United States District Court, N.D. California
DISCOVERY ORDER RE: DKT. NO. 146
MARIA-ELENA JAMES United States Magistrate Judge.
Coca-Cola has redacted information from email communications
with third parties on the ground the information contains
legal advice and is protected from disclosure. See
Jt. Ltr. Br., Dkt. No. 146. Plaintiffs seek to compel
Defendant to produce that information, arguing any privilege
was waived when Coca-Cola disclosed the communications to
third parties. Id. The undersigned previously
ordered the parties to provide additional information in
support of their positions (Order, Dkt. No. 147), which they
supplied (Pls.' Suppl. Br., Dkt. No. 148; Kahn Decl.,
Dkt. No. 149; Ringer Decl., Dkt. No. 150; Ross Decl., Dkt.
considered the parties' positions, the relevant legal
authority, and the record in this case, the Court issues the
Rule of Civil Procedure 26 provides that a party may obtain
discovery “regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1).
Factors to consider include “the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
Id. Discovery need not be admissible in evidence to
be discoverable. Id. However, “[t]he parties
and the court have a collective responsibility to consider
the proportionality of all discovery and consider it in
resolving discovery disputes.” Fed.R.Civ.P. 26 advisory
committee notes (2015 amendments). Thus, there is “a
shared responsibility on all the parties to consider the
factors bearing on proportionality before propounding
discovery requests, issuing responses and objections, or
raising discovery disputes before the courts.”
Salazar v. McDonald's Corp., 2016 WL 736213, at
*2 (N.D. Cal. Feb. 25, 2016); Goes Int'l, AB v. Dodur
Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016)
(citing advisory committee notes for proposition that parties
share a “collective responsibility” to consider
proportionality and requiring that “[b]oth parties . .
. tailor their efforts to the needs of th[e] case”).
attorneys redacted information from 35 pages of documents on
the ground the redacted information contains legal advice
communicated between Coca-Cola counsel and certain third
parties: CMA Design, Turner Duckworth, Christopher Weston,
Schawk, Finished Art, and Cornerstone. See Jt. Ltr.
Br., Ex. 1.
utilizes CMA Design, Turner Duckworth, and Christopher Weston
to develop label designs. Kahn Decl. ¶¶ 4-5. It
also utilizes Schawk and Finished Art to adapt label designs
into final product labels and generate final label proofs.
Id. ¶¶ 6-7. “Label content is
subject to the approval of Coca-Cola's counsel.
Accordingly, the Coca-Cola Legal Department provides input at
multiple stages” of the label design and production
process. Id. ¶ 8. Coca-Cola attorneys may
communicate legal advice regarding the labels to these third
parties. Id. ¶ 9. Coca-Cola attorneys also may
communicate legal advice to Cornerstone regarding licensing
of music for commercials. Ringer Decl. ¶ 5.
Design Director, Frederic Kahn, submitted a declaration
describing Coca-Cola's use of outside agencies and the
communication of legal advice to those outside agencies.
See Kahn Decl. He also reviewed the disputed email
chains, and confirmed that the redacted information
constituted communications between Coca-Cola's counsel
and the third party that was reasonably necessary to ensure
counsel's recommendations could be reflected in the label
design or proof. See id. ¶¶ 10, 12-13,
15-17, 19, 21-22. In each instance, Kahn identified the
individual who sought or received advice from Coca-Cola
counsel, confirmed that he forwarded such advice to the third
party or that counsel communicated directly with the third
party, and described the general topic of the advice. See
id. Louis Ross, Coca-Cola Senior Packaging Graphics
Manager, provided the same information for one of the email
chains. See Ross Decl. ¶ 5. Stella Ringer,
Coca-Cola Senior Manager of Entertainment Marketing, provided
the same information for the final email chain. Ringer Decl.
Evidence Code section 952 includes in its definition of
“confidential communication between client and
lawyer” information that is
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 disclosure is reasonably
necessary for the transmission of the information or the
accomplishment of 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.
argues the redacted information at issue is protected from
disclosure because it constitutes legal advice disclosed to
third parties to whom disclosure was reasonably necessary to
accomplish the purpose of the legal advice, i.e., to ensure
the final labels created and produced by the third parties
reflected the legal advice provided. See Jt. Ltr.
Ross, and Ringer provide information, based on their personal
knowledge, that supports Coca-Cola's assertion of the
privilege with respect to each of the documents in dispute.
The declarants confirm each redaction contains legal advice
that was requested by and/or transmitted to a third party
that was reasonably necessary to ensuring the legal advice
would be reflected in the label designs or proofs, or in
music licensing decisions. Coca-Cola has met its burden of
demonstrating the third party agencies “needed to
know” the legal advice in order to accomplish the
purpose for which Coca-Cola hired them; as such, there was no
waiver of the attorney client privilege based on the
disclosure to these third parties. See Insurance Co. of
N. Am. v. Superior Court,108 Cal.App.3d 758, 765-66
(1980) (“If the client discloses attorney-client
communications to unnecessary third parties, he manifests an
intent to waive confidentiality. [Cite.] The key concept here
is need to know. While involvement of an unnecessary
third person in attorney-client communications destroys
confidentiality, involvement of third persons to whom
disclosure is reasonably necessary to further the
purpose of the legal consultation preserves confidentiality
of communication.” (internal citations omitted;
emphases in original)). Coca-Cola has met its burden of
demonstrating the redacted information is privileged, and is
not discoverable under Rule 26(b)(1). See QST Energy,
Inc. v. Mervyn ...