Cisco Systems, Inc. v. Sheikh ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CISCO SYSTEMS, INC., et al., Case No. 18-cv-07602-YGR (TSH) 8 Plaintiffs, DISCOVERY ORDER 9 v. Re: Dkt. No. 117 10 ZAHID HASSAN SHEIKH, et al., 11 Defendants. 12 13 We’re here on a dispute about the application of the attorney-client privilege to 14 conversations between the deponent, Cisco’s Kenny Carter, and his manager, Chuck Williams, 15 about ADSI. Carter and Williams are non-lawyers.1 The parties’ joint discovery letter brief, ECF 16 No. 117, discusses the attorney-client privilege, but it does not discuss the work product doctrine. 17 So, although Cisco also objected based on work product during the deposition, the only issue that 18 has been briefed is the attorney-client privilege, and the Court limits its consideration to that. 19 There are situations where communications between non-lawyers are privileged. “The 20 attorney-client privilege may attach to communications between nonlegal employees where: (1) 21 the employees discuss or transmit legal advice given by counsel; and (2) an employee discusses 22 her intent to seek legal advice about a particular issue.” Dolby Labs. Licensing Corp. v. Adobe 23 Inc., 402 F. Supp. 3d 855, 866 (N.D. Cal. 2019) (citations and internal quotation marks omitted); 24 see also United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002) 25 (“The final category of communications that we are called upon to evaluate involves 26 27 1 ADSI says it also wants to know about conversations between Carter and any other non-lawyers 1 communications between two or more nonlegal employees. It seems to us that there are two types 2 || of these communications that the privilege might protect. The privilege might protect a 3 communication between nonlegal employees in which the employees discuss or transmit legal 4 advice given by counsel. Such communications obviously reveal privileged communications. .. . 5 [|] The second type of communication that the privilege might protect is a communication 6 || between nonlegal employees in which an employee discusses her intent to seek legal advice about 7 a particular issue.”). 8 The objections at issue take place at pages 67 to 77 of the transcript. If all you do is read 9 || those pages, you won’t understand why Carter’s discussions of ADSI with Williams are 10 || privileged. The answer comes at pages 95-96 of the transcript. That’s when we learn that Carter 11 has regular calls with the attorneys litigating this case, and when Williams isn’t on one of those 3 12 || calls, Carter gives him the update from the legal call, and those are the only conversations Carter & 13 had with Williams about ADSI.” This is the transmission of legal advice provided by counsel, and 14. || it’s privileged? ADSI’s motion to compel is DENIED. 15 IT IS SO ORDERED. 16 17 || Dated: April 13, 2020 THOMAS S. HIXSON 19 United States Magistrate Judge 20 21 22 23 24 25 |) 2 Cisco’s portion of the letter brief states that Williams transmitted the legal advice to Carter when 26 || the latter missed the attorney call. Page 95 of the transcript makes it sound like the transmission of the legal advice went the other way. In any event, it doesn’t matter. 07 3 ADSI also invokes the sword-and-shield doctrine, stating that Carter verified Cisco’s discovery responses and Cisco has identified him as a person with knowledge underlying Cisco’s claims. 2g || However, those things just have nothing to do with whether Carter’s transmission of legal advice to Williams (or vice versa) is privileged, so the sword-and-shield doctrine is inapplicable.