Teradata Corporation v. SAP SE

Background

Teradata Corporation sought relief from Magistrate Judge Laporte’s September 9, 2019 non-dispositive order concerning audit-related documents in Teradata’s possession. SAP claimed that the documents were protected by the attorney-client privilege. Judge Laporte had ruled that U.S. privilege law applied, SAP had shown that the documents were privileged, SAP had taken reasonable steps to preserve the privilege, and the crime-fraud exception did not apply.

Judge Laporte granted SAP’s motion requiring Teradata to return or destroy the privileged audit-related materials and stop using or sharing information from them. She also denied Teradata’s motion to compel production of additional audit-related materials. Her order required Teradata’s lead counsel to provide certifications concerning the return or destruction of the materials, identify people who had received or accessed them, and certify that those people would not use or disseminate the information.

Teradata’s Objections

Teradata raised two objections. First, it argued that SAP had put the audit report and findings “at issue,” creating an implied subject-matter waiver of attorney-client privilege. Second, Teradata argued that identifying people who had accessed the materials would require disclosure of attorney work product, including information about lawyers, employees, or experts who had access to the documents.

At-Issue Waiver

Judge Orrick overruled Teradata’s objection and affirmed Judge Laporte’s finding that SAP had not waived privilege by putting the audit report or findings at issue. He concluded that SAP’s limited admissions, denials, discovery responses, references to the audit, and responses to the privilege disputes did not put the audit materials at issue. SAP’s statements about the audit and the credibility of people involved were treated as responses to Teradata’s argument that the crime-fraud exception applied, rather than as use of the privileged materials as both a shield and a sword.

The court noted that the issue could be raised again if SAP later used the audit report or related documents more extensively in litigating its claims or defenses. On the record before the court, however, Judge Laporte had not committed clear error.

Identification Requirement and Work Product

Judge Orrick concluded that the record did not clearly show why SAP needed Teradata to identify every person who had received or accessed the privileged information. If SAP intended to argue that a Teradata witness or a member of Teradata’s legal team who had accessed the information could not testify or participate in prosecuting the case, SAP could bring that motion without first obtaining the identification list. Otherwise, return or destruction of the privileged information and the required certifications were sufficient on the record presented.

The court therefore concluded that, absent more explanation or supporting case law, Teradata was not required to identify every individual who received or had access to the privileged information. Teradata also asked the court to require SAP to disclose the identities of witnesses and nonprivileged factual documents related to the audit. Because Teradata had not raised that request before Judge Laporte, the court stated that any dispute about that discovery should first be addressed by a magistrate judge.

Other Request and Effect of the Order

Nonparty Thomas Waldbaum lodged a statement objecting to Judge Laporte’s discussion of the crime-fraud exception. Judge Orrick denied Waldbaum’s request to file the statement because Waldbaum was not a party and Teradata had not raised that objection. The court also stated that the statement would not have provided a basis to overrule Judge Laporte.

Judge Orrick affirmed the no-waiver determination and declined to require the broader identification described above. The opinion does not expressly state an overall disposition using the phrase “granted in part” or “denied in part”; it states the specific rulings described here.