Shenwick v. Twitter, Inc.
Shenwick v. Twitter, Inc.
2018 WL 5750119 (N.D. Cal. 2018)
October 30, 2018

Kim, Sallie,  United States Magistrate Judge

Privilege Log
Attorney-Client Privilege
Failure to Produce
In Camera Review
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Summary
The court reviewed documents withheld by the defendants on the basis of attorney-client privilege and found that some of the electronic mail messages with attachments were not protected by the privilege as their primary purpose was not to seek legal advice. The court ordered the defendants to provide the identity of individuals who provided comments on draft documents to determine if these communications are privileged. A final ruling will be issued after receiving this information.
Additional Decisions
Doris SHENWICK, et al., Plaintiffs,
v.
TWITTER, INC., et al., Defendants
Case No. 16-cv-05314-JST (SK)
United States District Court, N.D. California
Signed October 30, 2018

Counsel

Shawn A. Williams, Robbins Geller Rudman & Dowd LLP, Rosemary M. Rivas, Quentin Alexandre Roberts, Levi & Korsinsky LLP, San Francisco, CA, Daniel S. Drosman, Danielle Suzanne Myers, David Conrad Walton, Juan Carlos Sanchez, Scott H. Saham, Susannah Ruth Conn, Nathan R. Lindell, Robbins Geller Rudman & Dowd LLP, San Diego, CA, Jeffrey S. Abraham, Abraham, Fruchter & Twersky, LLP, Joseph A. Fonti, Bleichmar Fonti Tountas & Auld LLP, J. Alexander Hood, II, Jeremy A. Lieberman, Marc Gorrie, Pomerantz, LLP, Peretz Bronstein, Bronstein Gewirtz & Grossman, LLC, New York, NY, Lesley Elizabeth Weaver, Matthew Sinclair Weiler, Bleichmar Fonti & Auld LLP, Oakland, CA, Gregg S. Levin, Motley Rice LLC, Mount Pleasant, SC, Christopher Francis Moriarty, James Michael Hughes, Max Nikolaus Gruetzmacher, Meghan Shea Blaszak Oliver, Meredith B. Weatherby, Motley Rice LLC, Mt. Pleasant, SC, Michael J. Pendell, William H. Narwold, Motley Rice LLC, Hartford, CT, Charles J. Piven, Brower Piven, a Professional Corporation, Stevenson, MD, Jennifer Pafiti, Pomerantz LLP, Beverly Hills, CA, Patrick V. Dahlstrom, Pomerantz LLP, Chicago, IL, for Plaintiffs.
James Glenn Kreissman, Alexis Susan Coll-Very, Simona Gurevich Strauss, Simpson Thacher & Bartlett LLP, Palo Alto, CA, Dean Michael McGee, Janet A. Gochman, Jonathan K. Youngwood, Simpson Thacher Bartlett LLP, New York, NY, for Defendants.
Kim, Sallie, United States Magistrate Judge

ORDER REGARDING DEFENDANTS' ASSERTION OF PRIVILEGE CLAIMS IN PRIVILEGE LOG

*1 Before the Court is the parties' joint letter brief discussing Plaintiffs' assertion that Defendants have withheld documents on the based on the assertion of attorney client privilege when in fact those documents are not privileged. Having reviewed the letter brief, as well as the documents at issue in camera, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion to compel production of documents withheld by Defendants on the basis of attorney-client privilege.
A. Legal Standard
The attorney-client privilege protects from discovery “confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). “[P]rivilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn v. United Sates, 449 U.S. 383, 392 (1981). “In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, constantly go to lawyers to find out how to obey the law.” Id. (internal quotations and citation omitted.)
“Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed” and “the party asserting [it] bears the burden of proving each essential element.” United States v. Ruehle, 583 F.3d 600, 607-08 (9th Cir. 2009). The Ninth Circuit follows an eight-part test to determine 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 communication 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 is waived.
Skyline Wesleyan Church v. California Dept. of Managed Health Care, 322 F.R.D. 571, 583 (S.D. Cal. 2017) (citing In Re Grand Jury Investigation (Corp.), 974 F.2d 1068, 1071 n.2 (9th Cir. 1992) (citations omitted) ).
In the in-house context, where the corporation is the client, the privilege protects communications seeking legal advice from in-house counsel, but the matter is complicated by the fact that in-house counsel may play different roles within the company, some of which are not related to the provision of legal advice.
[C]ommunications involving in-house counsel might well pertain to business rather than legal matters. The privilege does not protect an attorney’s business advice. Corporations may not conduct their business affairs in private simply by staffing a transaction with attorneys. Because in-house counsel may operate in a purely or primarily business capacity in connection with many corporate endeavors, the presumption that attaches to communications with outside counsel does not extend to communications with in-house counsel.
United States v. Chevron Texaco Corp., 241 F.Supp.2d 1065, 1076 (N.D. Cal. 2002).
*2 Similarly, for “dual purpose” communications, where documents are related to a business purpose and serve a legal purpose, the privilege applies where the primary or predominant purpose of the attorney-client consultation is to seek legal advice or assistance. N. Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1127 (N.D. Cal. 2003).
B. Documents withheld by Defendants
Having reviewed the documents withheld by the Defendants, the Court finds that in some circumstances the primary purpose of the communication was not to obtain legal advice. The clear majority of documents in this group of contested documents are electronic mail messages with attachments – draft documents. Although in-house lawyers are listed as recipients of the email messages, the contents of many of the email messages indicate that the purpose of seeking comment is not for legal advice.[1] The documents not protected by the attorney-client privilege include the following (referenced here by Bates' stamp number and binder tab number).
TWTR_SHEN-00326947 (Tab 2)
TWTR_SHEN_00326949 (Tab 4)
TWTR_SHEN-00326952 (Tab 6)
TWTR_SHEN-00326984 (Tab 8)
TWTR_SHEN-00326994 (Tab 12)
TWTR_SHEN_0032999 (Tab 17)
No Bates Stamp (email of 4/7/2015 from Noto to Bessinger) (Tab 27)
TWTR_SHEN_00342439 (Tab 46)
TWTR_SHEN_00344405 (Tab 59)
TWTR_SHEN_00344406 (Tab 60)
TWTR_SHEN_00344407 (Tab 61)
TWTR_SHEN_00344408 (Tab 62)
TWTR_SHEN_00344409 (Tab 63)
TWTR_SHEN_00344410 (Tab 64)
In addition, there are several drafts of documents with comments provided with the redlined version. See e.g., TWTR_SHEN_00326948, TWTR_SHEN_344702. However, because it is not possible for the Court to determine the identity of the author of comments these draft documents, it is unclear if the communication is privileged. Therefore, the Court ORDERS Defendants to provide the Court with the identity of the individuals who provided the comments and link them to the comments in the draft documents submitted to the Court (referenced by both Bates stamp and Tab numbers) by November 7, 2018. After the Court receives that information, the Court will issue a final ruling.
IT IS SO ORDERED.

Footnotes

There are handful of email messages that do contain information regarding legal advice from in-house lawyers. Those remain privileged.