Kellman v. Whole Foods Market, Inc.

Background

The parties submitted a joint discovery letter addressing two disputes. First, they disagreed about whether the Whole Foods defendants could redact information from produced documents because it was nonresponsive or irrelevant. Second, they disputed whether the defendants had adequately described documents withheld or redacted under the attorney-client privilege or work-product protection.

The court noted that the defendants had removed redactions from 501 documents shortly before the joint letter was filed and had produced an updated privilege log. The court therefore addressed only the two disputes presented in the letter and stated that the parties could submit another joint discovery letter if disputes remained after further production and revisions.

Redactions for Nonresponsive or Irrelevant Information

The plaintiff argued that the defendants lacked discretion to redact information based on relevance or responsiveness and that the protective order addressed confidentiality concerns. The plaintiff also argued that the electronic-discovery protocol allowed redactions only for privilege or immunity and that Federal Rule of Civil Procedure 34 disfavored redacting otherwise responsive documents.

The defendants argued that the electronic-discovery protocol permitted redactions for nonresponsive information and that such redactions helped satisfy the proportionality requirement in Rule 26.

The court held that the defendants could not redact responsive documents solely because they contained irrelevant or nonresponsive information. It relied on case law disfavoring such redactions and found that the defendants had not identified harm or burden supporting them. The court explained that proportionality was better addressed through the methods used to obtain responsive information, rather than by redacting information after the electronic search had been conducted. The court allowed redactions to protect privileged information and other protection recognized under applicable law or regulation.

Attorney-Client Privilege and Work-Product Protection

Attorney-client privilege generally protects confidential communications made for the purpose of obtaining or providing legal advice. Work-product protection can protect materials prepared in connection with legal work. The court considered whether the defendants’ privilege-log descriptions adequately supported their claims.

For attachments to attorney-client communications, the court held that an attachment is not automatically privileged merely because it was attached to a privileged email. The defendants had to show that each attachment independently met the requirements for protection. The court found the descriptions for Line Nos. 100 and 107 sufficient, even though one description did not identify an author. It found that Line No. 48 had been adequately explained but required that explanation to appear in the next privilege log.

Line No. 60 was no longer subject to a privilege claim because the defendants had produced it. The court declined to rule on Line No. 30 because the defendants had agreed to revise its description. For Line Nos. 53 and 54, the court said the privilege issue was premature based on uncertainty about their relationship to another email and whether they had been produced elsewhere. The court emphasized that attorney-client privilege protects communications, not the underlying facts; factual attachments therefore could not be withheld merely because they accompanied a privileged communication.

For attachments created before the parent email, the court required the defendants either to provide privilege-log descriptions explaining why the attachments were protected communications rather than facts, or to produce them.

The court also found insufficient the descriptions for two documents that the defendants had clawed back as inadvertently produced privileged materials. The defendants had to amend the privilege log to provide a clearer basis for the privilege claims or produce those documents.

Finally, the court found insufficient the defendants’ description of documents in the “Exclusive Brands Claims Guide” group. The defendants had to provide a revised description explaining the basis for privilege or produce the documents.

Disposition

The court ordered the defendants to submit a revised privilege log within 14 days of the order. The revised log had to comply with the court’s rulings, including the requirements to explain certain privilege claims or produce the documents. The court also disallowed redactions based solely on responsiveness or relevance.