Yu v. ByteDance Inc.

Background

The parties submitted three discovery disputes. ByteDance Inc. (BDI) asked for: (1) the identity of an anonymous declarant who reportedly saw a signed copy of an undertaking agreement; (2) production and forensic inspection of a USB drive that Yu said an anonymous source mailed to him; and (3) Yu’s in-person deposition on May 28 or in early June.

Anonymous Declarant

During mediation in September 2022, Yu gave BDI a redacted witness statement. According to BDI, the witness said that the witness saw an employment agreement bearing Yu’s signature. BDI contended that the agreement was the undertaking agreement it says Yu signed, although BDI had not located a signed copy in its files. BDI argued that the witness’s identity was not protected by privilege. Yu opposed discovery concerning the witness.

Because the case was governed by the Federal Arbitration Act, the court applied federal privilege law rather than California mediation privilege law. The court noted that the Ninth Circuit had not recognized a federal mediation privilege and that district courts in the circuit disagreed about whether one existed. The court held that, even if a federal mediation privilege applied, it would not protect the identity of a witness from discovery. It also explained that the privilege would not protect facts known by a witness merely because those facts appeared in a mediation statement.

The court found the witness’s identity relevant to whether Yu signed the undertaking agreement. It granted BDI’s request that Yu identify the anonymous declarant. It also directed Yu to respond to Request for Production No. 30, seeking all communications with the declarant, and to provide a privilege log for any documents Yu claimed were privileged.

USB Drive

Yu disclosed during mediation that he had received a USB drive by mail from an anonymous source. The drive contained, at a minimum, a recording of a 2018 conversation involving BDI’s former counsel and members of BDI’s human-resources and/or legal departments. The conversation concerned Yu’s employment obligations and certain agreements he had signed.

BDI requested forensic imaging of the drive or, alternatively, a third-party neutral’s determination of which contents were relevant. BDI argued that the drive and its metadata could show whether Yu signed arbitration agreements he denied signing, including by revealing other recordings, deleted recordings, or copies of the agreements.

The court found the USB drive discoverable and not protected by mediation privilege. The recording concerned a conversation from before the mediation, and the record showed that the drive was evidence produced during mediation rather than a confidential mediation communication. The court directed the parties to meet and confer about the process for examining the drive and producing its contents. If Yu claimed that the drive contained privileged material, the court required him to provide a privilege log.

Deposition

The parties disputed their agreements about the timing of Yu’s deposition. Yu said he could not be in California until July. BDI said it needed to take the deposition in late May or early June and that its lawyers would travel to Yu’s location.

The court found BDI’s position reasonable and concluded that Yu had not provided a good reason why the deposition could not occur on May 28 or in early June. Judge Susan Illston therefore granted BDI’s request to take Yu’s deposition in person on May 28 or early June, if the parties preferred, wherever Yu was located; BDI’s counsel was required to travel to that location.