Narog v. City of Redwood City et al

Filing 38

Order by Magistrate Judge Donna M. Ryu denying 21 and 27 Discovery Letter Briefs.(dmrlc2, COURT STAFF) (Filed on 3/17/2014)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

11
For the Northern District of California

United States District Court

10
CORY NAROG,

12
13

No. C-13-03237 DMR
ORDER RE: JOINT DISCOVERY
LETTERS [21] and [27]

Plaintiff(s),
v.

14

CITY OF REDWOOD CITY,

15

Defendant(s).
___________________________________/

16
17

Before the court are a joint discovery letter filed by Plaintiff Cory Narog and a third party,

18

the law firm of Hayes, Scott, Bonino, Ellingson & McLay, LLP (“Hayes Scott”) [“Hayes Scott

19

Letter,” Docket No. 21] and a joint discovery letter filed by Plaintiff and another third party, the law

20

firm of Hartnett, Smith & Paetkau (“HSP”) [“HSP Letter,” Docket No. 27]. In each letter, Plaintiff

21

seeks to compel the non-party to produce documents in response to Plaintiff’s subpoena. The court

22

held a hearing on the letters on March 13, 2014. For the reasons stated below and at the hearing,

23

Plaintiff’s motions to compel are denied.

24
25

I. BACKGROUND
A. Factual Allegations in First Amended Complaint

26

On August 23, 2013, Plaintiff filed this lawsuit against the City of Redwood City (“Redwood

27

City”), three of Redwood City’s police officers (Officers Figueroa, Faljean, and Gary), and unnamed

28

Doe defendants. See First Am. Compl. (“FAC”) [Docket No. 7]. Plaintiff alleges that he called the

1

Redwood City Police Department (“RCPD”) on September 5, 2010, to report an incident of

2

suspected vandalism at his home in Redwood Shores, California. Plaintiff had ongoing problems

3

with his neighbors, and suspected that one of them may have vandalized his property. Officer

4

Figueroa met with Plaintiff, visited Plaintiff’s property, reviewed his statement, and left. FAC ¶¶

5

14-17.

6

Plaintiff alleges that on next day, September 6, 2010, Officer Faljean attended a

7

neighborhood watch meeting at which Plaintiff was not present and advised the meeting attendees to

8

monitor and document Plaintiff’s activities. Plaintiff believes that Officer Faljean’s conduct caused

9

Plaintiff’s neighbors to conduct surveillance on Plaintiff's property and to harass and annoy Plaintiff.
FAC ¶¶ 18-19.

11
For the Northern District of California

United States District Court

10

Between September 2010 and August 2011, Plaintiff's relations with his neighbors worsened

12

and resulted in litigation between Plaintiff and several of his neighbors, including Allen Claybaugh.

13

Plaintiff alleges that Claybaugh’s attorney, Dara Tang of Hayes Scott, met several times with

14

officers of the RCPD to discuss future action to be taken against Plaintiff. FAC ¶ 20.

15

On August 18, 2011, Officer Gary contacted Plaintiff to discuss Plaintiff’s September 5,

16

2010 report of suspected vandalism. On February 9, 2012, the San Mateo County District Attorney

17

filed a criminal complaint against Plaintiff alleging a misdemeanor violation of California Penal

18

Code § 148.5(a) for making false reports to police. On May 8, 2012, Plaintiff went to the RCPD to

19

pick up police reports he had requested and was arrested by several police officers in connection

20

with the criminal complaint. FAC ¶ 30. Plaintiff was held for two days and released on bail.

21

Plaintiff made six court appearances in connection with his criminal case from June 2012

22

until December 2012. FAC ¶ 34. On December 17, 2012, the criminal complaint against Plaintiff

23

was dismissed. Id.

24

Plaintiff now brings six causes of action against Defendants: (1) malicious prosecution in

25

violation of the Fourth Amendment and 42 U.S.C. § 1983; (2) retaliation in violation of the First

26

Amendment and Section 1983; (3) infringement on Plaintiff’s due process rights in violation of the

27

Fourteenth Amendment and Section 1983; (4) violation of California Civil Code § 52.1; (5)

28

intentional infliction of emotional distress; and (6) abuse of process. FAC ¶¶ 43-83.

2

1

B. Hayes Scott’s Description of Events1

2

Hayes Scott paints quite a different picture of the events surrounding this litigation.

3

According to Hayes Scott, one of Plaintiff’s neighbors obtained a restraining order against Plaintiff

4

in 2004 for, among other things, driving his truck noisily up and down the street and “mooning” his

5

neighbors. Plaintiff violated the restraining order, which resulted in a criminal charge. Several of

6

Plaintiff’s neighbors testified against Plaintiff at the criminal trial. A jury determined that Plaintiff

7

had violated the restraining order and in 2006 Plaintiff was sentenced to six months in custody. The

8

judge also entered a restraining order prohibiting Plaintiff from entering the Redwood Shores

9

community for three years.
In June 2009, upon expiration of the restraining order, Plaintiff returned to the community

11
For the Northern District of California

United States District Court

10

and began targeting those neighbors who had testified against him by filing petitions for restraining

12

orders against them. Hayes Scott represented three people against whom Plaintiff had filed petitions

13

(Raymond Fung, Allen Claybaugh, and Elayne Pace); an attorney named Michael Allen represented

14

another (Gary Krippendorf); and Jim Hartnett, an attorney from HSP, represented Scott Armstrong,

15

another neighbor against whom Plaintiff had made allegations but has not filed a petition for

16

restraining order.

17

Plaintiff’s petition against Fung was filed in March 2010. A court denied the petition in

18

April 2010. Plaintiff then filed a series of petitions against Claybaugh, Pace, and Krippendorf

19

between September and November 2010. All three were scheduled to be heard before the same

20

judge (Judge Freeman of the San Mateo County Superior Court) on the same day in December

21

2010.2 Thus, the Hayes Scott firm, Michael Allen, and HSP allege that they agreed to share

22

information subject to a joint defense privilege in light of their common interest of defending

23
24
25
26
27
28

1

HSP incorporated Hayes Scott’s description of events into its discovery letter, noting that it
“concisely and accurately detail[s] the immediate factual background leading to this litigation.” HSP
Letter at 6.
2

The three petitions stem from different events. Plaintiff’s September 2010 petition against
Claybaugh alleged that Claybaugh was deliberately harassing Plaintiff by playing basketball at 6 a.m.;
his October 2010 petition against Krippendorf alleged that Krippendorf was taking pictures of Plaintiff;
and his November 2010 petition against Pace alleged that Pace was trying to get her Norwich terrier mix
to attack Plaintiff.

3

1

themselves against what they viewed as Plaintiff’s retaliatory campaign. The law firms did in fact

2

correspond regarding the status of the restraining order petitions, share documents and information,

3

and discuss investigative actions in furtherance of their clients’ defense. Hayes Scott Letter at 7.

4

Judge Freeman denied all three petitions, awarded each defendant attorneys’ fees and costs, and also

5

declared Plaintiff a vexatious litigant.3

6

In November 2010, during the course of litigation on the three petitions described above,

7

Hayes Scott, Michael Allen, and Jim Hartnett met with officers of the RCPD “to sort out the various

8

police and incident reports filed by [Plaintiff] which he utilized in his TRO petitions, as well as to

9

gather information regarding [Plaintiff’s] criminal history.” Hayes Scott Letter at 7. In addition,
Hayes Scott attorney Dara Tang had a phone call with Captain Mulholland of the RCPD in

11
For the Northern District of California

United States District Court

10

December 2010 regarding the vexatious litigant motion filed against Plaintiff by Claybaugh.

12

According to Hayes Scott, the joint defense agreement between Hayes Scott, Michael Allen,

13

and HSP has continued. Hayes Scott notes that these counsel “discussed providing the RCPD and

14

DA’s office with the facts regarding [Plaintiff’s] TRO Petitions against our respective clients and

15

specifically to point out the various inconsistencies and false statements made therein.” Hayes Scott

16

Letter at 8.

17

C. Subpoenas on Hayes Scott and HSP

18

On November 6, 2013, Plaintiff served Hayes Scott with a subpoena seeking certain records

19

and documents. On November 20, 2013, Hayes Scott objected to the subpoena in its entirety. On

20

December 2, 2013, Plaintiff’s counsel and counsel for Hayes Scott met and conferred, and Plaintiff

21

agreed to limit the scope of two requests for production of documents that are not at issue in this

22

letter. On December 10, 2013, Hayes Scott responded to the subpoena, produced some documents,

23

and withheld others which it described on a privilege log. On December 13, 2013, Hayes Scott

24

produced an amended privilege log.

25
26
3

27
28

According to HSP, Plaintiff has been declared a vexatious litigant by Santa Clara County
Superior Court and San Mateo County Superior Court, and is on the vexatious litigant list maintained
by California’s Administrative Office of the Courts. See http://www.courts.ca.gov/documents/vexlit.pdf
(last accessed March 14, 2014).

4

1

On December 17, 2013, Plaintiff served HSP with a records subpoena. HSP timely

2

responded on January 10, 2014, and produced a privilege log with respect to certain withheld

3

documents.

4

At issue now are several documents that Hayes Scott and HSP have withheld on the basis of

5

the attorney work product privilege or the joint defense/common interest privilege. Each of these

6

will be discussed below.

7
8
9

II. LEGAL STANDARD
A. Standards Governing Discovery
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding
any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).

11
For the Northern District of California

United States District Court

10

“Relevant information need not be admissible at the trial if the discovery appears reasonably

12

calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). “Relevancy,

13

for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary

14

boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006). “[T]he party

15

opposing discovery has the burden of showing that discovery should not be allowed, and also has the

16

burden of clarifying, explaining and supporting its objections with competent evidence.” La. Pac.

17

Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012). Federal

18

Rule of Civil Procedure 26 also provides that a party withholding information under a claim that it is

19

privileged or subject to protection as trial preparation material must: (i) expressly make the claim;

20

and (ii) describe the nature of the documents, communications, or tangible things not produced or

21

disclosed in a manner that, without revealing information itself privileged or protected, will enable

22

the parties to assess the claim. Fed. R. Civ. Proc. 26(b)(5)(A). A privilege should be asserted within

23

thirty days of a request for production. See Fed. R. Civ. P. 34(b)(2)(A).

24

B. Attorney-Client Privilege

25

The attorney-client privilege protects from discovery “confidential communications between

26

attorneys and clients, which are made for the purpose of giving legal advice.” United States v.

27

Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citation omitted); see Vasudevan Software, Inc. v. IBM

28

Corp., No. 09-5897-RS (PSG), 2011 WL 1599646, at * 1 (N.D. Cal. Apr. 27, 2011). The privilege

5

1

is “narrowly and strictly construed,” and the party asserting it bears the burden of proving that it

2

applies. Vasudevan Software, Inc., 2011 WL 1599646, at *1 (quotation omitted); accord United

3

States v. Bergonzi, 216 F.R.D. 487, 493 (N.D. Cal. 2003) (holding that party asserting privilege

4

“must make a prima facie showing” that privilege applies). The privilege attaches when

5
6

(1) legal advice of any kind is sought (2) from a professional legal adviser in his capacity as
such, (3) the communications 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 be waived.

7
Richey, 632 F.3d at 566 (quotation omitted). The privilege extends to electronic communications
8
versions and preliminary drafts of communicated documents. Laethem Equip. Co. v. Deere & Co.,
9
261 F.R.D. 127, 139-40 (E.D. Mich. 2009) (citations omitted). However, if the advice sought from
the professional legal advisor is not legal advice, the privilege does not apply. Richey, 632 F.3d at
11
For the Northern District of California

United States District Court

10
566 (citation omitted). Attorney-client privilege belongs solely with the client, and only the client
12
may waive it. In re Seagate Tech., LLC, 497 F.3d 1360, 1372 (Fed. Cir. 2007) (citations omitted).
13
Once a client waives the privilege, the waiver applies to “all other communications relating to the
14
same subject matter.” Id. (citation and quotation marks omitted); accord Richey, 632 F.3d at 566.
15
C. Joint Defense Privilege
16
The joint defense privilege is an extension of the attorney client privilege that “has been long
17
recognized by this circuit.” Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987) (citations
18
omitted). The privilege “has its origins in situations where one attorney acts for two clients, [but]
19
[i]t has been applied beyond the joint client context to the joint defense context—for instance, when
20
the defendants are co-defendants in the same action or are defendants in separate actions sued by the
21
same plaintiff.” Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007) (citing
22
B.E. Meyers & Co., Inc. v. United States, 41 Fed. Cl. 729, 733 (1998)). Generally, under the joint
23
defense privilege, “communications by a client to his own lawyer remain privileged when the lawyer
24
subsequently shares them with co-defendants for purposes of a common defense.” Waller, 828 F.2d
25
at 583 (citation omitted).
26
In order for the joint defense theory to apply, there need not be actual litigation. United
27
States v. Gonzalez, 669 F.3d 974, 980 (9th Cir. 2012) (“[A]s parties in separate actions might
28

6

that actual litigation even be in progress.”). Moreover, the joint defense theory can extend to

3

“interested third parties who have a community of interests with respect to the subject matter of the

4

communications.” Nidec, 249 F.R.D. at 579 (quoting Rice, Attorney-Client Privilege in the United

5

States § 4:35, at 199-201); see also In re Regents of the Univ. of California, 101 F.3d 1386, 1390

6

(Fed. Cir. 1996) (noting that the common interest privilege may apply to a patent holder and its

7

licensee). “No written agreement is required, and . . . a [joint defense agreement] may be implied

8

from conduct and situation, such as attorneys exchanging confidential communications from clients

9

who are or potentially may be codefendants or have common interests in litigation. Gonzalez, 669

10

F.3d at 979. “[H]owever, that legal assistance must pertain to the matter in which the parties have a

11
For the Northern District of California

nonetheless have reasons to work together toward a common objective, and there is no requirement

2

United States District Court

1

joint legal interest, and the communication must be designed to further that specific legal interest.”

12

Nidec, 249 F.R.D. at 579. Thus a party claiming joint defense privilege bears the burden of showing

13

“(1) the communication is made by separate parties in the course of a matter of common [legal]

14

interest; (2) the communication is designed to further that effort; and (3) the privilege has not been

15

waived.” Id. at 578.

16

“[T]he case law is clear that one party to a [joint defense agreement] cannot unilaterally

17

waive the privilege for other holders.” Gonzalez, 669 F.3d at 982 (citing United States v. BDO

18

Seidman, LLP, 492 F.3d 806, 817 (7th Cir. 2007) (The “privileged status of communications falling

19

within the common interest doctrine cannot be waived without the consent of all of the parties.”) and

20

John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 556 (8th Cir.1990) (joint defense privilege

21

cannot be waived without the consent of all parties to the defense)).

22

D. Work Product Doctrine

23

The work product doctrine protects from discovery “materials prepared by an attorney in

24

anticipation of litigation,” be they “by or for the attorney.” Bergonzi, 216 F.R.D. at 494 (citations

25

omitted); accord United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011). It aims to balance the

26

“promotion of an attorney’s preparation in representing a client” and “society’s general interest in

27

revealing all true and material facts to the resolution of a dispute.” In re Seagate Tech., LLC, 497

28

F.3d 1360, 1375 (Fed. Cir. 2007) (citation and quotation marks omitted). To qualify for work-

7

1

product protection, materials must “(1) be prepared in anticipation of litigation or for trial and (2) be

2

prepared by or for another party or by or for that other party’s representative.” Richey, 632 F.3d at

3

567 (citation and quotation marks omitted). When a document was not prepared exclusively for

4

litigation, it will receive protection if “in light of the nature of the document and the factual situation

5

in the particular case, the document can be fairly said to have been prepared or obtained because of

6

the prospect of litigation.” Id. at 568 (citation and quotation marks omitted). This analysis requires

7

the court to examine the totality of the circumstances and determine whether the document was

8

prepared in anticipation of litigation and “would not have been created in substantially similar form

9

but for the prospect of litigation.” Id. (citation and quotation marks omitted).
Unlike the attorney-client privilege, the work product doctrine may be overcome by a party’s

11
For the Northern District of California

United States District Court

10

showing of “need and undue hardship.” In re Seagate Tech., LLC, 497 F.3d at 1375 (citing Fed. R.

12

Civ. P. 26(b)(3)). The degree of showing required, however, depends on whether the sought after

13

material “is factual, or the result of mental processes such as plans, strategies, tactics, and

14

impressions, whether memorialized in writing or not.” Id. (citations omitted). Factual materials

15

simply require a demonstration of “substantial need and undue hardship,” while materials reflecting

16

mental processes receive greater, “nearly absolute” protection. Id. (citations omitted).

17

A party waives work product protection “where disclosure of the otherwise privileged

18

documents is made to a third party, and that disclosure enables an adversary to gain access to the

19

information.” Bergonzi, 216 F.R.D. at 497 (citation omitted). Just as with attorney-client privilege,

20

however,

21
22
23

[w]hen made in a federal proceeding . . . , [a] disclosure does not operate as a waiver .
. . if (1) the disclosure is inadvertent; (2) the holder of the privilege . . . took
reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable
steps to rectify the error, including (if applicable) following Federal Rule of Civil
Procedure 26(b)(5)(B).

24

Fed. R. Evid. 502(b). In addition, the joint defense privilege also operates as an exception to the

25

rule on waiver where work product is disclosed to third parties. Bergonzi, 216 F.R.D. at 495-96

26

(common interest is an exception to waiver for both attorney-client and work product privileges).

27
28

III. DISCOVERY DISPUTES
A. NAROG 35-40, NAROG 44-52

8

1

These documents are emails between attorneys from Hayes Scott, HSP, and Michael Allen

2

regarding scheduling the meetings with the police in November 2010. Plaintiff argues that the

3

documents are “relevant to determine whether these attorneys acted in concert with the RCPD to

4

procure Plaintiff's criminal prosecution,” and that the joint defense privilege does not protect these

5

documents because they are not communications made in furtherance of a common defense or

6

prosecution but instead mark “the beginning of a coordinated and concerted effort by this group of

7

attorneys to influence the RCPD to initiate a criminal prosecution against Plaintiff.” Hayes Scott

8

Letter at 4.

9

The court has reviewed these emails in camera and determined that they are protected by the
joint defense privilege. At time the emails were sent, Hayes Scott was representing two neighbors

11
For the Northern District of California

United States District Court

10

against whom Plaintiff had filed petitions for restraining orders and Michael Allen was representing

12

a third. While Plaintiff had not filed a petition against Scott Armstrong, (HSP’s client and another

13

of Plaintiff’s neighbors), Hayes Scott avers that Plaintiff had made allegations against Armstrong,

14

and Armstrong believed he would soon be targeted by Plaintiff. Thus the neighbors’ attorneys had

15

reasons to work together toward a common objective, i.e. defending against a legal campaign that

16

Plaintiff had aimed at neighbors who testified against him in his criminal trial, or were otherwise

17

supportive of the criminal prosecution. That there is no written agreement memorializing a joint

18

defense agreement is of no moment, as a joint defense may be implied from the situation and the

19

context of the emails. The emails pertain to the matter in which the parties have a joint legal

20

interest, and the communication is designed to further that specific legal interest.

21

Plaintiff contends that Hayes Scott waived the joint defense privilege by failing to assert it in

22

a timely matter because it did not claim the privilege as grounds for withholding documents when it

23

objected to Plaintiff's subpoena on November 20, 2013. See Fed. R. Civ. P. 45(d)(2)(B) (objections

24

“must be served before the earlier of the time specified for compliance or 14 days after the subpoena

25

is served”). However, Hayes Scott did object on the basis of attorney-client privilege, of which joint

26

defense privilege is a variant. Furthermore, the requests for documents in Plaintiff’s subpoena were

27

broad, such that it might not have been immediately clear to Hayes Scott that Plaintiff requested

28

documents that implicate the joint defense privilege. Under these circumstances, Hayes Scott’s

9

1

assertion of the joint defense privilege after Plaintiff clarified the scope of the discovery request is

2

timely. Plaintiff’s motion to compel production of these documents is therefore denied.

3

B. NAROG 53-78

4

This document is an email thread from June 2011 regarding the drafting of a memorandum

are Hayes Scott attorneys, as well as Michael Allen and Jim Hartnett. According to Plaintiff, after

7

this memorandum was delivered to the RCPD, an officer of the RCPD approached an attorney in the

8

district attorney’s office on July 21, 2011, provided a copy of the memorandum, and asked, “What

9

type of evidence would be needed on a perjury charge?” Hayes Scott Letter at 3; HSP Letter at 3.

10

Plaintiff thus asserts that the emails and draft of the memorandum are relevant to “ascertain if this

11
For the Northern District of California

for the RCPD about Plaintiff; the thread includes a draft of the memorandum.4 The email recipients

6

United States District Court

5

group of attorneys acted in concert with the RCPD to procure Plaintiff’s criminal prosecution,” to

12

determine whether the officer’s July 21, 2011 memorandum relied on defense counsel’s June 2011

13

memorandum, and to reveal the involvement of other RCPD employees in Plaintiff’s criminal

14

prosecution. In response, Hayes Scott asserts the joint defense privilege and work product doctrine

15

over these documents.

16

Having reviewed the document in camera, the court determines that it pertains to the matter

17

in which the parties have a joint legal interest, that it is designed to further that specific legal

18

interest, and that the privilege has not been waived. As noted above, Plaintiff and his neighbors

19

have been involved in an ongoing dispute beginning in 2004, which culminated in a TRO against

20

Plaintiff, the violation of which resulted in a criminal conviction and sentence against Plaintiff. In

21

2009, after Plaintiff’s return to the community, he apparently began to target neighbors, including

22

those who had testified against him in his criminal trial, by filing police reports and TROs against

23

them. In 2011, attorneys for these neighbors compiled evidence that Plaintiff’s police reports were

24

false and brought it to the RCPD, which eventually resulted in Redwood City’s prosecution against

25

Plaintiff for filing false police reports, which in turn led to Plaintiff’s instant lawsuit against

26

Redwood City and RCPD officers for malicious prosecution. As discussed above, the clients of

27
4

28

At the hearing, Plaintiff confirmed that HSP produced the final version of the June 2011
memorandum, which was provided to the RCPD.

10

1

Hayes Scott, HSP, and Michael Allen have a joint interest in defending themselves against

2

Plaintiff’s various actions. This joint defense effort also includes those attorneys’ decision to reveal

3

Plaintiff’s alleged misbehavior to the RCPD, which is premised on supposedly false police reports

4

about the same underlying events that form the basis of Plaintiff’s petitions for restraining orders.

5

This is ample basis for implying a joint defense, even in the absence of a written joint defense

6

agreement. Accordingly, Plaintiff’s motion to compel the production of this document is denied.

7

C. NAROG 42, 79-80

8
9

NAROG0042 is an email dated November 16, 2011 from Hartnett to Tang, Stephen Scott (an
attorney with Hayes Scott), and Allen about Plaintiff’s criminal prosecution. NAROG0079-80
consists of two redacted emails dated November 16, 2011, from Hartnett to Tang and Allen,

11
For the Northern District of California

United States District Court

10

regarding a no contact order.

12

same reasons as stated above in the court’s discussion of NAROG0053-78, the joint defense

13

privilege provides grounds for withholding these documents. Accordingly, Plaintiff’s motion to

14

compel these documents is denied.

15

D. NAROG 93

The court has reviewed these documents in camera. For the

16

NAROG0093 is one page of Tang’s meeting notes from the November 22, 2010 meeting

17

with the RCPD. Plaintiff argues that this court should order Hayes Scott to produce these notes

18

despite its assertion that the attorney work product privilege protects these documents because

19

Plaintiff has a substantial need for the documents and the inability without undue hardship to obtain

20

the substantial equivalent of the privilege documents. Specifically, Plaintiff avers that Redwood

21

City has stated in response to discovery requests that it does not have documents pertaining to this

22

meeting, so these meeting notes would provide a “contemporaneous factual account of the

23

November 22nd meeting.” Hayes Scott Letter at 5.

24

The meeting notes appear to capture the mental impressions of an attorney in the course of

25

defending her client against Plaintiff’s lawsuit. Plaintiff has not demonstrated substantial need for

26

the disclosure of documents plainly protected by the attorney work product privilege. The

27

substantial need prong of the test for disclosure of work product examines whether the information

28

is needed for the party to prepare its case and whether the party requesting discovery can obtain the

11

1

facts from an alternate source. Fed. R. Civ. P. 26(b)(3) (party may discover documents prepared in

2

anticipation of litigation if it has “substantial need for the materials to prepare its case and cannot,

3

without undue hardship, obtain their substantial equivalent by other means.”). Plaintiff admits that

4

he “could arguably depose the RCPD officers on this topic,” Hayes Scott Letter at 5, but expresses

5

concern that such testimony would be inferior because the officers’ recollection might be poor. This

6

is an ordinary risk that attends many litigations, and does not provide good reason to disclose

7

protected attorney work product reflecting an attorney’s mental processes. Plaintiff’s request for

8

this document is denied.

9

E. Hartnett 539-40, 541-61
Hartnett 539-40 is an email from Hartnett to Michael Allen and Stephen Scott dated June 10,

11
For the Northern District of California

United States District Court

10

2011, transmitting a draft of the June 2011 memorandum. Hartnett 541-61 is a draft of the June

12

2011 memorandum. HSP withheld both of these documents on the basis of the joint defense

13

privilege. For the same reasons as stated above with respect to the analogous Hayes Scott

14

documents, these documents are protected by the joint defense privilege.

15

F. Hartnett 573-74

16

Hartnett 573-74 is a December 18, 2013 email from counsel for Defendants, Joseph Howard

17

of Howard Rome (the firm defending the instant case), regarding the privilege log submitted by

18

Hayes Scott in response to Plaintiff’s records subpoena in this case. HSP withholds this document

19

on the basis of the joint defense privilege.

20

“[T]he existence of a [joint defense agreement] is not necessarily an all-or-nothing

21

proposition.” Gonzalez, 669 F.3d at 981. A joint defense agreement may be premised on a “mutual

22

interest that is defined more narrowly,” such that the parties may agree to a joint defense on one

23

aspect of their cases but remain antagonistic on others. Id. (husband and wife prosecuted in two

24

separate criminal trials about the same insurance fraud, where husband planned to blame wife for

25

insurance scam, could still have formed a joint defense agreement on the narrow issue of one aspect

26

of wife’s defense). As described above, the facts in this case demonstrate continued antagonism

27

between Plaintiff and his neighbors, Redwood City, and the RCPD which has resulted in numerous

28

legal actions. While Defendants, Hayes Scott’s clients, and HSP’s client are not co-defendants in

12

1

this case, the court finds that in light of the above chain of events, they nonetheless have a

2

community of interests with respect to the subject matter of the communications because Plaintiff’s

3

series of lawsuits against each of them stem from the same underlying and continuing events. The

4

emails in Hartnett 573-74, which this court has reviewed in camera, are designed to further the joint

5

defense effort. Plaintiff does not argue that the joint defense privilege has been waived in this case.

6

Accordingly, Plaintiff’s motion to compel the production of Hartnett 573-74 is denied.5
IV. CONCLUSION

7

For the reasons stated above, Plaintiff’s motions to compel are denied.

a
ge onn
JudM. D
DONNA
RYU

14

M. Ryu

R NIA

S
Dated: March 17, 2014

LI

13

UNIT
ED

12

DERED

O OR
IT IS S

RT

United States Magistrate Judge
E

15

H

For the Northern District of California

IT IS SO ORDERED.

NO

United States District Court

11

RT
U
O

10

S DISTRICT
TE
C
TA

FO

9

16

RN

A

8

D IS T IC T
R

OF

C

17
18
19
20
21
22
23
24
25
26
27
28

5

As stated at the hearing, certain portions of Hartnett 573-74 are not protected by the attorneyclient privilege, i.e. the first email, which was sent by Hayes Scott to Plaintiff’s and Defendants’
attorneys. The protected portion of the document should be redacted and the remainder produced.

13