Doe v. Kaiser Foundation Health Plan, Inc.

Background

The case is a putative class action brought by John Doe, John Doe II, Jane Doe, Jane Doe II, Jane Doe III, Jane Doe IV, and Jane Doe V against Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and The Permanente Medical Group, Inc. The plaintiffs allege that Kaiser embedded code in its website, patient portal, and mobile applications that allowed third-party social-media and advertising-technology companies to intrude upon, read, intercept, and use sensitive personal and medical information without the plaintiffs’ knowledge and consent.

The order concerns a discovery dispute over Kaiser’s assertion of attorney-client privilege. The dispute initially involved 47 documents, but the parties resolved their disagreements over 39 documents and narrowed the matter to eight: Document Nos. 2, 3, 5, 151, 179, 192, 211, and 213. The court reviewed those documents and their related “parent” emails or communications in camera, meaning privately for purposes of deciding the privilege issue.

Legal standard

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case. The party seeking discovery bears the burden of showing relevance, while the party resisting discovery must explain why the discovery should not be allowed.

The attorney-client privilege protects confidential communications between attorneys and clients made for the purpose of obtaining or providing legal advice. The party asserting the privilege bears the burden of proving that it applies. The privilege protects communications, not underlying facts, and sending factual information to a lawyer does not automatically make that information privileged.

Analysis

The court found that all eight disputed documents were mixed-use documents containing factual discussion in whole or in part. None was created or authored by an attorney, and none contained a direct request for legal advice from a Kaiser employee to a Kaiser attorney. The court nevertheless evaluated each document and its related communications separately because privilege determinations depend on the specific facts and documents involved.

Document Nos. 2 and 5

Document Nos. 2 and 5 were identical copies of a document authored by a nonlawyer Kaiser employee and requested by another nonlawyer employee. The document was attached to an internal group chat about web-tracking technology. It consisted essentially of a list of web-tracking technologies. The authors and recipients in the chat were not attorneys, and the chat did not show legal advice from a Kaiser attorney or a request for legal advice.

The court characterized the document as the result of fact-finding and information gathering. Although a declaration stated that it was created to send to in-house counsel for legal advice, the document was separately sent to nonlawyers and was not attached to a direct attorney-client communication. The court held that Kaiser had not sufficiently shown that Document Nos. 2 and 5 were protected by attorney-client privilege.

Document No. 3

Document No. 3 was a spreadsheet of web-tracking technologies authored by a nonlawyer Kaiser employee and requested by another nonlawyer employee. It was attached to the same internal group chat discussed for Document Nos. 2 and 5. The chat indicated that the spreadsheet compiled materials from other Kaiser business units, and it did not include a Kaiser attorney or show legal advice from one.

The court found that the spreadsheet was a collection of factual information and that separately sending it to a lawyer did not transform it into a privileged communication. Kaiser therefore did not sufficiently meet its burden to show that Document No. 3 was protected from discovery.

Document No. 151

Document No. 151 consisted of PowerPoint slides created by Kaiser’s Executive Director of Privacy Compliance and sent directly to Kaiser in-house counsel. The related communication directly addressed the in-house lawyer and requested legal advice about the slides. Although the slides discussed facts, those facts were intertwined with questions about legal and regulatory risks. The court held that Kaiser sufficiently showed that Document No. 151 was protected by attorney-client privilege.

Document Nos. 179, 192, and 213

These documents were essentially copies of the same document, with minor differences. Document No. 179 was a one-page PowerPoint slide created by Kaiser’s Business Information Security Officer and sent to in-house counsel and other Kaiser employees. The related email string included direct attorney-client communications and specifically requested legal advice about the document’s contents.

The court held that communications among nonlawyer employees can remain privileged when they discuss or transmit legal advice from counsel. Because the factual discussion in these documents was intertwined with legal and regulatory risk issues, Kaiser sufficiently met its burden to show that Document Nos. 179, 192, and 213 were protected from discovery.

Document No. 211

Document No. 211 was created by Kaiser’s Executive Director of Privacy Security and Technology Compliance and sent directly to in-house counsel and another Kaiser employee. It was attached to an email sent in direct response to an earlier email from in-house counsel. The email chain included comments directed to the in-house lawyer and requested legal analysis concerning Document No. 211.

Although the document discussed facts, the court found that those facts were intertwined with legal and regulatory risk issues. Kaiser therefore sufficiently met its burden to show that Document No. 211 was protected by attorney-client privilege.

Disposition

The plaintiffs’ motion to compel production was granted as to Document Nos. 2, 3, and 5. Kaiser was ordered to produce those documents promptly. The motion was denied in all other respects, so the order left the other disputed documents protected from discovery. The order resolved the discovery matter identified as Docket No. 291.