Hart v. TWC Product and Technology LLC

Background

The court addressed a joint discovery letter concerning TWC’s privilege log. The court had previously required TWC to submit the disputed documents for in camera review, meaning private review by the judge. After reviewing the documents and the parties’ memoranda, the court concluded that the attorney-client privilege protected much, but not all, of the withheld documents.

Legal standard

Because the plaintiffs asserted California state-law claims, the court applied California law to TWC’s claim of attorney-client privilege. TWC had the burden of proving that the privilege applied. Under California Evidence Code section 952, the privilege protects confidential communications made to people whose involvement is reasonably necessary to transmit information or accomplish the purpose of consulting a lawyer.

The court focused on whether each document discussed legal advice or legal strategy. It explained that routine business communications do not become privileged merely because a lawyer is copied, and that the privilege protects communications—not underlying facts. A fact could not be withheld simply because it appeared in a communication involving an attorney.

Document-by-document findings

The court found the following log entries privileged: Entries 28, 29, 33, 36, 37, 48, 49, 53, 61, 69, and 79. These entries generally involved seeking, discussing, or gathering information for legal advice, including communications among attorneys and clients about information attorneys needed to provide advice.

For Entry 45, the court found the communications privileged except for the second half of an April 17, 2017 email that was forwarded on May 29, 2017. That portion was purely business-related, did not involve lawyers, and was not shown to be privileged.

Entry 58 was not privileged. Entry 60 was partly not privileged: a December 12, 2018 email did not involve attorneys or discuss legal advice and instead reflected the writer’s understanding of current business practices, while the rest of the thread, to the extent included in the log entry, was privileged.

For Entry 80, the court found the PowerPoint prepared for the Privacy Review Board privileged. But other documents reflecting the same information were not privileged. For Entry 106, the January 31, 2019 message and the messages in that string were not privileged because they concerned a technical matter rather than legal advice and did not discuss the technical matter for the purpose of obtaining legal advice. The fact that an attorney first noticed the technical issue did not make the entire email string privileged.

For Entry 113, the court found that the December 21, 2018 email at 2:26 p.m. and the December 20, 2018 email from Mary Glackin were not privileged because they reflected TWC’s policy on using location data. Attorney input in developing the policy did not make communications describing the policy privileged. The rest of the thread was privileged because it discussed seeking legal advice.

Privacy Review Board minutes and disposition

For Entries 10, 20, and 22, the court found that TWC had provided evidence that the Privacy Review Board’s primary purpose was to provide legal advice. The minutes reflected information presented to the Board to obtain legal advice and guidance about proposed business conduct, so the minutes were privileged. By contrast, documents reflecting “Use Cases”—proposals for using user data—were ordinary business documents and were not protected by the attorney-client privilege. The court understood that TWC had not withheld those documents to the extent they were responsive.

The court granted the administrative motion to seal as supported by the declaration at Docket No. 116-1. It stated that the order disposed of Docket Nos. 113 and 114.

Who was affected

The ruling directly affected TWC’s withholding of documents under the attorney-client privilege and the plaintiffs’ access to discovery materials. The opinion does not state the ultimate effect of these findings on the parties’ underlying claims.