Boston Retirement System v. Uber Technologies, Inc.

Background

This discovery dispute arose in a securities class action based on Uber’s initial public offering. Boston Retirement System (BRS), the lead plaintiff, moved to compel production of unredacted versions of 28 documents produced by non-party PricewaterhouseCoopers (PwC). Uber asserted that the redacted portions were protected by the work-product doctrine.

The documents fell into four groups: impairment assessments, emails, forensic memoranda, and management representation letters. Uber had gathered analyses from its in-house and outside counsel and shared them with PwC, its independent auditor. PwC produced thousands of documents in response to a subpoena, and Uber asserted work-product protection over some of them.

Work-Product Analysis

The court applied federal privilege law and the Ninth Circuit’s “because of” test. Under that test, a document is protected when it was prepared because of anticipated litigation and would not have been created in substantially similar form without the prospect of litigation. The party asserting protection bears the burden of showing that the doctrine applies.

After reviewing the documents privately, the court found that the redactions in the impairment assessments summarized discussions with Uber’s counsel and revealed counsel’s mental impressions, conclusions, and opinions about ongoing legal matters. The redacted email exchanges discussed edits to loss-contingency letters, pending litigation or investigations, and legal strategy. The redacted portions of the forensic memoranda reflected counsel’s views and analysis concerning investigations, possible legal violations, and potential litigation.

The court also found that the redacted portions of the management representation letters were prepared from the judgment and analysis of Uber’s in-house counsel concerning allegations, investigations, litigation, and possible loss contingencies. The court reached the same conclusion for Exhibit H, a 245-page document containing reports from Uber’s counsel about material loss contingencies arising from pending or threatened litigation, claims, or assessments.

BRS argued that the documents should be produced because they were central to its theory about Uber’s business model and could show the condition of Uber’s business before and after the offering. The court treated this as an argument that BRS had a substantial need for the documents. It rejected that argument, finding that BRS did not distinguish between factual and opinion work product, did not support its assertion adequately, and did not respond sufficiently to Uber’s contention that BRS already had extensive materials on those subjects. The court therefore concluded that BRS had not shown the substantial need and undue hardship required to overcome the protection.

Motions to Seal

The court applied a lower “good cause” standard because the sealing requests concerned documents attached to non-dispositive discovery motions. It granted BRS’s motion to seal Exhibits A through BB because those documents contained legal, business, accounting, and regulatory analyses, along with correspondence concerning Uber’s confidential business and internal litigation analyses.

The court denied requests to seal descriptions of Exhibits A through BB in BRS’s briefs, concluding that those descriptions did not reveal confidential strategy or financial and regulatory information. It also denied the request to seal a generalized description of Exhibits P and Q and denied the request to seal PwC-related privilege logs in Exhibits CC through HH. The court further denied the request to seal portions of BRS’s opening brief that quoted the privilege logs.

Disposition

The court denied BRS’s motion to compel. Uber was ordered to immediately review its privilege log to determine whether any redactions in the remaining disputed documents should be removed in light of the ruling.

The court granted Docket No. 362. It granted in part and denied in part Docket Nos. 360 and 364, and denied Docket No. 387. BRS was ordered to refile versions of its motion to compel and reply brief consistent with the order.