Brinker v. Normandin's
Filing
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Order on Discovery Dispute Joint Report 1 60 by Magistrate Judge Howard R. Lloyd. (hrllc1S, COURT STAFF) (Filed on 1/22/2016)
E-Filed 1/22/16
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ALAN BRINKER,
Case No. 14-cv-03007-EJD (HRL)
Plaintiff,
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v.
ORDER ON DISCOVERY DISPUTE
JOINT REPORT 1
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NORMANDIN'S, et al.,
Re: Dkt. No. 60
Defendants.
United States District Court
Northern District of California
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Alan Brinker (“Brinker”) sues Normandin’s d/b/a Normandin Chrysler Jeep Dodge Ram
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(“Normandin”) and OneCommand, Inc. in this class-action for alleged violations of the Telephone
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Consumer Protection Act, 47 USC § 227 et seq (“TCPA”). Normandin provided Brinker a
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privilege log which identified certain documents Normandin did not intend to produce. Brinker
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disputed whether some of those documents could properly be withheld. Brinker and Normandin
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attempted to resolve the dispute but they were unable to do so. The parties therefore filed
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discovery dispute joint report (“DDJR”) 1.
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Brinker claims three different types of documents have been improperly withheld: (1)
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documents withheld for “Privacy” and “Trade Secret” reasons; (2) documents withheld on the
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basis of attorney-client privilege but that are not communications between attorneys and clients;
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and (3) documents withheld on the basis of attorney-client privilege but that were also sent to non-
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clients.
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document purportedly protected by attorney-client privilege without making any showing that the
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work-product doctrine applies to any of them. Normandin responds: (1) documents which contain
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client email addresses, usernames, and passwords should not be produced because those are
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protected trade secrets; (2) Normandin did not previously explain why the work-product doctrine
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applies because “plaintiff did not appear to desire an explanation”; (3) Joshua Jouvenat
Brinker also argues Normandin has invoked the work-product doctrine for every
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(“Jouvenat”), an employee for a third-party vendor, also worked as an ESI consultant to create
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some of the withheld documents “in anticipation of litigation and as a direct result of ongoing
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litigation to prepare defenses for Normandin”; (4) attorney-client privilege attaches to
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communications involving Jouvenat because “[h]is use as a consultant on matters requested by
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counsel also includes communications with Normandin employees”; (5) attorney-client privilege
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attaches to internal discussions between Normandin employees about privileged communications;
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and (6) “Plaintiff has failed to meet his burden[.]”
Discussion
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As an initial matter, the court rejects nearly all of Normandin’s work-product designations
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for a lack of supporting facts. Normandin has the burden to prove each “work product” document
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United States District Court
Northern District of California
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was generated “in anticipation of litigation or for trial[.]” Fed. R. Civ. P. 26(b)(3)(A); e.g.,
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Hernandez v. Tanninen, 604 F.3d 1095, 1102 (9th Cir. 2010). Every single document designated
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as privileged was also labeled as work product, seemingly as a matter of course. Normandin
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recites legal standards, Dkt. No. 60 at 8, but makes no factual argument to support most of these
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work-product designations. The privilege log is too vague to make up for the deficiency in
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Normandin’s portion of the DDJR. For instance, Mark Normandin sent Paul Normandin an email
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about “Gonzales” on February 4, 2015—Normandin asks the court to conclude from solely those
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facts that the email is protected work product prepared in anticipation of litigation or for trial. The
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court is not persuaded by the low degree of detail Normandin provides for most of its work-
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product designations.
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Normandin brings only one colorable factual argument to support a subset of the work-
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product designations: Jouvenat “generated” work-product emails in his capacity as an ESI
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consultant. Dkt. No. 60 at 8. Brinker responds that Normandin initially identified Jouvenat only
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as an employee for a third-party company and that Normandin did not claim Jouvenat as a
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consultant when the parties attempted to resolve these discovery disputes. Id. at 3, 6. Normandin
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admits it did not identify Jouvenat as a consultant when the parties discussed these disputes, but
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Normandin argues that should not matter because “plaintiff did not appear to desire an
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explanation.” Id. at 7. That claim seems disingenuous. The court requires parties to meet and
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confer when they have discovery disputes so that they may explain their positions to each other
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and then seek common ground. The court is skeptical of the key factual claim—Jouvenat is a
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consultant for counsel who generated work-product emails—because Normandin conveniently
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raises that claim for the first time with the court instead of during the party-to-party discussions
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that were supposed to either resolve or else narrow the scope of these discovery disputes.
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Normandin’s opportunistic claim fails to persuade the court that Jouvenat was actually retained as
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a consultant and tasked with the creation of work product. Normandin has not carried its burden
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of proof for any work-product designation and the court therefore rejects all of them.
Normandin provides no legal authority to support its decision to withhold “Privacy; Trade
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Secret” documents. In fact, Normandin does not discuss privacy at all in its portion of DDJR 1.
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United States District Court
Northern District of California
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Normandin instead argues only, with respect to these documents, that the disclosure of the
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usernames and passwords for proprietary software “would . . . violate trade secret information of a
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third party vendor” and that “there is no reason for plaintiff” to see those login credentials. Dkt.
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No. 60 at 7. Normandin provides no further details and no legal explanation for how that vague
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factual claim might matter here. Brinker has expressed, however, that he would be satisfied by the
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production of the “Privacy; Trade Secret” documents with the passwords redacted, id. at 4, and
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Normandin makes no argument for why the other information in those documents should be
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withheld.
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credentials redacted—this shall permit Normandin to withhold the information in those documents
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that Normandin has asked to withhold, and Brinker shall receive the subset of information that he
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actually seeks.
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confidential documents subject to the terms of the protective order that governs this case.
Normandin shall produce the “Privacy; Trade Secret” documents with any login
Normandin shall also treat those documents, to the extent appropriate, as
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The federal common law governs privilege claims in federal court when that claim does
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not relate to a “claim or defense for which state law supplies the rule of decision.” Fed. R. Evid.
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501. Federal law supplies the rule of decision in this case and the federal common law therefore
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governs Normandin’s attorney-client privilege claim.
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attorney-client privilege applies to withheld documents. See, e.g., Hernandez v. Tanninen, 604
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F.3d 1095, 1102 (9th Cir. 2010). Federal privilege claims should be narrowly construed to serve
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Normandin has the burden to prove
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their underlying purposes. In re Pacific Pictures Corp., 679 F.3d 1121, 1126-27 (9th Cir. 2012).
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Attorney-client privilege exists in order to encourage frank conversations between attorneys and
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clients. Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Voluntary disclosure to a third party
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shows a client is comfortable discussing the disclosed information in situations less private than an
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attorney-client communication, and the privilege does not serve its underlying purpose when
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applied to information a client is already comfortable discussing in less private contexts. Pacific,
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679 F.3d at 1126-27. The voluntary disclosure of a privileged communication to a third party
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“will [therefore] generally destroy” the attorney-client privilege for that communication. Id.
Normandin argues privilege applies to confidential attorney-client communications which
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are contained in emails between Normandin’s employees. Dkt. No. 60 at 8. The court agrees that
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United States District Court
Northern District of California
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attorney-client privilege is not waived as to a particular communication when Normandin
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employees share that communication with each other. Still, attorney-client privilege prevents the
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disclosure of particular “communications” sent between attorneys and clients as opposed to the
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“disclosure of . . . underlying facts by those who communicated with the attorney[.]” Upjohn, 449
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U.S. at 395.
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communication does not extend privileged status to other facts or statements that are also
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contained within the non-privileged email.
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discovery of a non-privileged internal email simply by attaching a copy of a privileged
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communication. Normandin has made no other argument to justify the retention of these internal
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emails. Normandin shall therefore produce the purely internal emails it has withheld on attorney-
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client
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communications contained within them.
The mere fact that a non-privileged email contains a copy of a privileged
privilege
grounds, but
Parties might otherwise frustrate the eventual
Normandin
may redact
any privileged
attorney-client
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Normandin also argues that Federal Rule of Civil Procedure 26(b)(3)(A) attaches attorney-
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client privilege to all emails sent to or written by a consultant hired by counsel. Dkt. No. 60 at 8.
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True, attorney-client privilege may sometimes attach to communications if a consultant created
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them for the primary or predominant purpose of facilitating the provision of legal advice, North
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Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1127 (N.D. Cal. 2003), but Normandin has
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argued only that Jouvenat was hired to provide technical assistance to counsel. Normandin also
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misunderstands subsection (b)(3)(A)—it codifies the work-product doctrine, but it does not
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expand the distinct, common-law scope of attorney-client privilege. Normandin has therefore
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failed to show that attorney-client privilege attaches to any of the emails sent or received by
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Jouvenat.
The court notes that the scope of discovery permitted under Federal Rule of Civil
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Procedure 26 changed while this DDJR was pending. Parties may now obtain discovery, in
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general, on “any nonprivileged matter that is” both: (1) “relevant” to any claim or defense; and (2)
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“proportional to the needs of the case, considering the importance of the issues at stake in the
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action, the amount in controversy, the parties’ relative access to relevant information, the parties’
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resources, the importance of the discovery in resolving the issue, and whether the burden or
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United States District Court
Northern District of California
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expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). This
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class action for statutory damages under the TCPA may eventually result in a substantial
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settlement or damages award. Brinker requests the production of certain documents that are likely
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to be relevant to liability; Normandin has not shown that it may rightly withhold those documents
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on any basis. Normandin considers the number of documents at issue in this DDJR to be “very
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small” in the context of this case. Dkt. No. 60 at 9. The court concludes that the materials
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requested by Brinker are relevant and that the burden of producing those materials would be
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proportional to the needs of this case.
Conclusion
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By February 20, 2016, Normandin shall produce the documents requested by Brinker in
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DDJR 1. Normandin may redact the customer login credentials contained within the requested
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“Privacy; Trade Secret” documents. Normandin may also redact any privileged attorney-client
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communications that are copied within other produced documents. Normandin shall provide a
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supplemental privilege log to show any redactions are justified.
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IT IS SO ORDERED.
Dated: 1/22/16
________________________
HOWARD R. LLOYD
United States Magistrate Judge
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