"Outside Vendor" Communications with Counsel May be Clawed Back

Yesterday, Judge Linda Lopez issued a decision, Stone Brewing Co., LLC v. Molson Coors Brewing Co., 18-cv-331-BEN-LL, 2019 U.S. Dist. LEXIS 150729 (S.D. Cal. Sept. 4, 2019), denying a request for a reconsideration of the Court's earlier order granting the Defendant's request to claw back privileged attorney client communications and denying the Plaintiff's request for a proper identification of documents listed on the Defendant's privilege log. The Court overruled an objection to the motion for reconsideration as being time barred under a local rule requiring filing within 28 days of the initial ruling, because the Defendant failed to provide the final version of a deposition transcript relevant to Stone's motion.

This ruling focused on the issue of whether or not communications between the Defendant's attorneys and its marketing personnel at Mekanism (concerning legal matters) should be considered attorney-client privilege under the functional equivalent rule. Deposition testimony by a non-lawyer witness for MillerCoors that Mekanism was an "outside vendor" was not enough to warrant reconsideration of the decision. "Here, the Court finds that the record supports a situation where 'too narrow a definition of 'representative of the client' will lead to attorneys not being able to confer confidentially with nonemployees who, due to their relationship to the client, possess the very sort of information that the privilege envisions flowing most freely.' In re Bieter Co., 16 F.3d 937, 938 (8th Cir. 1994)." Id. at *11. Consultants need not work full-time at a party's office in order to be covered by attorney-client privilege.

Stone also argued the provision of the ESI protocol requiring a summary of the content of each document listed on a privilege log, as well as a court order requiring a response to an interrogatory about which privilege log entries pertained to a trademark at issue in the case, requires the Defendant to further distinguish the entries on the log than it already has. Judge Lopez rejected the Plaintiff's contention that a 30(b)(6) deposition witness's inability to answer questions about the content of documents on the log merited a reconsideration of its decision.