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

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

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

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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 Plaintiffs and the confidential witnesses had entered into any type of agreement of confidentiality 26 27 3 The parties are well aware of the "common interest" doctrine in the context of sharing of 28 attorney-client privileged communications, because the parties have litigated that issue in this case with regard to another witness and an assertion of attorney-client privilege. (Dkts. 264, 266.) 5 1 or common interest. There is no evidence that Plaintiffs' representatives told the confidential 2 witnesses not to disclose those interviews and no evidence that there was any agreement for them 3 not to disclose the contents of the interviews. After the interviews, the confidential witnesses 4 could have published the contents of the interviews on Twitter. Plaintiffs' choice to speak with 5 confidential witnesses without an agreement of confidentiality substantially increased the chance 6 that Defendants would obtain information about those conversations. 7 Finally, even assuming for the sake of argument that the attorney work product doctrine 8 protects both the questions and the answers in those oral communications, Plaintiffs waived that 9 protection by selectively allowing the witnesses to answer some but not all of the questions about 10 the communications. It is undisputed that Plaintiffs did not object to some of the questions about 11 the communications, and Plaintiffs cannot pick and choose when to assert the attorney work 12 product doctrine for a particular witness. Plaintiffs argue that they can waive the privilege with Northern District of California United States District Court 13 regard to a specific witness. A party can selectively waive the attorney work product doctrine. 14 Hernandez v. Tanninen, 604 F.3d 1095, 1101 (9th Cir. 2010). Thus, the waiver occurred for 15 Plaintiffs' conversations with two witnesses (DL and DQ) who have been deposed for this 16 separate, independent reason. The Court rejects Plaintiffs' attempts to parse the waiver into 17 subject matters for each witness. Once Plaintiffs waived the protection of the attorney work 18 product doctrine for a confidential witness's conversation with Plaintiffs' representatives, the 19 waiver extended to the entire conversation. 20 C. Does This Ruling Apply to Future or Past Depositions? 21 The Court makes this ruling about the applicability of the attorney work product doctrine 22 for future depositions but will not require third parties who have been deposed to re-appear for 23 deposition. The confidential witnesses in this case who have already testified are sincere, and 24 their providing information to Plaintiffs' representatives also appears to be an attempt to make 25 public the truth at personal risk. A deposition is both time-consuming and intimidating for a 26 witness, and the Court does not take lightly the burden on a person who simply attempts to tell the 27 truth. Furthermore, some of the questions about the communications between the confidential 28 witnesses and Plaintiffs' representatives have low value in terms of relevance. Some of the 6 1 questions appear to be attempts to drive a wedge between the confidential witness and Plaintiffs – 2 such as the questions about whether Plaintiffs' representatives' told the confidential witnesses that 3 the complaints would quote their statements or whether Plaintiffs' representatives told the 4 confidential witnesses that their identities would be exposed. Those questions have no relevance 5 to the core issues in this case, and when Defendants asked the confidential witnesses questions 6 about the core issues, the confidential witnesses answered the questions without evasion. Thus, 7 requiring them to appear again for a second day of deposition would not be just or proportional 8 under Fed.R.Civ.P. 26. 9 And with regard to the future depositions, if Plaintiffs can show that the conversations with 10 the confidential witnesses who have not yet been deposed fall within the "common interest" zone, 11 they may be able to assert the attorney work product doctrine to prevent from disclosure the 12 conversations. However, if Plaintiffs choose to assert the existence of a "common interest" with Northern District of California United States District Court 13 confidential witnesses, the Court will consider most important the testimony under penalty of 14 perjury from the confidential witness on that issue. 15 D. Can Plaintiffs Object to Defendants' Leading Questions? 16 At the depositions, Plaintiffs often objected to questions posed by Defendants to the 17 confidential witnesses on the basis that the question was leading. A party may ask leading 18 questions of a third party only if the third party is adverse or hostile to the questioning party. Fed. 19 R. Evid. 611(c). At this time, no party has established that the confidential witnesses are hostile to 20 one side or another, although their previous conversations with Plaintiffs' representatives indicate 21 that the confidential witnesses are hostile to Defendants. But because parties are allowed to object 22 and in some cases must object to preserve the objection if the deposition is to be used in lieu of 23 live testimony, the Court will not rule on this issue at this time. Defendants ultimately bear the 24 burden of showing that the witness is adverse or hostile to ask leading questions. 25 Conclusion 26 The Court limits this ruling to allow Defendants to question third parties about their 27 conversations – only oral communications – with Plaintiffs' representatives. There is no request 28 before the Court to allow Defendants to review written memoranda, if any, of those conversations, 7 1 and the Court might reach a different result in that situation. A written document often contains 2 the mental impressions of a lawyer – the core of attorney work product, but the Court can assess 3 the applicability of the attorney work product doctrine only on a case-by-case basis and can order 4 remedies such as redaction to protect those mental impressions. 5 In addition, the Court held a hearing and reviewed the draft copies of transcripts of 6 depositions and documents outlining the parties' positions in informal documents submitted via 7 electronic mail in order to provide a timely response. However, because matters the Court 8 considers should be part of the official record, the Court ORDERS Defendants to submit copies of 9 the final deposition transcripts and the informal submissions as part of the official record in this 10 matter. 11 IT IS SO ORDERED. 12 Dated: April 19, 2019 Northern District of California United States District Court 13 ______________________________________ SALLIE KIM 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8