KJ-Park, LLC v. Match Group, LLC

Background

After an earlier order, KJ-Park, LLC and defendants Match Group, LLC and Match Group, Inc. continued to dispute Match’s claim that 19 documents could be withheld from discovery. The documents were in the possession of nonparty Jones Lange LaSalle Americas, Inc. (JLL), which the opinion describes as Match’s real estate broker. The disputed materials were email communications involving JLL employees, Match employees or employees of Match affiliates, and Match’s counsel, along with several drafts or other materials prepared by Match’s counsel.

Match claimed attorney-client privilege for some documents and attorney work product protection for others. Attorney-client privilege generally protects confidential communications made for the purpose of obtaining or providing legal advice. Work product protection generally protects materials prepared in connection with litigation, including an attorney’s mental impressions and legal analysis.

The parties’ positions

KJ-Park questioned whether some documents contained business advice rather than legal advice, but its main argument was that Match waived any protection by disclosing the documents to JLL. Match and JLL asserted that JLL facilitated the attorney-client communications and that its involvement was reasonably necessary. They did not file a motion or supporting declarations and did not submit the disputed documents for private review by the court, even though the court had invited those steps.

Court’s analysis

Because the case is based on diversity jurisdiction, the court applied California law to attorney-client privilege and federal law to work product protection. Under California law, disclosure to a third party outside the attorney-client relationship generally destroys confidentiality unless the third party was present to further the client’s interests in the legal consultation or was reasonably necessary to transmit information or accomplish the purpose of the legal advice. For work product, disclosure does not always waive protection, but waiver can occur when the disclosure substantially increases the opportunity for potential adversaries to obtain the material or when the opposing party needs the material to fairly contest claims.

The court had previously told Match and JLL that JLL’s role as Match’s agent in a real estate transaction did not automatically make JLL an agent for purposes of privileged communications. They needed to show, for each disputed communication, that JLL and its personnel acted to seek, obtain, or implement legal advice rather than for another purpose.

The court found that Match and JLL continued to rely on general statements about JLL’s role. They did not provide evidence explaining what JLL actually did in connection with the communications. The court emphasized that Match, as the holder of the claimed protections, had the burden to support them. A privilege log alone was not enough when the log showed that the documents had been disclosed to a nonparty and Match had not explained why the disclosure preserved protection.

For the work product materials, the court found that the privilege-log descriptions were enough to show that the materials contained attorney work product. But the log and the parties’ joint letter did not explain why the materials were shared with JLL or whether they were shared confidentially. Match and JLL therefore did not show that the disclosures had not waived work product protection.

Ruling and required action

The court concluded that Match and JLL had failed to demonstrate that the 19 disputed entries could be withheld as privileged or protected material. Match and JLL were ordered to produce unredacted versions of the documents corresponding to every disputed entry to KJ-Park by May 3, 2024. Alternatively, if they disputed producing the documents themselves, they could submit paper copies to the court for private review, labeled to match the privilege-log entries, no later than April 26, 2024.