Munguia-Brown et al v. Equity Residential et al

Filing 196

Discovery Order re: 184 Joint Discovery Letter Brief filed by Equity Residential, Javanni Munguia-Brown, David Bonfanti, EQR-Woodland Park A Limited Partnership, Norma Rodriguez, ERP Operating Limited Partnership, Angelina Magana, Equity Residential Management, LLC, EQR-Woodland Park B Limited Partnership. Signed by Judge Thomas S. Hixson on 10/19/2020. (cdnS, COURT STAFF) (Filed on 10/19/2020)

Case 4:16-cv-01225-JSW Document 196 Filed 10/19/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAVANNI MUNGUIA-BROWN, et al.,

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Plaintiffs,

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United States District Court
Northern District of California

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Case No. 16-cv-01225-JSW (TSH)
DISCOVERY ORDER

v.

Re: Dkt. No. 184
EQUITY RESIDENTIAL, et al.,
Defendants.

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Companies sometimes analyze the legality of their policies in order to achieve legal or

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regulatory compliance, not because they anticipate or are defending litigation. Defendants say

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they did that here to make sure their late fee was legal. In 2008 they analyzed their proposed late

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fee, including having in-house counsel and outside counsel give advice, and annually thereafter

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continued that review to ensure legal compliance. The Court summarized this evidence in its June

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9, 2020 order at ECF No. 171. Defendants asserted that these legal communications were

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protected by the attorney-client privilege, not the attorney work product doctrine. ECF No. 170 at

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5. For example, RFP No. 71 asked for “all documents and communications related to Defendants’

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monitoring or evaluation of the standard late fee following its implementation, including all

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documents related to the regular monitoring referred to in paragraph 16 of the Beihoffer

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declaration.” Defendants invoked the attorney-client privilege in response, but not the attorney

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work product doctrine. ECF No. 184-1, Ex. 3. So, this seemed like a consistent story about

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analyzing the late fee, both when it was initially developed and annually thereafter, to achieve

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legal compliance.

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The story seems to have changed following the Court’s June 9 order, which found a

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subject matter waiver of the attorney-client privilege concerning legal advice from outside counsel

Case 4:16-cv-01225-JSW Document 196 Filed 10/19/20 Page 2 of 4

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and in-house counsel concerning the legality of the late fee. Because Defendants had not invoked

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the work product doctrine for those documents, the Court’s order had no occasion to consider it

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(ECF No. 171 at 2 (observing that “only the attorney-client privilege is at issue”)), so the finding

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of waiver was limited to privilege and did not encompass work product. In the wake of that order,

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Defendants now say that every single document concerning the monitoring of the validity of the

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late fee after the day this lawsuit was filed was attorney work product. ECF No. 184-1, Ex. 5

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(“For monitoring documents post-dating 2014, Defendants’ position is that any monitoring of the

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validity of the late fees is tied up with the lawsuit, and that Judge Hixson’s order does not

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contemplate that such documents will be produced.”).
There are two problems with Defendants’ new position. First, this categorical assertion of

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United States District Court
Northern District of California

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work product based solely on time frame is totally incredible simply on its face. Some people can

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safely be assumed to be generators of work product once a lawsuit has been filed, such as outside

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counsel hired to defend the case and in-house counsel who work with them. For other people,

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work product protection might apply to particular documents depending on whose direction they

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were acting at the time. However, it is not true that on the day a lawsuit is filed, work product

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protection falls like snow on everybody at the company. Legal and regulatory compliance

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practices that were in place for years before a lawsuit was filed do not become work product when

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a lawsuit is filed if the people involved are simply doing what they did before. Remember that

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Defendants said they hired landlord-tenant law firms as part of their monitoring efforts and that

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they had in-house attorneys whose portfolios consisted of different markets and it was their job to

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be aware of changes in statutory or case law or what was happening in the court systems. ECF

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No. 171 at 4-5. Those people are not defending this lawsuit. How on earth could the work

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product doctrine apply to their documents?

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Second, Defendants themselves did not think their monitoring documents were protected

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as work product until after the Court ruled they had waived privilege. Recall that RFP 71 asked

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for Defendants’ documents related to their monitoring or evaluation of their late fee following its

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implementation, and Defendants did not assert a work product objection. Plaintiffs suggest this

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failure alone is enough to find a waiver.
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However, given the importance of the work product doctrine, it is better to take this in

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steps. Knowing the dimensions of the problem will help in deciding what to do about it. The

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Court orders Defendants to produce a privilege log for any document concerning monitoring of the

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late fee over which Defendants claim work product protection. See Fed. R. Civ. Proc. 26(b)(5)(A)

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(party withholding documents based on work product must provide a privilege log). However, the

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log should not include any communications with, or documents authored by, outside counsel that

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were retained by Defendants to litigate this case, as we will simply assume work product

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protection for those. Further, if Defendants have any in-house counsel whose work concerning the

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late fee solely involved the defense of this lawsuit (for example, the in-house counsel had no
involvement with analyzing or monitoring the legality of the late fee before the lawsuit was filed),

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United States District Court
Northern District of California

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Defendants can submit a declaration from that in-house attorney so swearing in lieu of logging his

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or her documents.

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The Court realizes, of course, that despite the plain language of Rule 26(b)(5)(A), litigants

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do not generally log their litigation-related communications, no matter how relevant, because of

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the burden of doing so and because communications between certain people (outside counsel and

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in-house litigation counsel) are so nearly certain to be protected that logging them all would be a

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pointless waste of time. The problem we are facing in this case is that Defendants are claiming

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that work product protection has descended on every single person who monitored the validity of

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the late fee over the last six years such that all such communications are litigation-related.

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Defendants are implementing this claim with a per se date restriction, not by analyzing individual

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documents to see if they are actually reflective of attorney work product. So, we can’t tell

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Defendants to leave litigation-related documents off their privilege log because, under their

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expansive theory of what is related to litigation, they would leave off everything. Accordingly, the

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Court has carved out categories of documents from the logging requirement (outside counsel

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documents, and documents from a specific type of in-house counsel) where those categories are

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likely to be burdensome and the work product claim is likely to be valid. The remaining

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documents require scrutiny, and the logging requirement is narrowly tailored to identify them.

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Defendants must serve the privilege log (and any in-house declarations) on Plaintiffs
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within 30 days. Any deficiencies in the log or the declarations should be raised in a joint

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discovery letter brief. If Plaintiffs wish to move to compel any documents over the work product

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objection, either because the documents are not work product or because the objection has been

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waived, they should do so in a full written motion under Local Rule 7 and not a joint discovery

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letter brief.

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IT IS SO ORDERED.

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Dated: October 19, 2020

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THOMAS S. HIXSON
United States Magistrate Judge

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United States District Court
Northern District of California

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