Boston Retirement System v. Uber Technologies, Inc. ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BOSTON RETIREMENT SYSTEM, Case No. 19-cv-06361-RS (DMR) Individually and on behalf of all others 8 similarly situated, ORDER RE: NOVEMBER 9, 2023 9 Plaintiff, JOINT DISCOVERY LETTER 10 v. Re: Dkt. No. 394 11 UBER TECHNOLOGIES, INC., et al., 12 Defendants. 13 The court has reviewed the parties’ joint discovery letter (“JDL”) in which Lead Plaintiff 14 Boston Retirement System moves to compel production of 12 documents listed on Defendant 15 Uber Technologies, Inc. (“Uber”)’s privilege log. [Docket No. 394.] In the alternative, Lead 16 Plaintiff asks the court to perform an in camera inspection of the documents. Uber contends that 17 the documents or their redactions are protected by the attorney-client privilege. Lead Plaintiff 18 disputes the application of the attorney-client privilege, asserting that the documents relate to 19 business advice, convey factual information, or contain blanket redactions. The parties agree that 20 federal privilege law applies to this dispute. 21 As an initial matter, the court finds that the circumstantial evidence described in Lead 22 Plaintiff’s portion of the JDL demonstrates a “factual basis sufficient to support a reasonable, good 23 faith belief that in camera inspection may reveal evidence that information in the materials is not 24 privileged.” See In re Grand Jury Investigation, 974 F.2d 1068, 1074-75 (9th Cir. 1992). 25 Therefore, Uber shall lodge complete, unredacted versions of the 12 documents for in camera 26 review by January 17, 2024. Uber shall mark the redacted portions of the documents for the 27 court’s ease of reference. 1 States v. Gray, 876 F.2d 1411, 1415 (9th Cir. 1989) (citation omitted), and the party asserting it 2 bears the burden of proving that it applies. Richey, 632 F.3d 559, 566 (9th Cir. 2011); accord In 3 re Grand Jury Investigation, 974 F.2d at 1071 (party asserting privilege “must make a prima facie 4 showing” that privilege protects information the party intends to withhold). As the parties 5 acknowledge, the Ninth Circuit has recognized that “some communications [between attorneys 6 and clients] might have more than one purpose.” In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 7 2021). In that circumstance, courts in this circuit apply the “primary-purpose test” to determine 8 whether the communications are privileged. Id. at 1092. Under that test, “courts look at whether 9 the primary purpose of the communication is to give or receive legal advice, as opposed to 10 business . . . advice.” Id. at 1091 (citation omitted). 11 Accordingly, by January 19, 2024, Uber must provide evidence in the form of non- 12 conclusory declarations sworn under penalty of perjury containing sufficient admissible facts to 13 meet its burden to support its claim of attorney-client privilege as well as its position that the 14 primary purpose of the communications at issue was to provide legal advice. 15 Plaintiffs may file a 5-page brief addressing the information in the declarations by 16 January 26, 2024. The parties may not provide any further argument. The court will rely on the 17 arguments made in the JDL and will order additional briefing if needed after completing in camera 18 review. 19 20 IT IS SO ORDERED. 21 Dated: January 11, 2024 22 ______________________________________ Donna M. Ryu 23 Chief Magistrate Judge 24 25 26 27