Moradpour v. Velodyne Lidar, Inc.

Background

The parties submitted two discovery disputes. The first concerned whether Velodyne had to provide a privilege log for every redaction in documents produced during discovery. A privilege log gives opposing parties enough information to evaluate a claim that withheld or redacted material is protected from disclosure.

The second dispute concerned communications involving Joele Frank, a consulting firm retained by the Keker firm. Plaintiffs said Joele Frank was hired to handle Velodyne’s public responses to the ouster of the Halls. Defendants said Keker retained the firm to help provide legal advice to Velodyne’s Audit Committee. Defendants withheld documents involving Joele Frank based on attorney-client privilege and the work-product doctrine, which can protect materials prepared for litigation.

Court’s Analysis

Under Federal Rule of Civil Procedure 26(b)(5), a party claiming privilege must provide enough information for the other side to assess the claim. After reviewing the redacted documents, the court agreed that defendants did not need to provide the author, date, or document type for every redaction because that information was apparent from the documents themselves.

The court nevertheless found that the documents did not always identify what privilege defendants were asserting. For example, the redacted emails identified the participants and included subject lines, but did not make the asserted privilege clear. The court therefore directed defendants to provide information identifying the privilege asserted and explaining why. Defendants had to provide that information within three weeks of the order. The court did not find this requirement burdensome and suggested that the same privilege explanations might apply to broad groups of documents.

The court rejected plaintiffs’ categorical argument that communications with Joele Frank were not privileged. It stated that communications could be protected by attorney-client privilege if they were made for a legal purpose. They could also be protected as work product if they would not have been created in substantially similar form without the prospect of litigation and the litigation purpose could not be separated from any public-relations purpose.

Orders

The court directed the parties to meet and discuss the privilege log and plaintiffs’ questions about particular documents and privilege claims. Plaintiffs’ administrative motion to file the privilege log was DENIED. The order’s title also states that the administrative motion to seal and the administrative motion to supplement were DENIED. The opinion text provided here does not give additional reasons for those two denials.

Effect

The order addresses discovery and privilege issues during the litigation. It does not decide the parties’ underlying claims. The order was signed by Susan Illston, United States District Judge.