Opinion
23-cv-02346-VKD
05-01-2024
KJ-PARK, LLC, Plaintiff, v. MATCH GROUP, LLC, et al., Defendants.
ORDER RE DISCOVERY DISPUTE RE PRIVILEGE CLAIMS FOLLOWING IN CAMERA REVIEW
Re: Dkt. No. 88
Virginia K. DeMarchi United States Magistrate Judge
Further to this Court's April 19, 2024 order (Dkt. No. 86), defendants Match Group, LLC and Match Group, Inc. (collectively, “Match”) submitted 13 of the 19 disputed privilege log materials for in camera review:
As stated in Match's amended notice of lodging documents for in camera review (Dkt. No. 90), Match's original notice (Dkt. No. 88) omitted item 14 (JLL005996), but the document corresponding to that item was submitted to the Court in camera.
No.
Log entry
Privilege/protection claimed
5
JLL005420
Attorney-client communication
7
JLL005423
Attorney-client communication
8
JLL005424
Attorney-client communication
9
JLL005606
Attorney-client communication
10
JLL005607
Work product
11
JLL005903
Attorney-client communication
13
JLL005995
Attorney-client communication
14
JLL005996
Attorney-client communication
15
JLL006015
Attorney-client communication; work product
16
JLL006016
Work product
17
JLL006017
Attorney-client communication; work product
18
JLL006018
Work product
19
JLL006081
Attorney-client communication
In addition, Match submitted in camera a four-column document that includes the “Bates Number,” “Email Subject/Document File Name,” and “Privilege Type” fields from its privilege log (see Dkt. No. 78-1) for each of the disputed entries, as well as a “Notes” field that does not appear in the privilege log. The Court ignores the “Notes” field except where pertinent to this order, as indicated below.
The Court has reviewed each of the documents corresponding to the above disputed privilege log entries and, relying on the legal framework and analysis described in its prior orders (see Dkt. Nos. 62, 86), orders as follows:
Item 5 (JLL005420): Not privileged; must be produced.
Item 7 (JLL005423): Not privileged; must be produced.
Item 8 (JLL005424): Neither the privilege log(Dkt. No. 78-1) nor the list of participants (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email thread. None of the communications in the email thread are attorney-client communications, except for the email exchange between M. Baron (Match attorney) and J. Bannister (Match) on March 27 and 28, 2019. However, Mr. Banister forwarded the entire email thread, including this exchange, to B. Lane (JLL) on March 28, 209 and thereby waived any privilege that may have existed. Nothing in the email exchange suggests that disclosure to Mr. Lane was necessary to facilitate the communication of legal advice or to accomplish the purpose for which any such advice was sought or provided. This item must be produced.
Item 9 (JLL005606): The first two communications in this email thread appear to be attorney-client communications between M. Baron (Match attorney), J. Bannister (Match), and B. Perez (Match attorney). However, any privilege that may have existed was waived when J. Bannister forwarded these communications to M. Gary (JLL) and D. Reid (JLL). Nothing in the email exchange suggests that disclosure to Mr. Gary or Mr. Reid was necessary to facilitate the communication of legal advice or to accomplish the purpose for which any such advice was sought or provided. This item must be produced.
Item 10 (JLL005607): As part of its in camera submission (“Notes” field), Match advises that item 10 (a draft letter to KJ-Park) is an attachment to item 9, and thus item 10 appears to have been forwarded to M. Gary (JLL) and D. Reid (JLL). Nothing in item 10 or item 9 reveals why the draft letter was shared with JLL employees or indicates that it was shared in confidence. Any work product protection that may have existed has been waived. This item must be produced.
Item 11 (JLL005903): Neither the privilege log (Dkt. No. 78-1) nor the list of participants (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email thread. None of the communications in the email thread are attorney-client communications, with the possible exception of the email exchange between M. Baron (Match attorney), J. Bannister (Match), and B. Perez (Match attorney) on April 10 and 11, 2019. However, any privilege that may have existed was waived when J. Bannister forwarded this exchange and the entire email thread to M. Gary (JLL) on April 12, 2019 and thereby waived any privilege that may have existed. Nothing in the email exchange suggests that disclosure to Mr. Gary was necessary to facilitate the communication of legal advice or to accomplish the purpose for which any such advice was sought or provided. This item must be produced.
Item 13 (JLL005995): Neither the privilege log (Dkt. No. 78-1) nor the list of participants (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email thread. Not privileged; must be produced.
Item 14 (JLL005996): Neither the privilege log (Dkt. No. 78-1) nor the list of participants (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email thread. Not privileged; must be produced.
Item 15 (JLL006015): The first several email communications in this email thread are communications between and among Match or Match-affiliated employees. While M. Baron (Match attorney) is copied on most of these communications, none of them are privileged communications, except for the email exchange between M. Baron (Match attorney), J. Bannister (Match), B. Perez (Match attorney), and I. Ponnambalam (Match) on May 8, 2019. However, Mr. Banister forwarded the entire email thread, including this exchange, to S. Rotter (JLL) and B. Lane (JLL) on May 14, 2019 and thereby waived any privilege that may have existed. Nothing in the email exchange suggests that disclosure to Mr. Rotter or Mr. Lane was necessary to facilitate the communication of legal advice or to accomplish the purpose for which any such advice was sought or provided. This item must be produced. There is no apparent basis for separate work product protection for this email thread.
Item 16 (JLL006016): As part of its in camera submission (“Notes” field), Match advises that item 16 (a draft letter to KJ-Park) is an attachment to item 15, and thus item 16 appears to have been forwarded to S. Rotter (JLL) and B. Lane (JLL). Nothing in item 16 or item 15 reveals why the draft letter was shared with JLL employees or indicates that it was shared in confidence. Any work product protection that may have existed has been waived. This item must be produced.
Item 17 (JLL006017): This item is the same as item 15, except that it reflects that Mr. Banister forwarded the entire email thread also to M. Gary (JLL) on May 14, 2019. For the same reasons stated with respect to item 15, this item must be produced.
Item 18 (JLL006018): As part of its in camera submission (“Notes” field), Match advises that item 18 (a draft letter to KJ-Park) is an attachment to item 17, and thus item 18 appears to have been forwarded to M. Gary (JLL). For the same reasons stated with respect to item 16, this item must be produced.
Item 19 (JLL006081): Item 19 contains no privileged communications. While the first email in the email thread is copied to B. Perez (Match attorney) on June 6, 2019, the email itself summarizes a business decision and discussion between and among non-attorneys. Moreover, J. Banister (Match) forwarded the entire email exchange to S. Rotter (JLL) on June 7, 2019 and thereby waived any privilege that may have existed. Nothing in the email exchange suggests that disclosure to Mr. Rotter was necessary to facilitate the communication of legal advice or to accomplish the purpose for which any such advice was sought or provided.
As part of its in camera submission (“Notes” field), Match states with respect to item 19: “Highlighted portions indicate proposed redactions in the event the Court orders production of this document. See Court's Order re March 13, 2024 Discovery Dispute re Plaintiff's Document Requests (Dkt. #84).” The Court construes this statement as a request for redaction of irrelevant information pertaining to Match's efforts to lease space in San Francisco. A party generally may not redact or withhold from production irrelevant portions of documents that also contain relevant and responsive information. See, e.g., Finjan, Inc. v. SonicWall, Inc., No. 17-cv-04467 BLF (VKD), 2020 WL 4192285, at *3 (N.D. Cal. July 21, 2020) (discussing authority). The text Match proposes to redact does not encompass any sensitive or confidential information, and at least some of the proposed redactions would alter the meaning of the remaining, unredacted text. The Court therefore denies Match's request to redact item 19.
This item must be produced in its entirety.
***
Match must produce all materials corresponding to the disputed privilege log entries listed above and in the Court's April 19, 2024 order by May 8, 2024.
IT IS SO ORDERED.