In KELLMAN v. WHOLE FOODS MARKET CALIFORNIA, INC., ET AL., Case No. 17-cv-06584-LB (N.D. Cal., Sept. 30, 2021), before the Court were several issues: First, to what extent could Defendants redact non-responsive and irrelevant information from their productions, and second, whether Defendants had sufficiently described in its privilege log documents which were redacted or withheld on the grounds of attorney-client privilege or work product privilege.
Plaintiff asserted that Defendants did not have discretion to review and redact documents for relevance or responsiveness. Instead, Plaintiff asserted that the parties’ protective order protected any trade secret or confidentially concerns. Plaintiff also claimed that the ESI protocol permitted redactions only for privilege or immunity, and that Rule 34 disfavors redactions for responsiveness because such redactions alter the document. Plaintiff also cited to the Federal Rules which require that documents be produced “as they are kept in the usual course of business”, which did not include redactions.
However, as noted by the Court, the ESI protocol made no such restriction and only contained language that a party “may” redact material that was protected by any privilege or immunity recognized under applicable law or regulation. Defendants also responded that it was permitted to redact non-responsive information by ESI protocol’s more general language that required the parties to produce any “relevant, responsive and non-privileged material.” Defendants also claimed that redactions for responsiveness and relevancy fulfilled Rule 26’s requirement that discovery be “proportional.”
The Court noted that neither the ESI protocol nor the Federal Rules expressly prohibited redactions for responsiveness but recognized that other courts have disfavored redactions for responsiveness except in limited circumstances such as personal nonresponsive information. In accordance with other courts and the ESI protocol’s guidance that redactions could be made to protect privileged information, the Court ruled that Defendants could not redact on the grounds of responsiveness. “Proportionality is a better argument for defining the methods to obtain responsive information, not to redact for responsiveness or relevance after the ESI search has been conducted.”
The parties also disputed whether certain documents withheld by Defendants qualified for protection under the doctrines of attorney-client privilege or work product protection, and if Defendants had done enough to explain why the privilege applied.
Plaintiff argued that Defendants provided an insufficient basis for asserting privilege on several documents that were attached to non-privileged emails. To sufficiently withhold or redact a document for privilege reasons, the withholding party must identify relevant names, dates, and “the basis for the assertion of a privilege or other protection for all Privileged Material in the document.”
Plaintiff cited several cases which held that the generalized statement that a document “reflects” legal advice is insufficient to support a privilege claim, e.g., Dolby Labs Licensing Corp. v. Adobe Inc., 402 F. Supp. 3d 855, 866 (N.D. Cal. 2019), and that “documents are not inherently privileged if they were attached to a privileged communication.” See, e.g., Fed. Trade Comm. V. Boehringer Ingelheim Pharms., Inc., 180 F. Supp. 3d 1, 31 (D.D.C. 2016). The Court noted that Defendants had to show each attachment individually satisfied the criteria for privilege.
On Feb. 23, 2021, Defendants provided the following description for ten at-issue documents: “Attachment to attorney client communication regarding product incidents. Document was collected and transmitted in course of, and in the furtherance of, the provision of legal advice. The document further necessarily discloses the content of legal advice in the transmission email.”
Plaintiff argued the description was insufficient grounds to assure that privilege applied not only because the log did not support the assertion, but also that claiming a document “reflects” legal advice does not make it so. Additionally, some of the documents attached to emails sent by a third-party did not identify an attorney as being a sender, recipient, carbon copy recipient, or blind carbon copy recipient to the email.
The Court went through several lines in Defendants’ updated privilege log submitted the day before the joint letter was filed. Defendants described Line Nos. 100 and 107 of the privilege log as attachments to an attorney-client communication that were “collected and transmitted in course of, and in the furtherance of, the provision of legal advice. The document further necessarily discloses the content of legal advice in the transmission email.” Despite not identifying an author, the Court found that the description was sufficient.
Defendants claimed that Line No. 48 was initially authored by a third party, and explained that the document was part of a communication seeking legal advice by “Mr. Pearlman and was sent as an attachment to attorney Carol Bellon.” The Court found that explanation to be insufficient.
Line Nos. 53 and 54 appeared to be attachments to Line 52 which was a privileged email and the last email in a chain. Given that those documents may have been test reports, and the documents could have also been produced elsewhere in production, a ruling on those documents was premature. In any case, the Court noted that attorney-client privilege protects only communications and not underlying facts and, should the attachments contain facts, they cannot be privileged.
Plaintiff also argued that the attachments listed at Lines Nos. 30, 42, 29 and 56-57 were all created a year before the parent email was authored. In response, Defendant claimed that the attachments can “divulge the email’s contents as an attachment created at the time of transmission.” But the Court noted again: “privilege extends only to communications and not to facts” and ruled that Defendants had to provide a privilege log description that provided a basis for asserting privilege over these documents and give a reason to believe that they were not facts mistakenly swept under the attorney-client privilege.
Defendants also clawed back two documents inadvertently produced. However, in its privilege log, Defendants failed to describe the documents as being part of a communication which was prepared in anticipation of having to provide legal advice. Instead, one was described as sent to a non-lawyer member of the legal department, and the other was “drafted by Defendants’ legal department.” The Court found these descriptions to be insufficient and required Defendants to either amend the privilege log to give a clearer basis for asserting privilege or produce the documents.
Finally, Defendants initially claimed work product privilege over Line Nos. 25, 44-46, and 111-112, before replacing that claim with a privilege claim because the document was attached to an attorney-client email which Defendants claimed “necessarily disclose[d] the content of legal advice in the transmission email.” Again, the Court found the description to be insufficient and ordered Defendants to submit a revised description of the document.