National Urban League v. Ross
- Lucy Koh
- 5:20-cv-05799
- U.S. District Court · Northern District of California
- 3
In National Urban League v. Ross, Judge Koh’s referred privilege dispute received expedited document-review procedures from three magistrate judges.
The plaintiffs and defendants in National Urban League v. Ross, particularly the defendants, who had to produce non-privileged documents and supplement privilege logs, and both sides, which had to identify priority documents and address the privilege test.
What happened
National Urban League v. Ross concerned documents that the defendants claimed were protected by attorney-client or deliberative-process privilege. Judge Lucy H. Koh had referred the privilege review to magistrate judges, and the parties agreed that those rulings could be appealed.
The order required each side to identify up to 75 highest-priority documents for review. It also required defendants to produce documents on their privilege log that listed no claimed privilege, identify every attorney involved in communications covered by attorney-client privilege, and address other requirements concerning declarations and the deliberative-process privilege.
The court ordered the parties to address the four-factor test from FTC v. Warner Communications, Inc., including specific record evidence if defendants claimed other evidence was available. Magistrate Judges Nathanael M. Cousins, Susan Van Keulen, and Thomas S. Hixson issued the order under Judge Lucy H. Koh’s privilege-review process; the order did not decide the underlying privilege dispute.
The detailed version
- National Urban League v. Ross · No. 5:20-cv-05799
- Lucy Koh
- Sept. 19, 2020
Background
Judge Lucy H. Koh referred to Magistrate Judges Nathanael M. Cousins, Susan Van Keulen, and Thomas S. Hixson the review of documents that defendants claimed were privileged. Earlier orders established the process, and the parties consented to having the magistrate judges’ privilege rulings be final and appealable to the Ninth Circuit or the U.S. Supreme Court.
Procedures Ordered
The order supplemented Judge Koh’s prior orders by requiring:
- Plaintiffs to identify no more than 75 “highest priority” documents for privilege review by 11:00 p.m. Pacific time on September 19, 2020. - Defendants to identify no more than 75 “highest priority” documents by 11:00 a.m. Pacific time on September 20, 2020. - The court to address the highest-priority documents first. - Defendants to produce and file documents on their September 18 privilege log that did not identify any claimed privilege, and to clarify whether those documents had already been produced. - Defendants to supplement privilege logs asserting attorney-client privilege by identifying every attorney in the communication chain. - The parties to address the four-factor test from FTC v. Warner Communications, Inc., including the availability of other evidence. If defendants asserted that other evidence was available, they had to cite specific evidence in the record.
The opinion text is incomplete in the portion addressing the declarations submitted in support of the deliberative-process privilege. It states that the declarations used identical document categories but different Bates-number identifications and begins a deadline instruction, but the remaining text does not clearly show the full instruction.
Ruling and Effect
The magistrate judges ordered the stated privilege-review procedures. This was a discovery-related case-management order; it did not determine whether any particular document was ultimately privileged or decide the underlying claims. The order was issued by Magistrate Judges Nathanael M. Cousins, Susan Van Keulen, and Thomas S. Hixson as part of the process established by Judge Lucy H. Koh.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.