In re Sandisk SSDS Litigation
- 3:23-cv-04152
- U.S. District Court · Northern District of California
- 3
In re Sandisk SSDs Litigation: the court allowed limited deposition questions, required reopening for scope questions, and found no impropriety in looks or smiles.
The plaintiffs, SanDisk LLC, its defense counsel, and Dr. Matthew White are affected by the order governing the reopened deposition and permitted questions.
What happened
In re Sandisk SSDs Litigation concerns a deposition of SanDisk LLC’s witness, Dr. Matthew White. Defense counsel told White not to answer some questions because they supposedly fell outside the deposition notice or involved attorney-client privilege.
The defendants agreed to reopen the deposition for questions that were wrongly blocked as outside the notice. The court also allowed questions about whether attorneys gave SanDisk employees business or public-relations advice rather than legal advice, while cautioning that questions seeking privileged legal communications must be carefully worded.
The court found no impropriety based only on the witness looking at defense counsel or counsel smiling during the deposition. The order was issued by the court on May 22, 2025.
The detailed version
- In re Sandisk SSDS Litigation · No. 3:23-cv-04152
- May 22, 2025
Background
The parties submitted a joint discovery letter brief about defense counsel’s instructions for SanDisk LLC’s Rule 30(b)(6) witness, Dr. Matthew White, not to answer certain deposition questions. A Rule 30(b)(6) witness testifies for an organization about matters identified in the deposition notice.
The instructions involved two categories: questions defense counsel believed were outside the deposition notice, and questions counsel believed sought information protected by the attorney-client privilege. The defendants apparently conceded that the instructions based on the scope of the notice were wrong and agreed to reopen the deposition so the plaintiffs could ask those questions and relevant follow-up questions.
Attorney-Client Privilege
Because the case is based on diversity jurisdiction, the court applied California law to privilege questions. Under that law, a communication is protected when its primary purpose is legal consultation. The privilege does not protect ordinary business communications merely because a lawyer is copied, facts merely because they were included in a communication with a lawyer, or communications in which a lawyer acts as a negotiator, gives business advice, or acts as a business agent.
The plaintiffs argued that White should have answered questions about whether counsel instructed SanDisk employees not to disclose product defects because disclosure would create bad public relations. The court found that some questions were worded broadly enough to include privileged legal advice, such as advice about litigation or government-enforcement risks. But the court concluded that other questions were sufficiently directed to nonprivileged business advice and should have been answered.
Ruling
When the deposition reconvenes, the plaintiffs may ask whether attorneys gave SanDisk employees business advice, including public-relations advice, as distinct from legal advice. The plaintiffs must carefully tailor the questions to seek only nonprivileged communications. If attorneys gave nonprivileged business advice, the plaintiffs may ask about the substance of that advice.
The court rejected the plaintiffs’ contention that White’s looks toward defense counsel and defense counsel’s smile suggested improper conduct. The court stated that checking whether an attorney intends to object before answering is not inherently improper, and that a smile does not by itself show an improper purpose. The opinion does not state that a motion was granted or denied; it resolves the discovery letter brief and sets the terms for continuing the deposition.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.