The opinion of the court was delivered by: EDWARD CHEN, Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO
COMPEL ANSWERS TO DEPOSITION QUESTIONS BY ANDREW VU; AND GRANTING
IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL FURTHER
DEPOSITION OF JENNIFER LIU
Defendant American Home Assurance Co. ("American Home") has
filed two motions to compel contesting the assertion of privilege
by Plaintiff Sony Computer Entertainment America, Inc. ("SCEA")
at the depositions of Jennifer Liu and Andrew Vu. Part of the
motion related to Ms. Liu has been withdrawn. See Joint letter
of 7/25/05, at 2. The Court hereby addresses the remaining issues
raised in each motion. Each motion is GRANTED in part and DENIED
I. FACTUAL & PROCEDURAL BACKGROUND
SCEA has filed suit against various insurance companies,
including American Home. In essence, SCEA contends that American
Home and the other insurance companies wrongfully and in bad
faith denied insurance coverage to SCEA for defense and indemnity
in connection with consumer lawsuits against SCEA claiming
property damage, false advertising, and other injury in connection with PlayStation and PlayStation 2. See FAC ¶ 1. The
consumer lawsuits at issue are known as the Nickerson/Muccioli
lawsuits and the Kim/Kaen lawsuits.
On December 14, 2005, American Home noticed the deposition of
Ms. Liu, the director of legal and business affairs at SCEA.
See Davis Decl., Ex. 1; see also id., Ex. 5 (Liu Dep. at 68).
SCEA produced Mr. Liu for deposition on January 11, 2005. See
Mot. at 8.
On December 15, 2004, American Home also noticed a 30(b)(6)
deposition regarding the underlying Nickerson and Muccioli
lawsuits, see Davis Decl., Ex. 2, and another 30(b)(6)
deposition regarding the underlying Kim and Kaen lawsuits.
See id., Ex. 3. SCEA elected to designate Ms. Liu for both
30(b)(6) depositions, which took place on January 12 and 14,
2005. See Mot. at 8.
During the depositions of Ms. Liu, both in her individual and
30(b)(6) capacities, privilege objections were made by SCEA's
On December 14, 2004, American Home noticed the deposition of
Mr. Vu, a lawyer at SCEA. See Davis Decl., Ex. 1; Mot. at 3.
SCEA produced Mr. Vu for deposition on January 21, 2005. See
Mot. at 3.
During Mr. Vu's deposition, privilege objections were asserted
by SCEA's counsel.
At the hearing on the motions to compel, the parties agreed
that the disputes involving Ms. Liu and Mr. Vu could be boiled
down to three issues, namely, (1) whether SCEA's communications
with and in the presence of third parties are privileged; (2)
whether SCEA waived its privilege with respect to communications
with outside counsel (i.e., the Crosby Heafey and Gray Cary law
firms) by disclosing to third parties a document known as
"Exhibit A-49"; and (3) whether Ms. Liu and Mr. Vu played
business roles or legal roles, e.g., with respect to the
supervision of SCEA's counsel in the consumer lawsuits and events
related to the tender of SCEA's claim to American Home.
A. SCEA's Communications with and in the Presence of Third
At the hearing on the motions, the parties clarified that the
only third party at issue is Mr. O'Neil, the insurance broker for
SCEA, and not Mr. Webber, the representative of another insurance company, Great American. (SCEA agreed that there is no privilege
as to communications to which Mr. Webber was a party.) American
Home argues that attorney-client communications involving or made
in the presence of Mr. O'Neil are not privileged. SCEA, in turn,
argues that such communications are confidential and privileged
because Mr. O'Neil was "present indisputably to further SCEA's
interest in Ms. Liu's consultations." Joint letter of 7/25/05, at
9 (citing Cal. Civ. Code § 952 (allowing for disclosure of
information to third parties "present to further the interest ...