United States District Court, N.D. California
ORDER ON JOINT STATEMENT FOR DETERMINATION OF
DEFENDANTS' DISCOVERY DISPUTE RE PLAINTIFF'S
PRIVILEGE CLAIMS RE: DKT. NO. 375
VAN KEULEN United States Magistrate Judge
the Court is the parties' Joint Statement for
Determination of Defendants' Discovery Dispute re
Plaintiff's Privilege Claims. ECF 375. Defendants request
that the Court conduct an in camera review of
certain redactions within nine documents produced by
Plaintiff: three marketing activity summaries and six sets of
minutes of meetings of Plaintiff's board of directors.
Plaintiff claims that the redacted information is protected
by attorney-client privilege and that some of the documents
are also subject to work product protection. See ECF
374-1 at Ex. A,  entries 34, 35, 43, 44, 47, 48, 49, 50,
and 51. Plaintiff opposes the request for in camera
review of these documents.
attorney-client privilege protects from discovery
“confidential communications between attorneys and
clients, which are made for the purpose of giving legal
advice.” United States v. Richey, 632 F.3d
559, 566 (9th Cir. 2011) (citation omitted). In the Ninth
Circuit, the elements of the privilege are:
(1) When legal advice of any kind is sought (2) from a
professional legal adviser in his or her capacity as such,
(3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at [the client's]
instance permanently protected (7) from disclosure by [the
client] or by the legal adviser, (8) unless the protection be
United States v. Reuhle, 583 F.3d 600, 607 (9th Cir.
2009) (quoting United States v. Corporation (In re Grand
Jury Investigation), 974 F.2d 1068, 1071 n.2 (9th Cir.
attorney work product doctrine is a qualified immunity that
protects from discovery documents and tangible things that
are prepared in anticipation of litigation or for trial by or
for a party or its representatives. Fed.R.Civ.P. 26(b)(3);
see also Admiral Ins. Co. v. District Court, 881
F.2d 1486, 1494 (9th Cir. 1989).
party asserts that information may be withheld from discovery
on grounds of privilege or work product protection, it must
“expressly make the claim” and “describe
the nature of the documents . . . in a manner that, without
revealing information itself privileged or protected, will
enable other parties to assess the claim.” Fed.R.Civ.P.
26(b)(5)(A). In essence, the party asserting the privilege or
protection must make a prima facie showing that the
information the party intends to withhold is protected.
In re Grand Jury Investigation, 974 F.2d at 1071. A
privilege log that complies with these requirements is one
accepted method for making the necessary showing.
obtain in camera review of documents for which a
party claims privilege or work product protection, the party
opposing the privilege must make a factual showing sufficient
to support a reasonable, good faith belief that in
camera inspection may reveal evidence that information
in the materials is not privileged. Id. at 1074-75
(citing United States v. Zolin, 491 U.S. 554, 572
(1989)). Mere “unfounded suspicion” is
insufficient to justify in camera review. Rock
River Comms., Inc. v. Universal Music Group, Inc., 730
F.3d 1060, 1069 (9th Cir. 2013).
party opposing the privilege makes the necessary showing, the
decision whether to conduct an in camera review
rests within the discretion of the district court. In re
Grand Jury Investigation, 974 F.2d at 1075.
redacted limited portions of the documents that are the
subject of Defendants' motion. For each redacted
document, Plaintiff prepared a privilege log expressly
claiming attorney-client privilege and/or work product
protection and containing other information concerning the
basis for its privilege and work product claims. In an effort
to avoid motion practice, Plaintiff also included in its
privilege log the marketing memos, which were from a time
frame for which the parties agreed no privilege log was
necessary. See ECF 30 at ¶ VII.B(D) (stating
parties' agreement not to log privileged communications
occurring after the filing date of this action).
activity summaries: With respect to the three
marketing activity summaries (Exs. C, D, and E), Plaintiff
has satisfied the threshold requirements for asserting
attorney-client privilege and work product protection.
Plaintiff asserts that the redactions in the three marketing
memos, which are identified in entries 49, 50, and 51 in
Plaintiff's May 27, 2018 privilege log, contain
privileged and work product information communicated to one
of Plaintiff's employees reflecting strategy and legal
advice from Plaintiff's attorneys on various topics
identified in the log. Plaintiff explained in the joint
statement that Defendants' alleged infringement has
forced Plaintiff to engage in corrective advertising and
marketing and argue that it is therefore unsurprising that
legal issues relating to the litigation and related legal
advice are reflected in the marketing activity summaries,
which were prepared for one of Plaintiff's board members
who is involved in managing this litigation and coordinating
with Plaintiff's counsel.
Defendants argue, and Plaintiff does not dispute, that the
marketing activity summaries were prepared by one
non-attorney employee of Plaintiff for another non-attorney
employee. No. attorneys appear as authors or recipients of
these documents. Moreover, the redactions appear in portions
of the documents that do not, on their face, relate to legal
issues. For example, redactions appear in lists of published