United States District Court, N.D. California
ORDER RE DISCOVERY DISPUTE
JON S. TIGAR, District Judge.
Now before the Court is the parties' discovery dispute regarding the applicability of the attorney-client privilege and work-product protection to the documents listed in Gregory Village Partners, LP and VPI, Inc.'s (collectively, "Gregory Village") privilege log. See ECF No. 104. Having carefully reviewed the documents in camera and considered the arguments and evidence presented by the parties, the Court finds that certain documents identified by Gregory Village as privileged are not and orders Gregory Village to produce those documents to Plaintiffs.
A. Factual History
In June 2011, Plaintiffs brought this action against multiple defendants, seeking to remediate contamination at the site of their home. ECF No. 1-1. Gregory Village is the current owner of a property from which some of that contamination allegedly flowed. Id. at 2-4.
VPI, Inc.'s Vice President, Mary Haber, also serves as Gregory Village's in-house general counsel. Decl. of Mary Haber in Supp. of Gregory Village Br. that Communications with Tracy Craig Are Privileged, ¶¶ 1, 2 ("Haber Declaration"); ECF No. 118 at 4. According to Haber, VPI, Inc. and Gregory Village are "associated entities." Haber Decl. ¶ 1. Plaintiffs contend that it is not clear when Haber is acting in her role as general counsel as opposed to her role as a businesswoman, as she "wears multiple hats" in her work for the companies, and signs various documents pertinent to this litigation either as Vice President of VPI, Inc., as general counsel to Gregory Village, or both. ECF No. 118 at 4, 11.
In February 2009, Gregory Village hired Tracy Craig and her company, Craig Communications, as public relations consultants. ECF No. 118 at 3 & Ex. 3. At that time, the Regional Water Quality Control Board ("Board") was working with Gregory Village regarding possible contamination from its property and to determine what steps should be taken toward remediation. Id . Ex. 4. Craig and her company's official responsibilities included: (1) conducting "community research, " identifying "key contacts, " and developing a "key contact list with representative names, addresses, " etc.; (2) meeting with Gregory Village and the Board to "develop initial outreach strategy and short-term outreach goals, " and following-up to "refine key messages and project strategy"; (3) developing a one-page fact sheet summarizing "main project points to provide to elected officials and key community representatives"; (4) scheduling and attending "ten meetings with key stakeholders"; and (5) preparing a short report summarizing "community characteristics and composition, key social and community organizations, preferred methods to communicate with various segments of the community, [and] information gathered from outreach meetings and recommended outreach tasks." Id. at 3 & Ex. 3.
Craig participated in public meetings before the Board and the City of Pleasant Hill with Ed Firestone, an outside attorney working for Gregory Village. Haber Decl. ¶¶ 5, 20. Craig also went door-to-door in neighborhoods potentially affected by contamination from the Gregory Village property to meet neighbors and, in some cases, seek to secure access agreements to permit Gregory Village's environmental consultants to perform sampling as required by the Board. Id . She also met with neighbors, including the Plaintiffs, to persuade them to agree to the installation of depressurization systems under their homes as a mitigation measure. Id . ¶ 21.
B. Procedural History
On May 16, 2012, Plaintiffs requested production from Gregory Village of various documents related to this litigation. ECF No. 118 at 1. Gregory Village responded to Plaintiffs' request on June 29, 2012, and on November 5, 2012, served on Plaintiffs a privilege log, claiming attorney-client privilege or work-product protection for more than one thousand documents encompassing thousands of pages. Id . The parties met and conferred regarding the request for production and the privilege log, and Gregory Village has since modified versions its privilege log three times. Id . Plaintiffs continue to object to Gregory Village's claims of privilege for the documents listed on the log. See ECF No. 104 at 1. In particular, Plaintiffs object to Gregory Village's claims of privilege or work-product protection for documents that contain communications from or to Tracy Craig and/or Mary Haber. Id . Plaintiffs also object to the fact that the descriptions of documents listed in past versions of the log have been shown to be inaccurate, and therefore Plaintiffs do not believe that the current log entries accurately describe the documents listed on the log. Id. at 2.
On October 6, 2014, the Court ordered Gregory Village to review its privilege log and to verify that it continues to assert the privilege or work-product protection as to every item on it. Id. at 3. To the extent Gregory Village, after review, no longer asserted the privilege for certain log entries, it was ordered to revise its privilege log and submit it to Plaintiffs by October 16, 2014. Id . The Court also ordered Gregory Village to ensure that the descriptions of documents contained in the log were accurate, and to file a brief in support of its claims of privilege. Id.
In response, Plaintiffs were ordered to identify up to fifty documents for which Gregory Village asserted the privilege based on Haber's participation in the communication contained in the documents ("Haber Documents"), and fifty documents wherein the claim of privilege rested on Craig's participation in the communication ("Craig Documents"), and to which Plaintiffs objected to the assertion of the privilege. Id . Also, Plaintiffs were to file an opposition to Gregory Village's brief in support of its privilege claims. Id . Finally, Gregory Village was to lodge with the Court paper copies of the aforementioned documents, and the same documents saved to a CD. Id.
The parties have complied with the Court's October 6 Order, submitting the documents to each other and to the Court as requested. The privilege log Gregory Village submitted to Plaintiffs and the Court now contains 1, 145 entries. Id . Plaintiffs continue to object to Gregory Village's claims of privilege. See ECF No. 118.
Gregory Village also submitted to the Court a document entitled "Further Submission by Defendants Gregory Village Partners, L.P. and VPI, Inc. Regarding Craig and Haber Documents Designated as Privileged by Defendants and Selected by Plaintiffs for In Camera Review" ("Further Submission"). In the Further Submission, Gregory Village either partially or fully withdraws its claim of privilege with respect to several of the documents on the privilege log. Because, Plaintiffs contend, the Further Submission indicates that Gregory Village has not carefully reviewed its privilege log to ensure that each entry on the log is justified, and because descriptions of documents in the log continue to be inaccurate, despite the Court's previous order, Plaintiffs object to Gregory Village's claim of privilege with respect to each document in the log. ECF No. 118 at 2.
II. LEGAL STANDARD
Where, as here, subject matter jurisdiction is premised on a federal question, federal common law governs privilege issues. Fed.R.Evid. 501; United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009). "A party asserting the attorney-client privilege has the burden of establishing the existence of an attorney-client relationship and the privileged nature of the communication." United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (quotations and internal alterations omitted). "Because it impedes the full and free discovery of the truth, the attorney-client privilege is strictly construed." Id . (quotations omitted). The Ninth Circuit applies an eight-factor test to determine whether communications are covered by 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 that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by ...