KJ-Park, LLC v. Match Group, LLC ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KJ-PARK, LLC, Case No. 23-cv-02346-VKD 9 Plaintiff, ORDER RE DISCOVERY DISPUTE RE 10 v. PRIVILEGE CLAIMS FOLLOWING IN CAMERA REVIEW 11 MATCH GROUP, LLC, et al., Re: Dkt. No. 88 Defendants. 12 13 14 Further to this Court’s April 19, 2024 order (Dkt. No. 86), defendants Match Group, LLC 15 and Match Group, Inc. (collectively, “Match”) submitted 131 of the 19 disputed privilege log 16 materials for in camera review: 17 No. Log entry Privilege/protection claimed 18 5 JLL_005420 Attorney-client communication 19 7 JLL_005423 Attorney-client communication 20 8 JLL_005424 Attorney-client communication 21 22 9 JLL_005606 Attorney-client communication 23 10 JLL_005607 Work product 24 11 JLL_005903 Attorney-client communication 25 13 JLL_005995 Attorney-client communication 26 27 1 As stated in Match’s amended notice of lodging documents for in camera review (Dkt. No. 90), 1 14 JLL_005996 Attorney-client communication 2 15 JLL_006015 Attorney-client communication; work product 3 16 JLL_006016 Work product 4 17 JLL_006017 Attorney-client communication; 5 work product 6 18 JLL_006018 Work product 7 19 JLL_006081 Attorney-client communication 8 9 In addition, Match submitted in camera a four-column document that includes the “Bates 10 Number,” “Email Subject/Document File Name,” and “Privilege Type” fields from its privilege 11 log (see Dkt. No. 78-1) for each of the disputed entries, as well as a “Notes” field that does not 12 appear in the privilege log. The Court ignores the “Notes” field except where pertinent to this 13 order, as indicated below. 14 The Court has reviewed each of the documents corresponding to the above disputed 15 privilege log entries and, relying on the legal framework and analysis described in its prior orders 16 (see Dkt. Nos. 62, 86), orders as follows: 17 Item 5 (JLL_005420): Not privileged; must be produced. 18 Item 7 (JLL_005423): Not privileged; must be produced. 19 Item 8 (JLL_005424): Neither the privilege log (Dkt. No. 78-1) nor the list of participants 20 (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email 21 thread. None of the communications in the email thread are attorney-client communications, 22 except for the email exchange between M. Baron (Match attorney) and J. Bannister (Match) on 23 March 27 and 28, 2019. However, Mr. Banister forwarded the entire email thread, including this 24 exchange, to B. Lane (JLL) on March 28, 209 and thereby waived any privilege that may have 25 existed. Nothing in the email exchange suggests that disclosure to Mr. Lane was necessary to 26 facilitate the communication of legal advice or to accomplish the purpose for which any such 27 advice was sought or provided. This item must be produced. 1 attorney-client communications between M. Baron (Match attorney), J. Bannister (Match), and B. 2 Perez (Match attorney). However, any privilege that may have existed was waived when J. 3 Bannister forwarded these communications to M. Gary (JLL) and D. Reid (JLL). Nothing in the 4 email exchange suggests that disclosure to Mr. Gary or Mr. Reid was necessary to facilitate the 5 communication of legal advice or to accomplish the purpose for which any such advice was 6 sought or provided. This item must be produced. 7 Item 10 (JLL_005607): As part of its in camera submission (“Notes” field), Match advises 8 that item 10 (a draft letter to KJ-Park) is an attachment to item 9, and thus item 10 appears to have 9 been forwarded to M. Gary (JLL) and D. Reid (JLL). Nothing in item 10 or item 9 reveals why 10 the draft letter was shared with JLL employees or indicates that it was shared in confidence. Any 11 work product protection that may have existed has been waived. This item must be produced. 12 Item 11 (JLL_005903): Neither the privilege log (Dkt. No. 78-1) nor the list of participants 13 (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email 14 thread. None of the communications in the email thread are attorney-client communications, with 15 the possible exception of the email exchange between M. Baron (Match attorney), J. Bannister 16 (Match), and B. Perez (Match attorney) on April 10 and 11, 2019. However, any privilege that 17 may have existed was waived when J. Bannister forwarded this exchange and the entire email 18 thread to M. Gary (JLL) on April 12, 2019 and thereby waived any privilege that may have 19 existed. Nothing in the email exchange suggests that disclosure to Mr. Gary was necessary to 20 facilitate the communication of legal advice or to accomplish the purpose for which any such 21 advice was sought or provided. This item must be produced. 22 Item 13 (JLL_005995): Neither the privilege log (Dkt. No. 78-1) nor the list of participants 23 (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email 24 thread. Not privileged; must be produced. 25 Item 14 (JLL_005996): Neither the privilege log (Dkt. No. 78-1) nor the list of participants 26 (Dkt. No. 78-2) accurately identifies the addressees and recipients of all portions of this email 27 thread. Not privileged; must be produced. 1 communications between and among Match or Match-affiliated employees. While M. Baron 2 (Match attorney) is copied on most of these communications, none of them are privileged 3 communications, except for the email exchange between M. Baron (Match attorney), J. Bannister 4 (Match), B. Perez (Match attorney), and I. Ponnambalam (Match) on May 8, 2019. However, Mr. 5 Banister forwarded the entire email thread, including this exchange, to S. Rotter (JLL) and B. 6 Lane (JLL) on May 14, 2019 and thereby waived any privilege that may have existed. Nothing in 7 the email exchange suggests that disclosure to Mr. Rotter or Mr. Lane was necessary to facilitate 8 the communication of legal advice or to accomplish the purpose for which any such advice was 9 sought or provided. This item must be produced. There is no apparent basis for separate work 10 product protection for this email thread. 11 Item 16 (JLL_006016): As part of its in camera submission (“Notes” field), Match advises 12 that item 16 (a draft letter to KJ-Park) is an attachment to item 15, and thus item 16 appears to 13 have been forwarded to S. Rotter (JLL) and B. Lane (JLL). Nothing in item 16 or item 15 reveals 14 why the draft letter was shared with JLL employees or indicates that it was shared in confidence. 15 Any work product protection that may have existed has been waived. This item must be 16 produced. 17 Item 17 (JLL_006017): This item is the same as item 15, except that it reflects that Mr. 18 Banister forwarded the entire email thread also to M. Gary (JLL) on May 14, 2019. For the same 19 reasons stated with respect to item 15, this item must be produced. 20 Item 18 (JLL_006018): As part of its in camera submission (“Notes” field), Match advises 21 that item 18 (a draft letter to KJ-Park) is an attachment to item 17, and thus item 18 appears to 22 have been forwarded to M. Gary (JLL). For the same reasons stated with respect to item 16, this 23 item must be produced. 24 Item 19 (JLL_006081): Item 19 contains no privileged communications. While the first 25 email in the email thread is copied to B. Perez (Match attorney) on June 6, 2019, the email itself 26 summarizes a business decision and discussion between and among non-attorneys. Moreover, J. 27 Banister (Match) forwarded the entire email exchange to S. Rotter (JLL) on June 7, 2019 and 1 disclosure to Mr. Rotter was necessary to facilitate the communication of legal advice or to 2 accomplish the purpose for which any such advice was sought or provided. 3 As part of its in camera submission (“Notes” field), Match states with respect to item 19: 4 || “Highlighted portions indicate proposed redactions in the event the Court orders production of this 5 || document. See Court’s Order re March 13, 2024 Discovery Dispute re Plaintiff's Document 6 || Requests (Dkt. #84).” The Court construes this statement as a request for redaction of irrelevant 7 information pertaining to Match’s efforts to lease space in San Francisco. A party generally may 8 || not redact or withhold from production irrelevant portions of documents that also contain relevant 9 and responsive information. See, e.g., Finjan, Inc. v. SonicWall, Inc., No. 17-cv-04467 BLF 10 (VKD), 2020 WL 4192285, at *3 (N.D. Cal. July 21, 2020) (discussing authority). The text Match 11 proposes to redact does not encompass any sensitive or confidential information, and at least some 12 || of the proposed redactions would alter the meaning of the remaining, unredacted text. The Court 13 || therefore denies Match’s request to redact item 19. 14 This item must be produced in its entirety. 16 Match must produce all materials corresponding to the disputed privilege log entries listed 3 17 above and in the Court’s April 19, 2024 order by May 8, 2024. IT IS SO ORDERED. 19 Dated: May 1, 2024 20 , ee □ 21 Vrain ®, Dc □□□□□□□ Virginia K. DeMarchi 22 United States Magistrate Judge 23 24 25 26 27 28