United States District Court, N.D. California, San Jose Division
ORDER RE AUGUST 27, 2019 DISCOVERY DISPUTE RE
PRIVILEGE CLAIM AND GOOGLE'S MOTION FOR PROTECTIVE ORDER
RE: DKT. NOS. 187, 197
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
Google LLC (“Google”) and plaintiffs
(collectively, “AdTrader”) dispute whether
certain information Google has redacted from a responsive
document qualifies for protection as a privileged
attorney-client communication and, if so, whether Google has
waived that privilege. Dkt. No. 197. In addition, AdTrader
demands that Google produce the witness with whom it intended
to use the disputed document for a second deposition and that
Google compensate AdTrader for the fees and costs incurred in
connection with that second deposition and with this
challenge to Google's privilege claim. Finally, AdTrader
asks for an order precluding Google from “clawing
back” other documents on privilege grounds less than
seven days before a deposition. At the Court's request,
Google submitted the document in question for in
camera review. Google has separately moved for a
protective order, requesting that prior Court filings quoting
the disputed material be removed from the docket. Dkt. No.
187. The parties do not request a hearing on the dispute.
considered the submissions of the parties, the Court
concludes that the disputed document contains privileged
information, but that Google has waived that privilege.
Accordingly, the Court orders production of the document
without redactions and a further deposition, as set forth
document in question is an email written by Alice Yu, a
Google product manager, which was sent on August 25, 2017
(“Yu email”) to several other Google employees.
Google produced the Yu email (labeled GOOG-ADTR-00016152 -
16156) to AdTrader in December 2018 as part of a production
of almost 10, 000 pages of documents. Dkt. No. 197 at 4. The
email describes Google's efforts to issue credits for
previously uncredited invalid advertising activity and the
reasons for those efforts. Google contends that one of the
reasons “reflect[s] and paraphrase[s] legal advice [Ms.
Yu] had received from Google in-house counsel Oliver
Zee” and that this portion of the email should be
parties agree that after Google produced the Yu email
(without redactions), AdTrader relied on and quoted from the
disputed portion of the email in four filings made in
February 2019 (Dkt. Nos. 111, 113, 119 and 122). Id.
at 2, 6. Google took no action with respect to the Yu email
at that time or during the following five months.
Id. at 6.
says that it first discovered that the Yu email included
privileged material on August 6, 2019 during counsel's
discussions with Ms. Yu in preparation for her deposition,
which was scheduled for the next day. Id. at 4.
Google says that because the email does not bear any indicia
of privilege on its face, it had no reason to claim privilege
prior to counsel's meeting with Ms. Yu for deposition
preparation. Id. at 4, 6. The parties agree that
Google did not advise AdTrader of its privilege claim
regarding the Yu email until the day before Ms. Yu's
deposition and that Google objected to AdTrader questioning
Ms. Yu about the purportedly privileged material during her
deposition. Id. at 2, 7.
their joint submission, neither party expressly takes a
position regarding whether federal law or California state
law governs application of the attorney-client privilege
here; instead, both parties rely on a mix of federal and
state authority. In a prior dispute before the Court, Google
argued that California law applies with respect to whether
material is within the scope of the attorney-client
privilege. AdTrader disagreed. See Dkt. No. 162.
Because the sole basis for federal jurisdiction in this case
is diversity jurisdiction pursuant to the Class Action
Fairness Act, 28 U.S.C. § 1332(d), California state law
supplies the rule of decision in this action, and California
state law governs application of the attorney-client
privilege. Fed.R.Evid. 501; In re California Pub.
Utilities Comm'n, 892 F.2d 778, 781 (9th Cir. 1989);
Lawson v. GrubHub, Inc., No. 15-cv-05128-JSC, 2017
WL 1684964, at *1 (N.D. Cal. May 3, 2017).
California, the attorney-client privilege is described in the
Evidence Code § 950 et seq. According to that
code, a client has the privilege “to refuse to
disclose, and to prevent another from disclosing, a
confidential communication between client and lawyer.”
Cal. Evid. Code § 954. A “confidential
information 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 that 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.
Cal. Evid. Code § 952. The privilege is not limited to
confidential communications between attorney and client, but
may also encompass internal client communications that
contain a discussion or summary of counsel's legal
advice. Zurich American Ins. Co. v. Superior Court,
155 Cal.App.4th 1485, 1502, 1503 (Ct. App. 2007) (privilege
encompasses communications between client employees that
reflect, discuss, or contain legal advice); see also Ins.
Co. of N. Am. v. Superior Court, 108 Cal.App.3d 758, 766
(Ct. App. 1980) (disclosure may be made to persons not
present at the attorney-client consultation, so long as such
persons are within the scope of section 952). As the party
asserting attorney-client privilege, Google bears the burden
of establishing that the privilege encompasses the disputed
material in the Yu email. Costco Wholesale Corp. v.
Superior Court, 47 Cal.4th 725, 733, 219 P.3d 736, 741
argues that the disputed portion of the Yu email
“reflect[s] and paraphrase[s] legal advice” Ms.
Yu received from Google's in-house counsel. Id.
at 4. Although AdTrader does not dispute that Ms. Yu
communicated directly with Google's in-house counsel
about issuing credits to advertisers, it argues that the Yu
email reflects only that Google's counsel weighed in on a
business decision. Id. at 2. The ...