Anderson et al v. SeaWorld Parks and Entertainment

Northern District of California, cand-4:2015-cv-02172

ORDER requiring in camera review and further briefing to resolve {{249}} Discovery Letter Brief. Signed by Chief Magistrate Judge Joseph C. Spero on November 19, 2018. (jcslc2S, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARC ANDERSON, ET AL., 7 Case No. 15-cv-02172-JSW (JCS) Plaintiffs, 8 v. ORDER REQUIRING IN CAMERA 9 REVIEW OF PURPORTEDLY SEAWORLD PARKS AND PRIVILEGED PUBLIC RELATIONS 10 ENTERTAINMENT, INC., DOCUMENTS 11 Defendant. Re: Dkt. No. 249 12 The parties dispute whether "certain documents in possession of [Defendant SeaWorld Northern District of California United States District Court 13 Parks and Entertainment, Inc.'s ('SeaWorld's')] advertising and public relations agencies" are 14 protected by the attorney client privilege and/or the attorney work product doctrine. See dkt. 249 15 at 1. It is conceivable that in some circumstances, communications involving a public relations 16 firm might fall within the scope of attorney-client privilege or attorney work product protection. 17 See Behunin v. Superior Court, 9 Cal. App. 5th 833, 849–50 (2017) ("There may be situations in 18 which an attorney's use of a public relations consultant to develop a litigation strategy or a plan 19 for maneuvering a lawsuit into an optimal position for settlement would make communications 20 between the attorney, the client, and the consultant reasonably necessary for the accomplishment 21 of the purpose for which the attorney was consultant."). SeaWorld has cited no case, however, in 22 which such communications were actually held to fall within privilege or work product protection 23 under California law. The mere fact that such communications relate to litigation is not 24 sufficient—if the communications were intended to develop a public relations strategy in response 25 to litigation, rather than to develop strategy for the litigation itself, they are not privileged. See id. 26 at 850 (holding that communications were not privileged absent "some explanation of how the 27 communications assisted the attorney in developing a plan for resolving the litigation"). 28 Given the parties' divergent views of the nature of the communications at issue, the fact 1 that other communications with the public relations firms—which SeaWorld has produced—did 2 not relate to litigation, and the apparently unprecedented (in California) nature of a potential ruling 3 that these communications are privileged, the Court is "unable to [resolve the issue] without 4 requiring [in camera] disclosure of the information claimed to be privileged." See Cal. Evid. Code 5 § 915(b). Each party is ordered to select no more than ten disputed documents for in camera 6 review no later than November 30, 2018, and SeaWorld is ORDERED to lodge those documents 7 with chambers no later than December 7, 2018. Each party may concurrently file a brief not 8 exceeding ten pages addressing the documents selected. SeaWorld may redact portions of its brief 9 as necessary to avoid disclosing information it believes to be protected, with an unredacted version 10 to be filed ex parte and under seal, and not disclosed to Plaintiffs unless the Court determines that 11 the privilege does not apply or that SeaWorld's redactions are otherwise unwarranted. 12 IT IS SO ORDERED. Northern District of California United States District Court 13 Dated: November 19, 2018 14 ______________________________________ JOSEPH C. SPERO 15 Chief Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2