Meyer v. Mittal

1

JASON MEYER, an individual; ARGIL DX LLC f/k/a ZAP TECHNOLOGY SOLUTIONS LLC, a Nevada limited liability company; and ARGIL DX, putative partnership, Plaintiffs, v. ANKUR MITTAL, an individual; AXENO CONSULTING PVT. LTD. f/k/a ARGILDX CONSULTING PVT. LTD. f/k/a ACCUNITY SOFTWARE PVT. LTD., an Indian private company; and ADX CONSULTING INC., a Texas corporation, Defendants.

No. 3:21-cv-00621-HZ

United States District Court, D. Oregon

July 5, 2023

Katharine Shepherd Adam Rose Rose Law Firm, P.C. Eric Lang The Lang Legal Group LLC Attorneys for Plaintiffs

Sara Cotton Nika Aldrich Mario Delegato Schwabe, Williamson &amp Wyatt, P.C. Attorneys for Defendants

OPINION & ORDER

MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

Defendants move to compel production of documents and information relating to Plaintiff Jason Meyer's use of certain disputed emails in this litigation. For the following reasons, the Court grants the motion in part and denies it in part.

BACKGROUND

The Court extensively outlined the factual and procedural history of this case in its Opinion and Order denying Defendants' Motion for Partial Summary Judgment and for Sanctions. ECF 164. Defendants' present motion relies on the same underlying facts. In brief, the parties previously collaborated on business endeavors; it is disputed whether that collaboration constituted a partnership. Id. at 2-4. The parties shared a server provided through Plaintiff Zap's Microsoft 365 account to send, receive, and store emails for that collaboration. Id. at 5. The parties' business relationship later soured, and Defendant Mittal emailed Defendant Meyer on January 20, 2021 expressing his intent to end the collaboration. Id. at 8-9. On or about January 25, 2021, Plaintiff Meyer backed up the email accounts provided through Zap's Microsoft 365 account, which included the email accounts of employees of Defendant Axeno. Id. at 9-10. He set up the backups to be taken automatically once per day and stores them on an external hard drive. Id. at 10.

On April 23, 2021, Plaintiffs sued Defendants. Compl., ECF 1. Defendants alleged counterclaims for violation of the Stored Communications Act (“SCA”) and common-law invasion of privacy based on the email downloads. Ans. to First Am. Compl. ¶¶ 344-353, ECF 59. The Court later issued an order restricting Plaintiffs' right to view the email backups (the “disputed emails”). ECF 144. Those emails are the subject of the present Motion to Compel. Defendants previously moved for partial summary judgment on their counterclaim alleging that Plaintiff Meyer violated the SCA when he downloaded their emails. Def. Mot. Summ. J., ECF 106. Defendants also moved for sanctions based on the same conduct. Id. The Court denied that motion on April 17, 2023. Op. & Ord., ECF 164. The present dispute was brought to the Court's attention the same day.

Defendants' Motion to Compel was initially briefed through letters to the Court, with formal briefing filed after a discovery conference. Defendants seek to compel a response to an interrogatory, a request for admission, and a request for production, all relating to Plaintiffs' use of the disputed emails. Defendants' Interrogatory No. 14 states: “Explain in detail each use You made of any information learned from Your review of emails from the Indian Defendants' argildx.com email accounts.” Aldrich Letter 1 (Apr. 17, 2023). The Court previously ordered Plaintiffs to answer, subject to any claims of privilege. Order, ECF 144. Defendants' Request for Admission (“RFA”) No. 14 states: “Admit that You used emails referenced in Request for Admission No. 12 [the disputed emails] to build evidence for this case.” Aldrich Letter 2. Defendants' Request for Production (“RFP”) No. 79 requests “[a]ll documents and communications referring or relating to Plaintiffs' gathering of or access to documents and communications on or through the shared Microsoft email server.” Id. Ex. E at 3. After receiving initial and supplemental letters from the parties, the Court held a discovery conference on May 24, 2023. ECF 171. The Court permitted the parties to file supplemental briefing. Def. Supp. Br., ECF 172; Pl. Supp Br., ECF 175.

STANDARDS

The scope of discovery in civil cases is broad. In general, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). “On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1). A motion to compel may be filed if “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents or fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). A party seeking a response to a request for admission “may move to determine the sufficiency of an answer or objection.” Fed.R.Civ.P. 36(a)(6).

DISCUSSION

Defendants argue that the requested documents and information are (1) not protected by the attorney-client privilege, (2) not protected by the work product doctrine, and (3) subject to the crime-fraud exception. The Court concludes that the work product doctrine protects most the materials responsive to Defendants' requests. Defendants have not met the standard to compel disclosure of work product, and the crime-fraud exception does not apply.

I. Attorney-Client Privilege

“The party asserting attorney-client privilege bears the burden of proving each element of an eight-part test used to determine whether information is covered by the attorney-client privilege[.]” A.F. v. Providence Health Plan, 173 F.Supp.3d 1061, 1074 (D. Or. 2016). Those elements are:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.

Id. (citing United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)). The attorney-client privilege protects communications, not underlying facts. Murdoch v. Castro, 609 F.3d 983, 995 (9th Cir. 2010) (“‘The privilege only protects disclosure of [the] communications [themselves]; it does not protect disclosure of the underlying facts,' so long as the underlying facts can be proven without resort to the privileged materials.”) (quoting Upjohn Co. v. United States, 449 U.S. 383, 395 (1981)).

Defendants argue that nothing covered in their discovery requests is privileged because they seek only facts about how the documents were used. Aldrich Letter 3. Plaintiffs correctly point out that the case Defendants cite for the proposition that whether and how a document has been used is not privileged, Dolby Labs. Licensing Corp. v. Adobe, Inc., 402 F.Supp.3d 855, 863 (N.D. Cal. 2019), does not actually state this proposition. See Aldrich Letter 3; Lang Letter 2 (Apr. 20, 2023). But to the extent Defendants request something other than communications, the attorney-client privilege will not apply. Defendants suggest that Plaintiffs can answer RFA 14 without producing any communications because the RFA only requests underlying facts. Aldrich Letter 3. RFP 79, on the other hand, explicitly requests communications. Defendants point out that Plaintiffs have not produced a privilege log identifying any communications. Id. To the extent that Plaintiffs seek to claim attorney-client privilege for communications that would be responsive to RFP 79, the Court directs them to produce a privilege log. The Court now turns to the work product doctrine, the main focus of the parties' briefing.

II. Work Product Protection

The parties focus on whether the work product doctrine protects the information and documents sought in Defendants' discovery requests. Federal Rule of Civil Procedure 26 partially codifies the work product doctrine. Rule 26 provides: “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3)(A). See also In re Grand Jury Subpoena (Mark Torf/Torf Env't Mgmt.), 357 F.3d 900, 907 (9th Cir. 2004). The work product doctrine is broader than Rule 26, as it also covers intangible things such as an attorney's mental impressions. Republic of Ecuador v. Mackay, 742 F.3d 860, 868 n.2 (9th Cir. 2014); Hickman v. Taylor, 329 U.S. 495, 509 (1947) (“We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney[.]”). The party claiming work product protection bears the burden of showing it applies. Hernandez v. Tanninen, 604 F.3d 1095, 1102 (9th Cir. 2010).

A party seeking to discover fact work product may do so if the materials “are otherwise discoverable under Rule 26(b)(1)” and the party seeking to discover the materials “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3)(A). But “[i]f the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” ...