Integrated Global Concepts, Inc v. J2 Global, Inc et al

Filing 146

ORDER by Judge Ronald M Whyte denying 145 Motion for Relief (rmwlc2, COURT STAFF) (Filed on 4/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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INTEGRATED GLOBAL CONCEPTS, INC.
Plaintiff,

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Case No. C-12-03434-RMW
ORDER DENYING DEFENDANT’S
MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL
ORDER

v.
j2 GLOBAL, INC. AND ADVANCED
MESSAGING TECHNOLOGIES, INC.,

[Re: Docket No. 145]
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Defendant.

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After reviewing the plaintiff IGC’s papers, the court agrees with Magistrate Judge Grewal

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that defendant j2 did not waive its attorney-client privilege over Mr. Morosoff’s documents. IGC

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makes four arguments challenging Judge Grewal’s order: (1) Judge Grewal erred in considering

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evidence that j2 submitted after the hearing; (2) Judge Grewal did not address specific challenges

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that IGC made to Mr. Morosoff’s privilege log; (3) j2 waived its privilege by failing to disclose the

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documents on its own privilege log and producing Mr. Morosoff’s log in an untimely manner; and

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(4) j2 waived its privilege by allowing Mr. Morosoff to store j2 documents on a third party server.

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None of these arguments is persuasive. First, it was not a denial of due process to consider

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the post-hearing evidence and Judge Grewal’s decision was not dependent on that evidence.

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Attorney-client privilege may extend beyond a formal employment agreement. United States v.
ORDER
Case No. C-12-03434-RMW

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Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977) (Confidential communications had between [client]

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and his former counsel retain the protection of the attorney-client privilege beyond the termination

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of the attorney-client relationship.”). Furthermore, former employees may be covered by attorney-

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client privilege when they are communicating with corporate counsel. See In re Coordinated

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Pretrial Proceedings in Petroleum Products Antitrust Litig., 658 F.2d 1355, 1361 (9th Cir. 1981)

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(“Former employees, as well as current employees, may possess the relevant information needed by

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corporate counsel to advise the client with respect to actual or potential difficulties.”).

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Second, the specific challenges IGC articulated in its reply brief were without merit. Dkt.
No. 119 at 12. IGC complained that some entries on the privilege log involved a “press release”

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United States District Court
For the Northern District of California

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which could not be privileged. The actual entry reads “. . . confidential communication reflecting

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legal advice of counsel regarding press release.” Dkt. No. 145-7 at 16 (Morosoff privilege log). This

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contains enough explanation to satisfy j2’s burden. Similarly, IGC’s complaints about not being

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able to identify the parties on the log who sought legal advice from Mr. Morosoff is not a basis to

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require j2 to turn over those documents.

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IGC’s waiver arguments also fail. j2 did not waive its privilege by allowing Mr. Morosoff to

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store his emails and other documents on a third party server. Cal. Evid. Code § 917(b) (attorney-client

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communications do not lose their privileged character “for the sole reason that [they are] communicated

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by electronic means or because persons involved in the delivery, facilitation, or storage of electronic

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communications may have access to the content of the communication[s].”) (emphasis added). Finally,

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IGC’s delay argument is not persuasive because Mr. Morosoff produced his log pursuant to IGC’s

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subpoena, although it was supplemented to comply with a later-issued Order. See Dkt. No. 112-1 at 5 (j2

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Opp. to Motion to Compel).

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Accordingly, the motion for relief is DENIED.

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Dated: April 9, 2014

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_________________________________
RONALD M. WHYTE
United States District Judge

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ORDER
Case No. C-12-03434-RMW

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