The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court
RULING FOLLOWING IN CAMERA REVIEW DENYING APPLICATION OF ATTORNEY-CLIENT PRIVILEGE TO JANUARY 8, 2007 EMAIL RSM McGLADREY FINANCIAL
On June 2, 2010, the Court held a telephonic discovery conference. [Doc. No. 141 -Transcript of Proceedings] Alexander Conti, Esq., appeared for Plaintiff. Kathleen Nemechek, Esq., appeared for Defendant. At the discovery conference, the Court directed Defendant to provide its privilege log and the document addressed therein to the Court for in camera review and a determination on whether the document is covered by attorney-client privilege. [See Doc. No. 141 at pp. 3:21-5:24.]
Plaintiff argues the email message identified in the privilege log is not an attorney-client privileged document because it is an internal email authored by a non-lawyer to two other employees of the company who are also non-lawyers. Plaintiff contends no privilege has attached to the document because a lawyer did not send or receive the communication. Further, Plaintiff argues assuming arguendo the document is privileged, the privileged has been waived by virtue of delayed production. Specifically, Plaintiff notes Defendant responded to its Document Requests, Sets One and Two on February 23, 2009 and January 11, 2010, respectively, yet it did not produce a privilege log until May 17, 2010.
Defendant contends the document identified in its privilege log is protected from disclosure as an attorney-client privileged document under Zurich Am. Ins. Co. v. Superior , 155 Cal. App. 4th 1485 (2007) (acknowledging the California court's broad construction of the attorney-client privilege in the corporate context to allow various levels of employees to convey legal advice to other non-lawyers within the company without losing the privilege.) Specifically, Defendant argues the document is an internal communication between company employees which addresses legal advice and, therefore, qualifies for the privilege even though an attorney is not copied on the communication.
Defendant urges the Court to find, in light of the extensive discovery process undertaken in the instant case, that any delay in producing the privilege log does not waive the privilege asserted. Defendant also contends Plaintiff did not request a privilege log until mid-April of 2010 after which the log was provided on May 17, 2010.
In this diversity litigation, the Court looks to the law of the forum state, California, to guide its analysis of applicable privileges. First Pacific Networks, Inc. v. Atlantic Mutual Ins. Co., 163 F.R.D. 576 (N.D. 1995). Privileges in general are narrowly construed under California law. People v. Sinohui, 28 Cal. 4th 205, 212 (2002)(noting the preference toward narrow construction due to the fact privileges prevent the admission of relevant evidence). Similarly, federal courts have also observed the attorney-client privilege should apply "only when necessary to effectuate its limited purpose of encouraging complete disclosure by the client." Tornay v. Unites States, 840 F.2d 1424, 1428 (1988) (citing United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir. 1977)).
Specifically, under California Evidence Code § 952, a confidential communication between client and lawyer is defined as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Cal. Evid. Code § 952; see also Cal. Evid. Code § 954 (establishing privilege to refuse to disclose confidential communications between client and lawyer; Cal. Evid. Code § 912 (establishing waiver upon disclosure to third-persons).
The California Court of Appeal addressed in detail the scope of the attorney-client privilege in a corporate context in Zurich Am. Ins. Co. v. Superior Court, 155 Cal. App. 4th 1485 (2007). The Court of Appeal recognized the attorney-client privilege extends to confidential communications between business associates or agents of a party when such disclosure is reasonably necessary to further the purpose of legal consultation or to implement the advice of lawyers. Id. at 1495-1498. However, the Court of Appeal made clear "the first relevant inquiry is whether the document contains a discussion of legal advice or strategy of counsel...." Id. at 1503. The Court of Appeal went on to explain "[i]f [the documents] do not, there is no privilege. If legal advice is discussed or contained in the communication between  employees, then to that extent, it is presumptively privileged." Id. at 1502. The Court of Appeal also noted additional limitations on the application of the ...