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AdTrader, Inc. v. Google LLC

United States District Court, N.D. California, San Jose Division

September 5, 2019

ADTRADER, INC., et al., Plaintiffs,
v.
GOOGLE LLC, Defendant.

          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

         Defendant 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.[1] 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.

         Having 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 below.

         I. BACKGROUND

         The 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 redacted. Id.

         The 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.

         Google 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.

         II. DISCUSSION

         A. Attorney-Client Privilege

         In 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).

         In 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 communication” is:

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.[2] Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725, 733, 219 P.3d 736, 741 (2009).

         Google 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 ...


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