Nuno v. Pacific Coast Container, Inc.

Background

The parties submitted a joint discovery letter brief concerning an email from Abdel Zaharan, a former chief financial officer at Pacific Coast Container, Inc., doing business as PCC Logistics, to Brandon McDonnell, Mike McDonnell, and John Paul Weber. Pacific Coast Container asserted attorney-client privilege over the email after receiving it in response to a subpoena served by Plaintiffs Elva Nuno and Rosa DeAnda.

Defendants argued that the email was a management-level discussion of legal advice from PCC’s counsel, John Skonberg, about investigations of employee complaints. Plaintiffs argued that the email did not involve PCC’s counsel and was not sent to obtain legal advice. They requested that the court review the email privately to determine whether privilege applied and whether any non-privileged portions could be produced with redactions.

In-Camera Review

The court applied federal law to the privilege issue. It explained that the party asserting attorney-client privilege must establish all of the privilege’s elements, including that the communication was made confidentially for the purpose of obtaining legal advice from a professional legal adviser.

The court applied the two-step test from United States v. Zolin. First, the party requesting private judicial review must make a minimal showing that the review may reveal non-privileged material. Second, the court has discretion to conduct the review after considering factors such as the amount of material, its importance to the case, and the likelihood that review will help determine whether the privilege applies.

The court found that Plaintiffs met this test. No attorneys were included in the email, and a reasonable person could believe that the discussion went beyond the substance of counsel’s legal advice. The court also found that the amount of material was small, the material could be important to the case, and review could help determine whether attorney-client privilege applied.

Accordingly, Plaintiffs’ request for in-camera review was GRANTED. Defendants were ordered to lodge the email with the court by January 31, 2024, for that review.

Privacy Argument

Defendants also argued that the email contained constitutionally protected private information about employees who had not consented to disclosure. The court noted that defendants cited no specific legal authority supporting that argument or explaining why it applied despite an existing protective order. The court deferred ruling on the issue. Defendants could file a supplemental letter of no more than one page by January 31, 2024, and Plaintiffs could respond in one page by February 1, 2024.

Subpoena Timing

Defendants objected that Plaintiffs served the subpoena to Zaharan before third-party discovery had opened, before the parties held the required conference about discovery, and before initial disclosures were exchanged. The court noted that defendants did not claim prejudice and had raised the same timing issue in an earlier discovery letter. Although defendants had not moved to quash the subpoena, the court overruled their objection based on timeliness.

Disposition

The court granted the request for in-camera review, directed defendants to submit the email, deferred the privacy issue pending any supplemental filing and review, and overruled the objection based on the subpoena’s timing. The opinion’s conclusion refers to “Plaintiffs’ objection” when stating that the timeliness objection was overruled, although the body of the opinion describes that objection as defendants’ objection.