Judge: Jon R. Takasugi, Case: 23STCV15242, Date: 2025-02-03 Tentative Ruling

Case Number: 23STCV15242    Hearing Date: February 3, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to overrule Redwood’s privilege assertions with respect to the waived privilege materials is DENIED. The Court orders Defendant to destroy all clawed back documents.

On 6/30/2023, Plaintiff Redwood Liquidating Co. (Plaintiff) filed suit against Paul Hastings, LLP (Defendant), alleging legal malpractice.

            On 12/6/2024, Defendant moved for an order determining certain documents were not privileged.

Discussion

Defendant’s motion seeks an order requiring the return of 11 documents in two categories that Plaintiff has clawed back as privileged, but for which Defendant contends any privilege has been waived.

A party that has produced electronically stored information may seek to claw back such information upon notice “of the claim and the basis for the claim.” (Code Civ. Proc. (CCP) § 2031.285, subd. (a).) The receiving party is obliged to sequester the materials and return them—or else challenge the claim “by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal.” (Id., subds. (c)-(d).)

Here, the disputed materials fall into two overlapping categories: (a) deposition exhibits that were introduced; and (b) documents that were originally produced with partial privilege redactions.

Defendant contends that Plaintiff waived any privilege as to the former category, because the exhibits were introduced and used without objection during deposition and thus are irrevocably a part of the record of this case. As to the latter category, Defendant contends that the fact of partial redaction of these documents reflects a deliberate judgment by Redwood that the unredacted material is relevant and non-privileged. In support, Defendant cited Total Recall Techs. v. Luckey, 2016 WL 2866177 (N.D. Cal., May 17, 2016, No. 15-CV-02281).

In opposition, Plaintiff contends that the use of privileged documents in deposition violated the parties’ Protective Order and was an ethical violation. Plaintiff’s counsel contends  that it became aware of the inadvertent production of the privileged documents during deposition, and that “[i]n each deposition, counsel for Redwood diligently instructed the witness not to answer any questions that would elicit privileged information and objected to any attempts to discover such information…[w]hen each of the privileged documents was used, counsel for Redwood allowed the witness to testify about nonprivileged topics but did not allow the witness to divulge any privileged information…..” (Opp., 3: 13-18.) Finally, Plaintiff’s counsel argues that CCP section 2031.285 contains no timing requirement for the clawback of electronically produced information, and the Protective Order only requires that the clawback be “prompt.”

As for the redacted documents, Plaintiff argues that Total Recall is distinguishable from the facts here and that Plaintiff clearly did not intend to disclose the unredacted information, as it included the corrected redactions on its privilege log and promptly requested the destruction of the inadvertently produced information upon discovery of the overly narrow redactions.

            After review, the Court finds clawback is appropriate as to both categories of documents.

            As to the first category (i.e., the deposition documents), attorney-client privilege is waived by uncoerced disclosure as well as by conduct that manifests consent to such disclosure. This explicitly includes “failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” (Evid. Code, § 912, subd. (a).) Such proceedings of course include depositions. (See Feldman v. Allstate Ins. Co. (9th Cir. 2003) 322 F.3d 660, 667–68 [applying California law].)

Separately, CCP section 2025.460, subd. (a), provides that “[t]he protection of information from discovery on the ground that it is privileged or that it is a protected work product … is waived unless a specific objection to its disclosure is timely made during the deposition.”

As such, section 2025.460 concerns the protection of information from discovery, not the production of the documents themselves. Here, the depositions excerpts provided demonstrate that in response to each document being introduced during deposition, Plaintiff’s counsel instructed the witnesses not to answer any question that would have elicited protected information and, by allowing witnesses to testify as to nonprivileged information, did not waive the attorney-client privilege or work product protection over privileged information. (See Mitchell v. Super. Ct. (1984) 37 Cal.3d 591, 602 [The “mere disclosure of the fact that a communication between client and attorney had occurred does not amount to disclosure of the specific content of that communication, and as such does not necessarily constitute a waiver of the privilege.”]; see also Moriarty v. Am. Gen. Life Ins. Co. (S.D. Cal., Dec. 31, 2021, No. 17-CV1709) 2021 WL 6197289, at *11  [holding that party did not waive privilege over a memorandum by failing to object to deponent offering a summary of the document because “nothing specific was divulged” and thus “there was no reason for defense counsel to even object”].

Given that there is no dispute that Plaintiff’s counsel raised an objection to disallow the provision of protected information, and no privileged information was actually discovered through the depositions of Messrs. Zollars, Eliasson, or Myers from these documents, the Court finds no violation of CCP section 2025.460. Moreover, as to the documents themselves, Plaintiff’s counsel complied with CCP section 2031.285 and the Protective Order, which govern inadvertent production, by clawing back the documents in a prompt manner after the depositions.

As for the second category (i.e., the redacted documents), in Total Recall, the producing party’s attorneys initially produced documents with redactions, and following discussions with opposing counsel and the client, re-produced the documents with lesser redactions. (Id. at *4). The producing party then sought to claw back information that had been revealed in the reproduction, but the court held that there could be no claw back at that point because the actions by counsel and the client “show[ed] a deliberate decision to disclose some information.” (Id.)

Here, by contrast, the Court is not persuaded that the omission of certain redactions on five documents was the result of any deliberate decision by Plaintiff, rather than just human error. The Court agrees with Plaintiff that to adopt Defendant’s position here, based on the available evidence, would effectively create a “ ‘gotcha’ theory of waiver, in which an underling’s slip-up in a document production becomes the equivalent of actual consent.” (O'Mary v. Mitsubishi Elecs. Am., Inc. (1997) 59 Cal.App.4^th 563.) Indeed, Plaintiff’s opposition indicates that “Paul Hastings’ argument is at odds with its own conduct in this case. Shortly after serving its privilege log, Paul Hastings reproduced 44 documents which included either “unredacted or less-redacted versions of materials previously produced with slipsheets or redactions.” (Fisher Decl. ¶ 13, Ex. 9). In other words, in preparing its own privilege log, Defendant’s counsel discovered that it had inadvertently redacted information that was not protected from disclosure and revised its redactions. Defendant cannot “grant[] itself the latitude to correct its inadvertent concealment of discoverable information, on the one hand, but now, on the other hand, bring[] this Motion seeking to preclude Redwood from correcting its inadvertent disclosure of non-discoverable information.” (Opp., 14: 1-3.)

Based on the foregoing, Defendant’s motion to overrule Redwood’s privilege assertions with respect to the waived privilege materials is denied. The Court orders Defendant to destroy all clawed back documents.

It is so ordered.

Dated:  February    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.