Kolker v. Vnus Medical Technologies Inc. et al

Filing 60

ORDER by Judge Paul S. Grewal granting in part and denying in part 39 Motion to Compel (psglc2, COURT STAFF) (Filed on 11/22/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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DAVID KOLKER,

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Plaintiff,
v.
VNUS MEDICAL TECHNOLOGIES, INC.,
COVIDIEN, INC., and DOES 1-20,
Defendants.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND
DENYING-IN-PART DEFENDANT’S
MOTION TO COMPEL
(Re: Docket No. 39)

Before the court is the latest in a series of discovery disputes between Defendant Covidien,
Inc. (“Covidien”) and Plaintiff David Kolker (“Kolker”). Covidien moves to compel Kolker to

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produce electronic files that were identified using the parties’ agreed-upon inspection protocol
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during a search of Kolker’s computer drives, but subsequently withheld based primarily on

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privacy, privilege, and trade secret concerns. On November 1, 2011, the parties appeared for oral

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argument. For the reasons set forth herein, Covidien’s motion to compel is GRANTED-IN-PART

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and DENIED-IN-PART. Covidien also seeks sanctions pursuant to Fed. R. Civ. P. 37(a)(5)(A), but

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did not file a separate motion for sanctions pursuant to Civ. L.R. 7-8. Accordingly, the court

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DENIES the sanctions request.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

I. BACKGROUND1

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In this employment discrimination suit, Kolker alleges that Defendant VNUS Technologies,

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Inc. (“VNUS”), prior to its acquisition by Covidien, unlawfully discriminated against him on the

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basis of disability. During the period in question, Kolker sought to become Chief Executive Officer

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of the Centers for Advanced Vein Care (“CAVC”), a wholly owned subsidiary of VNUS that

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Kolker founded. But upon learning of Kolker’s status as a recovering alcoholic, VNUS instead

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United States District Court
For the Northern District of California

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retained Kolker merely as a CAVC consultant. Kolker alleges that as a result of the discrimination
and VNUS’s failure to hire him as CAVC’s CEO, he was deprived of VNUS stock grants and
options that he would have otherwise received.2

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At Kolker’s deposition in late February, Covidien learned that Kolker had two computers
containing data from the time that Kolker worked with VNUS as a consultant.3 On March 3, 2011,
Covidien served its Second Request For Production of Things, seeking to image the computer hard
drives for relevant documents.4 Kolker objected on grounds of his own privacy and that of third

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parties, as well as to the disclosure of trade secret information relating to his new business and of

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communications and documents subject to attorney-client privilege.5 Through subsequent meet and

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confer, the parties agreed on a search protocol that Covidien’s forensic expert would use to extract

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relevant documents that were not privileged. The protocol identified as search terms: “Farley”,

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“Van Vleck”, “Cowhig”, “CAVC”, “VNUS”, and “Covidien”.6 The protocol excluded any

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The court provided a detailed case background in its previous order of October 24, 2011. See
Docket No. 54.
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See Docket No. 1 && 10-20.

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See Docket No. 48 at 1.

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See Docket No. 39-1, Ex. A (Covidien’s Second Request for Production of Things, Set Two).

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See Docket No. 46-1 & 2 (Roe Decl. in Opp’n to Def.’s Mot. To Compel).

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See Docket No. 39-1, Ex. G, ex. 2 (letter of June 14, 2011 instructing expert regarding search
protocol). “Cowhig” refers to Michael Cowhig, Covidien’s Vice President and General Counsel.
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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

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documents with terms pertaining to Kolker’s counsel or representation in this case: “Chip”,

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“Charles”, “Roe”, or “SWR-Law”. The parties further agreed that after the inspection and imaging,

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Kolker would have two weeks to review the files copied and to withhold from production any

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documents that Kolker deemed objectionable.7

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As a result of the inspection by search protocol, Covidien’s expert copied approximately
10,000 documents.8 Kolker’s counsel and Kolker then reviewed these and withheld approximately
500 documents,9 citing various objections outline above. On July 27, 2011, Covidien’s counsel
responded that Kolker’s objections were invalid and inadequate because they failed to establish the

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United States District Court
For the Northern District of California

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applicability of the claimed privileges and protections in accordance with Fed. R. Civ. P. 26(b)(5).

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On September 22, 2011, Kolker supplemented his initial objections with further explanations.

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Covidien argues that the objections remain inadequate as a basis for Kolker to withhold documents

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otherwise identified as relevant by the agreed-upon search terms. Covidien moves to compel

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production of specific items withheld. These are: item nos. 1, 6, 14-18, 48-63, 65-68, 122-125, 150,
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156-157, 182-185, 216-200, 223-226, 273-275, 288, 299-302, 350, 353, 395-399, and 445-456.
II. LEGAL STANDARDS

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Pursuant to Fed. R. Civ. P. 26, parties may obtain discovery regarding any nonprivileged

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matter that is relevant to any party's claim or defense. A party claiming privilege or work-product

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protection must: “expressly make the claim; and describe the nature of the documents,

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“Van Vleck” refers to Cindee Van Vleck, Covidien’s then-Director of Human Resources. “Farley”
refers to Brian Farley, VNUS’s then-Chief Executive Officer.

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See Docket No. 46-1 & 2.

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See id. & 3.

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See id.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

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communications, or tangible things not produced or disclosed – and do so in a manner that, without

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revealing information itself privileged or protected, will enable other parties to assess the claim.”10

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III. DISCUSSION

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Resolution of this dispute turns on the narrow question of whether Kolker’s objections to
production are sufficient under the law. Covidien argues that Kolker has failed to provide
sufficiently detailed log entries to enable Coviden to assess the claims to privacy or privilege.

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Covidien contends that the minimum information sufficient for the purpose of a privilege log
includes (1) the identity and position of the author, (2) the identity and position of the recipient(s),

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United States District Court
For the Northern District of California

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(3) the date the document was prepared or generated, (4) the title and description of the document,

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(5) the subject matter addressed, (6) the purpose for which it was prepared or communicated, (7)

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the present location of the document, and (8) the specific privilege or reason it is being withheld.11

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Here, Covidien contends that Kolker’s initial and amended objections consist of mere blanket

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assertions of privilege and privacy. Kolker responds that the information provided with each
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objection is sufficient under the guidelines set by Rule 26.
In Burlington Northern, the court noted that there is not a single sufficient approach to

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describing privileged information.12 “This circuit has held that a privilege log is sufficient to

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properly assert the privilege, without explicitly holding that it is necessary to meet those

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requirements.”13 Courts have deemed sufficient privilege logs such as that described above, as well

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Fed. R. Civ. P. 26(b)(5)(A). See also Burlington Northern & Santa Fe Ry. Co. v. United States
Dist. Court for the Dist. of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005) (holding that boilerplate
objections are insufficient to assert privilege, but provision of the “particulars typically contained
in a privilege log is presumptively sufficient”).
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See Docket No. 39 at 4 (citing Mancini v. Ins. Corp. of New York, No. 07cv1750-L(NLS) 2009
WL 1765295, at *3 (S.D. Cal. June 18, 2009) (citing Miller v. Pacucci, 141 F.R.D. 292, 302 (C.D.
Cal. 1992))).

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See Burlington Northern, 408 F.3d at 1148.

Id. (citing Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 1989); In re Grand Jury Investigation,
974 F.2d 1068, 1071 (9th Cir. 1992)) (emphasis in original).

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

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as other means to determining privilege, such as in camera review by the court and submission of

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redacted materials, which “convey[] some information about the content of the allegedly privileged

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material.”14 These acceptable methods are in contrast to a “boilerplate objection” that provides

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insufficient information to the court.15

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Kolker’s objections to producing the documents may be grouped into a few categories. The
court will address the sufficiency of Kolker’s explanations as to each category and group of items.

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First are materials that Kolker says were identified in error based on the search term

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“CAVC.” These include documents connected to a separate, unrelated entity called “CAVC of

United States District Court
For the Northern District of California

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Montana,”16 as well as documents unrelated to CAVC but which triggered the search term because

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Kolker later used a CAVC template to develop unrelated materials for his own business.17

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Specifically, item nos. 1 and 6 consist of invoices from DMKolker to CAVC Montana. Covidien

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complains that Kolker’s counsel did not include this information in his objections or amended

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objections, but also does not argue that nos. 1 and 6 have any relevance to the present litigation.
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Covidien’s motion as to item nos. 1 and 6 is therefore DENIED.
Item nos. 14-18 and no. 150 are draft “management services agreements” created by Kolker

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for his DMKolker business, for which he used a CAVC agreement as the template. Kolker’s

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amended objections describe each of these as “management service agreement for DMKolker,

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trade secret and right of privacy.”18 Covidien argues that the objections do not provide a valid

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explanation as to why the documents were identified by the protocol but are protected by a right to

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Id. at 1149.

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See id.

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CAVC Montana is a client of DMKolker, one of Kolker’s businesses from after the time relevant
to the lawsuit. See Docket No. 46 at 4; Docket 46-1 & 6.

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See Docket No. 46 at 4, 5; Docket 46-1 && 7, 10.

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See Docket No. 39-1, Ex. J.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

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privacy and whether they may contain trigger terms other than CAVC, such as “Cowhig”,

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“Farley”, or “Van Cleck.” Although his position in his papers was less than clear, Kolker

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confirmed at oral argument that for those documents that implicate Kolker’s right of privacy and

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trade secret, the only search terms indicated were either “CAVC” or “VNUS.”19 Covidien also

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argues that because the documents were based on a former CAVC document later altered by

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Kolker, they are responsive to the request and should be produced under the protective order.20

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Under Burlington Northern, it is not necessary for Kolker’s objections to contain all of the

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information that would otherwise be included in a privilege log, so long as the information

United States District Court
For the Northern District of California

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provided is not merely boilerplate and allows the court to assess the claim. Nevertheless, the court

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is not persuaded that Kolker has carried his burden with respect to these items. The fact that the

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protocol search returned several documents used in Kolker’s new business does not diminish the

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fact that the template giving rise to the disputed documents was first created or utilized during

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Kolker’s time with VNUS. In addition, Kolker’s assertions of “trade secret” and “right of privacy”
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are no more than blanket assertions. Covidien’s motion as to item nos. 14-18 and 150 is therefore
GRANTED, to be produced subject to the provisions of the protective order.
Second are materials for which Kolker is unable to determine why they were triggered by

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the protocol search because none of the agreed-upon terms are present or visible in the

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documents.21 These constitute the bulk of Kolker’s withheld documents. Subject to these objections

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See FTR 3:07:45 – 3:08:32 (Nov. 1, 2011) (“I thought it was understood with counsel that when
it came to the trade secret and right of privacy objections, the only search terms which were at all
indicated were the ‘CAVC’ and ‘VNUS’ search terms. The individuals [in the search terms] were
not in those documents. Those documents were all DMKolker, the subsequent business documents.
*** So when I would indicate in my response that neither CAVC or VNUS are in here, that was
with the understanding that those are the only search terms pertinent to those documents.”). See
also Docket No. 46-1 & 4 (“The only search terms found in documents with right of privacy or
trade secret objections were ‘CAVC’ and ‘VNUS’ so when I indicated that there were no search
terms visible in the document, I wrote ‘neither CAVC nor VNUS are referenced.’”).
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See Docket No. 48 at 3.

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See Docket No. 46 at 4, 5; Docket 46-1 && 8, 9, 12-17, 19.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

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are item nos. 48-63, 65-68, 122-125, 182-185, 216, 217-220, 223-226, 273-275, 288, 299-302, 350,

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353, 395-399, 445-448, 450, 452, 454, and 456. With some minimal variation, the objections for

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these items state: “DMKolker client communication (email string re DMKolker business, invoice

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for client of DMKolker, etc.), right of privacy of third party, right of privacy of Plaintiff, trade

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secret. (Neither CAVC nor VNUS is referenced).”22 Kolker’s counsel emphasizes that he is unable

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to ascertain why documents were produced without any of the search terms – CAVC, VNUS, or
any of the others23 – visible on the documents, but would leave it to Covidien’s forensic expert to
explain.24

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For the Northern District of California

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Unfortunately, no such explanation has been tendered. Without some showing by Covidien

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that these documents are actually relevant based on the presence of one or more of the agreed-upon

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search terms, the court finds that their relevance for production – or why the protocol search

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identified them to begin with – is unsubstantiated. On this basis, the court DENIES Covidien’s

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motion as to item nos. 48-63, 65-68, 122-125, 182-185, 216, 217-220, 223-226, 273-275, 288, 29915
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302, 350, 353, 395-399, 445-448, 450, 452, 454, and 456.
Third are documents that contain one or more key terms, but for which Kolker is claiming

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the right to withhold based on privacy, third-party privacy, or trade secret. These are item nos. 156-

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157 and nos. 449, 451, 453 and 455. Kolker explains that item nos. 156-157 consist of two types of

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emails – one containing Kolker’s personal banking information in which the attached bank

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statement had “VNUS” in the email title, and the other containing emails between Kolker and

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See Docket No. 39-1, Ex. J.

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Once again, although Kolker’s objections address only the CAVC and VNUS terms, at oral
argument counsel represented that none of the agreed-upon terms were present. See FTR 3:09:40 –
3:09:50 (“That is when we came up with the fact that some of these documents don’t have the
search terms in them.”). See also Docket No. 46-1 & 4 (“There were also many documents in
which there is no indication in the document itself why the documents had been produced by the
computer expert. In other words, in many of these documents, there is nothing visible on the
documents showing the search terms ‘Van Vleck, Cowhig, CAVC, VNUS or Covidien.’”).
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See Docket No. 46 at 4; Docket No. 46-1 & 8.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

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DMKolker customers or vendors in which “CAVC” is found in the email heading.25 The log

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produced by Kolker describes these items as: “entries labeled DMK Consulting *** personal

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financial information and business information for DMKolker, right of privacy of third party, right

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of privacy of Plaintiff and Plaintiff’s business and trade secret.”26 For item nos. 449, 451, 453 and

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455, Kolker explains that the objections provided are “self explanatory” as to why CAVC is

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mentioned. Those objections state: “communication between DMKolker and a potential client,

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right of privacy of third party, right of privacy of Plaintiff, trade secret. (CAVC mentioned in
connection with discussions with potential client about running similar business post Covidien).”27
These descriptions – supplemented by counsel’s explanation in response to this motion –

United States District Court
For the Northern District of California

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are adequate for the court to assess why the protocol search initially triggered the documents. With

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respect to the emails containing “VNUS” or “CAVC” in the email or attachment headings,

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Kolker’s assertions of privacy, third-party privacy, and trade secret are vague and offer no means

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for the court to assess their strength. Thus, there does not appear to be any basis for withholding the
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material subject to the parties’ protective order. In contrast, Kolker’s description of the

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communications between DMKolker and potential clients, regarding running a similar business

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post-Covidien, do provide the court with a basis to assess the nature of the exchanges. Accordingly,

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Covidien’s motion is GRANTED as to item nos. 156-157 and is DENIED as to item nos. 449, 451,

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453 and 455.

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See Docket No. 46-1 & 11.

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See Docket No. 39-1, Ex. J.

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See id.

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL

IV. CONCLUSION

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In accordance with the foregoing, the court hereby GRANTS-IN-PART and DENIES-IN-

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PART Covidien’s motion to compel. No later than December 9, 2011, Kolker shall produce the

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documents that have been improperly withheld.

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IT IS SO ORDERED.

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Dated: November 22, 2011
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

United States District Court
For the Northern District of California

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Case No.: C 10-0900 SBA (PSG)
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT’S MOTION TO COMPEL