Filed: Nov. 21, 2014
Latest Update: Nov. 21, 2014
Summary: ORDER RE: DISCOVERY Re: Dkt. No. 1 NATHANAEL M. COUSINS, Magistrate Judge. 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 concer
Summary: ORDER RE: DISCOVERY Re: Dkt. No. 1 NATHANAEL M. COUSINS, Magistrate Judge. 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 concern..
More
ORDER RE: DISCOVERY Re: Dkt. No. 1
NATHANAEL M. COUSINS, Magistrate Judge.
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 legal advice." United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citation omitted). The privilege attaches when "(1) legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived." Id. (internal quotations omitted). The privilege is strictly construed. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). Thus, if the advice sought from the professional legal advisor is not legal advice, the privilege does not apply. Richey, 632 F.3d at 566 (citation omitted).
A party can establish that the privilege applies through a privilege log. This log must contain at least: (a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, and (d) the date the document was generated, prepared, or dated. In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992); AT&T Corp. v. Microsoft Corp., No. 02-cv-0164 MHP (JL), 2003 WL 21212614, at *2 (N.D. Cal. Apr. 18, 2003).
Here, both Rambus' initial and amended privilege logs contain deficiencies. The amended log still lists documents that do not identify the attorney or law firm involved in the communication. Numerous entries also fail to indicate whether the document consists of an actual communication between attorney and client. See, e.g., Dkt No. 14-5 at 38 (Control Number RAMHCINT00008620 describes document "prepared at direction of counsel" and involving "Rambus' overall corporate licensing and enforcement strategy," but identifies non-attorney Laura Stark in the "From" column and "File" in the "To" column). Documents prepared at the direction of counsel may qualify for work product protection, but unless a document consists of a "confidential communication," Rambus improperly asserts attorney-client privilege. See Rutter Group Prac. Guide Fed. Civ. Trials & Ev. Ch. 8H-B ("Only `confidential communications' are protected. Thus clients cannot rest on the privilege to bar questions about facts known to them before they consulted with counsel or facts made known to them `between and after' their consultations with counsel.").
Furthermore, merely sharing a document with counsel does not automatically make that document privileged. See Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 300 n.57 (5th Cir. 2010) ("[T]urning documents over to one's lawyer does not automatically cloak those documents in attorney-client privilege."); United States v. Robinson, 121 F.3d 971, 975 (5th Cir. 1997) ("It goes without saying that documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer.").
In other words, it is not good enough for Rambus to list a document that it shared with counsel in the privilege log as "privileged" on the basis of it being passed from client to lawyer; Rambus must provide an independent basis for why that document itself is covered by the attorney-client privilege or some other privilege.
In short, the Court orders Rambus to submit to Dell another amended privilege log in accordance with this order. Rambus must produce this privilege log to Dell within seven days. Otherwise, Rambus must also produce within seven days documents that fail to conform to the standards for attorney-client privilege outlined in this order.
II. Work Product
At the discovery hearing, the Court also ordered the following:
• Rambus must produce all documents not covered by the work-product doctrine created between 2009 and September 11, 2012 by November 18, 2014.
• Rambus also brought up a subset of documents created by and for another entity before or in 2009. Rambus claims that though the documents are now in its possession, they are protected by the work-product doctrine because the entity that created them did so in anticipation of litigation. However, neither Dell nor Rambus has briefed this issue. Accordingly, Rambus must identify where these documents are in the privilege log, and submit to the Court a supplemental brief and declaration explaining why the Court should not compel production of these documents. Rambus must submit this brief and accompanying declaration to the Court by Monday, November 24. Dell's response is due Wednesday, November 26.
• Rambus may also submit additional briefing over the issue of whether or not the deposition of Laura Stark, Rambus' 30(b)(6) witness, establishes that the work-product privilege attaches to certain documents in Rambus' possession after September 11, 2012. Rambus must also submit this brief and any accompanying declarations to the Court by Monday, November 24. Again, Dell's response is due Wednesday, November 26.
IT IS SO ORDERED.
