United States District Court, S.D. California
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE [ECF NO. 82]
Honorable Michael S. Berg, United States Magistrate Judge
Before
the Court is the parties' “Joint Motion for
Determination of Discovery Dispute Regarding SDCCU Privilege
Log Entry 44” [ECF No. 82], which includes
Defendant's Citizens Equity First Credit Union's
(“CEFCU”) “Motion to Compel Discovery on
Grounds of Implied Waiver of Privilege” [ECF No. 82-2
(“Mot.”)] and Plaintiff's San Diego County
Credit Union's (“SDCCU”) Opposition [ECF No.
82-44 (“Opp'n”)], Reply Declaration of James
W. Dabney [ECF No. 83], and Plaintiff's Sur-Reply [ECF
No. 92]. The parties ask the Court to resolve their discovery
dispute concerning Entry No. 44 on Plaintiff's Privilege
Log, which contains a January 26, 2011 e-mail over which
Plaintiff has asserted attorney-client privilege, and to
award their respective attorney's fees and costs
associated with the instant motion. (See id.)
A.
Defendant's Motion to Compel
Defendant
asks the Court to overrule Plaintiff's assertion of
privilege with respect to the January 26, 2011 e-mail and
compel the production of the e-mail to Defendant. (ECF No.
82-1 at 3.) Alternatively, Defendant asks the Court to review
the e-mail at issue in camera and “determine
whether it refers to IT'S NOT BIG BANK BANKING. IT'S
BETTER[, ] or a variant thereof”; and if it does so
determine, order the production of the e-mail and the
unredacted copy of the January 27, 2011 time entry.
(Id.) Plaintiff opposes Defendant's motion to
compel, arguing that the e-mail at issue is protected by the
attorney-client privilege, and the privilege has not been
waived. (Opp'n at 2, 5.) Plaintiff asserts that the
disputed document contains communications between SDCCU and
its lawyers containing a request for legal advice regarding
trademark applications. (Id. at 2.)
The
Federal Rules of Civil Procedure authorize parties to obtain
discovery regarding any nonprivileged matter that is relevant
to any claim or defense and proportional to the needs of the
case, “considering the importance of the issues at
stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
Fed.R.Civ.P. 26(b)(1). District courts have broad discretion
to determine relevancy for discovery purposes. See
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
Similarly, district courts have broad discretion to limit
discovery where the discovery sought is “unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive”; the requesting party has had ample
opportunity to obtain discovery; or the discovery sought is
beyond the scope of Federal Rule of Civil Procedure 26(b)(1).
Fed.R.Civ.P. 26(b)(2)(C).
“The
attorney-client privilege exists where: ‘(1) [] legal
advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications
relating to that purpose, (4) made in confidence (5) by the
client, (6) are at his instance permanently protected (7)
from disclosure by himself or by the legal adviser, (8)
unless the protection be waived.'” United
States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011)
(quoting United States v. Graf, 610 F.3d 1148, 1156
(9th Cir. 2010)). The party asserting the attorney-client
privilege has the burden of demonstrating the privilege
applies. In re Excel Innovations, Inc., 502 F.3d
1086, 1099 (9th Cir. 2007).
When a
party discloses a privileged attorney communication, they
waive the privilege as to all other communications on the
same subject. Weil v. Inv./Indicators, Research, and
Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); see
also Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162
(9th Cir. 1992) (“Where a party raises a claim which in
fairness requires disclosure of the protected communication,
the privilege may be implicitly waived.”). However,
waiver is limited to “matter actually disclosed”
in the communication. Weil, 647 F.2d at 25.
On
November 18, 2019, after reviewing the Joint Motion, and all
related pleadings, declarations, exhibits, and supplemental
filings, the Court ordered Plaintiff to lodge a copy of the
January 26, 2011 e-mail, identified as entry No. 44 on its
Privilege Log, for in camera review. (ECF No. 96.)
Plaintiff timely lodged the document. (See ECF Nos.
96 & 97.) After reviewing the January 26, 2011 e-mail, as
well as careful consideration of the briefing and exhibits
provided by the parties, the Court finds that the document at
issue is protected by the attorney-client privilege and the
privilege has not been waived. Accordingly, the Court
DENIES Defendant's motion to compel.
B.
Parties' Requests for Attorney's Fees and
Costs
Both
parties move the Court to award their respective
attorney's fees and costs associated with the instant
motion. (See Mot. at 15; Opp'n at 6.) If a
motion to compel discovery is denied, the Court “must,
after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party or
deponent who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorney's
fees, ” unless “the motion was substantially
justified or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(a)(5)(B). “Discovery
conduct is substantially justified if it is a response to a
genuine dispute or if reasonable people could differ as to
the appropriateness of the contested action.”
Whitewater W. Indus., Ltd. v. Pacific Surf Designs,
Inc., Case No.: 17cv1118-BEN (BLM), 2019 WL 1547407, at
*8 (S.D. Cal. Apr. 8, 2019) (citing Pierce v.
Underwood, 487 U.S. 552, 565 (1988)).
As
discussed above, the Court denies Defendant's motion to
compel. Nevertheless, the Court finds that each party's
position with respect to the instant discovery dispute was
substantially justified, and ...