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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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NANCY LANOVAZ,

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Case No. 5:12-cv-02646-RMW (HRL)

Plaintiff,

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ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1

v.

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TWININGS NORTH AMERICA, INC,

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Defendant.

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Plaintiff previously challenged defendant’s claim of attorney-client privilege as to some 65

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documents listed on defendant’s privilege log. Plaintiff pointed out that certain privilege log

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entries contained no author or recipient.1 As to other documents, plaintiff argued that the privilege

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was waived because they apparently were sent to persons not employed by defendant.2 Certain

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other entries were challenged on the ground that no attorney was identified.3 As to this last

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category, this court ruled that defendant correctly noted that the privilege applies to “a

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communication between nonlegal employees in which the employees discuss or transmit legal

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advice given by counsel.” Dkt. 168 at 2 (quoting United States v. ChevronTexaco Corp., 241 F.

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PRIV_TW004-5, 13-17, 22-24, 39, and 63-64.

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PRIV_TW001-3, 6-8, 26-29, 32, 35, 38, 44, 68, 71, 77-78, 80, 95, 107-109 and 114.

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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.

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Supp.2d 1065, 1077 (N.D. Cal. 2002). Nevertheless, the court stated that entries for

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PRIV_TW090 and 112 should identify the email recipients. Id.
Although this court questioned the relevance of the challenged documents, it agreed to

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conduct an in camera review. Meanwhile, defendant served a supplemental privilege log

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providing more information about the withheld documents, and the court directed the parties to

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submit supplemental briefing. Additional issues having been raised in the supplemental briefing,

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this court ordered defendant to lodge additional documents4 for review and directed the parties to

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submit further briefing. Based on its review of all the lodged documents, as well as the parties’

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briefs and supplemental briefs, this court rules as follows:
Plaintiff now agrees that PRIV_TW109 and 114 properly have been withheld as

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United States District Court
Northern District of California

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privileged. In any event, having reviewed the documents in the interim, this court finds that they

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are privileged.
Additionally, plaintiff now states she has no objection to the privilege claims re

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PRIV_TW011 and PRIV_TW020. And, having reviewed those documents, as well as the

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associated attachments (PRIV_TW013-17, 22-24) this court agrees that all of these documents are

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privileged.
Plaintiff maintains that the privilege has been waived as to communications involving

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persons not employed by defendant---namely, employees of Twinings London, National

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Importers, Fluid Communications, and ACH Food Companies. Additionally, plaintiff continues to

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challenge entries that she says still do not adequately identify the authors or recipients of the

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documents.
As to the majority of the remaining documents at issue, plaintiff argues that the privilege

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has been waived because they included employees of Twinings London. This court previously

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found that plaintiff offered no basis to challenge defendant’s assertion of the joint client privilege

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or the common interest exception to waiver. (Dkt. 168 at 2:6-10). See generally Nidec Corp. v.

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Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). Having reviewed the documents, this

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PRIV_TW011 and 20.
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court concludes that they properly have been withheld as privileged on this basis. Defendant’s

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privilege claims are not inconsistent with deposition testimony of Karen Maroli, defendant’s Vice

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President of Marketing.

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Defendant says that National Importers is its exclusive distributor in Canada. (Dkt. 194-1,

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Martin Decl. ¶ 4). The challenged documents (PRIV_TW001-3) corroborate defendant’s claim

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that Henry Evans (formerly employed by National Importers) was intimately involved in assisting

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defendant’s counsel to render advice to Twinings on legal matters and essentially functioned as

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Twinings’ agent. These communications therefore are privileged. And, even if the privilege did

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not apply, this court fails to see how these documents have any bearing on the issues in this case.

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United States District Court
Northern District of California

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Fed. R. Civ. P. 26(b)(1).
Defendant identifies Fluid Communications as an outside consultant hired by Twinings to

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address regulatory and labeling issues. (Martin Decl., ¶ 5). Review of the documents

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(PRIV_TW006-8) corroborates this claim. Further, the communications demonstrate that Fluid

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Communications provided information to assist defendant’s counsel in rendering advice to

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Twinings on legal matters, not merely for business purposes. These communications are

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privileged.

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Defendant identifies ACH Food Companies as a related corporate entity to Twinings that

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shares the same legal counsel. (Martin Decl. ¶ 6). Review of the documents (PRIV_TW068)

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corroborates this claim. These communications are privileged.

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With respect to those documents that were challenged on the ground that no attorney was

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identified, this court finds that they properly have been withheld as privileged. As for documents

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that continue to provide no specific author or recipient information (PRIV_TW039, 63-64, 90,

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112), this court concludes that they, too, are privileged:

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Based on review of surrounding document PRIV_TW038, PRIV_TW039 is privileged.

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For the reasons discussed above, Document 38 is privileged and the privilege has not been waived.

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Without disclosing details, Document 39 appears to be notes following on from communications

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with counsel as to matters identified in Document 38. And, it is also apparent to this court that the

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author of those notes was one of the identified participants in those discussions. PRIV_TW039
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properly has been withheld as privileged.
For PRIV_TW063-64, defendant’s supplemental privilege log identifies the author only as

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“Outside Counsel.” However, it is readily apparent from review of these documents that the

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information being conveyed to the identified Twinings recipient is legal advice re labeling issues.

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These documents are privileged.

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As for PRIV_090 and 112, review confirms that both are emails forwarding privileged

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communications with defendant’s counsel. Defendant says that it is unable to identify the

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recipient(s) of these emails, although the supplemental privilege log suggests that Document 90 is

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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

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United States District Court
Northern District of California

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within Twinings who were involved in the matters for which legal advice was solicited. On this

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record, this court is unprepared to find that the privilege has been waived.

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“Under the crime-fraud exception, communications are not privileged when the client

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consults an attorney for advice that will serve him in the commission of a fraud or crime.” In re

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Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016) (citation omitted). To invoke the

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crime-fraud exception, Lanovaz must show that (1) Twinings “was engaged in or planning a

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criminal or fraudulent scheme when it sought the advice of counsel to further the scheme” and (2)

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“the attorney-client communications for which production is sought are sufficiently related to and

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were made in furtherance of [the] intended, or present, continuing illegality.” Id. (citation

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omitted). As to all of the documents submitted for review, this court concludes that the crime-

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fraud exception does not apply.

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Defendant need not produce any of the challenged documents.

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SO ORDERED.

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Dated: March 11, 2016

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HOWARD R. LLOYD
United States Magistrate Judge

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5:12-cv-02646-RMW Notice has been electronically mailed to:
Ben F. Pierce Gore [e-mail], [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]
Brian K Herrington [e-mail], [e-mail],
[e-mail]

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Charles F. Barrett

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Claudia Maria Vetesi

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J. Price Coleman

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United States District Court
Northern District of California

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[e-mail], [e-mail]
[e-mail], [e-mail]

[e-mail]

William Francis Tarantino

[e-mail]

William Lewis Stern [e-mail], [e-mail], [e-mail],
[e-mail]

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