1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT GRIFFITH COLLABORATIVE Case No. 19-cv-06104-SBA (JCS) SOLUTIONS, LLC, 19-cv-08171-SBA (JCS) 8 Plaintiff,

9 v. CORRECTED1 ORDER TO SHOW 10 FALCK NORTHERN CALIFORNIA C NA OU TS BE E W PRH OY D D UO CC EU DM E N T S S H O U L D 11 CORP., et al., Defendants. 12 FALCK USA, INC., et al., 13 Plaintiffs, 14 v. 15 SCOTT GRIFFITH COLLABORATIVE 16 SOLUTIONS, LLC, 17 Defendant.

18 19 The undersigned previously issued a report and recommendation regarding sanctions for 20 spoliation of evidence, which Judge Armstrong adopted except as to certain deadlines. Pursuant 21 to that report and the order adopting it, Scott Griffith Collaborative Solutions, LLC (“SGCS”) has 22 lodged certain documents that it withheld based on work product protection for in camera review 23 to determine whether SGCS’s spoliation of other evidence created substantial need for production 24 of these documents notwithstanding their status as work product in anticipation of litigation. 25 The work product doctrine, codified in Rule 26(b)(3) of the Federal Rules of Civil 26

27 1 This order corrects the description of the material to be redacted in SGCS002073, for clarity and 1 Procedure, protects from discovery “documents and tangible things that are prepared in 2 anticipation of litigation or for trial by or for another party or its representative.” See In re Grand 3 Jury Subpoena,

(9th Cir. 2004). “Proper preparation of a client’s case demands 4 that [an attorney] assemble information, sift what he considers to be the relevant from the 5 irrelevant facts, prepare his legal theories and plan his strategy without undue and needless 6 interference.” Hickman v. Taylor,

(1947). This doctrine is distinct from the 7 attorney-client privilege, and is in fact “not a privilege but a qualified immunity protecting [certain 8 material] from discovery.” See Admiral Ins. Co. v. U.S. Dist. Court,

(9th Cir. 9 1989). Work product material that concerns factual matters, as opposed to an attorney’s opinions 10 or legal theories, may be discovered if the party seeking it demonstrates a “substantial need” for 11 the material and there is no other means for obtaining that information without undue hardship. 12 Fed. R. Civ. P. 26(b)(3)(A). 13 SGCS failed to preserve the following categories of evidence: emails between SGCS 14 employee Paul LeSage and various employees of SGCS’s client AMR, text messages between 15 LeSage and AMR employee Rob Garrett, and an email LeSage sent to SGCS contractor Ann 16 Kovacs passing along a news article. None of the documents SGCS lodged for in camera review 17 relate to the missing email between LeSage and Kovacs, so this order focuses on communications 18 between SGCS and AMR. To the extent those communications could not be produced by other 19 participants—most notably, the text messages between LeSage and Garrett, although it is not clear 20 whether all emails that LeSage deleted were recovered from other sources—SGCS’s failure to 21 preserve those communications deprived its opponent Falck USA, Inc. (along with several related 22 entities; collectively, “Falck”) of discovery that would have helped Falck understand the 23 coordination between SGCS and AMR at the time AMR released to the press a purportedly 24 defamatory statement drafted by SGCS. 25 The Court therefore finds substantial need for production of work product documents that 26 shed light on that relationship—specifically, all documents in the collection at issue that factually 27 describe SGCS’s communications or coordination with AMR. Portions of those documents that 1 SGCS must produce documents as follows: 2 3 Bates Nos. Produce Redact 4 SGCS001975–76 Email from LeSage. Quoted email from Michael Coffin, 5 except produce the phrases: 6 “Connection . . . responded)”; 7 “Waiting . . . discuss”; and “Right 8 . . . use.” 9 SGCS001977 Quoted email from LeSage, except Email from Coffin. 10 redact the sentence: “We . . . 11 proposal.” 12 SGCS001981–82 None. Entire document. 13 SGCS001983–85 None Entire document. 14 SGCS001988–90 None Entire document. 15 SGCS002003 Entire document except as noted. Email subject line, and the passage: 16 “Most . . . steps?” 17 SGCS002004–06 Entire document. None. 18 SGCS002007 None. (Relevant portions are Entire document. 19 captured by SGCS002003.2) 20 SGCS002017–18 None. (Relevant portions are None. 21 captured by SGCS001975–76.) 22 23 24 25 26 2 As noted above, the production contemplated by this order is based solely on the substantial need 27 for factual descriptions of communications between SGCS and AMR. The Court finds no need 1 Bates Nos. Produce Redact 2 SGCS002019–21 5:00 PM email from Coffin, except Quoted email from Coffin, except 3 redact the passages: “I . . . happen.”; as noted above with respect to 4 “The higher . . . Falck.”; “If . . . SGCS001975–76. 5 slap.” 6 Quoted email from LeSage. 7 SGCS002023 None. Entire document. 8 SGCS002024–26 None. Entire document. 9 SGCS002027–29 None. Entire document. 10 SGCS002030–34 None. Entire document. 11 SGCS002035 None. Entire document. 12 SGCS002051 None. Entire document. 13 SGCS002055 None. Entire document. 14 SGCS002056–57 None. Entire document. 15 SGCS002058–61 None. Entire document. 16 SGCS002067 Only email header information and Body of email from Coffin. 17 the quoted email from LeSage.3 18 SGCS002068 Entire document except as noted. Same material as SGCS002003. 19 SGCS002069–71 Entire document. None. 20 SGCS002072 None. (Relevant portions are Entire document. 21 captured by SGCS002003.) 22 SGCS002073 Entire document except as noted. Email subject line; quoted email 23 from Coffin in its entirety; same 24 material as SGCS002003 in the 25 quoted email from LeSage. 26 27 ! 2 SGCS002074-75 | Header for quoted email from Entire document except as noted. 3 LeSage, and the sentence: “Rob... 4 posted.”

6 captured by SGCS001975-76.)

8 captured by SGCS002019-21.)

1

19 captured by SGCS002073.) 20 21 Any party that believes the production contemplated above 1s inconsistent with the 22 || undersigned’s previous report as adopted by Judge Armstrong, or with applicable law, is 23 ORDERED TO SHOW CAUSE why the Court should not order production as stated above by 24 || filing a response no later than October 18, 2021. Any such response may not reargue matters 25 || previously decided. 26 IT ISSO ORDERED. 27 || Dated: October 13, 2021 CZ J PH C. SPERO 28 ief Magistrate Judge