Klein et al v. Facebook, Inc.

Filing 153

ORDER by Magistrate Judge Virginia K. DeMarchi re 135 August 20, 2021 Discovery Dispute re Privilege Protocol. (vkdlc2S, COURT STAFF) (Filed on 9/15/2021)

Case 5:20-cv-08570-LHK Document 153 Filed 09/15/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MAXIMILIAN KLEIN, et al.,
Plaintiffs,

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v.

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United States District Court
Northern District of California

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Case No. 20-cv-08570-LHK (VKD)

FACEBOOK, INC.,
Defendant.

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ORDER RE AUGUST 20, 2021
DISCOVERY DISPUTE RE
PRIVILEGE PROTOCOL
Re: Dkt. No. 135

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The parties ask the Court to resolve several disputes concerning how claims of privilege

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and work product protection should be handled. Dkt. No. 135. The Court held a hearing on these

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disputes on August 31, 2021. Dkt. Nos. 142, 146. Thereafter, the parties conferred further and

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resolved their dispute about the timing for the exchange of privilege logs. Dkt. No. 148.

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This order resolves the remaining disputes concerning the handling of privileged and
protected documents.

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1.

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The parties agree that neither side must include in a privilege log attorney-client

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communications and attorney work product that post-dates the filing of the first complaint in the

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related actions. Dkt. No. 135 at 3. They disagree about whether Facebook must also log

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privileged and protected documents the post-date the opening of the FTC investigation of

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Facebook in June 2019 and that relate to the “subject matter” of this action. Id. Plaintiffs argue

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that Facebook should be required to log these documents so that any claims of privilege or

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protection can be assessed. Facebook argues that these documents are as likely to be privileged

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and protected as documents that post-date the complaint and it would be unduly burdensome to

Exclusions from Logging

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have to log them.
The Court has considered the parties’ written submissions on this point as well as the

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extended discussion of the issue at the hearing. Facebook clarified at the hearing that it is not

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advocating that it be relieved of the obligation to log any documents after June 2019, but only

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those documents relating to the FTC investigation and other related government investigations.

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See Dkt. No. 146 at 86:25-87:17; 90:18-91:11. The Court expects that a significant number of

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responsive documents between June 2019 and the date the first complaint was filed in December

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2020 will qualify as privileged or protected because they will consider advice of counsel and

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counsel’s work product related to the FTC investigation. However, neither of Facebook’s
proposals—its original proposal for Section 2B of the privilege protocol and the clarified proposal

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United States District Court
Northern District of California

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at the hearing—is very well-defined. The term “subject matter” is too broad and amorphous to be

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useful. Similarly, it is not clear how Facebook will determine whether a particular document

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“relates to” the FTC investigation or other investigations. The Court appreciates plaintiffs’

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suggestion that a possible compromise might be to allow Facebook to avoid logging only those

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documents that specifically reference the FTC investigation and also involve outside counsel. Id.

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at 85:7-14. But even that suggestion may be difficult to implement in practice. See id. at 95:3-21.

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Facebook advises that it intends to make its privilege and work product determinations in

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good faith on a document-by-document basis. Id. at 95:23-96:7. It proposes only to be relieved of

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the burden of logging. In view of the Court’s resolution below of the parties’ dispute about what

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information the privilege log requires, the Court expects that the burden of logging responsive

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documents that post-date June 2019 will be substantially mitigated.

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For these reasons, the Court declines to adopt Facebook’s proposed text for Section 2B of
the privilege protocol and adopts plaintiffs’ proposal instead.

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2.

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The parties disagree regarding what information should be included in a privilege log and

Contents of Privilege Log

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whether and under what circumstances it would be appropriate to group documents by category.

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Dkt. No. 135 at 4-5.

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The starting point for the Court’s resolution of this dispute is the requirement that the party
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claiming privilege or work product protection must describe that materials being withheld “in a

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manner that, without revealing information itself privileged or protected, will enable other parties

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to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Facebook’s proposal to log documents by

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category and date range does not satisfy this requirement because it would not permit other parties

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to assess its claim of privilege or protection.

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Facebook argues that requiring it log each document withheld on the basis of a claim of

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privilege or protection will be unduly burdensome in this case. The Court discussed this issue

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with the parties at length during the hearing, and based on that discussion, the Court believes that

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the burden of logging documents can be substantially mitigated by limiting the information a party
is required to disclose in its privilege log as follows: For each ESI document, the party will

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United States District Court
Northern District of California

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include the agreed-upon metadata fields (e.g. date, author, addressee, recipient), the privilege or

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protection claimed (e.g., attorney-client privilege, work product), and a “category description”

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(e.g., “advice re FTC investigation”). The party need not include a more detailed description of

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the document or the factual basis for the assertion of a privilege or protection unless the disclosure

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of that additional information is necessary to resolve a dispute. The Court expects that the effort

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to generate the privilege log will be require little more than exporting the necessary fields from a

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document database, and that the parties will cooperate to minimize the burden on the producing

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party associated with generation of the log. See Dkt. No. 146 at 105:20-108:6; 109:10-19.

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3.

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The parties dispute whether redactions must be included on a privilege log, and if so, in

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Redactions for Privilege/Work Product

what form. Dkt. No. 135 at 6-7.
Material that is redacted based on a claim of privilege or protection must be described in a

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manner that satisfies the requirements of Rule 26(b)(5)(A), discussed above, and the Court

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believes the same disclosures for material that is withheld in its entirety will satisfy those

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requirements for redactions—namely: the agreed-upon metadata fields for the document in which

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the redaction appears (e.g. date, author, addressee, recipient), the privilege or protection claimed

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for the redacted text (e.g., attorney-client privilege, work product), and a “category description” of

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the redacted information (e.g., “advice re FTC investigation”).
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The parties may submit a revised privilege protocol for the Court’s approval.

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IT IS SO ORDERED.

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Dated: September 15, 2021

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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