Lanovaz v. Twinings North America, Inc

Filing 198

ORDER re 137 Discovery Dispute Joint Report No. 1. Signed by Magistrate Judge Howard R. Lloyd on 3/11/2016. (hrllc2, COURT STAFF) (Filed on 3/11/2016)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 NANCY LANOVAZ, 12 Case No. 5:12-cv-02646-RMW (HRL) Plaintiff, 13 ORDER RE DISCOVERY DISPUTE JOINT REPORT NO. 1 v. 14 TWININGS NORTH AMERICA, INC, 15 Defendant. 16 Plaintiff previously challenged defendant’s claim of attorney-client privilege as to some 65 17 18 documents listed on defendant’s privilege log. Plaintiff pointed out that certain privilege log 19 entries contained no author or recipient.1 As to other documents, plaintiff argued that the privilege 20 was waived because they apparently were sent to persons not employed by defendant.2 Certain 21 other entries were challenged on the ground that no attorney was identified.3 As to this last 22 category, this court ruled that defendant correctly noted that the privilege applies to “a 23 communication between nonlegal employees in which the employees discuss or transmit legal 24 advice given by counsel.” Dkt. 168 at 2 (quoting United States v. ChevronTexaco Corp., 241 F. 25 1 PRIV_TW004-5, 13-17, 22-24, 39, and 63-64. 2 PRIV_TW001-3, 6-8, 26-29, 32, 35, 38, 44, 68, 71, 77-78, 80, 95, 107-109 and 114. 26 27 3 28 PRIV_TW030-31, 33, 36-37, 65-67, 70, 72, 76, 81-84, 88-89, 90, 92-93, 96-97, 105, 110, 112, 116-117, and 124-125. 1 Supp.2d 1065, 1077 (N.D. Cal. 2002). Nevertheless, the court stated that entries for 2 PRIV_TW090 and 112 should identify the email recipients. Id. Although this court questioned the relevance of the challenged documents, it agreed to 3 4 conduct an in camera review. Meanwhile, defendant served a supplemental privilege log 5 providing more information about the withheld documents, and the court directed the parties to 6 submit supplemental briefing. Additional issues having been raised in the supplemental briefing, 7 this court ordered defendant to lodge additional documents4 for review and directed the parties to 8 submit further briefing. Based on its review of all the lodged documents, as well as the parties’ 9 briefs and supplemental briefs, this court rules as follows: Plaintiff now agrees that PRIV_TW109 and 114 properly have been withheld as 10 United States District Court Northern District of California 11 privileged. In any event, having reviewed the documents in the interim, this court finds that they 12 are privileged. Additionally, plaintiff now states she has no objection to the privilege claims re 13 14 PRIV_TW011 and PRIV_TW020. And, having reviewed those documents, as well as the 15 associated attachments (PRIV_TW013-17, 22-24) this court agrees that all of these documents are 16 privileged. Plaintiff maintains that the privilege has been waived as to communications involving 17 18 persons not employed by defendant---namely, employees of Twinings London, National 19 Importers, Fluid Communications, and ACH Food Companies. Additionally, plaintiff continues to 20 challenge entries that she says still do not adequately identify the authors or recipients of the 21 documents. As to the majority of the remaining documents at issue, plaintiff argues that the privilege 22 23 has been waived because they included employees of Twinings London. This court previously 24 found that plaintiff offered no basis to challenge defendant’s assertion of the joint client privilege 25 or the common interest exception to waiver. (Dkt. 168 at 2:6-10). See generally Nidec Corp. v. 26 Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). Having reviewed the documents, this 27 4 28 PRIV_TW011 and 20. 2 1 court concludes that they properly have been withheld as privileged on this basis. Defendant’s 2 privilege claims are not inconsistent with deposition testimony of Karen Maroli, defendant’s Vice 3 President of Marketing. 4 Defendant says that National Importers is its exclusive distributor in Canada. (Dkt. 194-1, 5 Martin Decl. ¶ 4). The challenged documents (PRIV_TW001-3) corroborate defendant’s claim 6 that Henry Evans (formerly employed by National Importers) was intimately involved in assisting 7 defendant’s counsel to render advice to Twinings on legal matters and essentially functioned as 8 Twinings’ agent. These communications therefore are privileged. And, even if the privilege did 9 not apply, this court fails to see how these documents have any bearing on the issues in this case. 10 United States District Court Northern District of California 11 Fed. R. Civ. P. 26(b)(1). Defendant identifies Fluid Communications as an outside consultant hired by Twinings to 12 address regulatory and labeling issues. (Martin Decl., ¶ 5). Review of the documents 13 (PRIV_TW006-8) corroborates this claim. Further, the communications demonstrate that Fluid 14 Communications provided information to assist defendant’s counsel in rendering advice to 15 Twinings on legal matters, not merely for business purposes. These communications are 16 privileged. 17 Defendant identifies ACH Food Companies as a related corporate entity to Twinings that 18 shares the same legal counsel. (Martin Decl. ¶ 6). Review of the documents (PRIV_TW068) 19 corroborates this claim. These communications are privileged. 20 With respect to those documents that were challenged on the ground that no attorney was 21 identified, this court finds that they properly have been withheld as privileged. As for documents 22 that continue to provide no specific author or recipient information (PRIV_TW039, 63-64, 90, 23 112), this court concludes that they, too, are privileged: 24 Based on review of surrounding document PRIV_TW038, PRIV_TW039 is privileged. 25 For the reasons discussed above, Document 38 is privileged and the privilege has not been waived. 26 Without disclosing details, Document 39 appears to be notes following on from communications 27 with counsel as to matters identified in Document 38. And, it is also apparent to this court that the 28 author of those notes was one of the identified participants in those discussions. PRIV_TW039 3 1 2 properly has been withheld as privileged. For PRIV_TW063-64, defendant’s supplemental privilege log identifies the author only as 3 “Outside Counsel.” However, it is readily apparent from review of these documents that the 4 information being conveyed to the identified Twinings recipient is legal advice re labeling issues. 5 These documents are privileged. 6 As for PRIV_090 and 112, review confirms that both are emails forwarding privileged 7 communications with defendant’s counsel. Defendant says that it is unable to identify the 8 recipient(s) of these emails, although the supplemental privilege log suggests that Document 90 is 9 an email that Hoffman may have forwarded to herself. As for Document 112, the content of the document suggests that Hoffman was relaying legal advice from defendant’s counsel to others 11 United States District Court Northern District of California 10 within Twinings who were involved in the matters for which legal advice was solicited. On this 12 record, this court is unprepared to find that the privilege has been waived. 13 “Under the crime-fraud exception, communications are not privileged when the client 14 consults an attorney for advice that will serve him in the commission of a fraud or crime.” In re 15 Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016) (citation omitted). To invoke the 16 crime-fraud exception, Lanovaz must show that (1) Twinings “was engaged in or planning a 17 criminal or fraudulent scheme when it sought the advice of counsel to further the scheme” and (2) 18 “the attorney-client communications for which production is sought are sufficiently related to and 19 were made in furtherance of [the] intended, or present, continuing illegality.” Id. (citation 20 omitted). As to all of the documents submitted for review, this court concludes that the crime- 21 fraud exception does not apply. 22 Defendant need not produce any of the challenged documents. 23 SO ORDERED. 24 Dated: March 11, 2016 25 26 HOWARD R. LLOYD United States Magistrate Judge 27 28 4 1 2 3 4 5 5:12-cv-02646-RMW Notice has been electronically mailed to: Ben F. Pierce Gore,,,,, Brian K Herrington,, 6 Charles F. Barrett 7 Claudia Maria Vetesi 8 J. Price Coleman 9 10 United States District Court Northern District of California 11,, William Francis Tarantino William Lewis Stern,,, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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