United States District Court, N.D. California, San Francisco Division
ORDER REGARDING CALLWAVE AND LOCATION LABS' JOINT DISCOVERY DISPUTE LETTER DATED FEBRUARY 6, 2015
[Re: ECF No. 63]
LAUREL BEELER, Magistrate Judge.
In this miscellaneous action, Petitioner Callwave Communications, LLC ("Callwave") originally asked this court to compel Respondent Wavemarket, Inc. d/b/a Location Labs ("Location Labs"), a non-party to underlying litigation in the United States District Court for the District of Delaware,  to comply with Callwave's subpoena for certain documents. ( See Petition, ECF No. 1.) After many months and several discovery disputes, production has begun. Now, however, the parties ask the court determine whether Location Labs should be ordered to produce the six documents that it identified on the privilege log that it provided to Callwave on January 20, 2015. (2/6/2015 Joint Letter, ECF No. 63 at 1.) The court's answer is "no."
This miscellaneous action relates to five patent infringement actions (the "Underlying Litigation") that currently are pending in the United States District Court for the District of Delaware in which Callwave claims that one of its patents (U.S. Patent No. 6, 771, 970 (the "970 Patent") was infringed. ( See 5/5/2014 Joint Letter, ECF No. 17 at 1.) According to Callwave, Location Labs provides some of the defendants to the Underlying Litigation with customized software for locating mobile devices, which Callwave says is the infringing functionality in the defendants' products. ( Id.) One of the defendants to the Underlying Litigation is AT&T.
On January 20, 2015, Location Labs provided Callwave with a privilege log. (2/6/2015 Joint Letter, ECF No. 63 at 1-2 & Ex. D (privilege log).) It lists six documents. ( Id., Ex. D.) For five of the documents, Location Labs asserts that the documents are protected from disclosure under the attorney work-product doctrine and the common interest doctrine. ( Id., Ex. D.) For the sixth document, Location Labs asserts that it is protected from disclosure under the attorney work-product doctrine, the common interest doctrine, and the attorney-client privilege. ( Id., Ex. D.) Callwave argues that Location Labs's assertions are without merit. ( See id. at 2-3.)
I. THE COURT APPLIES FEDERAL LAW TO THIS DISPUTE
"Questions of privilege that arise in the course of the adjudication of federal rights are governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'" United States v. Zolin, 491 U.S. 554, 562 (1989) (quoting Federal Rule of Evidence 501); see Heathman v. United States District Court, 503 F.2d 1032, 1034 (9th Cir. 1974) ("[I]n federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege."). Federal law applies to privilege-based discovery disputes involving federal claims, even if allied with by pendent state law claims. See, e.g., Pagano v. Oroville Hospital, 145 F.R.D. 683, 687 (E.D. Cal. 1993); Martinez v. City of Stockton, 132 F.R.D. 677, 681-83 (E.D. Cal. 1990). Because this miscellaneous action is an outgrowth of the five federal law-based patent infringement actions pending in the District of Delaware, the court applies federal law when resolving the parties' dispute.
II. THE SIXTH DOCUMENT IS NOT PROTECTED UNDER THE ATTORNEY-CLIENT PRIVILEGE
Location Labs asserts that the sixth document is protected from disclosure under the attorney-client privilege. Location Labs describes the document on its privilege log as a chain of emails among AT&T's outside counsel, AT&T's in-house counsel, and Location Labs's outside counsel regarding "indemnification/defense and issues related thereto." (2/6/2015 Joint Letter, ECF No. 63, Ex. D.) AT&T's outside counsel (Chad Rutkowski Jacqueline Lesser, and Michelle Miller) and AT&T's in-house counsel (Brian Gaffney) are listed as the authors of the communications, and Location Labs's outside counsel (Imran Khaliq, Mark Hogge, and Shailendra Maheshwari) are listed as the recipients of the communications. ( Id., Ex. D.)
Location Labs says in its section of the parties' joint letter that the document is protected under the attorney-client privilege because it "involve[s] matter[s] confidentially disclosed between an attorney and client" and that Callwave "does not and cannot dispute this." ( Id. at 4.) This is not correct. In its section of the letter, Callwave clearly argues (albeit in a footnote) that the document is not privileged because there is no attorney-client relationship between AT&T and Location Labs's counsel, or between AT&T's counsel and Location Labs. ( Id. at 2 n.1.)
In any event, the court finds that Location Labs has not met its burden to show that the document is protected. United States v. Ruehle, 583 F.3d 600, 607 (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.") (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997)). "Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." Id. (quoting United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002)). An eight-part test determines whether information is 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 ...