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Dolby Laboratories Licensing Corp. v. Adobe Inc.

United States District Court, N.D. California

September 26, 2019

Dolby Laboratories Licensing Corporation, et al., Plaintiffs,
v.
Adobe Inc., Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART ADOBE'S MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER RE: DKT. NO. 180

          Yvonne Gonzalez Rogers United States District Court Judge.

         On May 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”).)[1]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.)

         Now 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.

         Having 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.

         I. Legal Standard

         A 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).

         II. Discussion

         A. Communications Containing Facts (Entries 45, 52, 62)[2]

         Adobe 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.

         In 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. Id.

         Here, 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.[3] Accordingly, Adobe’s motion is denied with respect to Entries 45 and 62.

         By 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.

         B. Transmission of Legal Advice Among Non-Lawyers (Entry 4016)

         Adobe 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. ...


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