Loh Xiao Han v. Interexchange, Inc.

Background

The plaintiffs are Celine Loh Xiao Han, Vannessa Chao Wan Yi, Supphattra Sonbankoh, Jhoam Felipe Toledo Villamizar, Lizetthe Natalia Torres Jaimes, and Victor Joshue Rocafuerte Alay. The opinion states that they are foreign nationals who were staffed through a government-backed work-travel program at Marie Eiffel Market. They sued InterExchange, Inc., the company that sponsored their visas, and the Eiffel Defendants: Marie Eiffel, Eiffel Reddings, LLC, Marie Eiffel, LLC, and Reddings Market, LLC.

The Eiffel Defendants challenged documents that the plaintiffs had withheld on a privilege log. They asked the court to review 15 representative documents privately, without producing them to the opposing parties, to determine whether the claimed common-interest privilege applied. The parties agreed that the documents contained duplicative or overlapping information, so the court could use the 15 examples to guide their review of the remaining documents.

Legal Standards

The common-interest privilege is an extension of the attorney-client privilege or work-product doctrine. It can protect otherwise privileged information shared by parties who have a common legal interest and are cooperating on a legal strategy. The court held that the plaintiffs, as co-litigants represented by the same counsel, shared a common legal interest. But a communication was protected only if it was otherwise privileged.

Attorney-client privilege protects confidential communications made to obtain or provide legal advice, not the underlying facts. The work-product doctrine protects documents prepared because of anticipated litigation, including materials that reflect an attorney’s mental impressions, opinions, or legal theories. The court also stated that an attorney did not need to participate directly in a communication for either protection to apply.

Rulings on the Fifteen Documents

The court ordered production of Bates Nos. 004187, 004346, and 004375. These documents concerned media coverage, possible scheduling of a call with counsel, and scheduling logistics, rather than legal advice or litigation strategy.

The court allowed the plaintiffs to withhold Bates Nos. 004476 and 005152. Those messages reflected legal advice about the litigation process and counsel’s specific requests for information and documents for possible future litigation.

The court ordered production of Bates No. 004362 because it only stated that unspecified documents had been uploaded to a shared drive and did not reveal legal advice or counsel’s mental impressions.

For Bates No. 004436, the court ordered the plaintiffs to redact messages sent from 10:39:32 through 10:54:16, because those messages referred to collecting information at counsel’s direction. The remainder had to be produced because it concerned administrative scheduling.

The court ordered production of Bates No. 004377 because it merely stated that an email could be sent to counsel without revealing the email’s substance, legal advice, or counsel’s mental impressions.

The court allowed the plaintiffs to withhold Bates No. 004443 because it discussed collecting specific categories of documents and evidence for counsel. The court also allowed the plaintiffs to withhold Bates Nos. 004609, 004819, 005189, 005227, 005229, 005568, and 006278. These documents reflected, respectively, advice from counsel about document-retention responsibilities; counsel’s requests for specific documents; collecting information at counsel’s direction about the plaintiffs’ experiences of discrimination and abuse; legal advice conveyed at a meeting with counsel; forwarding a document to counsel; collecting information and preparing written materials for counsel; and counsel’s legal advice about settlement.

The court ordered production of Bates No. 004595 because the messages generally discussed uploading files to a shared Google Drive without revealing legal advice, attorney communications, or counsel’s mental impressions. It also ordered production of Bates No. 005654 because discussions about adding plaintiffs and scheduling a meeting with counsel did not themselves contain legal advice or communications with counsel.

Disposition

The plaintiffs were ordered to produce the specified documents, produce Bates No. 004436 with the stated redactions, and meet and confer with the Eiffel Defendants about the remaining documents withheld under the common-interest privilege. The opinion states that a separate dispute about social-media data was not then before the court.