Illumina, Inc. v. BGI Genomics Co., Ltd ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ILLUMINA, INC., et al., Case No. 19-cv-03770-WHO (TSH) 8 Plaintiffs, DISCOVERY ORDER 9 v. Re: Dkt. No. 131 10 BGI GENOMICS CO., LTD, et al., 11 Defendants. 12 13 Illumina says the issue is urgent, so the Court opts for speed over length in drafting this 14 order. “The attorney-client privilege ‘may attach to communications between nonlegal employees 15 where: (1) the employees discuss or transmit legal advice given by counsel; and (2) an employee 16 discusses her intent to seek legal advice about a particular issue.’” Dolby Labs. Licensing Corp. v. 17 Adobe Inc., 402 F. Supp. 3d 855, 866 (N.D. Cal. 2019). Having performed an in camera review of 18 the emails at issue, the Court finds that the first entry in the privilege log satisfies this standard. 19 The second entry is a communication directly to an attorney for the purpose of seeking legal 20 advice and is privileged. The third entry is the transmission of legal advice by an employee, and 21 in context it is clearly advice the employee received from counsel, so that is privileged. For the 22 fourth and fifth entries, Defendants proposed to produce a redacted version of the fourth entry 23 (redacting a sentence) and the entirety of the fifth entry contingent on Illumina’s agreement that 24 such a proposal would not amount to a waiver of privilege or work product, which Illumina 25 declined to agree to. The Court concludes that Defendants’ proposal should not have been 26 contingent on Illumina’s agreement. For the fourth and fifth entries, Defendants were effectively 27 drawing the line in the right places – the fifth entry is neither privileged nor work product, and 1 produce the Redacted Zhao Email Chain 1.pdf, Unredacted Zhao Email Chain 2.pdf and HC-202- 2 || 03-31.xlsx immediately. 3 These documents should have been produced before the deposition, and in particular the 4 || spreadsheet has enough information in it to merit additional questioning. Accordingly, 5 Defendants shall make Zhao available for one additional hour of deposition concerning these 6 materials by April 29, 2020. 7 IT IS SO ORDERED. 8 9 || Dated: April 27, 2020 TAN. kb □□ THOMAS S. HIXSON I United States Magistrate Judge 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28