Case 4:19-cv-02033-YGR Document 302 Filed 09/12/22 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE APPLE INC. SECURITIES LITIGATION,
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`Case No. 4:19-cv-2033-YGR
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`ORDER DENYING MOTION FOR RELIEF
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`Re: Dkt. No. 276
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`Before the Court is defendants Apple, Tim Cook, and Luca Maestri’s (“defendants”) motion
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`for relief from a nondispositive pretrial order issued by the Honorable Chief Magistrate Judge Joseph
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`C. Spero. (Dkt. No. 276.) Pursuant to Federal Rule of Civil Procedure 72 and Civil Local Rule 72-2,
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`defendants challenge Judge Spero’s order compelling certain documents which defendants contend
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`are subject to attorney-client privilege. Having carefully reviewed the parties’ submissions and the
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`record in this case, the Court rules as follows.
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`I.
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`BACKGROUND
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`The Court incorporates the background provided in Judge Spero’s 43-page order regarding the
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`underlying action and pertinent discovery disputes. (Dkt. No. 272 at 1-5.) In relevant part, plaintiffs
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`filed a motion to compel production of numerous documents that defendants withheld under the
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`attorney-client privilege, resulting in the order by Judge Spero that is the subject of the instant motion.
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`Defendants challenge the order on four bases, which the Court will address in turn.
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`II.
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`LEGAL STANDARD
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`“A non-dispositive order entered by a magistrate must be deferred to unless it is ‘clearly
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`erroneous or contrary to law.’” Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir.
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`1991) (citing Fed. R. Civ. P. 72(a), 28 U.S.C. § 636(b)(1)(A)). On review of a nondispositive order
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`“the magistrate’s factual determinations are reviewed for clear error,” and the district court may only
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`set aside those factual determinations if it is left with a “definite and firm conviction that a mistake
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`Northern District of California
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`United States District Court
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`Case 4:19-cv-02033-YGR Document 302 Filed 09/12/22 Page 2 of 3
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`has been committed.” Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). Thus, the
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`Court will modify or set aside Judge Spero’s discovery ruling only if it is clearly erroneous.
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`III. DISCUSSION
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`Defendants first argue that Judge Spero applied the wrong legal standard by requiring
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`documents to have an explicit reference to a legal issue. (Dkt. No. 276 at 2.) This argument is
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`without merit. Judge Spero explicitly states in the order that implied requests are sufficient to support
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`attorney-client privilege. (Dkt. No. 272 at 22.) Judge Spero did not find Entry 288 non-privileged
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`just because it “does not reference any specific legal concerns,” as defendants misleadingly state in
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`their motion, he also found that it “was not primarily aimed at seeking legal advice and therefore is
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`not privileged.” (Dkt. No. 272 at 24.)
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`Second, defendants claim that because Judge Spero found a responsive email from Apple’s
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`counsel was privileged, it was legal error not to find the initial email also privileged. (Dkt. No. 276 at
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`3.) Defendants cite one case addressing whether an initial email is privileged if its response is
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`privileged. That case is not binding on this Court. Additionally, though the court there found that
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`where one email in a chain was privileged, others in the chain were also privileged, it did not hold that
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`this was a general rule. The court noted “the application of privileges to email communications
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`remains an evolving area of the law” and that “in the e-mail discovery context, the court
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`understands Upjohn to mean that even though one e-mail is not privileged, a second e-mail which
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`forwards that prior e-mail to counsel might be privileged in its entirety.” Dawe v. Corr. USA, 263
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`F.R.D. 613, 621 (E.D. Cal. 2009) (emphasis supplied). This is not a sufficient basis for finding Judge
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`Spero’s order clearly erroneous.
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`Third, defendants argue that Judge Spero departed from “settled law” by concluding that
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`certain internal communications were non-privileged even though counsel for Apple submitted sworn
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`declarations to the contrary. As Judge Spero states in the order, “[a]ttorney declarations generally are
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`necessary to support the designating party’s position in a dispute about attorney-client privilege.”
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`(Dkt. No. 272 at 5) (quoting Dolby Lab’ys Licensing Corp. v. Adobe Inc., 402 F. Supp. 3d 855, 865
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`(N.D. Cal. 2019)). That does not mean such affidavits are dispositive, particularly when, as Judge
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`Spero found here, such declarations are “vague” or otherwise inadequate. (Dkt. No. 272 at 23.) The
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`Northern District of California
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`United States District Court
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`Case 4:19-cv-02033-YGR Document 302 Filed 09/12/22 Page 3 of 3
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`order reveals that Judge Spero considered the declarations and found them wanting. Such factual
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`determinations are not clearly erroneous.
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`Finally, defendants argue that Judge Spero erred by applying “the” primary purpose test for
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`determining if documents with multiple purposes are privileged rather than the more expansive “a”
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`primary purpose test, as articulated by the D.C. Circuit in In re Kellogg Brown & Root, Inc., 756 F.3d
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`754, 760 (D.C. Cir. 2014)). The Ninth Circuit in In re Grand Jury affirmed “that the primary-purpose
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`test governs in assessing attorney-client privilege for dual-purpose communications” and “left open”
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`whether the more expansive “a primary purpose” test articulated by the D.C. Circuit in Kellogg should
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`ever be applied. In re Grand Jury, 23 F.4th 1088, 1090 (9th Cir. 2021). Kellogg is not the standard
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`in the Ninth Circuit and it was not clearly erroneous for Judge Spero not to apply it.
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`For these reasons, defendants’ motion is DENIED and defendants are ORDERED to produce
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`documents in accordance with Judge Spero’s order within one (1) business day of this order.
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`This terminates docket number 276.
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`IT IS SO ORDERED.
`September 12, 2022
`Dated:
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`____________________________________
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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