Arthur J. Gallagher & Co. v. Petree

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ARTHUR J. GALLAGHER & CO., No. 2:18–cv–3274–JAM–KJN Plaintiff, ORDER TO PRODUCE v. ROBERT PETREE, et al., Defendants.

16 On January 15, 2021, the court held a telephonic informal discovery conference regarding certain discovery disputes in this litigation. (ECF No. 62.) Following that conference, the court ordered defendants to submit for in camera review three pages of documents (“the opinion memo”) that defendants have been withholding as privileged under the joint defense/common interest doctrine. (ECF No. 63 at 2.) The court gave defendants until January 19, 2021, to advise whether they desired an opportunity for further briefing of the privilege issue. (Id.) The court subsequently extended that deadline to January 21, 2021, at defendants’ request. (ECF No. 64.)

23 On January 21, defense counsel again requested more time to confer with one of its clients but indicated that if the court was inclined to order production of the opinion memo, that defendants be allowed to brief the issue. In a minute order the same day, the court stated that it was strongly inclined to order production and ordered defendants to file any opposition to production no later than 4:00 pm on January 26, 2021. (ECF No. 65.)

28 //// ee EIR EI III IE EI EI OSI I OOD 1 That deadline having passed without the filing of any opposition by defendants, the court | now orders that the opinion memo be produced in full to plaintiff. At the informal hearing, the | court remained open to the possibility that the contested documents might evince a joint | agreement between the two named defendants. However, in camera review reveals that | the documents do not indicate the presence of an agreement between the two to pursue a joint | defense strategy. See In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“[A] shared | desire to see the same outcome in a legal matter is insufficient to bring a communication between | two parties within [the common interest/joint defense exception]. Instead, the parties must make | the communication in pursuit of a joint strategy in accordance with some form of agreement— | whether written or unwritten.”) (internal citations omitted). The court thus finds that any | attorney-client privilege protecting the opinion memo was waived by its communication to a third | party, defendant Petree. Defendants have elected to no longer oppose production.

13 Accordingly, IT IS ORDERED that by 5:00 pm on January 27, 2021, defendants shall | produce to plaintiff an unredacted copy of the opinion memo provided to the court for in camera || review.

16 | Dated: January 27, 2021 " Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE gall.3274