United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
ADOBE'S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL
ORDER RE: DKT. NO. 180
Gonzalez Rogers United States District Court Judge.
17, 2019, the parties filed a joint discovery letter in which
Dolby challenged Adobe’s privilege designations on
approximately 4, 960 non-lawyer communications identified on
its privilege log. (Dkt. No. 109 at 3.) After full briefing
and in camera review of fifteen sample documents
selected by Dolby, Magistrate Judge Donna Ryu issued an order
adjudicating outstanding disputes regarding thirteen of the
sample documents. (Dkt. No. 167
(“Order”).)Specifically, the court held that seven
of the documents were non-discoverable and the other six were
non-privileged and subject to production in whole or in part.
(Id. at 23.) In addition, the court indicated that
it would appoint a special master to resolve any future
disputes between the parties regarding Adobe’s
privilege designations. (Id.)
before the Court is Adobe’s motion for relief from
Magistrate Judge Ryu’s order regarding privilege
designations. (Dkt. No. 180 (“Motion”).) In its
motion, Adobe challenges the court’s privilege
determinations as to Entries 44, 45, 52, 62, 1754, 1875,
2521, and 4016, and objects to certain procedural
requirements imposed by the magistrate judge.
carefully reviewed the motion, the parties’ prior
briefing on the issue, and the magistrate judge’s
order, and for the reasons set forth more fully below, the
Court Grants In Part And Denies In
Part Adobe’s motion. The Court finds the
record sufficient without further briefing.
magistrate judge’s order on a non-dispositive motion
may be modified or set aside if it is “clearly
erroneous or contrary to law.” Fed.R.Civ.P. 72(a).
Factual determinations are reviewed for clear error, and
legal conclusions are reviewed to determine whether they are
contrary to law. United States v. McConney, 728 F.2d
1195, 1200-1201 (9th Cir. 1984) (overruled on other grounds
by Estate of Merchant v. CIR, 947 F.2d 1390 (9th
Cir. 1991)). The clear error standard allows the court to
overturn factual determinations if the court reaches a
“definite and firm conviction that a mistake has been
committed.” Wolpin v. Philip Morris Inc., 189
F.R.D. 418, 422 (C.D. Cal. 1999) (citing Federal Sav.
& Loan Ins. Corp. v. Commonwealth Land Title Ins.
Co., 130 F.R.D. 507 (D.D.C. 1990)). Legal conclusions
are reviewed de novo to determine whether they are
contrary to law. Perry v. Schwarzenegger, 268 F.R.D.
344, 348 (N.D. Cal. 2010).
Communications Containing Facts (Entries 45, 52,
takes issue with the findings regarding Entries 45, 52, and
62, arguing that the predominance of facts in the
communications does not render them discoverable.
support of its argument, Adobe primarily relies on Upjohn
Co. v. United States, 449 U.S. 383 (1981). In
Upjohn, the Supreme Court held that questionnaires
provided by in-house counsel to employees seeking information
related to an investigation into illegal activities were
privileged. Id. at 394-95. Importantly, the court
found that the communication at issue identified the
company’s general counsel, referred in its opening
sentence to the legal implications of the investigation for
which the questionnaires were issued, and made employees
“sufficiently aware that they were being questioned in
order that the corporation could obtain legal advice.”
Id. Importantly, the Upjohn court declined
to establish an all-encompassing test for application of the
attorney client privilege within corporations. Id.
at 396. Instead, the court found that the attorney client
privilege must be evaluated on a case-by-case basis.
Magistrate Judge Ryu’s determinations with respect to
Entries 45 and 62 are consistent with Upjohn.
Specifically, she concluded that these documents, unlike the
communications at issue in Upjohn, related solely to
factual information and gave no indication that the employees
involved in the communications were aware of any legal
purpose. (See Order at 12-14.) Thus, it was not, as
Adobe contends, the “mere recitation of facts” in
the documents that “negated privilege, ” but
rather, the predominance of factual information combined with
the lack of reference to legal purpose that made the document
discoverable. Upon review of the documents, this Court
concludes that the findings were neither clearly erroneous
nor contrary to the law. Accordingly, Adobe’s motion is
denied with respect to Entries 45 and 62.
contrast, the Court finds that with respect to Entry 52, the
privilege attaches. The initial email in the chain, sent by
Colin Stefani, asks “a question [he] need[s] to confirm
to address an audit.” The next day, Charles Van Winkle
writes to two other employees on the email chain that he
“pushed back with Colin stating that Legal should
already have all of this information” and that
“Legal has a database . . . and that’s where it
should end.” Importantly, Van Winkle’s message
strongly suggests that the recipients of Stefani’s
email understood its legal purpose. Further, Adobe offered
declarations from Stefani stating that the “entire
email thread is directly related to a factfinding request
[from] Adobe in-house counsel” and that he provided
“the results of the investigation . . . [to] Adobe
in-house counsel.” (Dkt. No. 135-4, ¶ 4; Dkt. No.
143-9, ¶ 3.) This is sufficient to maintain privilege
over Entry 52.
Transmission of Legal Advice Among Non-Lawyers (Entry
also challenges Magistrate Judge Ryu’s finding that
Entry 4016 is discoverable because it relays legal advice
that an employee received over the course of several years in
a different context. In her order, she concluded that an
employee’s “own understanding of legal principles
derived from his experience talking with lawyers over the
years is not entitled to protection from disclosure, ”
noting that such a result would “cut against the
principle that federal privilege law is ‘narrowly and
strictly construed.’” (Order at 23, quoting
Vasudevan Software, Inc. v. Int’l Bus. Machines
Corp., No. C 09-05897 RS (PSG), 2011 WL 1599646, at *1
(N.D. Cal. ...