Teradata Corp. v. Sap Se

          ORDER ON PLAINTIFF'S MOTION FOR RELIEF RE: DKT. NOS. 146, 184, 185, 186

          William H. Orrick United States District Judge

         Currently before me is plaintiff Teradata Corporation's motion for relief from Magistrate Judge Laporte's non-dispositive September 9, 2019 “Order Regarding the Parties' Cross-Motions Related to Certain Audit-Related Documents.” Dkt. No. 173. For the reasons discussed below, I overrule the objection and affirm Judge Laporte's determination that SAP did not affect an at issue waiver as to the audit-report or findings. I also conclude that, absent more explanation or caselaw support, Teradata is not required to identify every single individual who received or had access to the privileged information.^[1]

         In her September 9, 2019 Order, Judge Laporte considered whether various materials in Teradata's possession were SAP's privileged documents (“audit-related materials”), to determine whether SAP's motion for return and cessation of use of those materials should be granted or whether Teradata's motion for production of additional audit-related materials should be granted. After reviewing the extensive briefing and argument on these matters, Judge Laporte made the following findings and conclusions:

1. U.S. privilege law, not German privilege law, applies;

2. Even if German privilege law applied, Plaintiff Teradata has not shown that a German court would order production of the documents at issue in this dispute;

3. SAP has met its burden of proof as to the privileged nature of the documents or communications in question;

4. SAP took reasonable steps regarding the audit-related documents prior to the disclosure to Der Spiegel to maintain its assertion of privilege;

5. SAP took reasonable steps to maintain its assertion of privilege once it was on sufficient notice of the use of privileged information in this litigation;

6. In litigating this privilege dispute, SAP has not placed the audit report or the audit-related documents at issue such that a finding of subject matter waiver over the documents is appropriate;

7. The crime fraud exception does not apply to the documents withheld by SAP or in the possession of Teradata;

8. SAP's evidentiary submissions and privilege log entries are adequate to make a prima facie showing that the audit-related documents are properly withheld under the attorney-client privilege;

9. SAP is entitled to the relief it seeks regarding return or destruction of audit-related documents over which it claims privilege, as well as the related assurances from Teradata and its counsel; and

10. Good cause exists to grant the parties' Administrative ...