Elan Microelectronics Corporation v. Apple, Inc.

Filing 422

Declaration of Nathan Greenblatt in Support of 421 Response to Elan Microelectronics Corporation's Objections to Non-Dispositive Ruling of Magistrate Judge 406 filed byApple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 421 ) (Greenblatt, Nathan) (Filed on 9/9/2011)

EXHIBIT A

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U.S.C.A.
Only the Westlaw citation is currently available.
United States District Court,
E.D. California and
N.D. California.
Ralph COLEMAN, et al., Plaintiffs,
v.
Arnold SCHWARZENEGGER, et al., Defendants.
Marciano Plata, et al., Plaintiffs,
v.
Arnold Schwarzenegger, et al., Defendants.
Nos. CIV S-90-0520 LKK JFM P, C01-1351 TEH.
Sept. 25, 2008.
West KeySummaryFederal Civil Procedure 170A
1278
170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(A) In General
170Ak1278 k. Failure to Respond; Sanctions. Most Cited Cases
Privileged Communications and Confidentiality
311H
22
311H Privileged Communications and Confidentiality
311HI In General
311Hk22 k. Privilege Logs. Most Cited
Cases
(Formerly 410k222)
A magistrate judge's award of discovery expenses to plaintiff was not improper as there was
evidence that the defendants were not substantially
justified in their non-disclosure of discovery documents. The defendants had alleged that the documents were privileged, but failed to offer adequate
detail in their privilege logs and supporting declarations to permit the court to assess the privilege
claim. This was the same deficiency that the court
had observed with regard to their earlier assertions
of privilege. Fed.Rules Civ.Proc.Rule 37(a)(5), 28

ORDER DENYING DEFENDANTS' MOTION FOR
RECONSIDERATION OF THE MAGISTRATE
JUDGE'S AUGUST 29, 2008 ORDER
STEPHEN
REINHARDT,
Circuit
Judge,
LAWRENCE K. KARLTON, Senior District
Judge, THELTON E. HENDERSON, Senior District Judge.
Donald H. Specter, Alison Hardy, Rebekah B.
Evenson, Steven Fama, Berkeley, CA, Fred D.
Heather, Raymond Edward Loughrey, Kirkpatrick
& Lockhart, Preston, Gates, Ellis, LLP, Los
Angeles, CA Amy Whelan, Ernest James Galvan,
Lisa Adrienne Ells, Lori Rifkin, Michael William
Bien, Rosen, Bien & Galvan, LLP, Chad Allen
Stegeman, Akin, Gump, Strauss, Hauer & Feld,
LLP, Charles J. Antonen, California Department of
Justice, Edward Patrick Sangster, Jeffrey L. Bornstein, K&L Gates, LLP, Warren E. George, Bingham, McCutchen, LLP, San Francisco, CA, for
Plaintiffs.
Charles J. Antonen, California Department of
Justice Office of the Attorney General, Paul Brian
Mello, Samantha D. Tama, Hanson, Bridgett, LLP,
Chad Allen Stegeman, Akin, Gump, Strauss, Hauer
& Feld, LLP, Danielle Felice O‘Bannon, Attorney
General's Office, Kyle Anthony Lewis, Department
of Justice, Rochelle C. East, Office of the Attorney
General, San Francisco, CA, Daniel J. Powell, Attorney General's Office, Jose Alfonso Zelidon-Zepeda, Department of Justice, Galit Avitan Knotz,
Steve Shea Kaufhold, Akin, Gump, Strauss, Hauer
& Feld, LLP, San Francisco, CA, William Eugene
Mitchell, William Charles Hughes, Riverside, CA,
Anne L. Keck, Santa Rosa, CA, Carol Lynne
Woodward, Redwood City, CA, for Defendants.
*1 Pending before the court is defendants' motion for reconsideration of or, alternatively, to stay

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the magistrate judge's August 29, 2008 order compelling the production of documents for which the
defendants had asserted the deliberative process or
attorney-client privileges. For the reasons stated
herein, the court DENIES the motion.
I. Background and Procedural History

FN1

FN1. Much of the facts described herein
derive from the magistrate judge's August
29, 2008 order.
The discovery dispute at issue here originated
with a request for production of documents, served
by plaintiffs on September 5, 2007. Defendants responded on October 25, 2007, asserting various
privileges in response to several of the requests.
The magistrate judge ordered many of these documents produced and this court twice denied defendants' motions for reconsideration of these orders.
See Order, June 17, 2008; Order, July 8, 2008.
During that time and since, defendants have
been producing documents and privilege logs on a
rolling basis, in response to plaintiffs' September
2007 request. The instant motion concerns privileges defendants asserted in their June 10, 2008
and August 5, 2008 privilege logs.
On August 12, 2008, plaintiffs moved the magistrate judge to sanction defendants for failing to
produce documents that were not privileged. After
reviewing the privilege logs and many of the documents in camera, the magistrate judge granted the
motion. He ordered defendants to produce seven
documents listed in the June 10, 2008 log and five
documents in the August 5, 2008 log for which the
attorney-client privilege had been asserted, and 313
documents listed in the August 5, 2008 log for
which the deliberative process privilege had been
asserted. The magistrate judge also awarded
plaintiffs expenses incurred in bringing their motion. It is that order of which defendants now seek
reconsideration
II. Standard

Federal Rule of Civil Procedure 72(a) provides
that non-dispositive pretrial matters may be decided
by a magistrate judge, subject to reconsideration by
the district judge. The district judge shall, upon reconsideration, modify or set aside any part of the
magistrate judge's order which is “found to be
clearly erroneous or contrary to law.” Fed.R.Civ.P.
72(a); see also 28 U.S.C. § 636(b)(1)(A).
Discovery motions are non-dispositive pretrial
motions within the scope of Rule 72(a) and 28
U.S.C. § 636(b)(1)(A), and thus subject to the
“clearly erroneous or contrary to law” standard of
review. Rockwell Int'l, Inc. v. Pos-A-Traction Industries, Inc., 712 F.2d 1324, 1325 (9th Cir.1983)
(per curiam). “A finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333
U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948);
Anti-Monopoly, Inc. v. General Mills Fun Group,
Inc., 684 F.2d 1316, 1318 (9th Cir.1982).
III. Analysis
Defendants move the court to reconsider 120
documents for which the deliberative process had
been asserted and the twelve documents for which
the attorney-client privilege had been asserted. Defendants contend that the magistrate judge
“impose[d] unworkable, impractical, and improper
standards” for the deliberative process privilege and
erred in concluding that the attorney-client privilege did not apply to the documents for which it
was asserted. Mot. at 1. Defendants also contend
that an award of costs to plaintiffs was not merited
and that the court should issue a stay. The court
considers each of these arguments in turn.
A. Deliberative Process Privilege
*2 As explained in a previous order, the magistrate judge has employed the correct standard in
evaluating defendants' assertion of the deliberative
process privilege. See Order, July 8, 2008. The deliberative process privilege protects from disclosure
“documents reflecting advisory opinions, recom-

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mendations and deliberations comprising part of a
process by which governmental decisions and
policies are formulated.” Dep't of Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1,
8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). A document is protected under the privilege if it is both
“predecisional” and “deliberative.” F.T.C. v.
Warner Commc'n, Inc., 742 F.2d 1156, 1161 (9th
Cir.1984). A document is predecisional if it was
“prepared in order to assist an agency decisionmaker in arriving at his decision” and it is deliberative if “the disclosure of [the] materials would expose an agency's decisionmaking process in such a
way as to discourage candid discussion within the
agency and thereby undermine the agency's ability
to perform its functions.” Assembly of State of Cal.
v. United States Dep't of Commerce, 968 F.2d 916,
920 (9th Cir.1992).

logs exhibit the same deficiencies the court noted in
its review of the February 15, 2008 log. See Order,
July 8, 2008, at 6-7. The logs describe each document by date, general type (e.g., “report,”
“memorandum,” or “document”), author, recipient,
and description. See Declaration of Maria V. Morris
In Support of Plaintiff's Motion for Discovery
Sanctions (“Morris Decl.”), Ex. I. Many of the document descriptions are short and vague, so as to
provide the reader with minimal information with
which to evaluate the claim of privilege. See, e.g.,
id. at rows 126-31, 134, 136, 138, 140-41, 144, 146,
148, 150, 153-54, 157-58, 161, 163, 165
(documents described as “concerning CDCR proposals for the upcoming week for agency review
and consideration); row 169 (document described
as “briefing document concerning prisons for
agency review and consideration”).

The party that asserts the deliberative process
privilege must explain why a document is privileged, providing enough information to enable the
opposing party and court to evaluate the appropriateness of withholding the documents. Wiener v.
F.B.I., 943 F.2d 972 (9th Cir.1991). Where there is
a large volume of documents at issue, the explanation offered may in some circumstances be less detailed than it would be otherwise. See Fed.R.Civ.P.
26 advisory committee's note (1993); Burlington N.
& Santa Fe Railway Co. v. U.S. District Court for
the Dist. of Mont., 408 F.3d 1142, 1149 (9th
Cir.2005). Nevertheless, the party asserting the
privilege must always provide enough information
to permit the court to determine the applicability of
the privilege to the documents at issue.
Fed.R.Civ.P. 26 advisory committee's note (1993);
Burlington N., 408 F.3d at 1147 & n. 2 (citations
omitted).

FN2. These are documents identified in the
August 5, 2008 privilege log at rows 2, 3,
5, 42, 93, 97-102, 110-113, 119, 122, 124,
126-128, 130, 131, 134, 136, 138, 140,
141, 144, 146, 148, 150, 153, 154, 157,
158, 161, 163, 165, 166, 168, 169,
177-185, 216, 217, 229-232, 235, 237-239,
241-243, 246-247, 251-259, 272, 276, 277,
279, 280-285, 287, 289, 290, 292, 294,
296, 302, 306-308, 312-314, 317-319, 323,
325, 341-343, 348, 351-353, 359, 373,
374, 382, 394-397, and 401. See Declaration of Maria V. Morris In Support of
Plaintiff's Motion for Discovery Sanctions,
Ex. I-L.

Here, the magistrate judge did not clearly err or
act contrary to law in concluding that the defendants' August 5, 2008 privilege log and accompanying declaration were inadequate to support defendants' assertion of the deliberative process privilege
FN2
for the 120 documents at issue.
The privilege

*3 Defendants attempted to remedy this deficiency with declarations that describe the documents with more detail and in general categories.
See Morris Decl., Ex. J-L. The magistrate judge
found, however, that the declarations provided inadequate support for defendants' assertion that the
confidentiality of each document had been preserved. Each declarant stated that the documents
referenced in the declaration had been “maintained
as privileged and confidential.” Morris Decl. Ex. J

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(Supplemental Declaration of Robert Gore In Support of Privilege Log of August 5, 2008, ¶¶ 6-9);
Ex. K (Supplemental Declaration of Ana Matosantos In Support of Privilege Log of August 5, 2008,
¶¶ 7-9); Ex. L (Supplemental Declaration of David
Runnels In Support of Privilege Log of August 5,
2008, ¶¶ 5-7). Although it may be unworkable to
require the defendants to detail extensively how
confidentiality was maintained for each document,
there is certainly ample support in this circuit for
the magistrate judge's conclusion that because the
declarants' assertions were conclusory and were not
supported by any facts, those assertions were insufficient to establish confidentiality. See, e.g., In re.
Grand Jury Investigation, 974 F.2d 1068, 1071 (9th
Cir.1992); Dole v. Milonas, 889 F.2d 885, 890 (9th
Cir.1989). The magistrate judge did not clearly err
or act contrary to law in this ruling.

in holding that defendants had not met their burden.

Finally, the magistrate judge did not err in his
conclusion that defendants' assertion of the deliberative process privilege was not supported by an in
camera review of the 313 documents for which it
was raised. Defendants do not address this aspect of
the magistrate judge's ruling, but appear to suggest
that a different result might be reached were the
court to consider only the 120 documents for which
they seek reconsideration. The magistrate judge's
method of considering the assertion of privilege by
reviewing a randomly-drawn sample of the documents is an appropriate one that has been approved
by the Ninth Circuit. Doyle v. F.B.I., 722 F.2d 554
(9th Cir.1983) (citing Stephenson v. I.R.S ., 629
F.2d 1140, 1144-46 (5th Cir.1980); see also
N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S.
214, 224, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)
(holding, in the FOIA context, that although the
court has discretion to review in camera documents
for which a privilege is asserted, “it ... does not
mandate that the documents be individually examined”). Although the defendants might believe
the magistrate judge would have reached a different
conclusion had it drawn a different sample of documents, that does not persuade us that the magistrate
judge acted clearly erroneously or contrary to law

*4 As the court has explained previously, the
magistrate judge's ruling does not merit reversal
simply because it fails to extensively detail its reasoning. See Order, June 17, 2008. Instead, reversal is
only warranted when “the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
U.S. Gypsum Co., 333 U.S. at 395. A review of the
privilege logs and supporting declarations alone
causes the court to conclude that the magistrate
judge's determination was proper.

B. Attorney-Client Privilege
The defendants also seek reconsideration of the
magistrate judge's order that defendants must produce twelve documents for which the attorney-client privilege had been asserted. These are documents E00100148, E00100274, E00100275,
E00100276,
E00100315,
E00100316
and
E00100346 from the defendants' June 10, 2008
privilege log and documents in rows 4, 171, and
364-366 from the August 5, 2008 privilege log. The
magistrate judge reviewed the relevant entries in
the privilege logs and read in camera all twelve
documents. See Order, August 29, 2008, at 4-5, 7.
The court concluded that defendants had failed to
establish that the attorney-client privilege applied
to the documents. Id. at 5, 7.

The attorney-client privilege attaches “(1)
[w]here 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 this
instance permanently protected (7) from disclosure
by himself or by the legal adviser, (8) unless the
protection be waived.”
Admiral Ins. v. United
States Dist. Ct. for Dist. of Ariz., 881 F.2d 1486,
1492 (9th Cir.1989). The privilege logs and the
FN3
supporting declarations
do not provide adequate information to permit a court to conclude
that this standard was met for each document. The
log entries for most of the documents do not indicate that the communication was made for the pur-

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pose of seeking legal advice. This includes documents E00100148, E00100274, E00100275,
E00100276, E00100315 and E00100316 of the June
10, 2008 logs and documents 4 and 171 of the August 5, 2008 log. The declarations supporting the
August 5, 2008 log do not address this. See Morris
Decl. Ex. J-L. Additionally, it appears that the recipient of documents 364-366 of the August 5,
2008 log is not an attorney and therefore the privilege, as asserted for these documents, fails. See
Morris Decl. ¶ 12. Finally, there is no indication
from the June 10, 2008 log that any of the documents at issue have been kept confidential. Taken
together, these deficiencies demonstrate that the
magistrate judge did not clearly err or act contrary
to law in ruling that these twelve documents must
be disclosed.
FN3. It appears that there were no declarations submitted in support of the June 10,
2008 privilege log. See Morris Decl. ¶¶ 3,
8.
C. Award of Discovery Expenses
Defendants also contend that the magistrate
judge acted clearly erroneously or contrary to law
in awarding discovery expenses to the plaintiffs.
The court does not agree.
As the magistrate judge explained, Federal
Rule of Civil Procedure 37(a)(5) allows expenses to
be awarded to a successful movant, so long as the
movant acted in good faith to obtain the disclosure
without court action, the opposing party's nondisclosure was not substantially justified, and the
award of expenses would be just. Here, there was
evidence to support the conclusion that plaintiffs attempted in good faith to seek the disclosures at issue prior to filing their motion for sanctions. Morris
Decl. ¶¶ 5-17. There is also evidence to support the
magistrate judge's determination that defendants
were not substantially justified in their nondisclosure of the documents at issue. As explained
above, the defendants failed to offer adequate detail
in their June 10, 2008 and August 8, 2008 logs to
permit the court to assess the privilege claim. This

is the same deficiency that the court has observed
with regard to defendants' earlier assertions of privFN4
ilege.
See Order, June 17, 2008 at 6; Order, July 8, 2008 at 6-7. The magistrate judge's award of
expenses was not improper.
FN4. Defendants' citation to Scott Paper
Co. v. Ceilcote Co., 103 F.R.D. 591, 598
(D.Me.1984) is unpersuasive because in
that case the circuit had no definitive rule
for showing that the work product privilege applied. Here, the rules of the Ninth
Circuit are clear as to the deliberative process issue and have been described to the
defendants in several prior orders.
D. Motion to Stay
*5 Finally, although the defendants titled their
motion a motion for reconsideration or, alternatively, a stay of the magistrate judge's order, they
did not address the factors guiding the court in determining whether a stay is proper nor made any
showing in this regard. A district court has discretion to stay its order, pending appeal, upon consideration of, “(1) whether the stay applicant has made
a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies.” Hilton v. Braunskill, 481 U.S. 770,
776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Here,
at a minimum, defendants have not made a strong
showing that they would succeed on the merits of a
review of the magistrate judge's order. See Golden
Gate Restaurant Ass'n. v. City and County of San
Francisco, 512 F.3d 1112, 1115-16 (9th Cir.2008).
The motion to stay is denied.
IV. Conclusion
For the reasons stated herein, defendants' request for reconsideration of the magistrate judge's
August 29, 2008 ruling or, alternatively, request for
a stay of that order is DENIED.
IT IS SO ORDERED.

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N.D.Cal.,2008.
Coleman v. Schwarzenegger
Not Reported in F.Supp.2d, 2008 WL 4415324
(N.D.Cal.)
END OF DOCUMENT

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