Doe v. San Jose Unified School District Board

Background

The court resolved a dispute about whether five emails listed as privilege-log items 1, 33, 35, 38, and 42 had to be disclosed in discovery. The plaintiffs were Fellowship of Christian Athletes (FCA), Elizabeth Sinclair, and Charlotte Klarke. The emails involved Rigo Lopez, an FCA employee, and District employees Marc Cooper, Kristen Borup, and Scott Rudolph, who had been faculty advisors to FCA clubs. The plaintiffs did not dispute that the emails responded to the defendants’ discovery requests.

The plaintiffs claimed that items 1 and 33 were protected by both attorney-client privilege and the work-product doctrine, while items 35, 38, and 42 were claimed to be protected by attorney-client privilege. They also argued that disclosure to the District employees did not waive protection because the participants shared a common legal interest.

Legal standards

Attorney-client privilege protects confidential communications made to obtain or provide legal advice when the communications are intended to remain confidential. The work-product doctrine generally protects materials prepared by or for a party or its representative in anticipation of litigation. The party asserting either protection bears the burden of showing that it applies.

The common-interest doctrine is an exception to ordinary waiver rules. It can preserve an existing privilege or protection when separately represented parties communicate confidentially about a shared legal interest and pursue a joint legal strategy. It does not create a privilege where none already exists.

Court’s analysis

For items 35, 38, and 42, the court reviewed the emails and found that Cooper had forwarded District communications to Lopez. The plaintiffs acknowledged that the underlying District communications were not protected by a privilege held by the plaintiffs. The court rejected the argument that Cooper’s forwarding emails were privileged merely because FCA and Cooper allegedly had a common legal interest. The record did not show that Cooper sought legal representation from Lopez or that Cooper was an actual or prospective client of FCA’s lawyers. The court therefore concluded that these items were not protected by attorney-client privilege and had to be produced.

For item 1, the email exchange included an unprivileged message from District employee Peter Glasser, later messages between Lopez and FCA’s lawyers, and a message copied to District employee Kristen Borup. The court concluded that the communications between Lopez and FCA’s lawyers were privileged in the absence of waiver, but it found no sufficient showing that the work-product doctrine applied. The court held that the plaintiffs had not shown that Borup shared a legal interest with FCA, Klarke, or Sinclair or that the communication was part of a joint legal strategy. Disclosure to Borup therefore waived any applicable privilege or work-product protection, and item 1 had to be produced.

For item 33, the court assumed for purposes of the dispute that the communication from FCA’s counsel was protected by attorney-client privilege and the work-product doctrine. The court nevertheless found that the plaintiffs had not shown that Rudolph had a legal interest in common with FCA or that the communication pursued a joint legal strategy. The plaintiffs therefore could not rely on the common-interest doctrine, and item 33 had to be produced.

Ruling

The court concluded that the plaintiffs had failed to show that items 1, 33, 35, 38, and 42 were protected by attorney-client privilege or the work-product doctrine. It ordered the plaintiffs to produce all five documents no later than April 28, 2022. Judge Virginia K. Demarchi signed the order.