In re: Third Party Subpoenas Issued to Rambus, Inc., and Rambus Delaware LLC

Filing 31

Discovery Order. Signed by Judge Nathanael Cousins on 11/21/2014. (nclc1S, COURT STAFF) (Filed on 11/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In re: Third Party Subpoenas Issued to
RAMBUS, INC., AND RAMBUS
DELAWARE LLC

Case No. 14-mc-80293 EJD (NC)

INNOVATIVE DISPLAY TECHNOLOGIES
LLC,

ORDER RE: DISCOVERY

Plaintiff,

Re: Dkt. No. 1

v.
ACER INC., ET AL.,
Defendants.
Before the Court is Dell’s motion to compel compliance with a subpoena issued to
Rambus. Dkt. No. 1. Rambus asserts that certain documents Dell seeks are covered by
the attorney-client privilege and the work-product doctrine. At a hearing held on
November 17, 2014, the Court ordered Rambus to fix deficiencies on the face of its
privilege log, produce a subset of documents discussed, and submit additional briefing
concerning documents it asserts are covered by the work-product doctrine.
I. Attorney-Client Privilege
The attorney-client privilege protects from discovery “confidential
communications between attorneys and clients, which are made for the purpose of giving

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ORDER RE: DISCOVERY
Case No. 14-mc-80293 EJD (NC)

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legal advice.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citation

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omitted). The privilege attaches when “(1) legal advice of any kind is sought (2) from a

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professional legal adviser in his capacity as such, (3) the communications relating to that

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purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently

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protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection

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be waived.” Id. (internal quotations omitted). The privilege is strictly construed. United

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States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). Thus, if the advice sought from the

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professional legal advisor is not legal advice, the privilege does not apply. Richey, 632

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F.3d at 566 (citation omitted).

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A party can establish that the privilege applies through a privilege log. This log

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must contain at least: (a) the attorney and client involved, (b) the nature of the document,

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(c) all persons or entities shown on the document to have received or sent the document,

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and (d) the date the document was generated, prepared, or dated. In re Grand Jury

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Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992); AT&T Corp. v. Microsoft Corp., No.

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02-cv-0164 MHP (JL), 2003 WL 21212614, at *2 (N.D. Cal. Apr. 18, 2003).

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Here, both Rambus’ initial and amended privilege logs contain deficiencies. The

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amended log still lists documents that do not identify the attorney or law firm involved in

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the communication. Numerous entries also fail to indicate whether the document consists

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of an actual communication between attorney and client. See, e.g., Dkt No. 14-5 at 38

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(Control Number RAMHCINT00008620 describes document “prepared at direction of

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counsel” and involving “Rambus’ overall corporate licensing and enforcement strategy,”

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but identifies non-attorney Laura Stark in the “From” column and “File” in the “To”

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column). Documents prepared at the direction of counsel may qualify for work product

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protection, but unless a document consists of a “confidential communication,” Rambus

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improperly asserts attorney-client privilege. See Rutter Group Prac. Guide Fed. Civ.

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Trials & Ev. Ch. 8H-B (“Only ‘confidential communications’ are protected. Thus clients

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cannot rest on the privilege to bar questions about facts known to them before they

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consulted with counsel or facts made known to them ‘between and after’ their
ORDER RE: DISCOVERY
Case No. 14-mc-80293 EJD (NC)

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consultations with counsel.”).
Furthermore, merely sharing a document with counsel does not automatically make

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that document privileged. See Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d

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284, 300 n.57 (5th Cir. 2010) (“[T]urning documents over to one’s lawyer does not

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automatically cloak those documents in attorney-client privilege.”); United States v.

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Robinson, 121 F.3d 971, 975 (5th Cir. 1997) (“It goes without saying that documents do

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not become cloaked with the lawyer-client privilege merely by the fact of their being

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passed from client to lawyer.”).

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In other words, it is not good enough for Rambus to list a document that it shared

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with counsel in the privilege log as “privileged” on the basis of it being passed from client

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to lawyer; Rambus must provide an independent basis for why that document itself is

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covered by the attorney-client privilege or some other privilege.

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In short, the Court orders Rambus to submit to Dell another amended privilege log

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in accordance with this order. Rambus must produce this privilege log to Dell within

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seven days. Otherwise, Rambus must also produce within seven days documents that fail

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to conform to the standards for attorney-client privilege outlined in this order.

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II. Work Product

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At the discovery hearing, the Court also ordered the following:

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• Rambus must produce all documents not covered by the work-product

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doctrine created between 2009 and September 11, 2012 by November 18,

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2014.

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• Rambus also brought up a subset of documents created by and for another

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entity before or in 2009. Rambus claims that though the documents are now

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in its possession, they are protected by the work-product doctrine because

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the entity that created them did so in anticipation of litigation. However,

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neither Dell nor Rambus has briefed this issue. Accordingly, Rambus must

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identify where these documents are in the privilege log, and submit to the

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Court a supplemental brief and declaration explaining why the Court should
ORDER RE: DISCOVERY
Case No. 14-mc-80293 EJD (NC)

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not compel production of these documents. Rambus must submit this brief

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and accompanying declaration to the Court by Monday, November 24.

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Dell’s response is due Wednesday, November 26.

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• Rambus may also submit additional briefing over the issue of whether or not

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the deposition of Laura Stark, Rambus’ 30(b)(6) witness, establishes that the

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work-product privilege attaches to certain documents in Rambus’ possession

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after September 11, 2012. Rambus must also submit this brief and any

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accompanying declarations to the Court by Monday, November 24. Again,

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Dell’s response is due Wednesday, November 26.

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IT IS SO ORDERED.

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Date: November 21, 2014

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_________________________
Nathanael M. Cousins
United States Magistrate Judge

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ORDER RE: DISCOVERY
Case No. 14-mc-80293 EJD (NC)

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