Boston Retirement System v. Uber Technologies, Inc.
- Richard Seeborg
- 3:19-cv-06361
- U.S. District Court · Northern District of California
- 2
In Boston Retirement System v. Uber Technologies, Judge Ryu ordered Uber to submit 12 disputed documents for private court review.
Boston Retirement System and the other plaintiffs seeking the documents, and Uber Technologies, Inc., which was ordered to submit the documents and supporting declarations.
What happened
In Boston Retirement System v. Uber Technologies, Boston Retirement System asked the court to require Uber to produce 12 documents listed on Uber’s privilege log, or to review them privately. Uber argued that attorney-client privilege protected the documents or their redacted portions.
The court found enough circumstantial evidence to reasonably believe that private review could show that some information was not privileged. The court also explained that Uber had to support its privilege claim with facts, including facts showing that the communications’ main purpose was obtaining or providing legal advice rather than business advice.
The court ordered Uber to submit complete, unredacted copies of the 12 documents by January 17, 2024, and to identify the redactions. Judge Ryu also ordered Uber to provide sworn factual declarations by January 19 and allowed the plaintiffs to file a five-page response by January 26; the court did not yet decide whether the documents were privileged.
The detailed version
- Boston Retirement System v. Uber Technologies, Inc. · No. 3:19-cv-06361
- Richard Seeborg
- Jan. 11, 2024
Background
The court considered the parties’ joint discovery letter. Lead Plaintiff Boston Retirement System sought to compel Uber Technologies, Inc. to produce 12 documents identified on Uber’s privilege log. In the alternative, Boston Retirement System asked the court to inspect the documents privately. Uber asserted that the documents, or portions redacted from them, were protected by the attorney-client privilege. Boston Retirement System disputed that position, arguing that the documents concerned business advice, conveyed factual information, or contained blanket redactions. The parties agreed that federal privilege law governed the dispute.
Court’s analysis
The court held that the circumstances described by Boston Retirement System provided a factual basis for a reasonable, good-faith belief that private inspection might reveal information that was not privileged. The court therefore ordered Uber to submit complete, unredacted versions of all 12 documents for private review by January 17, 2024, with the redacted portions marked for the court.
The court explained that the party asserting attorney-client privilege bears the burden of showing that the privilege applies. It also stated that when a communication has more than one purpose, courts in the Ninth Circuit use the “primary-purpose test”: whether the communication’s main purpose was to give or receive legal advice rather than business advice. The court ordered Uber, by January 19, 2024, to provide non-conclusory declarations sworn under penalty of perjury and containing enough admissible facts to support both its privilege claim and its position that the communications’ primary purpose was legal advice.
Order
The court allowed the plaintiffs to file a five-page brief addressing the information in Uber’s declarations by January 26, 2024. The parties were not allowed to submit further argument at that stage. The court stated that it would rely on the arguments in the joint discovery letter and could order additional briefing after completing its private review. The order required further evidence and document review; it did not make a final determination that the documents were privileged or nonprivileged.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.