Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 1 of 43
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`CITY OF ROSEVILLE EMPLOYEES'
`RETIREMENT SYSTEM,
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`Plaintiff,
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`v.
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`APPLE INC., et al.,
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`Defendants.
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`I.
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`INTRODUCTION
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`Case No. 19-cv-02033-YGR (JCS)
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`
`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`COMPEL
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`Re: Dkt. No. 227
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`Plaintiff brings a Motion to Compel Production of Documents as Privileged (“Motion”),
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`asserting that Defendants have failed to justify their assertion of attorney-client privilege as to five
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`categories of documents listed in their privilege logs. A hearing on the Motion was held on April
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`15, 2022 and after additional meet-and-confer efforts that reduced the number of documents in
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`dispute from 451 to 232, the parties submitted supplemental briefs. They also lodged the
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`documents that remained in dispute with the Court and the undersigned has reviewed in camera a
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`sample of those documents. A second hearing was held on July 29, 2022. The Court sets forth
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`below rulings on certain legal issues that bear on the dispute, and its rulings on certain sample
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`documents that the Court has reviewed. Using this guidance, Apple is ordered to review the
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`remaining documents in dispute, produce all documents that are not privileged under the guidance
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`issued today, produce the supplemental declarations permitted below, and then meet and confer
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`with Plaintiff in an effort to resolve any remaining disputes.
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`II.
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`BACKGROUND
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`A. The Underlying Action
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`In this case, Plaintiff brings securities claims against Defendants Apple, Inc. (“Apple”), its
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`Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 2 of 43
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`CEO, Tim Cook, and CFO Luca Maestri based on allegedly fraudulent and misleading statements
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`Cook and Maestri made on November 1, 2018 describing Apple’s performance in China with
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`respect to the sale of iPhones. See Revised Consolidated Class Action Complaint for Violation of
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`the Federal Securities laws (Dkt. 114) (“Complaint”) ¶¶ 54-56. The Complaint alleges that shortly
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`after these statements were made, on November 5, 2018, the Nikkei Asian Review published an
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`article (“the Nikkei article”) reporting that Apple was cutting production of iPhones, contradicting
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`these earlier statements about strong demand for iPhones in China. Id. ¶ 68.
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`Then, Plaintiff alleges, on January 2, 2019, “after the close of trading, Apple disclosed the
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`true condition of its business, including the impact of deteriorating economic conditions in China,
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`among its largest growth markets, and demand for the iPhone.” Id. ¶ 33. This preannouncement
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`was made in the form of a “Letter from Tim Cook to Apple Investors” (“Investor Letter”) and
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`informed investors that “revenue for 1Q19 was expected to be $84 billion, far below the guidance
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`range of $89 to $93 billion [Apple] had announced on November 1, 2018.” Id. ¶ 34. This
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`shortfall was attributed, in part, to an unanticipated “economic deceleration, particularly in Greater
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`China[,]” where iPhone sales had been “poor” in 2018. Id. ¶¶ 34-35.
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`B. Meet-and-Confer Efforts Related to the Privilege Dispute Prior to April 15, 2022
`Hearing
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`On April 16, 2021, the undersigned ordered the parties to agree on search terms in
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`connection with Plaintiff’s First Set of Requests for Production of Documents and for Defendants
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`to complete production of all responsive non-privileged documents found through this
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`search process by July 15, 2021. Dkt. 158. In part due to disputes about which custodians should
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`be included in the search, Defendants’ production of documents continued well beyond the July 15
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`deadline. According to Plaintiff, while Apple had produced approximately 317,000 documents by
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`that deadline, it produced another 192,241 documents between September 23, 2021 and October
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`25, 2021 and 90,042 additional documents between January 14, 2022 and February 21, 2022. See
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`Dkt. 228 at ECF p. 5. Defendants admit that by the July 15, 2021 deadline, they had produced just
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`a little over half of the documents that ultimately were produced. Opposition at 2 (citing Winawer
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`Decl., ¶ 2). Under the Court’s Case Management Order, the deadline for “substantial completion
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`Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 3 of 43
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`of document discovery” was January 14, 2022. Dkt. 128,
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`On November 24, 2021, Defendants produced an initial privilege log, in PDF format, for
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`documents withheld or redacted from this production. Black Decl. ¶ 4. They produced the same
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`privilege log in Excel format on December 21, 2021. Id. According to Plaintiff’s counsel, these
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`privilege logs did not list attachments to withheld documents. Id. Plaintiff’s counsel met and
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`conferred with Defendants’ counsel by telephone on December 21, 2021 and objected to “the
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`conclusory nature and lack of detail supporting Defendants’ privilege assertions.” Id. ¶ 5. This
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`was followed on January 19, 2022 by a letter from Plaintiff’s counsel with an itemized
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`list of objections to the latest privilege log and, two days later, another telephone meet-and-confer
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`between counsel. Id. ¶ 6.
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`According to Plaintiff, on February 3, 2022, Defendants produced a new privilege log
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`which “added a field for email subjects, a field that was absent from prior versions of the privilege
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`log.” Id. ¶ 7. The February 3, 2022 privilege log also listed attachments to withheld documents,
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`for the first time. Id.
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`The parties met and conferred again on February 14, 2022. Id. ¶ 9. Although the parties
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`were able to resolve their dispute as to two of Plaintiff’s objections, many disputes remained and
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`the parties agreed to file a joint discovery letter as to those. Id. Defendants produced an updated
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`privilege log on February 23, 2022. Id. ¶ 11. The parties filed the joint discovery letter (“Joint
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`Discovery Letter”) the next day. Dkt. 227. After reviewing the parties’ Joint Discovery Letter, the
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`undersigned requested full briefing of the parties’ dispute.
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`C. The Motion
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`In the Motion, Plaintiff contends Defendants have improperly asserted attorney-client
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`privilege as to the following five categories of documents: 1) documents related to the Investor
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`Letter that Defendants claim are privileged because they were created at the behest of Apple in-
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`house counsel (Black Decl., Ex. 1); 2) two documents related to the Nikkei article about supplier
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`cuts that Defendants redacted, first asserting the redactions were of material concerning “contract
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`issues” and subsequently claiming the redacted material reflected “legal advice from in-house
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`counsel David Tom regarding response to” the Nikkei article (Black Decl., Ex. 2); 3) emails that
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`Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 4 of 43
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`were received by groups whose individual members have not been identified (Black Decl., Ex. 3);
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`4) seven unsent documents in files of Tim Cook, Tejas Gala and Adam Talbot, who are not
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`lawyers, as to which Defendants claim privilege on the basis that they contain legal advice from
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`unidentified in-house counsel (Black Decl., Ex. 4); 5) 209 email attachments as to which Plaintiff
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`claims the assertion of privilege is either facially improper based on the description provided or do
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`not contain a sufficient description to determine if the document is privileged. (Black Decl., Exs.
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`5a & 5b).
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`Defendants opposed the Motion as to all five categories of documents and offered
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`declarations in support of their privilege assertions by Apple Discovery Manager Robin Goldberg
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`and Apple in-house counsel Sam Whittington. Dkt. 233.
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`D. The April 15, 2022 Hearing
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`At the April 15, 2022 motion hearing, the Court found that the declarations supplied by
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`Defendants in support of their assertion of attorney-client privilege were insufficient. It ordered
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`Defendants to provide to Plaintiff “for each withheld document listed in the exhibits attached to
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`Plaintiff’s motion: 1) if not already produced, a redacted version of the document that redacts out
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`any advice that was sought or given primarily for a legal purpose; and 2) a declaration by the
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`attorney whose advice was sought or given establishing that the redacted material was primarily
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`for a legal purpose.” Dkt. 238. The Court further ordered that “[w]ith respect to attached
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`documents, the declaration should establish that disclosure of the redacted material will
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`necessarily reveal an attorney’s legal advice or a request for legal advice or is otherwise
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`privileged.” Id. The Court also set a schedule for additional meet and confer efforts and
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`supplemental briefing as to any remaining disputes following those efforts. Id.
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`E. Results of Meet and Confer and Supplemental Briefs Addressing Remaining
`Disputes
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`On May 13, 2022, Defendants supplied the following additional declarations in support of
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`their claims of privilege: 1) Declaration of Katherine Adams Regarding Documents Withheld as
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`Privileged (Black Supp. Decl., Ex. 9 (Adams Decl.)); 2) Declaration of David Tom Regarding
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`Documents Withheld as Privileged (Black Supp. Decl., Ex. 17 (Tom Decl.); and 3) Declaration of
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`Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 5 of 43
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`Sam Whittington Regarding Documents Withheld as Privileged (Black Supp. Decl., Ex. 18
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`(Second Whittington Decl.). Black Supp. Decl. ¶ 2. The parties met and conferred and Defendants
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`supplied supplemental declarations by Whittington and Adams on June 15, 2022. See Black Supp.
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`Decl., Exs. 10 (Adams Supp. Decl.) & 19 (Whittington Supp. Decl.). As a result of their post-
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`hearing meet and confer efforts, the parties reduced the number of documents in dispute from 451
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`documents to 232. Black Supp. Decl. ¶ 15. They have now filed supplemental briefs addressing
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`their remaining disputes. See Dkt. 246-3, 248.
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`III. ANALYSIS
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`A. Legal Standards
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`“Issues concerning application of the attorney-client privilege in the adjudication of federal
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`law are governed by federal common law.” United States v. Ruehle, 583 F.3d 600, 608 (9th Cir.
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`2009) (citations and internal quotations omitted). The party asserting the privilege has the burden
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`of establishing the privileged nature of the communication. Id. “Because it impedes full and free
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`discovery of the truth, the attorney-client privilege is strictly construed.” Id. at 607 (internal
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`quotations and citation omitted). “[A]ttorney declarations generally are necessary to support the
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`designating party’s position in a dispute about attorney-client privilege.” Dolby Lab’ys Licensing
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`Corp. v. Adobe Inc., 402 F. Supp. 3d 855, 865 (N.D. Cal. 2019).
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`“The attorney-client privilege protects confidential communications between attorneys and
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`clients, which are made for the purpose of giving legal advice.” United States v. Sanmina Corp.,
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`968 F.3d 1107, 1116 (9th Cir. 2020). Federal courts apply an eight-part test to determine if a
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`communication is subject to attorney-client privilege. Id. Under that test, attorney-client privilege
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`applies “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his
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`capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by
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`the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the
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`legal adviser, (8) unless the protection be waived.” United States v. Ruehle, 583 F.3d at 607
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`(internal quotations and citations omitted).
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`The Ninth Circuit has recognized that “some communications might have more than one
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`purpose.” In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021). There are two potential tests
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`courts have applied in that scenario to determine whether the communication is for the purpose of
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`seeking legal advice and thus may be privileged: “the ‘primary purpose’ test and the ‘because of’
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`test.” Id. In In re Grand Jury, the Ninth Circuit decided, as a matter of first impression, that
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`where the purpose of a communication is to give or receive both legal advice and business advice,
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`the communication is protected by attorney-client privilege only where the “primary purpose” of
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`the communication is “to give or receive legal advice, as opposed to business . . . advice.” 23
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`F.4th at 1091. The court explained that a dual-purpose communication can only have a single
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`“primary” purpose and thus, the primary purpose test is narrower than the “because of” test, which
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`asks only if there is a causal connection. Id. The court reasoned that “[a]pplying a broader
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`‘because of’ test to attorney-client privilege might harm our adversarial system if parties try to
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`withhold key documents as privileged by claiming that they were created ‘because of’ litigation
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`concerns[,]” finding that this approach “would create perverse incentives for companies to add
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`layers of lawyers to every business decision in hopes of insulating themselves from scrutiny in any
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`future litigation.” Id. at 1093-1094.
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`The party asserting the privilege must make a prima facie showing that the privilege
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`protects the material the party intends to withhold. In re Grand Jury Investigation, 974 F.2d 1068,
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`1071 (9th Cir. 1992); see also Fed. R. Civ. P. 26(b)(5)(A)(ii) (providing that a party claiming
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`privilege must “describe the nature of the documents, communications, or tangible things not
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`produced or disclosed – and do so in a manner that, without revealing information itself privileged
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`or protected, will enable other parties to assess the claim.”). The Ninth Circuit has “recognized a
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`number of means of sufficiently establishing the privilege, one of which is the privilege log
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`approach.” 974 F.2d at 1071 (citing Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir. 1989)).
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`In In re Grand Jury Investigation, for example, the Ninth Circuit found that a prima facie showing
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`of privilege had been made as to eleven documents that had been withheld based on a privilege log
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`and affidavits regarding the “confidential nature” of the documents. Id. In Dole, the court found
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`that a privilege log made a prima facie showing of privilege by identifying “(a) the attorney and
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`client involved, (b) the nature of the document, (c) all persons or entities shown on the document
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`to have received or sent the document, (d) all persons or entities known to have been furnished the
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`document or informed of its substance, and (e) the date the document was generated, prepared, or
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`dated.” 889 F.2d at 888 n. 3.
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`“[I]n camera review is [also] an acceptable means to determine whether disputed materials
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`fit within the privilege.” Id. at 1074. Because in camera review is “an intrusion[,]” it must be
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`justified, but the threshold is not high. Id. In particular, “[t]o empower the district court to review
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`the disputed materials in camera, the party opposing the privilege need only show a factual basis
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`sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence
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`that information in the materials is not privileged.” Id. at 1075. If that threshold is met, the
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`decision whether to conduct the review rests within the discretion of the district court. Id.
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`B. Documents Related to the Investor Letter
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`1. Background
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`On November 18, 2021, before Defendants produced their first privilege log, Plaintiff’s
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`counsel inquired regarding the apparent absence of documents related to the Investor Letter in
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`Defendants’ document production. Black Decl. ¶ 3. He was told by Defendants’ counsel that
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`these documents were “in large part, privileged” and that they would be “reflected on
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`[Defendants’] forthcoming privilege log.” Id. That privilege log was provided the following
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`week. Id. ¶ 5.
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`It is undisputed that the Investor Letter, which was filed with the SEC as an exhibit to a
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`Form 8-K, is not privileged. Black Decl. ¶ 12 & Ex. 6 (Investor Letter). Defendants claimed in
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`the Joint Discovery Letter, however, that drafts of that letter were privileged because “Apple
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`undertook a careful process for drafting the [Investor Letter] under the direction of in-house
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`counsel.” Joint Discovery Letter at 5. Defendants further asserted that the Investor Letter’s
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`“supporting documentation, created at the behest of Apple in-house counsel, is . . . protected by
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`the attorney-client privilege” because “[d]ocuments compiled by non-legal employees to serve as
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`support for the information contained in the [Investor Letter] were created for the express purpose
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`of enabling Apple’s legal department to provide legal advice as to the contents of” that letter. Id.
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`n. 7.
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`In the Motion, Plaintiff asserts the Investor Letter had a “plainly business, not legal,
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`purpose” in that it “preannounced many of the same financial performance metrics that
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`Defendants routinely compile and publicly report, and would do so in final form a few weeks
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`later.” Motion at 6. This is a business purpose, Plaintiff contends, which Defendants have
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`improperly attempted to transform into a legal reason by adding “layers of lawyers.” Id. at 6-7
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`(quoting In re Grand Jury, 23 F.4th at 1093-94). Plaintiff argues that even if the creation of the
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`documents in this category that Defendants claim are privileged was overseen by counsel,
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`Defendants have not substantiated their claim that the involvement of in-house counsel was for a
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`legal purpose and was not simply an example of in-house counsel “operat[ing] in a purely or
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`primarily business capacity.” Id. at 7 (quoting U.S. v. ChevronTexaco Corp., 241 F. Supp. 2d at
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`1076). To show that these documents were for a legal purposes, Plaintiff contends, it is not
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`sufficient to state that their creation was directed by counsel; instead, Defendants must provide
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`specific facts about the lawyers involved and the area of law that was the subject of the lawyers’
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`advice to show “[h]ow or why . . . the process of ‘revising our guidance’ [was] a legal, rather than
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`business, purpose, particularly when Apple routinely provides financial performance guidance as
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`part of its ordinary business operations[.]” Id. at 7. Plaintiff asserts that “at a minimum,
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`Defendants must substantiate this representation with a sworn declaration from individual(s) with
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`personal knowledge” on these questions. Id. at 8.
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`Plaintiff further contends in the Motion that the privilege log entries as to this category of
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`documents are “woefully insufficient[,]” failing to adhere to the requirement that a party claiming
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`privilege must “describe the nature of the documents, communications, or tangible things not
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`produced or disclosed – and do so in a manner that, without revealing information itself privileged
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`or protected, will enable other parties to assess the claim.” Id. (quoting Fed. R. Civ. P.
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`26(b)(5)(a)(ii)). They pointy to Entry 33 as an example, which “does not describe the type of
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`document, does not identify its author (though it states the document is from ‘Tim Cook’s files’),
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`does not identify a single lawyer, nor the area of the law to which it relates.” Id. (citing Black
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`Decl., Ex. 1, Entry No. 33). The “Privilege Description” also is insufficient, Plaintiff contends,
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`“compris[ing] the following: ‘Document reflecting legal advice from in-house counsel regarding
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`board of directors’ call and pre-announcement of revenue guidance miss.’” Id. Likewise, Plaintiff
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`contends, Defendants “have several entries with no dates, no authors, no senders and no
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`recipients” and that are described with the boilerplate statement “Attached document prepared by
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`employee acting under the direction of in-house counsel sent for the purpose of obtaining legal
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`advice regarding investor letter.” Id. (citing Black Decl., Ex. 1, Entry Nos. 466-468). Plaintiff
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`points to other entries that “are simply described as: ‘Email requesting and reflecting legal advice
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`from in-house counsel regarding draft investor letter.’” Id. (citing Black Decl., Ex. 1, Entries 368-
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`375, 412-418). Plaintiff asserts that “for each entry, Defendants must provide a competent
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`privilege log with information reflecting the type of document, its title, author(s), the areas of the
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`law in which legal advice was sought or rendered, the lawyer(s) whose advice was sought or
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`rendered, what lawyer(s) requested what specific information, and whether that specific
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`information was gathered for this unique purpose or was . . . merely information Apple maintains
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`in the ordinary course of its business.” Id. at 9.
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`In their Opposition brief, Defendants argue these documents were properly withheld, citing
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`a declaration by in-house counsel Sam Whittington that they contend “only bolsters the prima
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`facie showing of privilege already made by Defendants in every individual log” relating to the
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`Investor Letter. Opposition at 4. According to Defendants, the Whittington declaration
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`establishes that the Investor Letter “was issued outside of Apple’s normal financial reporting
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`cycle, several weeks ahead of the Company’s announcement of its fiscal 2019 first quarter
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`financial results (which occurred on January 29, 2019), and ahead of the Company’s filing of its
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`Form 10-Q for the fiscal 2019 first quarter (which occurred on January 30, 2019)[;]” that “Mr.
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`Whittington was closely involved in, and provided legal advice with respect to, Apple’s decision
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`of whether to release the [Investor Letter] [;]” that “Mr. Whittington also oversaw the process by
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`which Apple prepared the [Investor Letter], seeking to ensure compliance with the Company’s
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`reporting requirements and to minimize legal risk[;]” and that “Mr. Whittington reviewed and
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`commented on drafts of the [Investor Letter] as they were prepared, again with an eye towards
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`ensuring compliance with reporting requirements and minimizing legal risk to the Company.” Id.
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`(citing Whittington Decl. ¶ 3). Defendants further contend Whittington “directed various Apple
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`employees to prepare certain back-up documentation with respect to the assertions made in the
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`Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 10 of 43
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`[Investor Letter].” Id.
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`Defendants reject Plaintiff’s argument in the Motion that the privilege log entries are
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`insufficient and amount to blanket assertions of privilege, pointing to the fact that they logged
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`each document individually. Id. at 5. They argue that the additional detailed information sought
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`by Plaintiff goes “far beyond” what is required under the Court’s standing order or the case law.
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`Id. at 5-6.
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`In its supplemental brief (dkt. 246-3) (“Plaintiff’s Supp. Brief”), Plaintiff asserts that
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`“[f]ollowing Defendants’ May 14, 2022 production, and the Parties’ agreements based on the
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`declarations and Defendants’ representations regarding the non-relevance of certain documents,
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`Plaintiff’s challenges to 159 documents relating to the pre-announcement remain fundamentally
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`unaddressed.” Plaintiff’s Supp. Brief at 7 (citing Black Supp. Decl., ¶15 at Bullet No. 1).1
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`Because “Defendants have neither reconsidered nor provided support for their previous claim that
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`they may withhold any documents related to a ‘process’ that in-house counsel ‘oversaw[,]’”
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`“Plaintiff’s update to the Court concerning the remaining documents in this category . . . is limited
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`to two issues: the noncompliance of Defendants’ new declarations with the Court’s Order; and
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`Defendants’ problematic practices of copying ‘silent’ attorneys and mislabeling documents
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`‘Privileged and Confidential.’” Id.
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`On the first issue, Plaintiff contends Defendants’ supplemental declarations fall short
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`because as to many of the challenged documents Defendants have not identified the relevant
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`attorney or provided a declaration by that attorney to support their assertion of privilege. Id. They
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`contend this shortcoming is particularly apparent with respect to the Whittington Supplemental
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`Declaration, which Defendants offer to support their claims of privilege with respect to most of the
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`documents in this category.2 Id. Plaintiff does not dispute that Defendants have adequately
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`1 According to Plaintiff, the following documents in this category remain in dispute: 31-32, 178-
`179, 285-291, 298-300, 329, 335, 361-366, 369-379, 382-389, 391, 395, 397-398, 400-411, 417-
`421, 449-452, 455, 459-464, 466, 469-472, 474, 478-480, 482-485, 488, 490-491, 497-498, 512-
`513, 515-520, 522, 524, 526, 532-534, 536-544, 571, 573-575, 577-578, 582-583, 587, 589, 594,
`616-622, 625, 629, 630, 651, 653, 655-662, 670, 672-673, 682, 686, 688, 690-692, 951-953, 961,
`965. Black Supp. Decl. ¶ 15 at Bullet No. 1.
`2Bullet Nos. Four and Six of Whittington Supp. Decl. ¶ 3 address documents in this category. In
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`Case 4:19-cv-02033-YGR Document 272 Filed 08/03/22 Page 11 of 43
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`established attorney-client privilege as to explicit requests for legal advice that were sent to
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`Whittington. As to the remaining communications, however, Plaintiff asserts that Whittington’s
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`supplemental declaration is insufficient because it is vague about who each document was sent to
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`for legal advice, pointing to Whittington’s statement that the documents were “forwarded to [him]
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`(and/or [his] colleagues in the legal department) for the purpose of soliciting legal advice” about
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`the draft Q&A document or the Investor Letter. Whittington Supp. Decl. ¶ 3 Bullet Nos. Four and
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`Six (emphasis added). In view of this vague claim, Plaintiff asserts, Defendants have not satisfied
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`the Court’s Order requiring Defendants to supply a declaration for each document from the
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`attorney whose legal advice was solicited. Id. at 8.
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`Plaintiff further asserts that the Whittington supplemental declaration is insufficient as to
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`Bullet No. Four, Whittington states:
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`Nos.273, 274,302 ,303, 314-26, 333, 334, 427, 428, 432, 433, 443, 444, 555-60, 566,
`567, 600, 601, 623, 624, 644, 645, 647, 648, 668, 669, 684, and 685: This group of
`documents consists of internal emails concerning drafts of an internal “Q&A” reference
`document prepared in anticipation of inquiries from media representatives and others
`relating to the release of the Cook Letter, sometimes including attached drafts of the Q&A
`document. Some of the emails in this group include explicit requests to me for legal advice
`relating to the contents of the draft Q&A document (Nos. 302,318, and 324). Even where the
`request was not explicit, however, my understanding is that drafts of the Q&A document
`were forwarded to me (and/or my colleagues in the legal department) for the purpose of
`soliciting legal advice concerning the contents of the drafts.
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`Wittington Supp. Decl. ¶ 3, Bullet No. Four. In Bullet No. Six, Whittington states:
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`Nos. 363-66, 369-98, 400-21, 425, 426, 512-27, 531-41, 572, 575-82, 593, 594, 616-18,
`629, 630, 651-62, 666, 681, 682, 698, 699, 952, 961, and 965-69: This group of
`documents consists of internal emails concerning drafts of the Cook Letter, sometimes
`including attached drafts of the Cook Letter. Some of the documents in this group include
`explicit requests to me for legal advice, or explicit provision of legal advice by me,
`relating to the contents of the draft Cook Letter (Nos. 380-82, 390, 392-94, 396, 412-16,
`425, 514-16, 520-27, 531-36, 572, 575, 576, 579-82, 593, 594, 651-58, 666, 681, 682, and
`965-69). Other documents in this group include detailed comments and edits provided by
`Ms. Adams (Nos. 365 and 366), and emails including extensive comments on the draft
`Cook Letter sent collectively by me, Ms. Adams, and Mr. Andeer (Nos. 389,391, and
`400-10). Even where the request for legal advice was not explicit, my understanding is
`that drafts of the Cook Letter were forwarded to me (and/or my colleagues in the legal
`department) for the purpose of soliciting legal advice concerning the contents of the
`drafts.
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`Id., Bullet No. Six.
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`this category of documents because “Apple cannot put forward anyone to take responsibility for
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`the challenged documents.” Id. It points to Whittington’s statement that “[o]ther documents in
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`this group include detailed comments and edits provided by Ms. Adams (Nos. 365 and 366), and
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`emails including extensive comments on the draft [Investor Letter] sent collectively by me, Ms.
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`Adams, and Mr. Andeer (Nos. 389, 391, and 400-10).” Id. (citing Whittington Supp. Decl. ¶3
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`Bullet No. 6). According to Plaintiff, this statement is insufficient because Defendants did not
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`supply a declaration from Mr. Andeer and Ms. Adams’ declaration did not address the “extensive
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`comments” Whittington attributed to her. Id. Plaintiff also notes that as to these documents,
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`Defendants do not state that the advice was legal in nature. Id.
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`Plaintiff also challenges the sufficiency of the Whittington Supplemental Declaration to the
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`extent he claims privilege based on “his role overseeing a sweeping process” of collecting backup
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`documentation to support factual assertions made in the Investor Letter. Id. According to Plaintiff,
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`there are 57 documents in this category and the three rationales offered by Whittington in support
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`of attorney-client privilege3 all fall short because they do not establish that the project of collecting
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`this information was primarily for a legal purpose. Id. at 8-9. Plaintiff argues that as “the
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`information shared in [the Investor Letter] was purely related to business operations and financial
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`performance” there is “no reason to believe that [Whittington’s] or anyone else’s ‘directions’
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`concerning such issues would be privileged.” Id. at 9.
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`With respect to the two new Adams declarations, Plaintiff concedes these