In Episode 161, Kelly Twigger discusses the ever complicated issue of whether policy language sent to in-house counsel for review is privileged in the latest decision from In re Uber Techs., Inc. Passenger Sexual Assault Litig.
Introduction
Welcome to this week’s episode of the Case of the Week series, brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education, and the Principal at ESI Attorneys. Thanks so much for joining me today.
Today is Tuesday, November 5th, and it is Election Day in the United States. I think it’s safe to say that anxiety is pretty high for many of us in the United States today. It caused me to kind of reflect a little bit this morning before I decided to join this podcast and to really look at the language of our Constitution. And the Preamble of our Constitution begins with the words “We the people, in order to form a more perfect union…” We the people control our democracy. And that means that you need to participate in our democracy by voting today. If you want a say, say it by voting. So I’m challenging you to both cast your own vote and to help someone else get to the polls to be able to cast theirs. We the people. Don’t forget.
A couple of announcements before we get into our Case of the Week today.
If you’re attending the Master’s Conference in Atlanta next Tuesday, November 12th, please join us for our case law update panel and an interactive trivia game during our afternoon session. There will be prizes. We still have codes available to attend for in-house counsel and for law firms, so you can reach out to us at support@ediscoveryassistant.com to get those codes.
Please also mark your calendars for the University of Florida eDiscovery Conference, to be held virtually and in person on February 12-13, 2025. I’ve just locked down the participants for our case law panel session at that conference this year. It will kick off the conference as always, and it’s one you won’t want to miss. So mark that date on your calendars again — available for free virtually — and we should have a registration link shortly to be able to share with you.
All right, let’s dive into this week’s case, which raises some important practical points on the basis for withholding documents based on privilege and also how to better leverage processes for getting quick decisions on discovery issues from the court. The link to today’s decision is available in the post or comments if you’re watching online or in the show notes for those listening to the podcast. Remember that all of the links to the case Law and eDiscovery Assistant are publicly available so you can read the decisions in full. This week’s decision comes to us from the In re Uber Technologies, Inc. Passenger Sexual Assault Litigation. Try to say that three times fast!
This decision is from October 8, 2024, so just from a little less than a month ago from United States Magistrate Judge Lisa Cisneros. We’ve covered Magistrate Judge Cisneros’ decisions previously in the In re Uber Technologies case in Episode 138 and Episode 141 on Case of the Week. It’s a very involved, highly complex MDL action, and the counsel on both sides are very sophisticated and well educated in electronic discovery. So it’s a pleasure to cover these cases, as well as to see Magistrate Judge Cisneros’ thoughtful decisions on them. You’ll note that Magistrate Judge Cisneros has 43 decisions in our eDiscovery Assistant database. So while she’s been on the bench a shorter time than many of the judges that we have, she’s encountered a number of discovery issues and decisions that she’s made rulings on. The issues for today’s case include attorney-client privilege, clawback, and in camera review.
Facts
We are before the Court on a discovery dispute regarding the clawback of three documents and attachments to two of those documents that Uber inadvertently produced. Uber was required to produce documents in this MDL that had been previously produced in other sexual assault cases, and in doing so inadvertently produced five documents that were withheld on the basis of privilege in the previous matter in which they were produced. So, an inadvertent production. Both parties followed the steps that are laid out in their agreed upon process for clawing back documents.
Ultimately the plaintiff challenges the privilege in a couple of the documents and their attachments. The Court notes at the outset that the parties submitted three documents for in camera review, but that the attachments are not before the Court. So that somewhat complicates the process of reviewing them for privilege. There’s a little bit of discussion between the parties as to why that happened, but in essence it’s going to mean that they have to go back and resolve that issue and maybe come back to the Court with a subsequent dispute.
Let’s talk about the documents themselves.
According to the Court, two of the documents are offshoots of the same email thread in which Uber’s in-house counsel was eventually added to the thread and asked to provide legal advice about the policy changes that were being considered in the thread. Plaintiffs’ challenge is to the two emails sent in the thread before the in-house counsel was added. The third document at issue is a safety criteria update communications plan created for internal use by Uber’s communications and public policy teams. There’s nothing in the decision that says that those teams are made up of lawyers. Uber argues that the plan was provided to Uber’s in-house counsel for legal review and the advice regarding it is privileged. They also argue that the actual plan itself is privileged as a communication to in-house counsel.
This case raises a very important question that anyone producing documents has — whether attachments sent to counsel for legal advice are privileged. As the Court finds here, the answer required a very nuanced analysis that we’ll get into.
Analysis
The Court begins its analysis by confirming that state law governs claims of privilege in civil matters, which in this case is California law. Under California law, the attorney-client privilege is governed by the California Evidence Code and applies to confidential communications between client and lawyer during the course of the attorney-client relationship.
That’s a really important point there. It’s confidential communications between client and lawyer during the course of the attorney-client relationship. A party claiming the privilege has the burden of establishing the preliminary facts needed to support its position for privilege. Once that party establishes those facts to support a prima facie claim of privilege, then the privilege is presumed to apply and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential or that the privilege does not apply for other reasons.
To determine whether a communication is privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties and the communication. Where the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege. According to the Court, “[T]he relevant inquiry is not the content of the communication but is instead the relationship of the communicators.” If the communications were made during the course of an attorney-client relationship, as opposed to a relationship with some other dominant purpose, then the communications — including any reports of factual material — would be privileged, even though the factual material might be discoverable by some other means.
That’s a really important breakdown of this dominant purpose consideration in California. When you have a communication that may be attorney-client, an attachment can be privileged if it’s part of that attorney-client communication. I think we’re going to see here that the Court found that this one was not. However, the Court goes on to note:
[i]t is established that otherwise routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is ‘copied in’ on correspondence or memoranda.
We’ve seen this multiple times where literally teams are instructed just to add attorney-client privilege to emails, either where there’s not a lawyer on the email or they just copy a lawyer in order to try and assert privilege. Any relevant fact may not be withheld merely because it was incorporated into a communication involving an attorney. That’s according to the Court here.
Finally, the attorney-client privilege is inapplicable — so not applicable — where the attorney merely acts as a negotiator for the client, gives business advice or otherwise acts as a business agent.
Applying that backdrop of the law to the facts of this case is important and nuanced. But because two of the attachments at issue here were not before the Court, the Court ordered that the parties meet and confer on those documents and file a new motion if appropriate.
The Court then looked at that law against whether the privilege existed in the Safety Criteria Update. The Safety Criteria Update is a plan for public outreach regarding changes to Uber’s policy that occurred in response to a change in California law. According to a declaration that was filed from in-house counsel at Uber, the plan “was prepared by the Communications and Public Policy Teams in late 2015 or early 2016 in connection with Uber’s internal decision making regarding Uber company policies in light of California’s Proposition 47.” According to the Court, the plan was a communication among the members of those teams whose relationship did not have a dominant attorney-client purpose. There’s no discussion in the decision about whether or not there were attorneys on those teams or whether they sought legal advice about the language of the policy.
After the creation of the plan, the teams then sent it to in-house counsel for their review. And this is the important part. The Court found that if the document was not privileged when Uber’s policy and communications team created it, then the act of merely sending a copy to the lawyers to later review it did not retroactively render it privileged. Citing to the Oracle Am., Inc. v. Google Inc. decision from 2011, which is included in our eDiscovery Assistant database, “Simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege.”
We don’t know here whether ultimately that lawyer provided some legal advice based on the policy language that clearly would have been privileged or whether they made edits to the plan. None of that is included in this decision. We can only go based on the four corners of the facts that are articulated by the Court here in order to dig into that analysis. And, as here, it looks like the plan was created and at some point later it was sent to in-house counsel, Uber then tried to claim that the plan as attached to that correspondence was privileged, and the Court is saying no.
On that basis then, the Court denied Uber’s motion to clawback the plan.
Takeaways
I chose this case today because it provides good insight into a very nuanced issue of when documents are subject to the attorney-client privilege, as well as a great breakdown of how privilege applies. Most of what I articulated to you that’s the law in California is going to be consistent with what you’ll find across the country. But again, it’s a state-by-state basis, because in civil matters, even when you’re in federal court, the state law on privilege applies. So know what your jurisdiction is. If you’re operating in multiple jurisdictions, it’s a good idea to do that research at the outset of your case and understand how privilege is going to work so that you can identify and make decisions about potentially privileged issues early on. We’ve talked here on Case of the Week before about agency as a potentially privilege issue because whether a communication with an agent is privileged depends on the jurisdiction that you’re in across the country.
There are other myriad of issues on privilege that need to be considered at the outset of a matter. They need to be included in the review protocol. They need to be considered in terms of what to research and how to best approach those issues. So make privilege and the research associated with it for the jurisdiction you are in part of your early case checklist. Here. the plan was sent to counsel after it was created. As I mentioned, it doesn’t appear to be a situation where the team creating it sought input into the language, although maybe that was Uber’s point in arguing it was privileged.
But it’s, again, unclear from the four corners of the decision. And what does that tell us? It means that when you’re considering withholding a document for privilege, you need to consider the nuances for each document or attachment to a document that you believe is privileged. That is very complex. And here it would have required a detailed, specific analysis of the date the document was sent to counsel versus when it was created, etc. Having to do that level of analysis for many documents is hard and it’s very time consuming, which means that it is very expensive. Privilege review is expensive and it’s almost entirely manual and it jacks up the cost of litigation exponentially. And, that completely ignores the cost of motion practice like the one that we’re talking about today.
We’ve had discussions for years, in particular at the University of Florida eDiscovery Conference and at other conferences, including Georgetown, on whether the use of categorical privilege logs can reduce that expense. I would argue it does not. Or, how we can leverage technology to do it better, faster, and less expensively. This may be an opportunity for us, with the advent of AI and the creation of agents within AI, that maybe an agent can be created to be taught the nuances of privilege in a particular matter and apply them to a document collection. It’s worth exploring.
Next point here on our takeaways. Inadvertent production occurred here after the same documents had been withheld in a production in a related but previous matter. This decision again raises the issue of documents produced in another previous action.
We’ve talked here about the complexity of ESI and making consistent decisions across matters. It is incredibly difficult, and having a process in place to address inadvertent production is vital in these types of cases. Now, I don’t want you to look at this and say, okay, Kelly, but this is a huge MDL and we just have a standard discovery case between two sophisticated parties with good counsel on either side. Great. Fantastic. Glad that that’s where you are. But what happens when one of you inadvertently produces information that you want to clawback? It’s going to happen. It happens on the regular.
Put a plan in place. It doesn’t need to be complicated. The one here is a great process to copy. It was not complicated, but what it did was allowed the parties to follow a process very effectively and narrow the focus for the Court when they finally got to a motion. Those are two very incredibly important things to do to be able to save time, money, and also best utilize the court’s resources.
Finally, big important point about process. The Court here heard this dispute on letter briefs. I’ve talked about this a number of times here on the Case of the Week. Traditional motion practice can take months for a decision, and it just doesn’t work well for discovery. When you have to wait for months on a critical discovery ruling, it prevents you from moving forward with discovery effectively. You can’t necessarily take the depositions you would want to take, or you can’t use the documents you would want to use at those depositions, or you’re going to push discovery so close to the discovery deadline that you risk being able to follow up on issues that come up during depositions or subsequent document productions or third party discovery.
We talk regularly about the importance of getting started early in dealing with discovery with ESI. It is so much more difficult given the volume and the complexity of what we have and how new sources can arise at any point in a litigation that maybe you hadn’t considered before but came up because they’re mentioned in some of the documents that have been produced. Be aware. Start early in considering all of these issues.
As to the process for letter briefs, we need to get those discovery decisions quickly, and many courts have implemented a process to allow for discovery issues to be resolved on letter briefs. If you’re in a court that does have that process, utilize it. If you’re in a court that does not have that process documented in the court’s orders or that the court raises in its initial conferences, ask for it. Ask if it’s something you can implement for your case. That process is better designed for judicial efficiency in both resolving the issue, but also in keeping a case on track and moving forward. Our courts are jammed, and there are many types of matters that state court and federal magistrate judges handle outside of civil disputes. Give them the opportunity to manage their dockets effectively by telling them how effective resolving disputes on letters and briefs can be. Part of your job is to educate the judges on the issues that you care about. Moving the case forward effectively has to be primary consideration for you and your client.
Conclusion
That’s our Case of the Week for this week. Be sure to tune in next week, whether you’re watching us via our blog, YouTube, or downloading it as a podcast on your favorite podcast platform. Have a great week!
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