The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge
MEMORANDUM AND ORDER DENYING PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF "NON-PRIVILEGED" DOCUMENTS LISTED ON DEFENDANTS' PRIVILEGE LOG (Dkt. No. 432)
On July 2, 2012, Plaintiffs filed an Ex Parte Application for Leave to File a Motion to Compel Non-Privileged Documents on Defendants' Privilege Log. (Dkt. No. 432). On July 5, 2012, Defendants filed an Opposition to the Ex Parte Application. (Dkt. No. 439). On July 6, 2012, Plaintiffs filed a Reply. (Dkt. No. 440). On July 10, 2012, the District Judge granted Plaintiffs' Ex Parte Application and referred the Motion to Compel to the Magistrate Judge. (Dkt. No. 441). On July 12, 2012, the Court held a telephonic conference during which the Parties agreed to meet and confer in an attempt to resolve their disputes relating to the Motion to Compel. On July 13, 2012, the Parties notified the Court that the Parties had resolved their disputes with one exception relating to certain documents withheld by Defendants on the ground of attorney-client privilege. (Dkt. Nos. 444-45). On July 16, 2012, the Court granted Plaintiffs' Motion in part consistent with the Parties' agreement and ordered further briefing on the remaining dispute. (Dkt. No. 447). On July 20, 2012, Defendants filed an Opposition to the Motion to Compel, including the Declarations of Wendy Wong and Gregg Adelsheimer, and lodged copies of the contested documents with the Court for in camera review. (Dkt. No. 448-49). On July 24, 2012, Plaintiffs filed a Reply in support of the Motion, including the Declaration of Craig Holden. (Dkt. No. 451). The Court took the *fn1 matter under submission without a hearing.
Plaintiffs contend that Defendants improperly withheld five emails from production on the basis of attorney-client privilege, even though Defendants' Privilege Log did not reflect the direct participation of an attorney in the communications. (Reply at 1-2). Defendants argue that the attorney-client privilege extends to communications between non-attorneys where, as here, they involve parties who share a common attorney and a common interest, the purpose of the communications is to assist legal counsel in preparing a defense, and the communications were intended to be kept confidential. (Opp. at 1). For the reasons stated below, Plaintiff's Motion to Compel production of the five disputed emails withheld on Defendants' Privilege Log is DENIED.
A. Summary of Applicable Law
"Where there are federal question claims and pendent state law claims present," as here, (see Dkt. No. 41), "the federal law of privilege applies." Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005); see also Fed. R. Civ. P. 501. The Supreme Court has "recognized the attorney-client privilege under federal law as 'the oldest of the privileges for confidential communications known to the common law.'" United States v. Zolin, 491 U.S. 554, 562, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The attorney-client privilege encourages complete disclosure of information between attorney and client and furthers the interests of justice.
Upjohn, 449 U.S. at 389. Under the attorney-client privilege, confidential communications made by a client to an attorney to obtain legal services are protected from discovery. Id. at 396; United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011).
The Ninth Circuit has recognized the following as elements of the attorney-client privilege:
(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 ...