Bourque v. United States of America Department of State
- Edward Chen
- 3:24-cv-06994
- U.S. District Court · Northern District of California
- 2
Counsel of record per CourtListener. Firm names are approximate and have been consolidated across spelling variants.
In Chase Bourque v. United States Department of State, Judge Cisseros ordered supplemental briefing on whether a voluntary-payment defense waives attorney-client privilege.
The plaintiffs and defendants in Chase Bourque, et al. v. United States of America Department of State, et al., particularly the parties’ positions concerning attorney-client privilege and the defendants’ voluntary-payment defense.
What happened
In Chase Bourque v. United States Department of State, the parties disputed whether the defendants’ voluntary-payment defense waives protection for communications about whether their fee-setting method was legal.
The plaintiffs argued that the defense requires a shared mistake about the law and therefore puts the defendants’ good-faith understanding of the law at issue. The defendants disagreed and said that a shared legal mistake is not part of the defense. The court did not decide those questions in this order.
Judge Cisseros ordered the defendants to state whether they are asserting their own mistake or good-faith understanding of the law as part of a defense. The parties must then file supplemental letter briefs addressing the defense’s requirements, the relevance of the defendants’ state of mind, and who must prove it.
The detailed version
- Bourque v. United States of America Department of State · No. 3:24-cv-06994
- Edward Chen
- Sept. 22, 2026
Background
The order concerns a discovery dispute arising from the planned deposition of John Zakrajsek. In a joint letter, the parties disputed whether the defendants’ assertion of the affirmative defense of voluntary payment waived attorney-client privilege for communications showing the defendants’ understanding of the legality of their fee-setting methodology.
The plaintiffs argued that the voluntary-payment defense requires a “mutual mistake of law” and therefore implicitly asserts that the defendants acted with a good-faith understanding that their conduct was legal. The defendants argued that mutual mistake of law is neither an element of nor an exception to the voluntary-payment defense.
Court’s Direction
The court stated that it might not need to decide the full requirements of the voluntary-payment defense to resolve the discovery dispute. The court noted that the defendants appeared to disclaim any intent to rely on their own mistake of law, or more generally their good-faith understanding of the law, as part of the defense. The court also stated that whether the defense’s legal requirements affect its merits could depend on which party’s legal position is correct, but that there might be no basis for a privilege waiver if the defendants do not intend to assert their own good faith.
The defendants were ordered to file a one-page statement by September 25, 2026, stating whether they are asserting their own mistake of law or good-faith understanding of the law as part of any defense. Each side was ordered to file a supplemental letter brief of no more than four pages by September 29, 2026, addressing:
- Whether the court must resolve the requirements of the voluntary-payment defense after the defendants respond, and why;
- The elements of the voluntary-payment defense;
- The extent to which a defendant’s state of mind or understanding of the law is or may be relevant to that defense; and
- If that state of mind or understanding is relevant, which party has the burden of proving it.
The court stated that it intended to resolve the parties’ joint letter after receiving the supplemental briefing. This order directed further briefing and did not resolve the privilege dispute or decide the requirements of the voluntary-payment defense.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.