Anderson et al v. SeaWorld Parks and Entertainment

Filing 261

ORDER requiring in camera review and further briefing to resolve 249 Discovery Letter Brief. Signed by Chief Magistrate Judge Joseph C. Spero on November 19, 2018. (jcslc2S, COURT STAFF) (Filed on 11/19/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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MARC ANDERSON, ET AL.,
Plaintiffs,
v.
SEAWORLD PARKS AND
ENTERTAINMENT, INC.,
Defendant.

Case No. 15-cv-02172-JSW (JCS)
ORDER REQUIRING IN CAMERA
REVIEW OF PURPORTEDLY
PRIVILEGED PUBLIC RELATIONS
DOCUMENTS
Re: Dkt. No. 249

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The parties dispute whether “certain documents in possession of [Defendant SeaWorld

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Parks and Entertainment, Inc.’s (‘SeaWorld’s’)] advertising and public relations agencies” are

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protected by the attorney client privilege and/or the attorney work product doctrine. See dkt. 249

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at 1. It is conceivable that in some circumstances, communications involving a public relations

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firm might fall within the scope of attorney-client privilege or attorney work product protection.

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See Behunin v. Superior Court, 9 Cal. App. 5th 833, 849–50 (2017) (“There may be situations in

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which an attorney’s use of a public relations consultant to develop a litigation strategy or a plan

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for maneuvering a lawsuit into an optimal position for settlement would make communications

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between the attorney, the client, and the consultant reasonably necessary for the accomplishment

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of the purpose for which the attorney was consultant.”). SeaWorld has cited no case, however, in

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which such communications were actually held to fall within privilege or work product protection

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under California law. The mere fact that such communications relate to litigation is not

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sufficient—if the communications were intended to develop a public relations strategy in response

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to litigation, rather than to develop strategy for the litigation itself, they are not privileged. See id.

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at 850 (holding that communications were not privileged absent “some explanation of how the

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communications assisted the attorney in developing a plan for resolving the litigation”).

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Given the parties’ divergent views of the nature of the communications at issue, the fact

that other communications with the public relations firms—which SeaWorld has produced—did

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not relate to litigation, and the apparently unprecedented (in California) nature of a potential ruling

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that these communications are privileged, the Court is “unable to [resolve the issue] without

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requiring [in camera] disclosure of the information claimed to be privileged.” See Cal. Evid. Code

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§ 915(b). Each party is ordered to select no more than ten disputed documents for in camera

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review no later than November 30, 2018, and SeaWorld is ORDERED to lodge those documents

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with chambers no later than December 7, 2018. Each party may concurrently file a brief not

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exceeding ten pages addressing the documents selected. SeaWorld may redact portions of its brief

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as necessary to avoid disclosing information it believes to be protected, with an unredacted version

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to be filed ex parte and under seal, and not disclosed to Plaintiffs unless the Court determines that

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United States District Court
Northern District of California

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the privilege does not apply or that SeaWorld’s redactions are otherwise unwarranted.

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IT IS SO ORDERED.
Dated: November 19, 2018
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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