*1 On April 21, 2021, plaintiff and defendant Olympusat, Inc., filed a Joint Discovery Stipulation (“Joint Stipulation” or “JS”) that addresses defendant's Motion for an order compelling plaintiff to produce all documents and information that she deleted from her laptop. (ECF Nos. 140, 140-1).[1] On April 28, 2021, defendant filed a supplemental memorandum. (ECF No. 143). The hearing scheduled for May 12, 2021, was previously ordered off calendar. (ECF No. 144).

This discovery dispute concerns the HP Spectre Laptop Computer that plaintiff turned over to defendant Olympusat, Inc., after plaintiff's employment ended in October 2019.[2] Plaintiff purchased the laptop in March 2018, after which defendant reimbursed her for the cost of the device. Plaintiff used the laptop for both work and personal matters, and stored various personal documents on the device, such as financial information, family medical records, videos, and photographs. On August 14, 2019, while this lawsuit was ongoing, plaintiff's counsel had the laptop's hard drive copied and then “wiped clean.” Plaintiff's counsel currently maintains possession of the laptop's backup copy. (ECF No. 140-2 at 72-74). When plaintiff later surrendered the laptop to defendant in October 2019, the device contained no documents or data for any time prior to August 2019, when the device was wiped, aside from five emails sent between plaintiff and her lawyers that were later found in a deleted items folder.[3]

In July 2020, as discovery was ongoing, plaintiff produced more than 65,000 pages of documents to defendant. She also provided an amended privilege log listing documents from the laptop that she withheld from production. The amended privilege log consists of 211 entries and totals 3,586 pages of documents. (ECF No. 140-1 at 45; ECF No. 140-3 at 15-51).

In September 2020, defendant propounded to plaintiff a Third Set of Document Requests consisting of a single request for the records and data that were wiped from the laptop:

In plaintiff's response, served on October 15, 2020, she objected on numerous grounds, including that the request was unduly burdensome and harassing, it sought irrelevant information, and was not proportional to the needs of the case. Plaintiff asserted that the laptop was her personal device, that defendant had no ownership rights to the requested data, and that the records sought in RFP No. 469 were protected from disclosure by the attorney-client privilege, the attorney work product doctrine, and the right to privacy. Plaintiff then stated that, subject to the foregoing, she had not located any additional responsive documents that had not already been produced or listed on her privilege log. (ECF No. 140-1 at 12, 16).

The Parties' Positions

*2 Defendant maintains that the laptop was company property, and seeks an order compelling plaintiff to produce all documents responsive to RFP No. 469, the backup copy of the laptop, the five emails found on the laptop, and the documents listed on the amended privilege log. Defendant asserts that all of the data that was deleted when the laptop was wiped is relevant to the claims and counterclaims at issue in this employment action, and that unless the backup copy is examined, it is impossible to determine if the entirety of the documents and data that were saved in the backup has been produced or listed on the amended privilege log. (ECF No. 140-1 at 20-21).

Relying on Holmes v. Petrovich Dev. Co., LLC, 191 Cal.App.4th 1047, 119 Cal.Rptr.3d 878 (Cal. App. 3 Dist. 2011), defendant argues that plaintiff had no reasonable expectation of confidentiality when using the laptop because she was aware of defendant's policies that stated company computers were not private, could be monitored, and were only to be used for business purposes. Defendant points to language in the employee handbook plaintiff was given that stated employees should not have any expectation of privacy of data and information stored on company devices:

(ECF No. 140-6 at 53).

The employee handbook also provided that defendant “reserve[d] the right to access and monitor messages and communications on any Company communication system. All electronic and telephone communications systems (including e-mail, the Internet, voice-mail, etc.) and all information transmitted by, received from, or stored in Olympusat, Inc.'s systems are the property of the Company.” (ECF No. 140-6 at 60). Based on the foregoing policies, defendant argues, nothing on the laptop, or its backup, should be protected from disclosure, including the five emails to plaintiff's lawyers that were recovered. (Id. at 20-23, 29). Even assuming arguendo the laptop was in fact plaintiff's personal device, the decision to wipe the laptop was inexcusable and likely warrants severe sanctions if evidence was permanently deleted. Defendant contends that to determine whether relevant information was irretrievably lost requires a “differential analysis” involving the backup copy and the laptop. (Id. at 23-25). With respect to plaintiff's amended privilege log, defendant urges the Court to compel plaintiff to produce the withheld documents on the basis that plaintiff failed to provide sufficiently detailed information for defendant to evaluate the applicability of the privilege or other protection claimed. (Id. at 25-26). In particular, defendant takes issue with the following: three entries that are described as translations (PRIV_LAPTOP_000001-02, 000013-14, 000015); forty-four entries that are described as screenshots (see ECF No. 140-1 at 27 n.4); and plaintiff's phone records from April 2017 to November 2017 (PRIV_LAPTOP_000460-557). (Id. at 26-28).

*3 Plaintiff counters that defendant's arguments are unavailing because the following factors show that she owned the laptop: plaintiff selected and purchased the device; registered the device in her name; used the laptop to access her personal email accounts; never shared her passwords with defendant; never received any written notice that the laptop was company property; and was never asked by defendant to inspect or register the device. (ECF No. 140-1 at 10, 32-33). As for defendant's policies governing electronic equipment, plaintiff states that while she received the employee handbooks containing such policies in 2014, this occurred four years prior to purchasing the subject laptop, and because she never read the handbooks she was never aware of, and did not agree to, any privacy conditions. (Id. at 42). Even assuming the policies did apply to her laptop, plaintiff argues she still had a reasonable expectation that her personal email accounts were private and not accessible by defendant. (Id. at 39-41). Plaintiff also contends that the amended privilege log sufficiently describes the withheld documents but nevertheless has agreed to produce the following: the documents described as translations (PRIV_LAPTOP_000001-02, 000013-14, and 000015); and the “underlying webpage” referenced in PRIV-LAPTOP_000037 and 000255-60. Plaintiff has also agreed to provide greater detail regarding the subject of the screenshot in PRIV_LAPTOP_000011. (Id. at 46-47). For the other screenshot entries that defendant challenges (see id. at 27 n.4), plaintiff has agreed to review the withheld records and produce any underlying documents that are not privileged and have not already been produced. (Id. at 47). As for plaintiff's phone records (PRIV_LAPTOP_000460-557), she argues that privacy protections apply and that defendant has not explained how the phone records have any relevance to the case. (Id. at 48).

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).

Discussion

As set forth above, the parties dispute whether plaintiff or defendant owned the laptop. At this time, the Court finds it is not necessary to resolve the ownership issue because whether or not plaintiff or defendant owned the device, the outcome of the instant Motion does not change.

1. The Five Emails

The Court first addresses the five emails found on the laptop that plaintiff claims are protected under the attorney-client privilege. In this diversity action, California privilege law applies. 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. A communication between a client and his or her attorney “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication.” Cal. Evid. Code § 917(b). In Holmes, however, the California Court of Appeal held that an electronic communication between persons in an attorney-client relationship is not privileged “(1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions.” 191 Cal.App.4th at 1068. Defendant asserts that the Holmes factors are satisfied here because the laptop was company property, plaintiff was provided the employee handbooks stating the electronic equipment and privacy policies, and plaintiff was aware of and agreed to those conditions.

*4 It is defendant's burden to overcome plaintiff's assertion of attorney-client privilege, because attorney-client communications are presumed to be privileged under California law. See 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.”). Under the circumstances here, the Court finds that defendant has not met this burden. Plaintiff asserts in her declaration that she primarily used her personal email account to email her attorneys, but that “[s]ometimes” she “accidentally” used her Olympusat account. (See ECF No. 140-7 at 5). It is not specified whether any of the five emails were sent from plaintiff's Olympusat email account or from her personal email account. If the emails were from plaintiff's personal account, it does not appear that the employee handbook explicitly addressed the confidentiality of personal emails. In any event, plaintiff in her declaration denies being aware of defendant's computer policies. Although she “vaguely recall[s] skimming the handbook during an airplane flight in March of 2014,” she “did not read it carefully,” as at that point she had worked with Olympusat for around fourteen years and saw no need to read the handbook closely. (ECF No. 140-7 at 3). Plaintiff asserts that she did not read the revised employee handbook she received in May 2014, that no one at Olympusat discussed the handbooks' policies with her, and that when she purchased the subject laptop in March 2018 she did not remember the handbook existed. (Id.).

In light of plaintiff's denials, the Court finds that defendant has not submitted convincing proof that plaintiff knew of, let alone agreed to, defendant's computer and email policies. Defendant relies on two employee handbook receipts signed by plaintiff to confirm that in March 2014 she received the handbook and that in May 2014 she received the revised employee handbook. Defendant also submits a March 28, 2014, email from plaintiff to defendant's director of human resources concerning the employee handbook, in which plaintiff indicates she read the handbook. (ECF No. 140-4 at 2-20). These exhibits fail to establish, however, that plaintiff was aware of defendant's specific computer and email policies, and actually agreed to such policies. See Holmes,191 Cal.App.4th at 1068 (setting forth the third Holmes factor: “the plaintiff is aware of and agrees to these conditions,” i.e., that “communications using electronic means are not private, may be monitored, and may be used only for business purposes.”).

Based on the foregoing, as well as the undisputed facts that plaintiff selected and purchased the laptop, registered the device in her name, used the laptop to access her personal email accounts, never shared her passwords with defendant (and was never asked to do so), never received any written notice that the laptop she purchased was company property, and was never asked by defendant to inspect or register the device, the Court finds that defendant has not overcome the presumption that the attorney-client privilege applies to the five emails found on the wiped laptop. Accordingly, defendant's Motion to compel the production of the five emails is denied, and defendant is ordered to return the five emails, and any copies thereof, to plaintiff no later than May 18, 2021.

2. The Amended Privilege Log

With respect to plaintiff's amended privilege log, defendant takes issue with three categories of withheld documents: translations, screenshots, and plaintiff's phone records. Plaintiff has agreed to produce the translations listed on the log. As for the screenshot entries, plaintiff has agreed to review these entries and produce any underlying documents that are not privileged and that have not yet been produced. Accordingly, defendant's Motion is granted to the extent that, no later than May 18, 2021, plaintiff must produce the translations identified in the amended privilege log as PRIV_LAPTOP_000001-02, 000013-14, and 000015. The Motion is also granted to the extent that, no later than May 28, 2021, plaintiff must, with respect to the challenged screenshot entries, produce any underlying documents that are not privileged and have not yet been produced. To the extent that plaintiff, after completing the foregoing, continues to withhold any of the challenged screenshots as privileged, she must revise the amended privilege log to correct defects. The Court agrees with defendant that, with respect to the screenshot entries, the current log is deficient as plaintiff has entirely failed to provide the requisite detailed information to enable defendant to evaluate the applicability of the asserted privilege. Fed. R. Civ. P. 26(b)(5); Clarke v. Am. Comm. Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992); see The Rutter Group, Cal. Practice Guide, Fed. Civ. Proc. Before Trial, Form 11:A (Privilege Log). Accordingly, to the extent that plaintiff continues to assert that the attorney-client privilege applies to any screenshots, plaintiff is ordered to provide defendant, no later than May 28, 2021, a revised privilege log that includes adequately detailed information for the screenshot entries.

*5 Defendant also seeks plaintiff's phone records from April 2017 to November 2017 (PRIV_LAPTOP_000460-557), which plaintiff claims are protected from disclosure based on the right to privacy. (ECF No. 140-3 at 20). Although defendant asserts that the requested records are within the time period at issue in his case, defendant fails to offer any further explanation as to how the records have bearing on any claim or defense in this matter. The Court on this record cannot conclude that simply because the phone records are within the appropriate time frame, the documents qualify under Rule 26 as relevant and proportional to the needs of the case. Accordingly, defendant's Motion is denied as to plaintiff's phone records. Moreover, to the extent defendant seeks an order compelling plaintiff to produce every document on the amended privilege log on the basis that plaintiff waived any asserted privilege or protection by failing to provide adequate information, the Motion is denied.

3. RFP No. 469 and the Backup Copy of the Laptop

The Court now addresses defendant's request to compel production of all documents responsive to RFP No. 469. In the Joint Stipulation, plaintiff maintains that she has produced, or logged as privileged/confidential, all responsive documents. Accordingly, defendant's Motion is granted, but only to the extent that plaintiff's counsel is ordered to provide a declaration, signed under penalty of perjury, stating that all documents responsive to RFP No. 469 have been produced except for the documents listed on the amended privilege log, and that no additional responsive documents exist.

Next, the Court finds that, in light of plaintiff's counsel's actions with respect to wiping the laptop before turning it over to defendant -- an action that occurred after this case was filed -- examination of the backup copy is warranted to determine if additional information exists on that copy that has not been produced or listed in a privilege log. As such, the Court grants defendant's Motion to the extent that plaintiff is ordered to produce the backup copy for a forensic examination. Plaintiff may maintain a copy of the backup copy, but the actual backup copy must be provided. Given the complexity of this process, however, the Court finds it appropriate to have a neutral computer forensic expert conduct the examination.

No later than May 20, 2021, the parties are ordered to select a neutral computer forensic expert to conduct a forensic analysis of the backup copy. No later than May 27, 2021, plaintiff shall provide the expert with: (1) the backup copy itself; and (2) a declaration(s), signed under penalty of perjury by the individual(s) who backed up and then wiped the laptop, that sets forth a detailed explanation describing the backup procedure and the wiping method that were implemented.

Given plaintiff's representation that the entirety of the documents on the backup have been produced or listed on the amended privilege log (and the requirement herein that a declaration to that effect be provided), the expert's task is limited to determining whether the backup contains any additional data or information that can be recovered -- meaning data/information that is separate from, or in addition to, the documents that plaintiff has already produced. After completing the examination, the expert shall provide a written report to the parties that explains whether any additional data or information was located, and if so, the nature of the data/information, without disclosing the specific content of such data/information. The cost for the neutral computer forensic expert shall be equally shared by the parties.

Conclusion

Based on the foregoing, IT IS ORDERED THAT:

1. Defendant's Motion (ECF No. 140) is granted in part and denied in part to the extent described above.

2. No later than May 18, 2021, defendant shall return to plaintiff the five emails recovered from the wiped laptop, including any copies thereof.

*6 3. No later than May 18, 2021, plaintiff shall produce the translations identified in the amended privilege log as PRIV_LAPTOP_000001-02, 000013-14, and 000015.

4. No later than May 28, 2021, plaintiff shall, with respect to the challenged screenshot entries in the amended privilege log, produce any underlying documents that are not privileged and have not yet been produced. By this same date, to the extent that plaintiff continues to withhold any of the challenged screenshots as privileged, plaintiff shall provide defendant a revised privilege log that includes adequately detailed information regarding the screenshot entries.

5. No later than May 18, 2021, plaintiff's counsel must provide a declaration, signed under penalty of perjury, stating that all documents responsive to RFP No. 469 have been produced except for the documents listed on the amended privilege log, and that no additional responsive documents exist.

6. No later than May 20, 2021, the parties are ordered to select a neutral computer forensic expert to conduct a forensic analysis of the subject backup copy. No later than May 28, 2021, plaintiff shall provide the expert with: (1) the backup copy itself; and (2) a declaration(s), signed under penalty of perjury by the individual(s) who backed up and then wiped the laptop, that sets forth a detailed explanation describing the backup procedure and the wiping method that were implemented. As plaintiff has produced or logged the entirety of the documents on the backup, the expert shall conduct a limited forensic examination to determine whether the backup contains any additional data or information.

It is so ordered.