620 F.Supp.3d 1009
N.D. Cal.2022Background
- Wrongful-death suit arising from the October 2019 death of Jamal Jordan; plaintiff Rochelle Rodriguez is the decedent’s widow and personal representative seeking wrongful-death and survival damages.
- Two related actions: a limitation action transferred and consolidated here, and an interpleader involving the defendants’ $1M insurer deposit; the decedent’s daughter (Savannah Jordan) had related claims addressed in those proceedings.
- Non-party witnesses at issue: Savannah Jordan (daughter, presumed beneficiary), Shirena Brown (sister), and Tracy Maldonado (Jordan’s mother). Defendants deposed them in March 2022; counsel for the witnesses repeatedly invoked attorney-client privilege and the common-interest doctrine to refuse certain deposition questions and to withhold documents without a privilege log.
- Key factual timing: the witnesses did not have retained counsel (and a joint prosecution agreement) until after December 2021 (likely January–February 2022).
- Court order: granted defendants’ motion to compel. Witnesses must reappear for continued depositions and answer non-privileged questions; produce non-privileged documents and, if withholding, provide a detailed privilege log. Court limited common-interest protection to beneficiary communications after counsel/ agreement and declined to award costs for re-noticing depositions.
Issues
| Issue | Rodriguez's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Applicability of attorney-client privilege to witness testimony about counsel, meetings, or communications | Privileged where communications involved legal advice; common-interest preserves shared communications | Many questions (e.g., whether they retained counsel, dates/duration of meetings, who was present) are not privileged; witnesses lack joint legal strategy | Attorney-client privilege applies only to actual confidential legal communications; basic facts (dates, presence, hiring) and non-communicative facts are not privileged — witnesses must answer non-privileged questions |
| Applicability of the common-interest doctrine between plaintiff and non-party witnesses | Non-party beneficiaries share a fiduciary/common legal interest to maximize estate recovery; common-interest preserves communications | Witnesses’ interests are not sufficiently aligned; no common legal strategy existed before witnesses had counsel; doctrine inapplicable | Common-interest protects privileged communications only for beneficiaries who had counsel and agreed to a joint legal strategy (post–Jan/Feb 2022); non-beneficiaries get no protection regardless of timing |
| Temporal scope of any common-interest protection | Communications during settlement negotiations (Dec 2021) are protected | No joint strategy existed before witnesses retained counsel; protections begin after agreement/retention | Common-interest protection applies only to communications occurring after the parties agreed (likely Jan/Feb 2022) and after retention of counsel |
| Work-product waiver from sharing materials with non-party witnesses | Sharing materials with aligned non-adversaries should not waive work-product protection | Sharing may waive protection if it increases adversaries’ access | Sharing with non-adversary witnesses did not waive work-product protection; work-product remains protected subject to usual rules |
Key Cases Cited
- United States v. Zolin, 491 U.S. 554 (Sup. Ct.) (federal privilege questions governed by common law principles)
- United States v. Ruehle, 583 F.3d 600 (9th Cir.) (elements and burden for attorney-client privilege)
- In re Pacific Pictures Corp., 679 F.3d 1121 (9th Cir.) (common-interest requires joint strategy; mere shared outcome insufficient)
- United States v. Gonzalez, 669 F.3d 974 (9th Cir.) (temporal scope of joint defense agreement; implied agreements possible)
- Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573 (9th Cir.) (work-product protection standards)
- Clarke v. Am. Com. Nat’l Bank, 974 F.2d 127 (9th Cir.) (limits of privilege: identity of client, fee, and general purpose often not privileged)
- United States v. Austin, 416 F.3d 1016 (9th Cir.) (communications outside counsel’s presence generally not covered by joint-defense/common-interest)