Privilege Was Not Waived

Privilege Was Not Waived for All But One Document, Court Says: eDiscovery Case Law

In Klein, et al. v. Meta Platforms, Inc., No. 20-cv-08570-JD (VKD) (N.D. Cal. March 11, 2022), California Magistrate Judge Virginia K. Demarchi rejected most of the plaintiffs’ challenges to Meta Platforms’ (aka, Facebook) clawback notice, finding privilege was not waived for all but one of the redacted documents at issue.

Case Discussion

In this case involving multiple claims for antitrust violations against Facebook, the plaintiffs moved to compel defendant Meta Platforms to produce in unredacted form nine emails or portions of emails that are part of an extended email exchange on April 8-9, 2018 that Meta clawed back from production asserting attorney-client privilege pursuant to the parties’ stipulated Federal Rule of Evidence 502(d) Clawback Order. Meta labeled the redacted email communications “R1” through “R9,” and provided unredacted versions of these emails to the Court for in camera review.

Meta described each of the redacted email communications in its privilege log as “Email seeking and providing legal advice regarding Facebook’s API/platform policies” and each of the redacted communications was authored by and/or expressly directed to at least one of Meta’s in house counsel, as well as Rebecca Hahn, a partner at a marketing agency called The OutCast Agency. The email exchange was among approximately 12 million pages of documents that Meta previously produced to the FTC in response to a civil investigative demand in 2019, which the presiding district judge ordered Meta to re-produce to plaintiffs in this action. After the FTC alerted Meta that it had identified a communication email exchange as potentially privileged, Meta clawed the emails back from the FTC and sent a clawback notice to do so in this case as well.

Judge’s Ruling

Regarding the plaintiffs’ argument that the communications were made for the purpose of providing public relations support in response to an inquiry from the press, and not for the purpose of giving or receiving legal advice, Judge Demarchi stated in finding that privilege was not waived on these grounds: “The Court has reviewed the disputed communications in camera and in context with the unredacted portions of the email exchange. Based on that review, as well as a careful consideration of the parties’ submissions, the Court concludes that the disputed communications were made for the primary purpose of giving or receiving legal advice. As noted above, all of these communications were authored by and/or directed to at least one of Meta’s in house counsel. While some of the disputed communications include information that might be considered factual and therefore not privileged, including a description of other companies’ policies and references to Meta’s prior public statements about its own policies, the disputed communications as a whole concern the giving and receiving of legal advice regarding Meta’s response to the press inquiry.”

Regarding the plaintiffs’ argument that the communications were not privileged because they included a non-Meta employee (Hahn), Judge Demarchi stated in finding that privilege was not waived on these grounds: “Ms. Hahn’s role with Meta was neither unique nor was her contribution central to the attorney-client communications at issue…In this instance, Ms. Hahn’s apparently passive role in the disputed communications did not directly serve the interests the attorney-client privilege protects. At the same time, however, Meta has shown that Ms. Hahn had employee-like duties and responsibilities for Meta over many years, including access to confidential systems and information and to secure facilities, independent interactions with Meta’s business executives, and representing Meta at major communications events and in interactions with the press.”

Regarding the plaintiffs’ argument that production of the email exchange in unredacted form to the FTC in 2019 waived any privilege that otherwise may have protected the disputed communications, Judge Demarchi, noting that Meta’s efforts in that case “yielded a substantial privilege log, provided to Plaintiffs in this matter, containing more than 300,000 entries” stated in finding that privilege was not waived on these grounds: “Meta simply has not explained, either in a supporting declaration or in its opposing brief, what it actually did to prevent disclosure of privileged information in the first place… Nevertheless, the Court concludes that despite Meta’s poor showing on this point the Court may fairly infer that a disclosure of nine privileged communications from a document production of more than 12 million pages reflects that Meta did, in fact, use reasonable steps to prevent disclosure of privileged material to the FTC.”

However, Judge Demarchi also discussed that “Meta disclosed for the first time that in the FTC’s action against Meta…, a portion of one of the disputed communications had been included in a complaint filed in that action…Meta subsequently filed a notice of supplemental information explaining that the FTC and Meta jointly agreed in September 2021 that the FTC could include a portion of the redacted communication labeled R5 in the FTC’s Substituted Amended Complaint.”

As a result, Judge Demarchi stated in ruling privilege was waived on the R5 communication: “The Court is disappointed that Meta did not share this information with plaintiffs during the parties’ discussion and did not disclose it in briefing before this Court, as it is material to the Court’s resolution of this dispute. Meta has allowed a portion of redacted communication R5 to be disclosed to the FTC and to the federal court in the District of Columbia. The fact that the disclosure is confidential and under seal does not matter…Meta has agreed to permit the use and disclosure of a communication it contends is privileged. This is a voluntary disclosure.”

So, what do you think? Do you agree with the Court’s ruling that privilege was not waived for most of the communications?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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