*1 On May 19, 2021, plaintiff and defendants Olympusat, Inc., Tom Mohler, Olympusat Holdings, Inc., Ocean New Media LLC, and Ocean Communications, Inc. (“defendants”) filed a Joint Discovery Stipulation (“Joint Stipulation” or “JS”) that addresses defendants' Motion for an order compelling plaintiff to answer deposition questions concerning the HP Spectre laptop that she used for work in 2018 and 2019, including communications between plaintiff and her attorneys about the deletion, alteration, and preservation of the laptop's data. (ECF Nos. 149, 149-1, 149-25). On May 26, 2021, defendants filed a Supplemental Brief. (ECF No. 152).

Background

Defendants contend that plaintiff and her attorneys intentionally destroyed relevant evidence when, in August 2019, after this litigation commenced, plaintiff's attorneys arranged to have her work laptop copied and then wiped clean. Plaintiff later surrendered the wiped laptop to defendants when her employment ended in October 2019. In a recent discovery motion, defendant Olympusat, Inc., sought, inter alia, an order compelling plaintiff to produce the backup copy. On May 13, 2021, the Court granted the request in part, ordering that plaintiff provide the backup copy to a neutral forensics expert, who would then perform a limited examination to determine whether the backup contains any additional data or information that plaintiff had not already produced or listed in a privilege log. The Court's May 13, 2021, Order is currently stayed while defendant seeks review of the ruling under Federal Rule of Civil Procedure 72. (See ECF Nos. 140, 145-47, 154).

The instant discovery dispute concerns plaintiff's deposition, which took place on April 28, 2021. During the proceeding, plaintiff's counsel, asserting the attorney-client privilege and work product doctrine, instructed plaintiff not to answer questions about the laptop regarding: (1) whether plaintiff inserted thumb drives into the device; (2) plaintiff's knowledge about backup copies; (3) plaintiff's knowledge about deleted emails; (4) whether plaintiff took screenshots of business data; and (5) whether and why plaintiff gave the laptop password to defendant Olympusat. (ECF No. 149-1 at 11-19). In explaining the basis for the objections, plaintiff's counsel stated that plaintiff “brought to [counsel's] law firm on August 13, 2019, her laptop[,]” and “to the extent that anything was done or not done pursuant to communications or under the direction of her attorneys, [the] attorney-client privilege [applies], and to the extent that she did something that reflects the thought processes and directions of her counsel, it is also her counsel's work product that is being divulged .... So, anything that occurred not just after August 13th, but on August 13th, ... will elicit [attorney-client privilege and work product] objections.” (Id. at 12, 13).

The Dispute

Defendants assert that testimony from plaintiff about the underlying facts concerning the laptop's deletion do not qualify as attorney-client communications. Defendants further assert that the inquiry into attorney-client communications regarding the preservation and wiping of data is permissible because the spoliation of the laptop is “squarely at issue in this case.” (ECF No. 149-1 at 30-31). Defendants believe the laptop contained critical evidence, and plan to file a motion for spoliation sanctions because plaintiff and her counsel intentionally deleted crucial information. Accordingly, defendants assert, plaintiff should be ordered to testify about the data deletion, including her communications with attorneys that have bearing on the spoliation issue. Defendants further assert that there is an alternative basis to grant the requested discovery: California's “crime/fraud” exception under California Evidence Code section 956. Defendants posit that, pursuant to this statute, the attorney-client privilege does not protect the challenged communications because plaintiff and her counsel's destruction and alteration of electronic data constitute a “crime or fraud.” (Id. at 32).

*2 Plaintiff counters that the majority of the issues from her deposition have been resolved, as her attorneys have now agreed to not issue a blanket instruction directing her to refrain from responding to questions concerning the laptop. (ECF No. 149-1 at 8-9, 40-41). Instead, plaintiff is prepared to provide testimony in response to the following lines of inquiry that defendants reference in the Joint Stipulation: (1) whether plaintiff put thumb drives in the laptop, (2) whether she was aware a backup copy was made, (3) whether she assisted in making the backup copy, and (4) whether she was aware that emails were deleted. (Id. at 9). Given these concessions, plaintiff maintains that the only deposition question that remains in dispute is whether she took certain actions regarding the laptop “at the direction of [her] attorneys.” This question, plaintiff argues, “obviously violates the attorney-client privilege” as it asks her to disclose what she may or may not have discussed with counsel. (Id. at 9, 41). In addition, defendants should not be granted “carte blanche” to pose new questions “concerning communications between [p]laintiff and her attorneys about the deletion, preservation, manipulation, and/or alteration of data which resided on the laptop,” as such questions likewise seek privileged information. (Id. at 10 (emphasis and quotation marks removed)). Plaintiff also points out that, in this diversity action, state law controls for the attorney-client privilege analysis. Thus, to the extent defendants in the Joint Stipulation cite numerous cases involving federal law on attorney-client privilege, such decisions do not apply. (Id. at 43-44). As for California Evidence Code section 956, plaintiff asserts that defendants have failed to make a showing that the crime/fraud exception to the attorney-client privilege was triggered. (Id. at 49-50).

Legal Standard

Rule 26 of the Federal Rules of Civil Procedure provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “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.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, a court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) 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; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

Relevance is broadly construed “to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on,” any party's claim or defense. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947)); Kennicott v. Sandia Corp., 327 F.R.D. 454, 469 (D. N.M. 2018) (definition of relevance set forth in Oppenheimer Fund still applies after 2015 amendment to Rule 26).

Rule 30 of the Federal Rules of Civil Procedure provides that counsel “may instruct a deponent not to answer [a question] only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(3).”[1] Fed. R. Civ. P. 30(c)(2). Under Rule 37, if a deponent fails to answer a deposition question, the deposing party may move for an order compelling the deponent to respond. Fed. R. Civ. P. 37(a)(3)(B).

Discussion

In this diversity action, California law on privilege controls. See Fed. R. Evid. 501 (“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). Under California law, the attorney-client privilege applies to “a confidential communication between client and lawyer[.]” Cal. Evid. Code § 954. After the party asserting the attorney-client privilege has shown the facts necessary to support the privilege, or where there is no dispute concerning such facts, “the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” Venture Law Grp. v. Super. Ct., 118 Cal. App. 4th 96, 102, 12 Cal. Rptr.3d 656, 660 (Cal. App. 6 Dist. 2004); see also Cal. Evid. Code § 917(a) (“If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client ... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”).

*3 As set forth above, plaintiff has agreed to answer deposition questions about the facts underlying the preservation and deletion of the laptop data. Plaintiff's concession to answer such questions is in accord with California law, which provides that the attorney-client privilege “only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication.” State Farm Fire and Cas. Co. v. Super. Ct., 54 Cal. App. 4th 625, 639, 62 Cal. Rptr. 2d 834, 844 (Cal. App. 2 Dist. 1997) (emphasis added). Here, plaintiff initially refused to answer questions such as whether she inserted a thumb drive in the laptop, assisted with making the backup copy and/or with wiping the device, reloaded and/or renamed files on the laptop, and downloaded/emailed screenshots. As plaintiff now appears to concede, her initial refusal to answer was improper, because such questions seek non-privileged factual disclosures and do not intrude into confidential communications between plaintiff and her attorneys. Similarly, questions probing what plaintiff knew about the backup and subsequent deletion of the laptop seek underlying facts that may be relevant to the issue of spoliation; answers to these questions do not amount to the disclosure of protected attorney-client communications. Accordingly, the Motion is granted to the extent that plaintiff is ordered to answer the deposition questions concerning the actions she took with respect to the copying and wiping of the laptop, whether she was aware that any files or data (such as emails) were deleted, and her knowledge regarding backup copies.

The Court next considers the deposition questions asking if plaintiff took certain actions involving the laptop “at the direction of her attorneys,” and defendants' assertion that the laptop data copying and deletion triggers the crime/fraud exception under California Evidence Code section 956. Section 956 provides that there is no privilege for attorney-client communications “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” This provision is “a very limited exception to the [attorney-client] privilege” and the “proponent of the exception bears the burden of proof of the existence of crime or fraud.” Geilim v. Super. Ct., 234 Cal. App. 3d 166, 174, 285 Cal. Rptr. 602 (Cal. App. 2 Dist. 1991) (emphasis in original). “To trigger the crime-fraud exception, a party must make a prima facie showing that the communication at issue furthered a crime or fraud.” Freedom Tr. v. Chubb Group of Ins. Cos., 38 F. Supp. 2d 1170, 1171 (C.D. Cal. 1999). A prima facie case is “one which will suffice for proof of a particular fact unless contradicted and overcome by other evidence. In other words, evidence from which reasonable inferences can be drawn to establish the fact asserted, i.e., the [crime or] fraud.” BP Alaska Expl., Inc. v. Super. Ct., 199 Cal. App. 3d 1240, 1263, 245 Cal. Rptr. 682 (Cal. App. 5 Dist. 1988). In particular, if fraud is alleged, “the proponent of the exception need[s] ... to prove a false representation of material fact, knowledge of its falsity, intent to deceive and the right to rely [on the representation].” Id. There must also be a reasonable relationship between the crime/fraud and the attorney-client communication. State Farm, 54 Cal. App. 4th at 645 (citation omitted). “[I]t is the intent of the client upon which attention must be focused and not that of the lawyers.” Id. (citation omitted).

Here, the Court concludes that defendants have not satisfied their burden with respect to California Evidence Code section 956. First, although defendants assert that, by copying the laptop and then deleting the hard drive, plaintiff and her attorneys committed fraudulent and criminal acts, defendants fail to demonstrate how the “essential elements of civil fraud” under California law are satisfied -- i.e., “a false representation of a material fact, knowledge of its falsity, intent to deceive and the right to rely.” See BP Alaska, 199 Cal.App.3d at 1263; see also Freedom Tr., 38 F. Supp. 2d at 1171-74 (determining that “bad faith” does not fall within the crime/fraud exception). Defendants also fail to specify what state or federal crime was committed to support their argument that the challenged actions are criminal in nature. The Court notes that, although California Penal Code section 135 prohibits destroying, erasing, or concealing documents that are “about to be produced in evidence,” liability under this provision is triggered only if such actions were taken with “the intent to prevent [the documents] from being produced.” Here, given that the laptop was copied before any deletion occurred, and that plaintiff has produced voluminous documents, as well as a privilege log listing the laptop documents withheld from disclosure, the Court cannot determine that any violation of California Penal Code section 135 occurred. Because defendants have failed to make a prima facie showing that the alleged conduct amounted to fraud or a crime, the Court finds that California's crime/fraud exception to the attorney-client privilege does not apply.

*4 Under the circumstances, the Court concludes that defendants have failed to show that, under California law, any exception to the attorney-client privilege is triggered, or that the privilege otherwise does not attach to plaintiff's communications with her attorneys concerning the laptop. To the extent defendants cite cases involving federal privilege law to support their argument, these decisions are not applicable to this matter, as California privilege law controls. (See ECF No. 149-1 at 31-32). Moreover, at this time, there is no showing that any potentially relevant evidence has been permanently destroyed. Again, the laptop was copied before any data was removed. Plaintiff was ordered to produce the backup copy to a neutral forensics expert for examination; that ruling is currently stayed while defendants seek review of that order. As such, the examination of the backup copy has not occurred and therefore there is no showing that any potentially relevant information was permanently deleted, or that any discoverable information was deleted with the intent to prevent it from being provided to defendants. Based on the foregoing, to the extent defendants seek an order compelling plaintiff to provide testimony about her communications with her attorneys regarding the laptop, the Motion is denied as defendants have failed to satisfy their burden to show that the attorney-client privilege does not apply.

Conclusion

Based on the above, the Court concludes that additional time to depose plaintiff on the topics set forth herein is warranted. Defendants request that the Court compel plaintiff to testify “for at least four hours” concerning the laptop being wiped in August 2019, while plaintiff requests that such testimony be limited to one hour. (ECF No. 149-1 at 52-53). Under the circumstances here, the Court determines that the deposition questioning concerning the laptop shall be limited to a total of two hours of actual deposition time (i.e., not including breaks).

The parties shall meet and confer to determine a date and time for plaintiff's continued deposition; defendants shall then notify the Court of the agreed-upon date, time, and location for the continued deposition. The continued deposition shall be held no later than June 25, 2021.

To summarize, the Motion (ECF No. 149) is granted to the extent that, at plaintiff's continued deposition, plaintiff is ordered to respond to questions concerning what actions she took or that she observed were taken with respect to the copying and wiping of the laptop in August 2019, including questions about her personal knowledge concerning the deletion of laptop data (including, but not limited to, emails) and the creation of backup copies. With respect to questions about plaintiff's communications with her attorneys concerning the laptop, the Motion is denied.

It is so ordered.