Swanson v. Alza Corporation

Filing 177

ORDER by Judge Kandis A. Westmore regarding 163 Discovery Letter Brief No. 5. (kawlc1, COURT STAFF) (Filed on 6/18/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES M. SWANSON,

Case No. 12-cv-04579-PJH (KAW)

Plaintiff,
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ORDER REGARDING JOINT
DISCOVERY LETTER NO. 5

v.
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Dkt. No. 163

ALZA CORPORATION,
Defendant.

United States District Court
Northern District of California

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On May 2, 2014, the parties filed six joint letters addressing various discovery disputes,

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including Joint Letter No. 5, which pertains to whether the attorney-client and work product

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privileges have been waived as to Dr. Marcel Kinsbourne based on previous motion practice.

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(Joint Letter No. 5, “Joint Letter,” Dkt. No. 163.) As a result, ALZA requests that Plaintiff

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supplement his responses to Requests for Production Nos. 40, 54, 58, and 63.

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Upon review of the joint letter, the Court finds that this matter may be resolved without

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further briefing and without oral argument pursuant to Civil Local Rule 7-1(b), and finds that

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Plaintiff must provide limited supplementation to his responses as provided below.

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I.

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DISCUSSION

This Court previously denied Dr. Kinsbourne’s motion to quash Plaintiff’s subpoena and

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ordered him to undergo deposition. (Dkt. No. 156.) ALZA contends that the briefing that occurred

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in relation to Dr. Kinsbourne’s motion to quash, including drafts of Dr. Kinsbourne’s declaration

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prepared by Plaintiff’s counsel, constituted a waiver of the attorney-client and work product

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privileges. (Joint Letter at 1-2.)

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Plaintiff argues that Dr. Kinsbourne is the holder of the attorney-client privilege, rather
than Plaintiff’s counsel. (See Joint Letter at 5.) The purpose of attorney-client privilege is to “to

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encourage clients to make full disclosure to their attorneys.” Upjohn Co. v. United States, 449 U.S.

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383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584 (1981) (quoting Fisher v. United States, 425 U.S.

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391, 403 (1976)(internal quotations omitted)). Here, ALZA does not address Plaintiff’s

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contention that Dr. Kinsbourne is the holder of privilege nor why it has not served its own

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subpoena on Dr. Kinsbourne to obtain documents that may be subject to attorney-client privilege.

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Instead, ALZA simply attaches the July 2013 subpoena it served on Dr. Kinsbourne, which it

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subsequently withdrew, along with Dr. Kinsbourne’s objections and responses. (See Joint Letter,

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Exs. 1 & 2.) Nowhere does ALZA explain why it attached those exhibits, nor does ALZA cite

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directly to their content, except to say that Plaintiff’s counsel undertook representation of Dr.
Kinsbourne and served objections and responses on his behalf. (Joint Letter at 1.) ALZA similarly

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United States District Court
Northern District of California

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fails to cite to the briefs, filed in relation the motion to quash, to identify where the alleged waivers

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of privilege occurred. Therefore, the Court is not in a position to make a finding as to whether Dr.

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Kinsbourne, who was not involved in the preparation of this joint letter, has waived the attorney-

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client privilege.

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Nonetheless, Plaintiff must produce those communications between his counsel and Dr.

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Kinsbourne that pre- and post-date their attorney-client relationship, because they are not

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privileged.

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Further, the Court finds that Plaintiff and Plaintiff’s counsel have only waived work

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product privilege as to the drafts of the Kinsbourne declaration provided in relation to the motion

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to quash. See Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010)(“Disclosing a

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privileged communication or raising a claim that requires disclosure of a protected communication

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results in waiver as to all other communications on the same subject.”) All versions of the April

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2013 Kinsbourne declaration must be produced in response to the request for production—despite

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some having already been produced in relation to Dr. Kinsbourne’s motion to quash—to ensure

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that ALZA has all versions of the document.

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II.

CONCLUSION

In light of the foregoing, there is insufficient information for the Court to find a universal
waiver of attorney-client privilege and attorney work product privilege as to Dr. Kinsbourne’s
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relationship with Plaintiff’s counsel.
Plaintiff, however, is ordered to supplement his responses to Defendant’s requests for
production within 21 days consistent with this order.
IT IS SO ORDERED.
Dated: June 18, 2014
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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