United States District Court, N.D. California, San Jose Division
ORDER RE MR. ANDRE'S PRIVILEGE CLAIMS RE: DKT.
VIRGINIA K. DEMARCHI, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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 protects the documents in entries 26-45
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.
Attorney-Client Privilege and Work Product Doctrine
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
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).
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).
Common Interest Doctrine
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