Arthur J. Gallagher & Co. v. Petree ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ARTHUR J. GALLAGHER & CO., No. 2:18–cv–3274–JAM–KJN 11 Plaintiff, ORDER TO PRODUCE 12 v. 13 ROBERT PETREE, et al., 14 Defendants. 15 16 On January 15, 2021, the court held a telephonic informal discovery conference regarding 17 certain discovery disputes in this litigation. (ECF No. 62.) Following that conference, the court 18 ordered defendants to submit for in camera review three pages of documents (“the opinion 19 memo”) that defendants have been withholding as privileged under the joint defense/common 20 interest doctrine. (ECF No. 63 at 2.) The court gave defendants until January 19, 2021, to advise 21 whether they desired an opportunity for further briefing of the privilege issue. (Id.) The court 22 subsequently extended that deadline to January 21, 2021, at defendants’ request. (ECF No. 64.) 23 On January 21, defense counsel again requested more time to confer with one of its clients but 24 indicated that if the court was inclined to order production of the opinion memo, that defendants 25 be allowed to brief the issue. In a minute order the same day, the court stated that it was strongly 26 inclined to order production and ordered defendants to file any opposition to production no later 27 than 4:00 pm on January 26, 2021. (ECF No. 65.) 28 //// ee EIR EI III IE EI EI OSI I OOD 1 That deadline having passed without the filing of any opposition by defendants, the court 2 | now orders that the opinion memo be produced in full to plaintiff. At the informal hearing, the 3 | court remained open to the possibility that the contested documents might evince a joint 4 | agreement between the two named defendants. However, in camera review reveals that 5 | the documents do not indicate the presence of an agreement between the two to pursue a joint 6 | defense strategy. See In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“[A] shared 7 | desire to see the same outcome in a legal matter is insufficient to bring a communication between 8 | two parties within [the common interest/joint defense exception]. Instead, the parties must make 9 | the communication in pursuit of a joint strategy in accordance with some form of agreement— 10 | whether written or unwritten.”) (internal citations omitted). The court thus finds that any 11 | attorney-client privilege protecting the opinion memo was waived by its communication to a third 12 | party, defendant Petree. Defendants have elected to no longer oppose production. 13 Accordingly, IT IS ORDERED that by 5:00 pm on January 27, 2021, defendants shall 14 | produce to plaintiff an unredacted copy of the opinion memo provided to the court for in camera 15 || review. 16 | Dated: January 27, 2021 " Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 20 gall.3274 21 22 23 24 25 26 27 28