Roblox Corporation v. WowWee Group Limited

Background

Roblox challenged WowWee’s attorney-client privilege designations for three categories of documents. WowWee argued that Roblox’s challenges were untimely. The court noted that the fact-discovery cutoff had been November 8, 2023, but that it had issued five later discovery orders requiring substantial additional production. Because the November privilege log had 36 entries, the January logs had 153 entries, and production was still ongoing, the court found it appropriate to address the privilege disputes.

Privilege disputes

For emails involving Ryan Wong and Wilson Ng, employees of non-party Early Light, WowWee said the individuals were acting as agents of Francis Choi, who was part owner of WowWee Hong Kong at the relevant time. The communications did not include attorneys. The court stated that it was unclear why the emails would be protected when they involved only non-attorneys. It ordered WowWee to brief why the communications were privileged and submit the emails for in-camera review, meaning private review by the court, by March 6, 2024. Roblox could respond by March 13, 2024.

For emails and attachments involving Vivian Arellano, WowWee said she was a design contractor hired through Echoer, its holding company for research and development, and that she helped prepare materials for outside counsel and performed design work pursuant to legal advice. WowWee relied on the “functional employee doctrine,” which can extend attorney-client privilege to certain contractors who function as company employees. Based on the limited facts presented, the court said Arellano did not appear to be WowWee’s functional employee, but it allowed further briefing. WowWee had to explain how Arellano qualified under the relevant legal principles and submit the communications for in-camera review by March 6, 2024; Roblox could respond by March 13, 2024.

For communications involving public-relations firms Weber and Interpublic, as well as WowWee’s longtime in-house public-relations consultant Dave Malacrida, WowWee argued that the third parties worked with outside counsel to help provide legal advice or qualified as functional employees. The court said it could not decide whether the communications were privileged without reviewing the documents. It ordered WowWee to submit them for in-camera review by March 6, 2024, and said WowWee must show that the third parties were retained to assist with legal advice rather than ordinary business advice. Roblox could respond by March 13, 2024.

Sealing motion and disposition

Roblox also filed an administrative motion asking the court to consider sealing another party’s material. Under the applicable local rule, WowWee, as the designating party, had to file a supporting statement or declaration within seven days. The defendants did not file the required statement. The court therefore denied Roblox’s administrative motion to consider whether another party’s material should be sealed. The order did not finally resolve any of the three privilege disputes; instead, it required further briefing and in-camera document submissions.