Judge: Douglas W. Stern, Case: 22STCV29636, Date: 2023-07-20 Tentative Ruling

Case Number: 22STCV29636    Hearing Date: July 20, 2023    Dept: 68

Motion to Quash Subpoena

Flyer Defense, LLC, et al. vs. Marvin Engineering Co., Inc., 22STCV29636

Moving Parties: Plaintiffs Flyer Next, LLC and Flyer Technologies LLC

Background

            Plaintiffs Flyer Next, LLC and Flyer Technologies LLC (Plaintiffs) filed this motion to quash subpoena in response to the third party subpoenas that were issued by Defendant Marvin Engineering Co., Inc. (Defendant). These subpoenas were issued to Plaintiffs’ law firm Irell & Manella LLP (Irell) and Ede Ibkewe, an Irell lawyer. The subpoena seeks documents and communications related to the 2018 restructuring of the Flyer business and the relationship between Flyer Next and its 50-50 owners Plaintiff Flyer Technologies and Defendant Marvin.

            Plaintiffs argue that Defendant seeks privileged documents that are also protected by the attorney work product doctrine. Plaintiffs also argue that Defendant’s requests are burdensome, overbroad, and include documents from the restructuring that Defendant would already have in its possession or could obtain from Plaintiffs.

            Defendant argues that the documents would not be protected by privilege because it was a party to the restructuring and is a 50-50 owner of Flyer Next. Defendant also argues that Plaintiffs put Mr. Ibekwe’s work and conduct at issue.  Other arguments are included as well.

            In their reply, Plaintiffs argue that Defendant did not meet its evidentiary burden to prove that the requested documents are not privileged. Plaintiffs argue that Defendant cannot waive the attorney-client privilege on Plaintiffs’ behalf pursuant to Evidence Code § 962 because Defendant never had an attorney-client relationship with Irell & Manella LLP. Next, Plaintiffs argue that Flyer Next’s LLC Agreement does not grant Defendant any control over Flyer Next’s assertion of the attorney-client privilege.

Analysis

            “The attorney-client privilege covers all forms of communication, including the transmission of specific documents, so a party should not ordinarily formulate a discovery request seeking all documents transmitted to responding party’s attorney.” (Wellpoint Health Networks, Inc. v. Superior Ct. (1997) 59 Cal.App.4th 110, 119 (internal quotations omitted).)

            Discovery directed to attorneys regarding the matters that were the subject of the attorney’s representation inherently raise serious issues of confidentiality.  Court are mindful of the importance of the attorney client privilege and that confidentiality obligation that attorneys have to their clients.  Thus, resort to the attorneys for discovery is disfavored.

            “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Ct. (2009) 47 Cal.4th 725, 733.)

            Defendant’s subpoenas, in their current form, appear to seek information that is subject to the attorney-client privilege. There are some things, such as billing statements, that could be discoverable in certain circumstances. However, it is unknown if those things would be discoverable now, or why Defendant could not obtain those by subpoenaing Flyer Next or Plaintiffs. There are also several requests in Defendant’s subpoena that may already be in Defendant’s possession or that could be obtained through discovery with Plaintiffs or by subpoenaing other parties.

            Defendant has not met its burden of refuting Plaintiffs’ showing that the communications that Defendant seeks are subject to the attorney-client privilege. The Court finds that the subpoenas issued by Defendant seek information that is subject to the attorney-client privilege, and to the extent that there are questions that do not violate the privilege, those cannot be separated from those that do in the subpoenas’ current form. The Court grants Plaintiffs’ motion to quash subpoena for the subpoenas of Irell & Manella LLP and Ede Ibkewe.

Order

1.      Plaintiffs’ motion to quash subpoenas is GRANTED.