United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO COMPEL
Benjamin H. Settle United States District Judge.
matter comes before the Court on Defendant/Applicant Lagree
Technologies, Inc.'s (“Lagree”) motion to
compel. Dkt. 1. The Court has considered the pleadings filed
in support of and in opposition to the motion and the
remainder of the file and hereby grants the motion for the
reasons stated herein.
November 1, 2018, Lagree filed the instant motion requesting
an order compelling Ronald A. Shafii (“Shafii”)
to produce material responsive to Lagree's subpoena.
Id. On November 20, 2018, Shafii responded. Dkt. 9.
On November 30, 2018, Lagree replied. Dkt. 15. On February
18, 2019, the Court requested a joint status report
specifically identifying the documents in dispute. Dkt. 18.
On March 8, 2019, the parties filed a report informing the
Court that the lone dispute was the documents identified in
the accompanying privilege log. Dkt. 20. The log consists of
documents that Shafii asserts are protected by the
attorney-client privilege, the work-product privilege, the
joint defense privilege, and the common interest privilege.
Id. at 5-9. The parties believe that the issues have
been fully briefed but will provide additional material if
requested. Id. at 3.
April 8, 2018, the Court requested supplemental briefing
providing Shafii an additional opportunity to present
specific facts in support of the claimed privileges. Dkt. 21.
On April 19, 2019, Shafii responded. Dkt. 22. On April 26,
2019, Lagree replied. Dkt. 25.
Shafii's privilege log, he asserts attorney-client
privilege over every document regardless of whether he was
included in the communication. Dkt. 20 at 5-9. In the order
requesting supplemental briefing, the Court questioned this
blanket assertion. Dkt. 21 at 2. Shafii responds that (1) the
communications that include Shafii “specifically fall
within the common interest privilege as it relates to
attorney/client communications” and (2) the privilege
was asserted “in the interest of caution” over
communications that do not include Shafii. Dkt. 22 at 9-10.
Regarding the former response, the attorney-client privilege
has eight essential elements, Admiral Ins. Co. v. U.S.
Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1492
(9th Cir. 1989), and “[t]he party asserting the
privilege bears the burden of proving each essential element,
” United States v. Ruehle, 583 F.3d 600, 608
(9th Cir. 2009) (citing United States v. Munoz, 233
F.3d 1117, 1128 (9th Cir. 2000)). “The fact that a
person is a lawyer does not make all communications with that
person privileged.” United States v. Martin,
278 F.3d 988, 999 (9th Cir. 2002) (citing United States
v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)).
utterly fails to meet his burden to establish that the
communications in which he was involved are entitled to the
attorney-client privilege. He simply relies on the fact that
the communications involved him and his lawyers. That
argument has been rejected, Martin, 278 F.3d at 999,
and does not establish the eight elements for each document
withheld. Therefore, the Court concludes that Shafii failed
to meet his burden as to the documents or communication in
which he was involved.
his assertion of the privilege over communications in which
he was not involved, Shafii presents an argument wholly
without merit. He argues that he asserted the privilege
“in the interest of caution” because
communications that originally would not be covered by the
privilege could be covered by the privilege as an extension
of the common interest or joint defense privilege. Dkt. 22 at
9-10. He cites no authority for this proposition, and it is
highly unlikely that any exists such that a communication
that is not between an attorney and his client is protected
by the attorney-client privilege solely because it
is shared with a party that has a common interest in the
proceeding. Therefore, the Court rejects Shafii's
assertion of the attorney-client privilege.
work product doctrine, codified in Federal Rule of Civil
Procedure 26(b)(3), protects ‘from discovery documents
and tangible things prepared by a party or his representative
in anticipation of litigation.'” In re Grand
Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004)
(quoting Admiral Ins. Co. v. United States District
Court, 881 F.2d 1486, 1494 (9th Cir. 1989)).
case, Shafii asserts that every document identified in his
privilege log is protected by the work product doctrine. Dkt.
22 at 6-8. The problem with Shafii's argument is that he
fails to establish that his joint communications with
Coreology's attorneys is work product in anticipation of
or in preparation for his litigation. For example,
all the communications could discuss strategies for Coreology
to defeat Lagree in the trademark proceeding, which would
seem to make the content of the communications irrelevant to
Lagree's misappropriation suit against Shafii. Without
facts establishing what he or his counsel prepared in
anticipation of his litigation, he fails to meet his burden
to show that the work product doctrine applies to the
withheld documents. Therefore, the Court finds that
Shafii's assertion of the work product doctrine is also
unsupported by the record.
Common Interest ...