Webcore-Obayashi Joint Venture v. Zurich American Insurance Company

Filing 142

ORDER OVERRULING ZURICH'S OBJECTION AND ADOPTING SPECIAL MASTER'S ORDER NO. 2 granting 105 Administrative Motion. (Illston, Susan) (Filed on 1/11/2022)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 WEBCORE-OBAYASHI JOINT VENTURE, Plaintiff, 9 v. 10 United States District Court Northern District of California 11 ZURICH AMERICAN INSURANCE COMPANY, et al., Case No. 19-cv-07799-SI ORDER OVERRULING ZURICH’S OBJECTION AND ADOPTING SPECIAL MASTER’S ORDER NO. 2 Re: Dkt. Nos. 104, 105, 106, 137 Defendants. 12 13 14 In an order filed December 2, 2021, the Special Master found that one of Zurich’s documents 15 was not protected by the attorney-client privilege and he ordered Zurich to produce an unredacted 16 copy of the document to Webcore-Obayashi. Dkt. No. 104. Zurich objects to the order, contending 17 that the Special Master made “clear errors in at least three material factual findings,” and that the 18 Special Master relied on those errors to conclude that the document was not privileged. Dkt. No. 19 106. 20 The Court reviews the Special Master’s findings of fact for clear error. See Order 21 Appointing Martin Quinn As Special Master To Oversee Discovery And Referring Discovery 22 Dispute. Dkt. No. 85, ¶ 16. “Clear error is deferential . . . requiring a definite and firm conviction 23 that a mistake has been made.” Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002) 24 (internal quotes and cites omitted; emphasis added throughout unless otherwise indicated). If the 25 findings are “plausible, in light of the record viewed in its entirety, the [reviewing] court cannot 26 reverse even if it is convinced it would have found differently.” Id. The Special Master’s 27 conclusions of law are reviewed de novo. See Order Appointing Martin Quinn As Special Master 28 To Oversee Discovery And Referring Discovery Dispute. Dkt. No. 85, ¶ 16. “However, if the 1 application of the law to the facts requires an inquiry that is ‘essentially factual,’ review is for clear 2 error.” Husain, 316 F.3d at 835. The Court has reviewed the Special Master’s Order No. 2, Zurich’s objection thereto, 4 Webcore-Obayashi Joint Venture’s reply, and the record submitted by the parties. Applying the 5 relevant standard of review, and for the reasons set forth in Webcore-Obayashi’s reply, the Court 6 OVERRULES Zurich’s objection and adopts the Special Master’s Order No. 2. The Court finds 7 that the Special Master’s factual findings regarding Ms. Franklin’s declaration and deposition 8 testimony are plausible and supported. The Court also agrees with the Special Master’s findings 9 regarding the absence of certain evidence that would show that the information at issue was 10 requested for Ms. Frost or to enable Ms. Frost to provide legal advice and counsel, including the 11 United States District Court Northern District of California 3 notable absence of a declaration from the lawyer, Ms. Frost. On the whole, the Court finds no clear 12 error in the Special Master’s factual findings, nor in the legal conclusions he draws from them. 13 Zurich is directed to comply with the Special Master’s Order immediately. 14 15 IT IS SO ORDERED. 16 17 18 Dated: January 11, 2022 ______________________________________ SUSAN ILLSTON United States District Judge 19 20 21 22 23 24 25 26 27 28 2

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