 Denied 12 66 Denied 113 Denied 178 Denied 13 67 Compelled in partc 114 Denied 183 Compelled in partd 14 68 Denied 120 Denied 187 Denied 69 Denied 129 Denied 15 70 Denied 130 Denied 16 71 Compelled in parte 131 Denied 17 87 Compelled entirely 132 Denied 102 Denied 133 Denied 18 103 Denied 134 Denied 19
21 a Plaintiffs may withhold attachments and redact (1) September 30, 2020 conversation, (2) September 30, 2020 subject line, and (3) post-September 30, 2020 subject 22 lines. 23 b Plaintiffs may redact earliest two emails and subject line for all emails. 24 c Plaintiffs may redact all content, including all subject lines, except for January 8, 25 2021 12:12 PM email. d Plaintiffs may redact all content, including subject lines, except for the May 12, 26 2021 11:08 AM email. Plaintiffs may redact and withhold attachments. 27 e Plaintiffs may redact all content, including all subject lines, except for January 8, 28 2021 3:59 PM email.