Tribuo Partners LLC v. Wilson Sonsini Goodrich Rosati, P.C.

Background

The matter was referred to Magistrate Judge Donna M. Ryu for resolution of discovery disputes. Tribuo Partners LLC asked Wilson Sonsini Goodrich Rosati, P.C. to produce a privilege log for communications with the firm’s Office of General Counsel. A privilege log is a description of withheld documents or communications that gives the opposing party enough information to evaluate the privilege claim without revealing privileged content.

Wilson Sonsini described the communications as relating to the lateral transition of attorney Lyons and similar communications after the claim arose. It asserted that the communications were protected by the attorney-client privilege under California law and said they were not relevant to Tribuo’s theories. Wilson Sonsini offered to provide a declaration from someone in its Office of General Counsel explaining additional factual grounds for the privilege assertion.

Court’s Analysis

The court explained that Federal Rule of Civil Procedure 26(b)(5) requires a party withholding otherwise discoverable information on privilege grounds to describe the nature of the withheld material in a way that allows the other party to assess the claim. The court noted that a privilege log is the most common way to satisfy this notice requirement, although the Ninth Circuit has not expressly held that a privilege log is always required. The court also stated that boilerplate objections or blanket refusals are insufficient to assert privilege.

Order

Within seven days of the order, Wilson Sonsini must provide a sworn declaration from an individual in its Office of General Counsel who has personal knowledge of the communications. The declaration must explain the factual bases for the attorney-client privilege claim and address the general subject matter of the communications so Tribuo can assess their relevance and Wilson Sonsini’s assertion that they are not relevant.

After the declaration is provided, the parties must immediately meet and confer. If disagreements remain, they must submit a joint letter under the procedures set out in the order, attaching Wilson Sonsini’s declaration. The court denied the joint letter without prejudice.

The order also sets procedures for future discovery disputes. The parties generally must meet and confer before submitting a joint letter, and they may not file formal discovery motions unless the court later determines that formal briefing or proceedings are necessary. The order states that privilege logs should generally be produced as quickly as possible and no later than fourteen days after disclosures or discovery responses are due, unless the parties agree to another deadline or the court sets one. It also states that failure to promptly provide a privilege log may be treated as a waiver of the privilege or protection.