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In re Andre

United States District Court, N.D. California, San Jose Division

January 10, 2020

In re Subpoena of Paul Andre



         The parties dispute whether Paul Andre, counsel to Midwest Athletics and Sports Alliances LLC (“MASA”) in an action pending in the Eastern District of Pennsylvania, should be required to produce documents and testify in response to a subpoena from MASA's adversary, Ricoh USA, Inc. (“Ricoh”). On December 9, 2019, the Court issued an order granting in part and denying in part Mr. Andre's motion to quash Ricoh's subpoena and denying Mr. Andre's motion for sanctions. Dkt. No. 28. In that order, the Court concluded that the proposed discovery of Mr. Andre must be limited to documents and testimony relating to four categories of information. Id. at 6-7. However, the Court concluded that it could not evaluate Mr. Andre's objections that such discovery was barred by the attorney-client privilege or the work product doctrine in the absence of a privilege log and some means to test Mr. Andre's objections. Accordingly, the Court ordered Mr. Andre to provide a privilege log, and invited the parties to select up to 10 representative documents each for in camera review by the Court.

         Having reviewed Mr. Andre's privilege log and the parties' selected documents, the Court concludes that certain documents are protected from disclosure by the attorney-client privilege. The Court requires further briefing in order to resolve the parties' remaining disputes, as described below.

         I. BACKGROUND

         Mr. Andre's privilege log contains 45 entries (although one entry has two parts). The documents corresponding to entries 1-26 span the period of time from February 10, 2017 through July 21, 2017. The log gives no dates for the documents corresponding to entries 27-45.

         Mr. Andre asserts the attorney-client privilege, and sometimes also the work product doctrine, as a basis for withholding the documents in entries 1-25 from production. In addition to the attorney-client privilege and/or the work product doctrine, Mr. Andre asserts that the common interest doctrine[1] protects the documents in entries 26-45 from disclosure.

         The parties have collectively selected 16 representative documents from the log for in camera review: entries 1, 2, 4, 6, 8, 9A, 9B, 13, 17, 18, 20, 22, 25, 26, 30, and 31. The Court has reviewed each of these documents.


         A. Attorney-Client Privilege and Work Product Doctrine

         The attorney-client privilege protects from discovery communications concerning legal advice sought from an attorney in his or her capacity as a professional legal advisor, where the communication is made in confidence, is intended to be maintained in confidence by the client, and is not disclosed to a third party. 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 extends to 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).

         The 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 attorney. Hickman v. Taylor, 329 U.S. 495, 508-10 (1947); Upjohn Co. v. United States, 449 U.S. 383, 390-91 (1981).

         Mr. Andre, as the party asserting attorney-client privilege and work product protection, bears the burden of proving that the privilege or protection applies. See Ruehle, 583 F.3d at 607-08; In re Application of Republic of Ecuador, 280 F.R.D. 506, 514 (N.D. Cal. 2012).

         B. Common Interest Doctrine

         The voluntary disclosure of a privileged communication to a third party ordinarily waives that privilege. Ruehle, 583 F.3d at 612; Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981). The “common interest” or “joint defense” doctrine is an exception to ordinary waiver rules that applies when parties represented by separate counsel communicate, in confidence, about a matter of common legal interest, in furtherance of that common legal interest. See In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012). The doctrine does not create a privilege, but comes into play only if a privilege already covers the material ...

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