Shenwick, et al v. Twitter, Inc. et al

ORDER REGARDING WORK PRODUCT PROTECTION. Signed by Magistrate Judge Sallie Kim on 4/19/2019.

Northern District of California, cand-3:2016-cv-05314

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DORIS SHENWICK, et al., Case No. 16-cv-05314-JST (SK) 8 Plaintiffs, ORDER REGARDING WORK 9 v. PRODUCT PROTECTION 10 TWITTER, INC., et al., Regarding Docket No. 272 11 Defendants. 12 The parties to this action have asked the Court to determine whether the attorney work Northern District of California United States District Court 13 product doctrine protects from disclosure oral communications between Plaintiffs' representatives 14 and third parties who are confidential witnesses. Specifically, Defendants seek information about 15 conversations between Plaintiffs' representatives and ten former employees of defendants Twitter, 16 Inc., who are not parties to this suit but whom Plaintiffs cited as confidential witnesses in the 17 complaints in this action.1 Plaintiffs claim that the attorney work product doctrine protects from 18 disclosure those communications between the witnesses and Plaintiffs' representatives. 19 Defendants disagree and argue that, even if there is protection, Plaintiffs have waived that 20 protection by selectively disclosing information. 21 Factual Background 22 During the deposition of confidential witness AG, Defendants asked AG about 23 conversations with Plaintiffs or their representatives. Plaintiffs did not object based on the 24 attorney work product doctrine during AG's deposition and concede that they have waived any 25 protection of the attorney work product doctrine with regard to communications between AG and 26 Plaintiffs or their representatives. 27 1 28 Plaintiffs have filed two complaints in this action, and the operative complaint is currently the Consolidated Amended Complaint. (Dkt. 81.) 1 During the deposition of DL, identified as Confidential Witness 10 in the complaints, 2 Defendants asked DL several questions about his conversations with Plaintiffs and their 3 representatives. Plaintiffs did not object to some questions but did object to others. After each 4 objection, DL did not answer the question, but there was no formal instruction not to answer the 5 question. DL is represented by his own lawyer in this matter but is not paying for his lawyer. He 6 does not know who is paying the fees. The same lawyer is representing all ten of the confidential 7 witnesses who have been deposed or who will be deposed. 8 During the deposition of DQ, identified as Confidential Witness 4 in the complaints, 9 Defendants again questioned DQ about his communications with Plaintiffs. Plaintiffs objected to 10 some but not all of the questions. For example, Plaintiffs did not object when Defendants asked 11 DQ whether Plaintiffs' representatives had told him that they would include his statements in the 12 complaints, whether Plaintiffs told him that his identity might be revealed, or whether DQ had told Northern District of California United States District Court 13 Plaintiffs' representatives about certain metrics. After Plaintiffs objected, DQ's separate counsel 14 also instructed DQ not to answer the question, pending resolution of this dispute. DQ testified that 15 he is not paying for his lawyer to defend his deposition and that he believes that Plaintiffs are 16 paying the fees. 17 Discussion 18 The Court holds that the attorney work product doctrine does not protect from disclosure 19 testimony from confidential witnesses, who are not parties to this litigation, about their 20 conversations with Plaintiffs and their representatives, even if Plaintiffs and their representatives 21 undertook those communications to prepare for this litigation. 22 The Supreme Court recognized the attorney work product doctrine in Hickman v. Taylor. 23 329 U.S. 495 (1947). As noted in the Court's Order of November 27, 2018 (Dkt. 207), the 24 Supreme Court described the attorney work product doctrine as follows: "At its core, the work 25 product doctrine shelters the mental processes of the attorney, providing a privileged area with 26 which he can analyze and prepare his client's case." United States v. Nobles, 422 U.S. 225, 238 27 (1975). The Supreme Court in Nobles noted that the attorney work product doctrine is an 28 "intensely practical" doctrine and held that the protection extended beyond work prepared by 2 1 attorneys to work prepared by other people, such as investigators, working under the direction of 2 attorneys. 422 U.S. at 238. 3 The attorney work product doctrine was codified in Fed. R. Civ. P. 26(b)(3), which 4 provides that, "[o]rdinarily, a party may not discover documents and tangible things that are 5 prepared in anticipation of litigation or for trial by or for another party or its representative[.]" 6 Here, because Defendants seek information in the form of oral testimony at depositions and do not 7 seek documents, Rule 26(b)(3) by its terms does not apply. Instead, the Court looks to the 8 development of federal common law regarding the attorney work product doctrine, which is 9 understandably merged with the interpretation of Rule 26(b)(3).2 10 A. Are Interviews of Third Parties Attorney Work Product? 11 Plaintiffs implicitly argue that the attorney work product doctrine covers the entire 12 conversation (both the questions and the answers) between Plaintiffs' representatives and the Northern District of California United States District Court 13 confidential witnesses. The parties did not present and the Court could not find any cases in 14 which a third party was questioned about a conversation with the party seeking the protection of 15 the attorney work product doctrine but where there was no request for a written document 16 memorializing that conversation. The most similar situation that courts have addressed is one in 17 which a party interviewed a third party and recorded or transcribed the interview, and the opposing 18 party sought to obtain the recording or transcription. Here, instead of seeking a recording or 19 transcription, Defendants seek to ask confidential witnesses about their conversations with 20 Plaintiffs' representatives. 21 Courts have reached different conclusions on this issue. For example, "[some courts have 22 concluded that recordings or transcripts [of interviews of witnesses] are not protected by the work 23 product privilege at all or have indicated that, at best, only the questions are protected but not the 24 2 25 There is an argument that even the common law of the attorney work product doctrine protects only written materials or other "tangible" materials. In Hickman, the Supreme Court 26 justified the attorney work product doctrine on the theory that attorney work product is protected and that, if those "materials [were] open to opposing counsel on mere demand, much of what is 27 now put down in writing would remain unwritten." 329 U.S. at 511. However, given that the core of the issue is protection of the mental processes of attorneys, the protection under the common 28 law should extend to oral statements by the attorney if those statements reveal the mental processes. 3 1 answers." Carrasco v. Campagna, 2007 WL 81909, at * 2 (N.D. Cal. Jan. 9, 2007) (summarizing 2 cases). But at least one court has found that both the questions and answers in an interview are 3 attorney work product because the answer most likely "should shed light on what questions were 4 asked." Carrasco, 2007 WL 81909, at * 3. And even the courts that have ruled that the answers 5 are not attorney work product have struggled with the way to maintain the confidentiality of the 6 mental processes of the lawyer. See, e.g., Friends of Hope Valley v. Frederick Co., 268 F.R.D. 7 643 (E.D. Cal. 2010) (summarizing cases with various approaches but requiring party to 8 summarize responses to questionnaire, which constituted attorney work product, to provide factual 9 information without disclosing questionnaire itself). 10 The Court finds that, at most, only the questions posed by Plaintiffs' representatives are 11 protected by the attorney work product doctrine and that, at a minimum, Defendants should be 12 able to question confidential witnesses about their statements to Plaintiffs' representatives. Northern District of California United States District Court 13 Although the answers might shed light on the questions, the answers do not go to the "core" of the 14 attorneys' mental processes. But the Court finds that Plaintiffs waived the protection of the 15 attorney work product doctrine for the conversations such that Defendants may question the 16 confidential witnesses about their oral communications with Plaintiffs in total. 17 B. Did Plaintiffs Waive the Attorney Work Product Doctrine? 18 Defendants argue that Plaintiffs waived the protection of the attorney work product 19 doctrine by allowing the confidential witnesses to answer some but not all of the questions about 20 the oral communications with Plaintiffs' representatives. Defendants focus on the second part of 21 the analysis, but the waiver occurred at the time of the actual conversation. Here, Plaintiffs' 22 representatives chose to speak with third parties, and those third parties are free to divulge those 23 conversations. 24 A party cannot assert the attorney work product doctrine if the party has waived that 25 protection. Nobles, 422 U.S. at 239 ("Like other qualified privileges, it may be waived.") In 26 Nobles, the party asserting the attorney work product doctrine waived that protection by using the 27 protected materials at trial. Id. Voluntary disclosure to a third party can waive the protection of 28 the attorney work product doctrine, but disclosure of attorney work product to a third party does 4 1 not waive protection "'unless it has substantially increased the opportunity for the adverse party to 2 obtain the information.'" Anderson v. Seaworld Parks and Ent., Inc., Case No. 15-cv-02172-JSW 3 (JCS), 2019 WL 131841 at * 4 (N.D. Cal. Jan. 8, 2019) (citing Skynet Elec. Co., Ltd. v. 4 Flextronics Int'l, Ltd., No. C 12-06317-WHA, 2013 WL 6623874, at *3 (N.C. Cal. Dec. 16, 5 2013)). The reason for this rule is that the "purpose of the attorney work product doctrine is to 6 shield litigation strategy from disclosure to a litigation adversary." Id. Courts have applied a 7 "common interest doctrine" to claims that attorney work product disclosed to third parties remains 8 shielded from discovery. See, e.g., Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 580 (N.D. 9 Cal. 2007). Thus, for example, the Court in Anderson addressed the application of the attorney 10 work product doctrine in the context of a company's communications with its public relations 11 agency, retained to help formulate the company's response to litigation, and found that there was 12 no waiver of work product. 2019 WL 131841, at *4. But a party can waive the protection of the Northern District of California United States District Court 13 attorney work product doctrine via questions and conversation with a third party who has no 14 "common interest" with the party seeking protection. See, e.g., SEC v. Gupta, 281 F.R.D. 169 15 (S.D.N.Y. 2012) (holding that government could not assert work product doctrine over 16 communications with third party because third party and government did not have any "common 17 interest" in the proceedings). 18 Plaintiffs have not asserted this "common interest" doctrine and have provided no 19 information showing that Plaintiffs and the confidential witnesses had entered into any type of 20 agreement of confidentiality or common interest.3 Plaintiffs, as the parties asserting the attorney 21 work product doctrine, have the burden to show that the doctrine applies. Murphy v. Kmart Corp., 22 259 F.R.D. 421, 428 (D. S. Dakota 2009); United States v. City of Torrance, 163 F.R.D. 590, 593 23 (C.D. Cal. 1995). Plaintiffs have not asserted this "common interest" doctrine for purposes of the 24 communications with confidential witnesses and have provided no information showing that 25 Plain