Securities And Exchange Commission v. Prakash

Filing 69

ORDER Directing Submission of Documents for In Camera Review re 63 Discovery Dispute. Signed by Judge Susan van Keulen on March 7, 2025. (svklc2, COURT STAFF) (Filed on 3/7/2025)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,

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v.

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United States District Court
Northern District of California

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VIDUL PRAKASH,

Case No. 23-cv-03300-BLF (SVK)
ORDER DIRECTING SUBMISSION
OF DOCUMENTS FOR
IN CAMERA REVIEW
Re: Dkt. No. 63

Defendant.
Before the Court is the Parties’ joint discovery submission in which Defendant Vidul
Prakash seeks to compel the production of interview notes from Plaintiff Securities and Exchange
Commission (the “Commission”). See Dkt. 63 (the “Submission”). For the reasons set forth
below, the Court will review the documents in question in camera before ruling on Defendant’s
request.
Relevant Factual Background. Non-party View, Inc. (“View”), a manufacturer and
seller of “smart” windows, allegedly disseminated false and misleading statements in its filings
with the Commission. The statements concerned View’s accrual of liabilities reflecting costs
incurred to ship and install replacement windows after the company discovered defects in many of
its sold windows. One of the central issues in the case concerns whether Defendant, View’s
former CFO, had been told that View would cover shipping and installation costs for all customers
of defective windows, or whether he understood View’s coverage of these costs to be on a caseby-case basis. The Commission understands that View’s management decided to pay these costs
for all customers, and according to Defendant, the Commission bases that understanding on
testimony provided by Daniel Purdy, View’s former Vice President of Field Operations, in June
2022 during the Commission’s pre-suit investigation. But about a year before Mr. Purdy provided

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that testimony, he stated in an interview conducted by View’s audit committee during an internal

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investigation that the company would pay shipping and installation costs on a case-by-case basis. 1

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Defendant, therefore, seeks to probe this inconsistency in Mr. Purdy’s statements, as the all

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costs/case-by-case issue underlies the Commission’s theory of liability against him.
At issue in the instant discovery dispute is an interview of Mr. Purdy conducted by the

United States District Court
Northern District of California

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Commission in February 2022, a few months before Mr. Purdy testified before the Commission.

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Based on an email produced in discovery, Defendant determined that the Commission likely

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discussed the all costs/case-by-case issue with Mr. Purdy during his February 2022 interview.

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Defendant questioned Mr. Purdy about the interview at his deposition, but Mr. Purdy testified that

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he does not remember what he discussed in the interview. The interview is otherwise “unrecorded

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but for memoranda and notes prepared by three individuals on the [Commission’s] staff”: an

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attorney, a paralegal and an accountant. See id. at 2 & n.3; see also id. at 7 (the Commission

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describing its recordings as notes prepared by three staff members). Defendant accordingly

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requests that the Court compel the Commission to produce its notes from the interview, and the

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Commission resists production on the basis of the work-product doctrine.

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The Notes Are Work Product. As documents prepared by the Commission in connection

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with its pre-suit investigation, the notes constitute protectable work product. See United States v.

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Richey, 632 F.3d 559, 567 (9th Cir. 2011) (discussing two-part test to “qualify for work-product

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protection”). The Court rejects Defendant’s arguments on this point.
First, Defendant relies on inapposite authorities in arguing that the protection does not

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apply. See Submission at 4. In SEC v. Thrasher, No. 92-cv-06987-JFK, 1995 WL 46681

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(S.D.N.Y. Feb. 7, 1995), the Commission “ma[de] no effort to meet its burden of proffering

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competent evidence establishing the basis of its work-product claim” such that it was “at least

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arguable that some or all of the interview notes were not prepared principally or exclusively to

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This statement from Mr. Purdy comes from a memorandum prepared by Cooley, LLP, the firm
that conducted the audit committee’s internal investigation. See Submission at 2, 6-7. In a recent
deposition, Mr. Purdy testified that the memorandum in question “did not accurately reflect his
statements.” See id. at 7.
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United States District Court
Northern District of California

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assist in anticipated litigation.” See id. *3-4. Here, the Court is satisfied on the current record that

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the Commission prepared the notes because it anticipated litigation. See also Richey, 632 F.3d at

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567-68 (where document created for multiple purposes, work-product determination hinges on

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“whether the document was created because of anticipated litigation, and would not have been

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created in substantially similar form but for the prospect of litigation” (quotation marks omitted)).

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SEC v. Stratton Oakmont, Inc., No. 92-cv-01993-JES, 1992 WL 226924 (S.D.N.Y. June 22,

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1992), also does not assist Defendant, as the court there issued a short order without providing any

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analysis.

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Second, Defendant points to narrow disclosures by the Commission in arguing that the

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Commission waived the protection. See Submission at 4. But disclosure of questions asked by

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the Commission outside of the interview are irrelevant, and disclosure of the subjects potentially

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discussed in the interview is far different than selectively disclosing portions of the notes

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memorializing the interview. Cf. Shenwick v. Twitter, Inc., No. 16-cv-05314-JST, 2019 WL

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3815719, at *4 (N.D. Cal. Apr. 19, 2019) (“Once Plaintiffs waived the protection of the attorney

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work product doctrine for a confidential witness’s conversation with Plaintiffs’ representatives, the

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waiver extended to the entire conversation.”).

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Defendant May Be Entitled To A Narrow Production. Courts classify work product

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into two categories: (1) fact work product; and (2) opinion work product. See Tremblay v.

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OpenAI, Inc., No. 23-cv-03223-AMO, 2024 WL 3159292, at *2 (N.D. Cal. June 24, 2024).

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Because Defendant seeks to discover only the fact of what Mr. Purdy said during the February

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2022 interview, the Court will construe his request as concerning only the fact work product (if

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any) contained within the notes. To obtain fact work product, a party must show “that it has

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substantial need for the materials to prepare its case and cannot, without undue hardship, obtain

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their substantial equivalent by other means.” See Fed. R. Civ. P. 26(b)(3)(A); Tremblay, 2024 WL

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3159292, at *2. Defendant satisfies these showings. He has a substantial need for the notes

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because Mr. Purdy appears to have discussed a key issue in the case during his interview, and

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what he said may significantly bolster Defendant’s position. Likewise, Defendant cannot obtain

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any substantial equivalent by other means because there are no other records of the interview,
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and Mr. Purdy does not remember what he discussed in the interview. The Court rejects the

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Commission’s counterarguments which rely almost entirely on out-of-circuit, nonbinding

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authorities, and which impose an overly narrow conception of “substantial need.” See Submission

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at 9-10.
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United States District Court
Northern District of California

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Accordingly, for good cause shown, the Court ORDERS the Commission to submit the

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three sets of notes to the Court via email for in camera review by March 13, 2025. For those

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notes that are handwritten, the Commission shall submit a handwritten copy and a transcribed

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copy, if a transcription already exists. The notes shall contain highlighting for those portions

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concerning what (if anything) Mr. Purdy said about the all costs/case-by-case issue. The Court

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will determine whether Defendant is entitled to production of any portion of the notes after

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completing its in camera review. To the extent that Defendant requests the production of “similar

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interview memos” prepared during the Commission’s pre-suit investigation (see id. at 5-6), the

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Court DENIES that request; Defendant offers no explanation of the relevance of or substantial

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need for those documents, and the Submission focuses almost exclusively on Defendant’s request

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for the notes memorializing the February 2022 interview of Mr. Purdy.

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SO ORDERED.
Dated: March 7, 2025

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SUSAN VAN KEULEN
United States Magistrate Judge

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