Howington v. Taiwan Semiconductor Manufacturing Co., Ltd.

Background

Defendants Taiwan Semiconductor Manufacturing Co. Ltd., TSMC North America, TSMC Technology, Inc., TSMC Arizona Corporation, and TSMC Washington, LLC served requests for communications exchanged with any person about plaintiffs’ claims and allegations. Plaintiffs objected to producing some communications, or portions of communications, based on attorney-client privilege and work-product protection. They also relied on the common-interest or joint-prosecution doctrine. Defendants argued that plaintiffs had not established that the protections applied and that disclosure to non-parties waived them. Defendants alternatively requested private judicial review of the disputed documents.

The court noted that the submitted privilege log for Deborah Howington appeared to contain 56 entries, but the record did not clearly identify which entries were disputed.

Legal standards

Attorney-client privilege protects confidential communications between lawyers and clients made to obtain or provide legal advice. Work-product protection generally covers materials prepared by or for a party or its representative in anticipation of litigation. The party asserting either protection has the burden of showing that it applies.

Disclosure to a third party ordinarily waives attorney-client privilege or work-product protection. The common-interest doctrine is an exception to ordinary waiver rules when parties who are not jointly represented communicate confidentially about a shared legal interest and the communication advances that legal interest. The doctrine does not create a privilege by itself; an underlying privilege or protection must already apply.

Communications among named plaintiffs

The court said communications among jointly represented clients may be privileged or otherwise protected even when counsel did not participate, but only if the withheld information was privileged or protected in the first place and concerned the common representation or a common legal interest.

The court found that plaintiffs had not provided enough information to determine whether particular communications met those requirements. Plaintiffs also had not addressed, communication by communication, whether all participants were jointly represented by counsel of record when the communication occurred. The court rejected the idea that a potential class member’s belief that counsel represented their interests was enough to establish representation, explaining that lawyers represent clients, not interests.

Communications with absent class members

Plaintiffs did not dispute that potential class members who were not named plaintiffs were not automatically clients of plaintiffs’ counsel merely because they might later be part of a certified class. The court stated that potential class members are generally unrepresented before class certification and that communications with them are generally not privileged unless plaintiffs show that counsel separately established an attorney-client relationship with the particular person.

The court found that plaintiffs had not shown that counsel had an attorney-client relationship with any absent class member involved in the disputed communications. Plaintiffs also had not shown that an absent class member shared a common legal interest with the named plaintiffs or that the communication furthered that legal interest. A shared interest in the filing or outcome of the case was not enough.

Regarding work product, the court explained that disclosure to a third party does not always waive protection, but plaintiffs had not adequately identified the work product or explained how they prevented disclosure from substantially increasing potential adversaries’ ability to obtain it. Plaintiffs likewise had not established the requirements for applying the common-interest doctrine.

Communications with other non-parties

The parties appeared to agree that plaintiffs had withheld at least some communications with people who turned out not to be class members, but neither party identified those items on the privilege log. The court found that plaintiffs had not shown that those communications were privileged or protected in the first place. Plaintiffs also had not adequately explained why disclosure to non-parties with no legal or other interest in the litigation did not waive any protection.

Ruling and further proceedings

The court stated that it could not fully resolve the dispute on the record presented. It ordered the parties to reconsider their positions in light of the order and required plaintiffs to serve an amended privilege log by September 19, 2025. The amended log had to clarify the basis for each claimed privilege or protection and the basis, if any, for relying on the common-interest doctrine to avoid waiver.

If disputes remained, the court said it would allow the parties to brief them through a regularly noticed motion so they could submit evidence supporting their positions. Defendants could renew their request for in camera review, meaning private judicial review of the disputed materials, or the parties could agree to submit a representative sample. The parties had to propose a briefing schedule by September 26, 2025. Until then, no party could refuse to participate in deposition discovery solely because the privilege dispute remained unresolved.