Norris v. Mazzola et al

Filing 122

ORDER by Judge Jacqueline Scott Corley re: Discovery Letter Briefs [114, 115, 116]. (jsclc2, COURT STAFF) (Filed on 5/23/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT BRADLEY NORRIS,
Plaintiff,

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ORDER RE: JOINT DISCOVERY
LETTER BRIEFS

v.
LAWRENCE J. MAZZOLA, et al.,

Re: Dkt. Nos. 114, 115, 116

Defendants.

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United States District Court
Northern District of California

Case No.15-cv-04962-JSC

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The parties’ Joint Discovery Letter briefs regarding the time frame for discovery and

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Plaintiff’s assertion of attorney client privilege came before the Court for hearing on May 18,

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2017. (Dkt. Nos. 114, 115, 116.) This Order confirms the rulings made on the record with respect

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to the parties’ disputes.

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1.

The Time Frame for Discovery

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The parties sought clarification regarding the appropriate time frame for discovery.

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Plaintiff seeks discovery regarding the putative class from November 1, 2004 to the present.

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Defendants have provided discovery from October 28, 2010 to the present and insist that

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discovery regarding Travelers before that date is both irrelevant and burdensome. Defendants

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contend that based on the Court’s summary judgment ruling standing in this case is premised on

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the Rule of Parity such that discovery should be limited to five years before this action was filed.

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The Court, however, has not yet considered the issue of statutory standing for the class; thus,

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evidence beyond the five year Rule of Parity period may be relevant. See Fed. R. Civ. Pro.

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26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

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party’s claim or defense... Information within this scope of discovery need not be admissible in

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evidence to be discoverable.”). The Court thus concludes that discovery back to November 1,

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2004 should be produced. However, the parties should meet and confer regarding a method of

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production for this information to lessen any burden.

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2. Plaintiff’s Assertion of Attorney Client Privilege

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Defendants move to compel production of a pre-litigation memo drafted by attorney Lou

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Malone, a draft complaint written by Mr. Malone, and emails or letters exchanged between Mr.

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Malone and Plaintiff or Plaintiff’s counsel Richard Birmingham. Defendants insist that Plaintiff

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either never had an attorney client relationship with Mr. Malone or waived any such attorney

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client privilege between himself and Mr. Malone (an attorney with whom he had consulted prior

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to Mr. Birmingham) when Plaintiff testified in his deposition that he had not hired Mr. Malone.
Plaintiff counters that the deposition must be read in its entirety and that elsewhere in his

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United States District Court
Northern District of California

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deposition Plaintiff stated that Mr. Malone was his attorney.

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Early in his deposition, Plaintiff testified that he did not engage Mr. Malone in November

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2014 (Dkt. No. 115-4 at 67:14-24) and that he did not have any attorney “representing” him in

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connection with his December 2014 letter to Local 38 regarding plan benefits. (Id. at 70:7-10.)

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But he also he testified that he was “not sure what an engagement agreement is.” (Id. at 90:7-9.)

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Further, although Plaintiff stated that he did not “hire” a lawyer before December 2, 2014 (Id.

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109:14-16), he elsewhere testified that Mr. Malone was “my attorney” who he hired prior to

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December 15, 2014. (Id. at 92:15-25.) He also later clarified that Mr. Malone helped him draft the

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December 2, 204 letter. (Id. at 110:8-112:4.)

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Defendants maintain that under the Ninth Circuit Court of Appeal’s decision in Weil v.

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Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981),

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Plaintiff’s disavowal of any attorney client relationship with Mr. Malone waived the attorney

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client privilege. Not so. Weil reiterated the longstanding principle “that voluntary disclosure of

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the content of a privileged attorney communication constitutes waiver of the privilege as to all

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other such communications on the same subject.” Id. at 24. Here, however, there has been no

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disclosure of privileged attorney communications; thus, Weil simply does not apply. And the

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Court is not aware of any case that suggests that a client can waive the attorney client privilege by

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testifying inconsistently during deposition as to whether a person was acting as his attorney
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especially where, such as here, the record reflects that the client was initially confused regarding

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terms such as hire, engage, and retain, but subsequently clarified that the attorney is “my

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attorney.” Here, the totality of Plaintiff’s testimony reflects that he did believe that Mr. Malone

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was his attorney, but that he was confused by the nature of the questions. Under these

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circumstances there was no waiver of the attorney client privilege. Defendants’ motion to compel

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documents or communications from or to Mr. Malone is therefore denied.

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This Order disposes of Docket Nos. 114, 115, and 116.

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IT IS SO ORDERED.

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Dated: May 23, 2017

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United States District Court
Northern District of California

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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