INTEX RECREATION CORP. v. BESTWAY USA, INC., ET AL Case No. CV 19-8596-JAK(Ex) United States District Court, C.D. California Filed August 08, 2023 Counsel Andrew M. McCoy, Pro Hac Vice, Louis T. Perry, Pro Hac Vice, R. Trevor Carter, Pro Hac Vice, Reid E. Dodge, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Indianapolis, IN, David R. Merritt, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Minneapolis, MN, Tarifa Belle Laddon, Faegre Drinker Biddle and Reath LLP, Los Angeles, CA, for Plaintiff. Ben M. Davidson, Davidson Law Group ALC, Calabasas, CA, John S. Artz, Pro Hac Vice, Dickinson Wright PLLC, Ann Arbor, MI, Michael David Saunders, Dickinson Wright PLLC, Austin, TX, Steven A Caloiaro, Dickinson Wright PLLC, Reno, NV, for Defendant Bestway USA, Inc. Eick, Charles F., United States Magistrate Judge Proceedings: (IN CHAMBERS) *1 The Magistrate Judge has read and considered all papers filed in support of and in opposition to “Plaintiffs' [sic] Motion to Compel Production of Documents” (“the Motion”), filed June 30, 2023. The Magistrate Judge has taken the Motion under submission without oral argument. The Motion concerns whether certain documents, which the parties reference as the “Claw Back Emails” and the “Disputed Wilton Bradley Documents,” are protected from discovery. Defendants assert, and Plaintiff denies, that: (1) the Claw Back Emails are protected from discovery by the attorney-client privilege and the work product doctrine; and (2) the Disputed Wilton Bradley Documents are protected from discovery by the attorney-client privilege. The Magistrate Judge previously ordered Defendants to deliver for in camera review copies of all of the Claw Back Emails and copies of all of the Disputed Wilton Bradley Documents. On July 27, 2023, the Magistrate Judge received the delivery of such copies. The Magistrate Judge has examined in camera each of the delivered copies. The Magistrate Judge utilized translation apps available online to understand those portions of the delivered copies which are in the Italian language. All of the delivered copies are ordered filed under seal to preserve the record. I. Standards Regarding the Attorney-Client Privilege Federal common law governs issues of attorney-client privilege in this federal question case. See Fed. R. Evid. 501; United States v. Zolin, 491 U.S. 554, 562 (1989). Under federal common law, [t]he attorney-client 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). “Typically, an eight-part test determines whether information is covered by the attorney-client privilege: (1) Where 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.” Id. (citations and quotations omitted). If a communication has a dual purpose including but not limited to the obtaining, the giving or the receiving of an attorney's legal advice, then the attorney-client privilege applies only if “the primary purpose” (or, at a minimum, “a primary purpose”)[1] of the communication is the obtaining, the giving or the receiving of the attorney's legal advice. See In re Grand Jury, 23 F.4th 1088, 1092, 1094-95 (9th Cir. 2022), cert. dism'd, 143 S. Ct. 543 (2023) (“In re Grand Jury”). *2 The disclosure of privileged communications among employees of a corporate client does not waive the privilege, provided that each employee recipient needed to know the content of the privileged communication “to perform her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication.” See, e.g., Garvey v. Hulu, LLC, 2015 WL 294850, at *2 (N.D. Cal. Jan. 21, 2015) (citations and quotations omitted); see also Upjohn Co. v. United States, 449 U.S. 383, 390-97 (1981) (refusing to limit the protection of a corporation's attorney-client privilege to communications among “control group” corporate employees); Sandrade, Ltd. v. General Elec. Co., 150 F.R.D. 539, 545 (E.D. N.C. 1993) (transmission among corporate non-attorney employees “to relay information requested by attorneys” or “so that the corporation may be properly informed of legal advice and act appropriately” maintains the privilege). Further, under the common interest doctrine, the privilege can be preserved despite a third party's involvement in the communications. “For purposes of preserving the attorney-client privilege, the common interest doctrine applies where: (1) the communication is made by separate parties in the course of a matter of common interest; (2) the communication is designed to further that effort; and (3) the privilege has not been waived.” Crosby v. Cal. Physicians' Serv., 2020 WL 2510651, at *3 (C.D. Cal. Feb. 26, 2020) (citations and quotations omitted). “[T]he parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement – whether written or unwritten.” In re Pacific Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012); see The Regents of the University of Cal. v. Affymetrix, Inc., 326 F.R.D. 275, 279 (S.D. Cal. 2018). The requisite agreement “may be implied from conduct and situation.” The Regents of the University of Cal. v. Affymetrix, Inc., 326 F.R.D. at 279 (citations and quotations omitted). The agreement “must be founded on a common legal, as opposed to commercial, interest.” Id. The mere “shared desire to see the same outcome in a legal matter is insufficient.” Id. The common interest doctrine can apply “irrespective of whether or not litigation has begun or is contemplated.” Cameron v. City of El Segundo, 2021 WL 3466324, at *10 (C.D. Cal. Apr. 30, 2021). As the proponents of the attorney-client privilege here, Defendants bear the burden of showing the asserted privilege's applicability, including the burden of showing that no waiver has occurred. See United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002); Weil v. Investment/Indicators, Research Advantagement, Inc., 647 F.2d 18, 25 (9th Cir. 1981). The Ninth Circuit has stated both: (1) that “because [the attorney-client privilege] impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” Weil v. Investments/Indicators, Research and Management, Inc., 647 F.2d at 24; and (2) that “where the attorney-client privilege is concerned, hard cases should be resolved in favor of the privilege, not in favor of disclosure” because “[a]n uncertain privilege, or one which purports to be certain but results in wildly varying applications by the courts, is little better than no privilege at all.” United States v. Mett, 178 F.3d 1058, 1055 (9th Cir. 1999) (citations and quotations omitted). II. Standards Regarding the Work Product Doctrine Federal law applies to work product issues regardless of the basis for federal jurisdiction. See, e.g., Holmgren v. State Farm Mutual Auto Ins. Co., 976 F.2d 573 (9th Cir. 1992); Admiral Ins. Co. v. United States District Court, 881 F.2d 1486, 1494 (9th Cir. 1989). The work product doctrine protects documents prepared “in anticipation of litigation or for trial” where the documents would not have been prepared in substantially similar form but for such “anticipation of litigation” or preparation for trial. See Fed. R. Civ. P. 26(b)(3); In re Grand Jury Subpoena, 357 F.3d 900, 907-10 (9th Cir. 2004). The work product doctrine can protect documents prepared by a non-attorney client and the client's non-attorney representatives. See Fed. R. Civ. P. 26(b)(3) (“prepared ... by or for another party or its representative”). Indeed, although the issue is not presented here, the work product doctrine can even protect documents created by non-attorney, pro se litigants. See, e.g., Boegh v. Harless, 2021 WL 1923365, at *6 n.5 (W.D. Ky. May 13, 2021); Saadi v. Maroun, 2021 WL 8650792, at *2 (M.D. Fla. Mar. 18, 2021); Kannan v. Apple, Inc., 2019 WL 5589000, at *2 (N.D. Cal. Sept. 30, 2019); Yates v. Cobb City School Dist., 2016 WL 9444452, at *2 (N.D. Ga. Aug. 4, 2016); Anderson v. Furst, 2019 WL 2284731, at *4 (E.D. Mich. May 29, 2019); Moore v. Kingsbrook Jewish Med. Ctr., 2012 WL 1078000, at *8 (E.D.N.Y. March 30, 2012). *3 Unlike the protection afforded by the attorney-client privilege, the protection afforded by the work product doctrine is not absolute. Discovery may be appropriate if the party seeking disclosure of work product material demonstrates “substantial need” for the material and an inability “without undue hardship to obtain the substantial equivalent of the [material] by other means.” See Fed. R. Civ. P. 26(b)(3). III. Application of the Standards to the Present Motion Under the foregoing standards, the Motion is granted in part and denied in part. The Motion is denied as to all of the Claw Back Emails. From the evidence presented and from the content and context of the documents themselves, the Magistrate Judge has concluded that the Claw Back Emails are protected from discovery by both the attorney-client privilege and the work product doctrine. The Magistrate Judge also has concluded that, as to the work product doctrine, Plaintiff has failed to demonstrate “substantial need” for the material and an inability “without undue hardship to obtain the substantial equivalent of the [material] by other means.” See Fed. R. Civ. P. 26(b)(3). The Motion is granted as to Disputed Wilton Bradley Documents Nos. 16721, 17765, 17799 and 17931 because Defendants have failed to demonstrate that a primary purpose of the subject communications reflected in these documents was the obtaining, the giving or the receiving of an attorney's legal advice. The Magistrate Judge also notes that the descriptions in Defendants' privilege log for documents Nos. 16721 and 17765 are inaccurate. The names of the lawyers listed in the privilege log descriptions for these documents nowhere appear within these documents. As to the remainder of the Disputed Wilton Bradley Documents, the Motion is denied. From the evidence presented and from the content and context of the documents themselves, the Magistrate Judge has concluded that: (1) a primary purpose of the communications reflected in these documents was the obtaining, the giving or the receiving of an attorney's legal advice; and (2) there existed between Defendants and Wilton Bradley the requisite commonality of interest to preserve the attorney-client privilege. The Magistrate Judge need not and does not determine whether, notwithstanding the seemingly contrary recitation in Article 6 of the “Services Contract Agreement,” Wilton Bradley was in any material sense the “agent” of Defendants. Such a determination would not affect the ruling on any aspect of the Motion. To the extent the Motion has been granted, Defendants shall produce the subject documents to Plaintiff within fourteen (14) days of the date of this Order. Footnotes [1] The D.C. Circuit has adopted “a primary purpose” as the correct standard rather than “the primary purpose.” See In re Kellogg Brown & Root Inc., 756 F.3d 754, 759-60 (D.C. Cir. 2014) (“Kellogg”). In dicta, the Ninth Circuit in In re Grand Jury stated, “We see the merits of the reasoning in Kellogg,” but ultimately decided that the Court need not reach “the Kellogg question.” In re Grand Jury, 23 F.4th at 1094-95. For the reasons discussed in Kellogg and in In re Grand Jury, the Magistrate Judge believes that the correct standard for dual purpose communications should be “a primary purpose.”