Williams & Cochrane, LLP v. Quechan Tribe of the Fort Yuma Indian Reservation et al

Filing 284

ORDER on Joint Motions for Determination of Discovery Disputes Re: Quechan's Privilege Log 271 ; Rosette Defendants' Privilege Log 272 ; and Rosette Defendants' Alleged Failure to Comply with February 4, 2020 Order 274 . Signed by Magistrate Judge Michael S. Berg on 4/17/20.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAMS & COCHRANE, LLP, et al.,

Case No.: 17cv1436-GPC (MSB)

Plaintiffs,

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v.

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ORDER ON JOINT MOTIONS FOR
DETERMNATION OF DISCOVERY
DISPUTES RE:
(1) QUECHAN’S PRIVILEGE LOG
[ECF NO. 271];
(2) ROSETTE DEFENDANTS’ PRIVILEGE
LOG [ECF NO. 272]; AND
(3) ROSETTE DEFENDANTS’ ALLEGED
FAILURE TO COMPLY WITH FEBRUARY 4,
2020 ORDER [ECF NO. 274]

QUECHAN TRIBE OF THE FORT YUMA
INDIAN RESERVATION, et al.,

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Defendants.

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AND ALL RELATED COUNTER CLAIMS

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On April 16, 2020, the Court held a telephonic Discovery Hearing with counsel for

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all parties to address their Joint Motions for Determination of Discovery Dispute, filed

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on March 5, 2020, (ECF Nos. 271, 272), and March 18, 2020 (ECF No. 274).1 For the

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reasons stated on the record at the hearing, the Court ORDERS as follows2:

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Plaintiff confirmed prior to the hearing that ECF Nos. 271 and 272 were intended to replace ECF Nos.
269 and 270, and represented that Plaintiff would file a motion to withdraw ECF Nos. 269 and 270.
2 The organization of this order mirrors the organization of the three motions submitted by the parties,
addressing each motion in the order filed, and each issue as raised in each of the motions.
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1.

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Yuma Indian Reservation’s (“Quechan’s”) assertions of privilege in its privilege log:

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Regarding ECF No. 271, wherein Plaintiff objects to the Quechan Tribe of the Fort

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The Court OVERRULES Plaintiff’s objection and finds that Quechan has not

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waived any attorney-client privilege asserted in its privilege log through its

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counterclaims, affirmative defenses, or damages request.

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b.

The Court OVERRULES Plaintiff’s objection and finds that the crime-fraud

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exception is inapplicable and does not waive Quechan’s attorney-client privilege as

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asserted in its privilege log.

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c.

The Court OVERRULES Plaintiff’s objection and finds no waiver of

Quechan’s attorney-client privilege based on “successor attorney’s animus.”
d.

The Court OVERRULES Plaintiff’s objection and finds that the challenged

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communications between Quechan and its attorneys, providing/seeking information for

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the purpose of obtaining legal advice or conveying legal advice, prior to formal retention

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of such attorneys are protected within the attorney-client privilege.

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e.

The Court OVERRULES Plaintiff’s objection and finds the August 23, 2017

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email and attachment at numbers 158 and 159 of Quechan’s privilege log were within

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the attorney-client privilege.

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f.

(This entry was marked as a second “e” in the Joint Motion for

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Determination of Discovery Dispute.) Plaintiff WITHDREW without prejudice its

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assertion that Quechan waived privilege as to all documents Quechan strategically

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omitted from the log.

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g.

The Court finds the information presently before it insufficient for the Court

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to determine whether the identified emails and documents exchanged within Quechan

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are protected by attorney-client privilege. No later than April 27, 2020, the Court

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ORDERS Quechan to, for the privilege log items identified in section G of ECF No. 271,

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provide declarations from people with knowledge describing (1) the roles and

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responsibilities of the individuals from Quechan who are associated with each

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document, and (2) why Quechan asserts their access either furthered the interests of
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Quechan or was necessary for the transmission of the information or the

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accomplishment of the purpose for which the lawyer was consulted.

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h.

The Court finds the information presently before it insufficient for the Court

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to determine whether the identified emails and attachments sent between Rosette

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Defendants and non-tribal council members at Quechan are protected by attorney-

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client privilege. No later than April 27, 2020, the Court ORDERS Quechan to, for the

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privilege log items identified in section H of ECF No. 271, provide declarations describing

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(1) the roles and responsibilities of the individuals from Quechan who are associated

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with each document, and (2) why Quechan asserts their access either furthered the

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interests of Quechan or was necessary for the transmission of the information or the

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accomplishment of the purpose for which the lawyer was consulted.

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i.

The Court finds the information presently before it insufficient for the Court

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to determine whether the identified documents and communications between Quechan

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and non-attorney employees with the Rosette Defendants are protected by the

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attorney-client privilege. No later than April 27, 2020, the Court ORDERS Quechan to,

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for the privilege log items identified in section I of ECF No. 271, provide declarations

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describing (1) the roles and responsibilities of the individuals from Rosette who are

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associated with each document, and (2) why Quechan asserts their access either

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furthered the interests of Quechan or was necessary for the transmission of the

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information or the accomplishment of the purpose for which the lawyer was consulted.

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j.

The Court OVERRULES Plaintiff’s objection to the application of the

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attorney-client privilege to the documents identified in section J of ECF No. 271 based

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on the nature of those documents. The Court finds such documents and

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communications are within the attorney-client privilege, so long as the parties sending

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and receiving the emails and documents at-issue are within the privilege.

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2.

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Rosette & Associates, PC and Rosette, LLP’s (“Rosette Defendants’”) assertions of

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privilege in their privilege log:

Regarding ECF No. 272, wherein Plaintiff objects to Defendants Robert Rosette,

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a.

The Court OVERRULES Plaintiff’s objection and finds that Quechan has not

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waived any attorney-client privilege as asserted in the Rosette Defendants’ privilege log

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through its counterclaims, affirmative defenses, or damages request. The Court further

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finds that attorney-client privilege applies to communications between lawyers at

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Rosette Defendants that were made for the purpose of representing Quechan.

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b.

The Court OVERRULES Plaintiff’s objection and finds that the crime-fraud

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exception is inapplicable and does not waive Quechan’s attorney-client privilege as

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asserted in the Rosette Defendants’ privilege log.

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c.

The Court OVERRULES Plaintiff’s objection and finds no waiver of

Quechan’s attorney-client privilege based on “successor attorney’s animus.”

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d.

The Court OVERRULES Plaintiff’s objection and finds that the challenged

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communications between Quechan and Rosette Defendants are not unprotected by the

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attorney-client privilege simply because they were made prior to Quechan’s formal

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retention of Rosette.

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e.

The Court OVERRULES Plaintiff’s objection and finds that the identified

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emails and attachments in section E of ECF No. 272 fall within the attorney-client

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privilege.

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f.

The Court OVERRULES Plaintiff’s objection in part and finds Rosette

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Defendants’ privilege description categories 1 and 3-5 identified by Plaintiff in section F

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of ECF No. 172 sufficient to support a finding of attorney-client privilege, so long as the

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parties to the communications are within the privilege. However, as to category

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number 2, no later than April 27, 2020, the Court ORDERS the Rosette Defendants to

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submit a declaration from a person with knowledge setting forth the facts upon which

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the Rosette Defendants assert that the documents which were previously described as

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“regarding gaming compact negotiations, ratification, and/or potential litigation

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between Quechan and California” are subject to attorney-client privilege.

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///

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///
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g.

The Court has no reason to doubt Rosette Defendants’ counsel’s

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representations about the reasons for the amendments to these entries in Rosette

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Defendants’ privilege log. Based on the Court’s understanding of the parties’

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arguments, there are currently no communications between Rosette Defendants and

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Pauma from a time when Rosette Defendants did not represent Pauma for any reason

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that would be subject to this argument. The Court therefore OVERRULES Plaintiff’s

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objection and finds the identified documents are protected by attorney-client privilege.

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h.

The Court finds the information presently before it insufficient for the Court

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to determine whether the identified emails and attachments sent between Rosette

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Defendants and non-tribal council members at Quechan are protected by attorney-

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client privilege. No later than April 27, 2020, the Court ORDERS Rosette Defendants3 to,

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for the privilege log items identified in section H of ECF No. 272, provide declarations

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describing (1) the roles and responsibilities of the individuals from Quechan who are

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associated with each document, and (2) why access to those individuals at Quechan

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either furthered the interests of Quechan or was necessary for the transmission of the

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information or the accomplishment of the purpose for which the lawyer was consulted.

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i.

The Court finds the issue raised in section I of ECF NO. 272 is now moot.

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3.

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Defendants’ compliance with the Court’s February 4, 2020 Order, the Court finds

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Rosette Defendants’ compliance satisfactory as to the issues Plaintiff raised in this

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motion.

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4.

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supplemental information regarding certain privilege log entries, no later than April 27,

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2020, each of them shall lodge a proposed order to [e-mail],

Regarding ECF No. 274, wherein Plaintiff challenges the adequacy of Rosette

To the extent the Court has ordered Quechan and Rosette Defendants to file

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At the hearing, the Court inadvertently said that this would be addressed by Quechan’s supplemental
filing, however, because the Court needs information regarding items on Rosette Defendants’ privilege
log, the Court is ordering Rosette Defendants, rather than Quechan, to provide this supplemental
information.
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separately addressing each document identified in the categories for which the Court

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has requested additional information.

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IT IS SO ORDERED.
Dated: April 17, 2020

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