San Diego County Credit Union v. Citizens Equity First Credit Union ( 2019 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAN DIEGO COUNTY CREDIT UNION, Case No.: 18cv967-GPC(MSB) 12 Plaintiff, ORDER ON JOINT MOTION FOR 13 v. DETERMINATION OF DISCOVERY DISPUTE [ECF NO. 82] 14 CITIZENS EQUITY FIRST CREDIT UNION, 15 Defendant. 16 17 AND RELATED COUNTERCLAIMS 18 19 20 Before the Court is the parties’ “Joint Motion for Determination of Discovery 21 Dispute Regarding SDCCU Privilege Log Entry 44” [ECF No. 82], which includes 22 Defendant’s Citizens Equity First Credit Union’s (“CEFCU”) “Motion to Compel Discovery 23 on Grounds of Implied Waiver of Privilege” [ECF No. 82-2 (“Mot.”)] and Plaintiff’s San 24 Diego County Credit Union’s (“SDCCU”) Opposition [ECF No. 82-44 (“Opp’n”)], Reply 25 Declaration of James W. Dabney [ECF No. 83], and Plaintiff’s Sur-Reply [ECF No. 92]. The 26 parties ask the Court to resolve their discovery dispute concerning Entry No. 44 on 27 Plaintiff’s Privilege Log, which contains a January 26, 2011 e-mail over which Plaintiff has 2 costs associated with the instant motion. (See id.) 3 A. Defendant’s Motion to Compel 4 Defendant asks the Court to overrule Plaintiff’s assertion of privilege with respect 5 to the January 26, 2011 e-mail and compel the production of the e-mail to Defendant. 6 (ECF No. 82-1 at 3.) Alternatively, Defendant asks the Court to review the e-mail at issue 7 in camera and “determine whether it refers to IT’S NOT BIG BANK BANKING. IT’S 8 BETTER[,] or a variant thereof”; and if it does so determine, order the production of the 9 e-mail and the unredacted copy of the January 27, 2011 time entry. (Id.) Plaintiff 10 opposes Defendant’s motion to compel, arguing that the e-mail at issue is protected by 11 the attorney-client privilege, and the privilege has not been waived. (Opp’n at 2, 5.) 12 Plaintiff asserts that the disputed document contains communications between SDCCU 13 and its lawyers containing a request for legal advice regarding trademark applications. 14 (Id. at 2.) 15 The Federal Rules of Civil Procedure authorize parties to obtain discovery 16 regarding any nonprivileged matter that is relevant to any claim or defense and 17 proportional to the needs of the case, “considering the importance of the issues at stake 18 in the action, the amount in controversy, the parties’ relative access to relevant 19 information, the parties’ resources, the importance of the discovery in resolving the 20 issues, and whether the burden or expense of the proposed discovery outweighs its 21 likely benefit.” Fed. R. Civ. P. 26(b)(1). District courts have broad discretion to 22 determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 23 (9th Cir. 2002). Similarly, district courts have broad discretion to limit discovery where 24 the discovery sought is “unreasonably cumulative or duplicative, or can be obtained 25 from some other source that is more convenient, less burdensome, or less expensive”; 26 the requesting party has had ample opportunity to obtain discovery; or the discovery 27 sought is beyond the scope of Federal Rule of Civil Procedure 26(b)(1). Fed. R. Civ. P. 2 sought (2) from a professional legal adviser in his capacity as such, (3) the 3 communications relating to that purpose, (4) made in confidence (5) by the client, 4 (6) are at his instance permanently protected (7) from disclosure by himself or by the 5 legal adviser, (8) unless the protection be waived.’” United States v. Richey, 632 F.3d 6 559, 566 (9th Cir. 2011) (quoting United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 7 2010)). The party asserting the attorney-client privilege has the burden of 8 demonstrating the privilege applies. In re Excel Innovations, Inc., 502 F.3d 1086, 1099 9 (9th Cir. 2007). 10 When a party discloses a privileged attorney communication, they waive the 11 privilege as to all other communications on the same subject. Weil v. Inv./Indicators, 12 Research, and Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); see also Chevron Corp. v. 13 Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (“Where a party raises a claim which in 14 fairness requires disclosure of the protected communication, the privilege may be 15 implicitly waived.”). However, waiver is limited to “matter actually disclosed” in the 16 communication. Weil, 647 F.2d at 25. 17 On November 18, 2019, after reviewing the Joint Motion, and all related 18 pleadings, declarations, exhibits, and supplemental filings, the Court ordered Plaintiff to 19 lodge a copy of the January 26, 2011 e-mail, identified as entry No. 44 on its Privilege 20 Log, for in camera review. (ECF No. 96.) Plaintiff timely lodged the document. (See ECF 21 Nos. 96 & 97.) After reviewing the January 26, 2011 e-mail, as well as careful 22 consideration of the briefing and exhibits provided by the parties, the Court finds that 23 the document at issue is protected by the attorney-client privilege and the privilege has 24 not been waived. Accordingly, the Court DENIES Defendant’s motion to compel. 25 / / / 26 / / / 27 / / / 1 Parties’ Requests for Attorney’s Fees and Costs 2 Both parties move the Court to award their respective attorney’s fees and costs 3 || associated with the instant motion. (See Mot. at 15; Opp’n at 6.) If a motion to compel 4 || discovery is denied, the Court “must, after giving an opportunity to be heard, require 5 ||the movant, the attorney filing the motion, or both to pay the party or deponent who 6 || opposed the motion its reasonable expenses incurred in opposing the motion, including 7 || attorney’s fees,” unless “the motion was substantially justified or other circumstances 8 || make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). “Discovery conduct is 9 || substantially justified if it is a response to a genuine dispute or if reasonable people 10 || could differ as to the appropriateness of the contested action.” Whitewater W. Indus., 11 || Ltd. v. Pacific Surf Designs, Inc., Case No.: 17cv1118-BEN (BLM), 2019 WL 1547407, at *8 12 || (S.D. Cal. Apr. 8, 2019) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). 13 As discussed above, the Court denies Defendant’s motion to compel. 14 || Nevertheless, the Court finds that each party’s position with respect to the instant 15 || discovery dispute was substantially justified, and DECLINES to impose sanctions. See 16 || Fed. R. Civ. P. 37(a)(5)(B). 17 IT IS SO ORDERED. 18 Dated: December 11, 2019 _ TZ. 19 4 L <—{— Honorable Michael S. Berg United States Magistrate Judge 21 22 23 24 25 26 27 28