Goldthorpe v. Cathay Pacific Airways Limited

Background

The parties presented two discovery disputes concerning plaintiffs’ privilege log. The log described communications between plaintiffs’ counsel and putative class members, meaning people who might be included in the proposed class. The disputes were whether those communications were protected by attorney-client privilege and whether plaintiffs’ counsel could redact the names of the putative class members from the log.

The opinion states that Cathay sent written settlement offers to the putative class members in late January 2023. The notices identified plaintiffs’ counsel. Numerous recipients then contacted counsel’s office by phone or email seeking legal advice about the offers. Plaintiffs’ counsel stated that the office did not contact putative class members who had not first contacted it and that it sent legal advice and updates to people who asked to receive that information.

Attorney-client privilege

Because the case was based on diversity jurisdiction, the parties agreed that California law governed the privilege questions. Under that law, the attorney-client privilege protects confidential communications between a lawyer and a client. California law also treats a person who consults a lawyer to obtain legal services or advice as a client for this purpose, even if that person did not formally retain the lawyer.

The court found that plaintiffs’ declarations were sufficient to establish that the communications with the putative class members were privileged. The court had previously questioned whether the privilege log showed that the putative class members had initiated the contacts, because some log entries began with messages from the law firm. Plaintiffs explained that the initial messages were included within email chains. The court accepted that explanation.

The court rejected Cathay’s argument that the communications were unprivileged solicitations of business. It also rejected Cathay’s argument that plaintiffs had waived the privilege by logging each email chain as one document rather than separately listing every email. The court stated that California law does not allow a timely privilege objection to be waived solely because of deficiencies in a privilege log. After plaintiffs provided additional information, the court found that it could decide the privilege issue on the merits.

The court therefore DENIED Cathay’s motion to compel production of the communications.

Redacted names

The court next considered whether plaintiffs could redact the names of the putative class members who contacted counsel. A privilege log ordinarily identifies the people who authored, sent, or received each document and provides enough information to evaluate the privilege claim. But the court explained that California law may protect relevant information from discovery when disclosure would invade a person’s privacy, even if the information is not itself covered by a statutory privilege.

The court applied a balancing test that weighs the requesting party’s need for the information against the third parties’ privacy interests. Relevant considerations included the purpose of the request, the effect disclosure would have on the affected people and parties, the objections to disclosure, and whether less intrusive ways existed to obtain the information.

The court found that Cathay had no compelling need to know which putative class members had contacted plaintiffs’ counsel. Cathay knew the identities of the class members, including those who received the settlement letters and those with whom it settled. Cathay could contact those people directly to determine whether they had information to share. The court also concluded that the communications with counsel were privileged, limiting what Cathay could learn by identifying the individuals.

The court recognized that people who consult a lawyer have a privacy interest in the fact of that consultation. It found that the putative class members likely did not expect Cathay to learn that they had contacted plaintiffs’ counsel, particularly because Cathay’s letter stated that it would not retaliate against anyone for seeking legal advice. The court concluded that this privacy interest outweighed the minimal or nonexistent relevance of the identities and held that the names could be redacted from the privilege log.

Disposition

The court DENIED Cathay’s motion to compel the communications and allowed plaintiffs’ counsel to redact the names of the putative class members who contacted counsel. The order was signed by Thomas S. Hixson, United States Magistrate Judge.