Nelson v. Hawaiian Airlines, Inc.Nelson v. Hawaiian Airlines, Inc.
and
AFFIRMING THE MAGISTRATE JUDGE‘S JUNE 22, 2026 ORDER (ECF NO. 254)
On June 22, 2026, the Magistrate Judge issued ORDER GRANTING IN PART DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INFORMATION WITHHELD ON THE BASIS OF THE COMMON INTEREST PRIVILEGE (ECF No. 254).
Defendants requested that Plaintiffs produce in discovery communications in a Telegram Group Chat that included the named Plaintiffs in this case. The Telegram Group Chat began in August 2021, more than two years prior to the date that this case was filed on December 15, 2023.
The Telegram Group Chat included numerous employees of Defendant Hawaiian Airlines, Inc. and had “hundreds of members who joined and left the group chat at various times” before and during the litigation of this case.
The Telegram Group Chat did not include any of the Plaintiffs’ lawyers.
Plaintiffs objected to the production of the Telegram Group Chat on the basis of attorney-client privilege and citing the common interest doctrine.
The Magistrate Judge ruled that the Telegram Group Chat was required to be produced to Defendants with certain limitations. (Magistrate Judge‘s June 22, 2026 Order, ECF No. 254).
On July 13, 2026, Defendants filed their Response. (ECF No. 260).
On July 15, 2026, the Court issued a Minute Order ruling:
Plaintiffs’ Objections to Magistrate Judge‘s Order Granting In Part Defendants’ Motion to Compel Production of Documents and Information Withheld on the Basis of the Common Interest Privilege (ECF No. 258) are OVERRULED.
The Magistrate Judge‘s June 22, 2026 ORDER GRANTING IN PART DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INFORMATION WITHHELD ON THE BASIS OF THE COMMON INTEREST PRIVILEGE (ECF No. 254) is AFFIRMED.
(July 15, 2026 Minute Order, ECF No. 264).
This written order provides the basis for the Court‘s ruling.
STANDARD OF REVIEW
An appeal from a magistrate judge‘s ruling on a non-dispositive matter may be brought pursuant to District of Hawaii Local Rule 74.1.
A party may object to a magistrate judge‘s non-dispositive order within fourteen (14) days after being served. District of Hawaii Local Rule 74.1(a).
A magistrate judge‘s order on a non-dispositive matter, or
Review under the clearly erroneous standard is significantly deferential, requiring a definite and firm conviction that a mistake has been committed. Concrete Pipe & Prods. v. Constr. Laborers Pension Tr., 508 U.S. 602, 623 (1993).
ANALYSIS
I. Plaintiffs’ Objections Are Untimely
On June 22, 2026, the Magistrate Judge issued ORDER GRANTING IN PART DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INFORMATION WITHHELD ON THE BASIS OF THE COMMON INTEREST PRIVILEGE (ECF No. 254).
Fifteen days later, on July 7, 2026, Plaintiffs filed their Objections. (ECF No. 258).
In their Objections, Plaintiffs incorrectly state that they were filed on July 6, 2026. (Objections at p. 7, ECF No. 258).
Objections to a Magistrate Judge‘s non-dispositive order must be filed “within fourteen (14) days after being served.” District of Hawaii Local Rule 74.1(a) (emphasis added).
Plaintiffs’ failure to file timely Objections is reason alone to reject them. Berg v. Bed Bath & Beyond, Inc., 2017 WL 5906039, *3 (D. Haw. Nov. 30, 2017); see Agena v. Cleaver-Brooks, Inc., 428 F.Supp.3d 267, 272 n.1 (D. Haw. 2019);
II. Plaintiffs’ Objections Fail On The Merits
Plaintiffs’ Objections concern the Magistrate Judge‘s June 22, 2026 Order regarding Defendants’ discovery requests for the production of a Telegram Group Chat.
Plaintiffs argue that the entire Telegram Group Chat is privileged.
A. Attorney-Client Privilege
An eight-part test determines whether information is covered by the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.
United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009).
The party asserting the attorney-client privilege has the burden of establishing the existence of an attorney-client relationship and the privileged nature of the communication. Id.
Not all communications between an attorney and client are privileged. Clarke v. Am. Com. Nat‘l Bank, 974 F.2d 127, 129 (9th Cir. 1992). The privilege does not extend beyond the substance of the client‘s confidential communications to the
The attorney-client privilege is strictly construed. Ruehle, 583 F.3d at 608.
B. Common Interest Doctrine
The common interest doctrine is not an independent privilege, but it is a “narrow exception to the general rule that disclosing information to a third party constitutes a waiver of the attorney-client privilege.” Rodriguez v. Seabreeze Jetlev LLC, 620 F.Supp.3d 1009, 1019 (N.D. Cal. 2022) (quoting Integrated Glob. Concepts, Inc. v. j2 Glob., Inc., 2014 WL 232211, at *2 (N.D. Cal. Jan. 21, 2014)).
The common interest doctrine is an exception to the ordinary waiver rules for attorney-client privilege to allow attorneys for different clients pursuing a common legal strategy to communicate with each other. Rodriguez, 620 F.Supp.3d at 1019.
To successfully invoke the common interest doctrine, the party must show:
- the communication is made by separate parties in the course of a matter of common interest;
- the communication is designed to further that effort; and
- the privilege has not been waived.
A shared desire to see the same outcome in a legal matter is insufficient to bring a communication between two parties within
C. The Telegram Group Chat
The Telegram Group Chat was created in August 2021. The Telegram Group Chat had “between 50 and 100 to hundreds of participants throughout its life....Group members joined and left the group chat at various times for various reasons.” (Magistrate Judge‘s June 22, 2026 Order at p. 15, ECF No. 254). “[N]o attorney was ever a part of the Group Chat.” (Id. at p. 7).
The Magistrate Judge categorized the Telegram Group Chat into three separate time periods:
- Between August 2021 and September 11, 2021: Before Counsel Was Retained
- Between September 11, 2021 and December 12, 2023: Interim Period Between When One Of The Chat Members Retained Counsel and The Order Denying Class Certification in O‘Hailpin et al. v. Hawaiian Airlines, Inc., et al., 22-cv-00532 HG-WRP
- After December 12, 2023: After Class Certification Was Denied
Plaintiffs Object to the Magistrate Judge‘s Order as to each of the three separate time periods.
The Magistrate Judge correctly ruled that the Telegram Group Chat communications made before counsel was retained are not privileged. The Group Chat, between its creation in August 2021 and September 11, 2021, is required to be disclosed and is not subject to attorney-client privilege. No attorney was part of the chat. There was no attorney-client relationship prior to September 11, 2021 that could apply to the Telegram Group Chat communications in order for the privilege to apply.
The attorney-client privilege must apply as a threshold matter. The common interest doctrine is not a stand-alone privilege but an exception to the ordinary waiver rules regarding attorney-client communications. The common interest doctrine applies “only if the communication at issue is privileged in the first instance.” Callwave Commc‘ns, LLC v. Wavemarket, Inc., 2015 WL 831539, at *4 (N.D. Cal. Feb. 23, 2015).
The Magistrate Judge‘s ruling is not clearly erroneous or contrary to law.
2. Between September 11, 2021 and December 12, 2023: Interim Period Between When One Of The Chat Members Retained Counsel and The Order Denying Class Certification in O‘Hailpin et al. v. Hawaiian Airlines, Inc., et al., 22-cv-00532 HG-WRP
The Magistrate Judge ruled that Plaintiffs failed to carry their burden to prove the existence of an attorney-client
As the Magistrate Judge explained in the Order, “Throughout its life, the Group Chat had ‘between 50 and 100 to hundreds of participants‘....Group members joined and left the group chat at various times for various reasons.” (Magistrate Judge‘s June 22, 2026 Order at pp. 15-16, ECF No. 254). In their submissions, Plaintiffs did not explain the reasons any group member left the group. In their briefing, Plaintiffs did not establish that each group member retained counsel. (Id.)
Plaintiffs ignore the requirement to establish the attorney-client privilege as a threshold matter. Although given the opportunity, Plaintiffs have not established that the attorney-client privilege attaches to the communications at issue. They have not established that such relationship existed for all of the members of the Telegram Group Chat prior to December 12, 2023. Plaintiffs fail to present sufficient evidence that an agreement existed between all group members to coordinate legal action prior to December 12, 2023. See In re Pac. Pictures Corp., 679 F.3d at 1129.
The Magistrate Judge‘s ruling is not clearly erroneous or contrary to law.
3. After December 12, 2023: After Class Certification Was Denied
The final time period for the Telegram Group Chat is after
The Magistrate Judge ruled that because the Telegram Group Chat was limited to represented Plaintiffs after December 12, 2023 (when class certification was denied in O‘Hailpin and the Nelson case was filed on December 15, 2023), the common interest doctrine may apply to certain communications. The Magistrate Judge ruled that after December 12, 2023, Plaintiffs were jointly pursuing legal action against Defendants in the Nelson case, and determined that both the attorney-client privilege and the common interest doctrine may apply to some communications within this time period of the Telegram Group Chat. (Magistrate Judge‘s June 22, 2026 Order at p. 19, ECF No. 254).
The Magistrate Judge explained that Plaintiffs still carried the burden to demonstrate that the attorney-client privilege and common interest doctrine applied to all of the communications. The Telegram Group Chat document provided for in camera review is 2,708 pages and contains thousands of communications between hundreds of users. (Pl.‘s Supp. Brief at p. 9, ECF No. 168). Plaintiffs were required to demonstrate that each of the communications in the Telegram Group Chat after December 12, 2023 was made in furtherance of legal representation and a joint legal strategy, citing Ruele, 583 F.3d at 607 and Rodriguez, 620 F.Supp.3d at 1018. (Magistrate Judge‘s June 22, 2026 Order at p.
There were 36 categories of communications identified by Plaintiffs in the Telegram Group Chat. Categories 1 and 2 concerned legal advice or strategy. The Magistrate Judge ruled that the communications in Categories 1 and 2 were covered by the attorney-client privilege and the common interest doctrine. (Id. at pp. 19-20).
The Magistrate Judge ruled that Plaintiffs failed to meet their burden to establish that each individual communication in the 2,708-page document, covering Categories 3-36 after December 12, 2023, was made in furtherance of legal advice or common legal strategy.
Plaintiffs have provided no evidence in their Objections to establish any error in the Magistrate Judge‘s ruling.
The Magistrate Judge‘s ruling is not clearly erroneous or contrary to law.
D. Privilege Log
The Magistrate Judge also ordered that Plaintiffs must produce “a privilege log consistent with the instructions detailed in this Order.” (Magistrate Judge‘s June 22, 2026 Order at p. 27, ECF No. 254).
Plaintiffs’ sole objection to the Magistrate Judge‘s privilege log ruling is that it is “erroneous and contrary to law because it compels the production of privileged common-interest
As explained above, Plaintiffs failed to prove the existence of an attorney-client privilege and that the common interest doctrine applied to Telegram Group Chat communications other than those identified in Categories 1 and 2 after December 12, 2023.
The Magistrate Judge‘s ruling is not clearly erroneous or contrary to law. Plaintiffs’ Objections contain no evidence. Plaintiffs have failed to meet their burden to establish the communications are privileged.
Plaintiffs’ Objections are OVERRULED.
The Magistrate Judge‘s June 22, 2026 Order is AFFIRMED.
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Plaintiffs’ Objections to Magistrate Judge‘s Order Granting In Part Defendants’ Motion to Compel Production of Documents and Information Withheld on the Basis of the Common Interest Privilege (ECF No. 258) are OVERRULED.
The Magistrate Judge‘s June 22, 2026 ORDER GRANTING IN PART DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND INFORMATION WITHHELD ON THE BASIS OF THE COMMON INTEREST PRIVILEGE (ECF No. 254) is AFFIRMED.
IT IS SO ORDERED.
DATED: July 17, 2026, Honolulu, Hawaii.
Helen Gillmor
United States District Judge
Aaron Nelson et. al., v. Hawaiian Airlines, Inc., et al.; Civil No. 23-00603 HG-WRP; ORDER OVERRULING PLAINTIFFS’ OBJECTIONS (ECF NO. 258) and AFFIRMING THE MAGISTRATE JUDGE‘S JUNE 22, 2026 ORDER (ECF NO. 254)