Cisco Systems, Inc. v. Sheikh
- Thomas Hixson
- 4:18-cv-07602
- U.S. District Court · Northern District of California
- 2
In Cisco Systems v. Sheikh, Judge Hixson denied ADSI’s motion to compel, ruling the privilege protected nonlawyers’ transmission of counsel’s legal advice.
ADSI’s effort to obtain answers about conversations between Cisco employees was affected; the court denied ADSI’s motion to compel and treated those conversations as protected by attorney-client privilege.
What happened
In Cisco Systems, Inc. v. Sheikh, the court considered whether conversations between Cisco employee Kenny Carter and his manager, Chuck Williams, about ADSI were protected by the attorney-client privilege. Both employees were non-lawyers.
ADSI asked the court to compel answers about those conversations. Cisco also objected based on the work product doctrine, but the parties did not brief that issue, so the court considered only attorney-client privilege. The court learned that Carter regularly spoke with the attorneys litigating the case and updated Williams when Williams was not on those calls.
The court concluded that the conversations transmitted legal advice from counsel and were privileged, so it denied ADSI’s motion to compel. The court also said the “sword-and-shield” argument did not change that result. Judge Thomas S. Hixson issued the order.
The detailed version
- Cisco Systems, Inc. v. Sheikh · No. 4:18-cv-07602
- Thomas Hixson
- Apr. 13, 2020
Background
The order addresses a discovery dispute concerning conversations between Cisco’s employee Kenny Carter and his manager, Chuck Williams, about ADSI. Carter and Williams were non-lawyers. During a deposition, Cisco objected to questions about those conversations based on the attorney-client privilege and the work product doctrine.
Issue Before the Court
The parties’ joint discovery letter brief addressed only the attorney-client privilege. Because the work product issue was not briefed, the court limited its consideration to attorney-client privilege.
The court explained that this privilege can protect communications between non-lawyer employees when the employees discuss or transmit legal advice from counsel, or when an employee discusses an intent to seek legal advice about a particular issue.
Court’s Analysis
The relevant deposition objections appeared on pages 67 through 77, but the court relied on testimony at pages 95 and 96 to understand the communications. That testimony showed that Carter regularly had calls with the attorneys litigating the case. When Williams was not on one of those calls, Carter gave Williams an update from the legal call. The court concluded that these conversations transmitted legal advice provided by counsel and were privileged.
The opinion noted that the transcript and Cisco’s letter brief differed about whether Carter transmitted the legal advice to Williams or Williams transmitted it to Carter. The court said that direction did not matter to its decision.
ADSI also relied on the “sword-and-shield” doctrine, arguing that Carter had verified Cisco’s discovery responses and had been identified as a person with knowledge underlying Cisco’s claims. The court rejected that argument as unrelated to whether Carter’s transmission of legal advice to Williams, or the reverse transmission, was privileged.
Disposition
The court denied ADSI’s motion to compel. It did not decide the separately raised work product objection because that issue was not briefed. The order was issued by United States Magistrate Judge Thomas S. Hixson.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.