United States District Court, N.D. California, San Jose Division
ORDER RE DISCOVERY DISPUTE RE PLAINTIFF'S
PRIVILEGE LOG RE: DKT. NO. 152
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
parties ask the Court to resolve a dispute regarding the
adequacy of plaintiff Raja Kannan's privilege log. Dkt.
No. 152. The Court directed Mr. Kannan to submit the
documents corresponding to entries #1-20 for in camera
review. Dkt. No. 154. Mr. Kannan instead submitted the
documents corresponding to entries #1-2, 4-15, 17-23, and
following reasons, the Court concludes that Mr. Kannan has
substantiated his claims of attorney-client privilege or work
product protection as to the documents submitted for in
camera review corresponding to entries #1-2, 4-15, 17-20, and
his claim of spousal privilege in entries #21-23 and 25 in
his October 16, 2019 privilege log. Mr. Kannan has not
substantiated his claims of privilege or protection for
entries #3 and 16.
this Court's prior order finding his privilege log
inadequate, Mr. Kannan served an amended privilege log on
October 16, 2019. See Dkt. No. 120 at 4-5; Dkt. No.
152, Ex. C. Mr. Kannan contends that he has properly asserted
claims of privilege and work product protection by providing
a privilege log that meets the requirements of Rule 26(b)(5)
of the Federal Rules of Civil Procedure, and that he should
not be deemed to have waived any such privileges or
protections. Apple contends that the privilege log does not
meet the requirements of Rule 26(b)(5), and therefore Mr.
Kannan has not adequately asserted any privileges or
protections. In addition, the parties dispute Mr.
Kannan's reliance on the work product doctrine with
respect to certain materials that he prepared on his own in
anticipation of litigation but without any direction or
involvement of counsel.
attorney-client privilege applies only where the
communication concerns legal advice sought from an attorney
in his or her capacity as a professional legal advisor, and
where the communication is made in confidence, is intended to
be maintained in confidence by the client, and is not
disclosed or waived. United States v. Martin, 278
F.3d 988, 999-1000 (9th Cir. 2002) (citing 8 John H. Wigmore,
Evidence § 2292, at 554 (McNaughton rev.
1961)). The privilege protects confidential disclosures made
by a client to an attorney in order to obtain legal advice,
as well as an attorney's advice in response to such
disclosures. United States v. Ruehle, 583 F.3d 600,
607 (9th Cir. 2009) (citations and quotations omitted).
However, not all communications with an attorney are
privileged. Id. Because it impedes full and free
discovery of the truth, the attorney-client privilege is
strictly construed. Id.
party claiming the privilege has the burden to establish that
it applies. Martin, 278 F.3d at 999-1000. In
particular, a party asserting privilege must “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); see also Burlington N. & Santa Fe Ry.
Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d
1142, 1148 (9th Cir. 2005) (explaining that a party claiming
privilege must “provide sufficient information to
enable other parties to evaluate the applicability of the
claimed privilege or protection.”). Typically, this is
done using a privilege log that identifies “(a) the
attorney and client involved, (b) the nature of the document,
(c) all persons or entities shown on the document to have
received or sent the document, (d) all persons or entities
known to have been furnished the document or informed of its
substance, and (e) the date the document was generated,
prepared, or dated.” In re Grand Jury
Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992).
However, a party may substantiate a claim of privilege by
other means. Apple Inc. v. Samsung Elecs. Co., 306
F.R.D. 234, 237 (N.D. Cal. 2015) (“Briefs, declarations
or other proof may establish the purpose of the communication
or the specific role of the sender and each individual
work product doctrine protects from discovery materials that
are prepared by or for a party or its representative in
anticipation of litigation. Fed.R.Civ.P. 26(b)(3)).
Typically, the doctrine provides qualified protection against
discovery of the legal strategies and mental impressions of a
party's counsel. Hickman v. Taylor, 329 U.S.
495, 508-10 (1947); Upjohn Co. v. United States, 449
U.S. 383, 390-91 (1981). However, Rule 26(b)(3) extends the
qualified work product protection to materials
“prepared in anticipation of litigation or for trial
by or for another party or its
representative . . . .” Fed.R.Civ.P. 26(b)(3) (emphases
added); see also Fed. R. Civ. P. 26(b)(3) advisory
committee note to 1970 amendment; 8 Charles Alan Wright,
Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure § 2024 (3d ed.) (“The
1970 amendment also extended the work product protection to
documents and things prepared for litigation or trial by or
for the adverse party itself or its agent. Prior to the
adoption of Rule 26(b)(3), some cases had held that documents
of this kind were not within the immunity, but the protection
exists under the rule.”). Although courts regarding
whether or to what extent the protection extends to materials
prepared by a pro so litigant, compare McKenzie v.
McNeil, No. 4:11CV45-RH/WCS, 2012 WL 695108, at *1 (N.D.
Fla. Mar. 1, 2012) (expressing skepticism about the extent to
which a pro se plaintiff may assert work product protection)
with Dessault Systemes v. Childress, No. 09-10534,
2013 WL 12181774, at *1 (E.D. Mich. Nov. 22, 2013)
(acknowledging pro se litigant's right to assert work
product protection), this Court concludes that a party may
assert work product protection regardless of whether he is
represented by counsel, so long as the assertion meets the
requirements of Rule 26(b)(3).
work product doctrine does not protect facts from disclosure.
See, e.g., O'Toole v. City of Antioch,
No. 11 CV 01502 PJH MEJ, 2015 WL 1848134, at *3 (N.D. Cal.
Apr. 14, 2015); Hamilton v. RadioShack Corp., No. C
11-00888 LB, 2012 WL 2327191, at *4-5 (N.D. Cal. June 18,
2012). The party asserting the protections of the doctrine
bears the burden of showing that the documents at issue
qualify for protection. Holmgren v. State Farm Mut. Auto.
Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992). As with
claims of attorney-client privilege, the party asserting work
product protection must party “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).
“marital communications” privilege protects
private, confidential communications between spouses.
United States v. Montgomery, 384 F.3d 1050, 1056
(9th Cir. 2004). The privilege must be construed narrowly.
Mr. Kannan has provided for in camera review all of the
responsive documents he is withholding on grounds of
privilege: 22 documents. His privilege log, however, is not
document-specific. For example, Exhibit 1 submitted in camera
is an email exchange between Mr. Kannan and one prospective
counsel dated October 12-13, 2016. This exhibit is presented
in camera as corresponding to entry #1 in Mr. Kannan's
privilege log, which reads:
2015 approx. November through August 2018
Specific potential attorneys who would possibly
Communications with specific attorneys
concerning potential representation of Kannan
and/or consulting on legal issues involved in
this litigation. These communications, to the
extent now known, to Plaintiff, are
individually listed below. Failure to list is
not a waiver as to any item which may fall in
this category. Not saved to Apple laptop.
Attorney client privilege, work product