Eventbrite, Inc. v. M.R.G. Concerts Ltd.

[1] 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA [4] 5 EVENTBRITE, INC., Case No. 20-cv-04040-SI 6 Plaintiff, ORDER RE DISCOVERY DISPUTE 7 v. LETTER NO. 2 8 M.R.G. CONCERTS LTD., et al., Re: Dkt. No. 61 9 Defendants. [10] 11 For the reasons set forth below, the Court GRANTS in part and DENIES in part defendant’s 12 challenge to privilege designations. Dkt. No. 61 (Joint Discovery Dispute Letter No. 2).1 [13] 14 LEGAL STANDARD 15 In general, parties may obtain discovery regarding any matter, not privileged, that is 16 “relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 17 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount 18 in controversy, the parties’ relative access to relevant information, the parties’ resources, the 19 importance of the discovery in resolving the issues, and whether the burden or expense of the 20 proposed discovery outweighs its likely benefit.” Id. An item need not be admissible in evidence 21 to be discoverable. Id. [22] 23 DISCUSSION 24 The instant discovery dispute concerns MRG’s challenges to (1) Eventbrite’s various 25 privilege redactions on seven documents, and (2) Eventbrite’s claw back of an allegedly privileged 26 email. Dkt. No. 61 (Disc. Dispute Letter No. 2). [27] 1 A. Redacted Emails 2 Under federal common law, attorney-client privilege may be invoked as to a communication 3 made between privileged persons in confidence for the purpose of obtaining or providing legal 4 assistance or advice for the client. See Fed. R. Civ. P. 26(b)(5). 5 Here, MRG argues plaintiff Eventbrite improperly redacted seven emails asserting privilege 6 claims. Dkt. No. 61 at 1 (Disc. Dispute Letter No. 2). Further, MRG argues these emails relate to 7 the “central issue in this action regarding Eventbrite’s purported justified denial of MRG’s advance 8 request,” and thus MRG should have access to the redacted portions since Eventbrite relies upon 9 them for its merits arguments. Id. 10 Eventbrite alleges through a document-by-document explanation why each attorney-client 11 privilege designation should stand. Id. at 3-5. Eventbrite describes how it surgically redacted the 12 privileged portions of the email chains and left much of the email correspondence unredacted and 13 intact.2 Id. 14 After conducting in camera review of all the documents, the Court DENIES defendant’s 15 challenge to privilege redactions of the following six privileged documents: EB003983, EB004002, 16 EB004011, EB029299, EB029330, and the Andy Donner document. Each redaction in the 17 aforementioned documents contains legal advice or legal assistance protected under the attorney18 client privilege. Fed. R. Civ. P. 26(b)(1). Further, the Andy Donner document contains pertinent 19 information enabling Eventbrite attorneys to provide legal advice, which falls under attorney-client 20 privilege protection as well. Upjohn Co. v. United States, 449 U.S. 383 (1981) (holding 21 communications from employees to Upjohn counsel are protected against compelled disclosure 22 when used to enable attorneys to provide legal advice). 23 However, with respect to EB003979, the Court finds only the redacted line in the March 19, 24 2020 email sent by Ali McCloud at 9:31 am to be privileged. The other two redactions in the email 25 sent by Julia Hartz on March 19 at 12:40 pm and the email sent by Andy Donner at 12:55 pm are [26] 2 For instance, in an email from Eventbrite’s counsel to the CFO seeking legal advice, [27] Eventbrite redacted a passage it identified as legal analysis but did not redact subsequent 1 not privileged. Therefore, the Court GRANTS in part and DENIES in part defendant’s challenge 2 of the privilege assertions in EB003979 and the document should be reproduced with the redactions 3 changed accordingly. [4] 5 B. Claw-Back Email 6 Claiming inadvertent disclosure and privilege, Eventbrite clawed back an email after MRG 7 read the correspondence and asked Eventbrite deponents about the content at two depositions. Dkt. 8 No. 61 at 1-2 (Disc. Dispute Letter No. 2). Eventbrite provided a redacted copy of the email in 9 disclosures to MRG, but accidentally produced two unredacted versions to MRG as well. Id. at 5. 10 MRG contends (1) the clawed-back email was not privileged, and (2) even if the email was 11 privileged, Eventbrite waived its privilege by not objecting when the email was used in the initial 12 deposition (Eventbrite objected in a subsequent deposition). Id. at 2. 13 Under federal common law, attorney-client privilege may be invoked as to a communication 14 made between privileged persons in confidence for the purpose of obtaining or providing legal 15 assistance or advice for the client. See Fed. R. Civ. P. 26(b)(5). 16 For privilege requirements, Eventbrite alleges the email did not expressly request legal 17 advice but is nonetheless privileged because (1) the email is from Eventbrite’s account management 18 team to the legal team, (2) the email was sent to evaluate “legal implications” of MRG’s demand 19 for advance payment, and (3) the email’s legal purpose is verified by employee testimony in a 20 corresponding deposition. Dkt. No. 61 at 5 (Disc. Dispute Letter No. 2). 21 MRG argues (1) the email is not privileged because counsel was merely copied on the email, 22 which is insufficient to invoke privilege, and (2) there was no legal advice stated or requested. Id. 23 at 2. 24 After in camera review, the Court finds attorney-client privilege does not apply to the 25 clawed-back email redactions and GRANTS defendant’s challenge to privilege assertions. 26 Although attorneys are copied on the email, the content of the email itself does not pertain to legal 27 assistance or advice protected under the attorney-client privilege. Rather, the email restates 1 content is not protected by privilege, and an email is not privileged merely because an attorney is 2 || copied as arecipient. See United States v. Chevron Texaco Corp., 241 F.Supp. 2d 1065, 1075 (N.D. 3 Cal. 2002 ); see Zelaya v. Unicco Service Co., 682 F.Supp. 2d 28, 39 (D.D.C. 2010); see 6 Moore’s 4 Federal Practice — Civil § 26.49 (2021). [5] 6 CONCLUSION [7] 3 For the foregoing reasons, the Court: 9 (1) DENIES defendant’s challenge to the privilege assertions of six of the Eventbrite 10 documents—EB003983, EB004002, EB004011, EB029299, EB029330, and the Andy 11 Donner document. 12 (2) GRANTS defendant’s challenge to the privilege assertion of Eventbrite’s clawed-back 13 email, EB024669, as all proposed redactions did not involve legal assistance, advice, or 14 communication objectively reasonable to be confidential. 2 15 (3) GRANTS in part and DENIES in part defendant’s challenge to the privilege assertions 16 with respect to EB003979. Eventbrite must produce unredacted the (1) message sent 2 17 from Julia Hartz on March 19th, 2020 and (2) the message sent from Andy Donner on zZ 18 March 19th, 2020. However, plaintiff may redact the March 19th, 2020 email sent at 19 9:31 AM by Ali McCloud. [20] 1 Plaintiff must reproduce the documents in accordance with the Court’s Order above on or before Friday August 16th, 2021. 23 IT IS SO ORDERED. 24 Dated: August 2, 2021 Stn Ml ee [25] 26 SUSAN ILLSTON United States District Judge