1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 JEFFERIES FUNDING LLC, Case No. 24-cv-05639-TLT (PHK)

9 Plaintiff, ORDER RESOLVING DISPUTE RE

ATTORNEY-CLIENT PRIVILEGE

10 v. FOR CERTAIN DASAGROUP

DOCUMENTS

11 DASAGROUP HOLDINGS CORP., et al., Re: Dkt. 125 12 Defendants.

13 14 15 This case has been referred to the undersigned for all discovery purposes. See Dkt. 74. 16 Now pending before the Court is a joint letter brief regarding a dispute between Plaintiff Jefferies 17 Funding (“Jefferies”) and Defendant Dasagroup Holdings (“Dasagroup”) as to whether (a) 18 Dasagroup’s privilege log is adequate and (b) whether certain documents withheld from 19 production as trade secrets should be produced. [Dkt. 125]. The Court has reviewed the Parties’ 20 briefing and exhibits and finds this matter suitable for resolution without oral argument. Civil 21 L.R. 7-1(b). 22 LEGAL STANDARD 23 The relevant legal standards for discovery are well-known and summarized 24 herein. Federal Rule of Civil Procedure 26(b)(1) delineates the scope of discovery in federal civil 25 actions and provides that “[p]arties may obtain discovery regarding any nonprivileged matter that 26 is relevant to any party's claim or defense and proportional to the needs of the case.” (emphasis 27 added). Rule 26(b)(5) requires that “[w]hen a party withholds information otherwise discoverable 1 the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, 2 communications, or tangible things not produced or disclosed—and do so in a manner that, 3 without revealing information itself privileged or protected, will enable other parties to assess the 4 claim.” Fed. R. Civ. P. 26(b)(5). 5 “The attorney-client privilege protects confidential communications between attorneys and 6 clients, which are made for the purpose of giving legal advice.” In re Grand Jury, 23 F.4th 1088, 7 1091 (9th Cir. 2021) (quoting United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 8 2020)). The privilege attaches when “(1) legal advice of any kind is sought (2) from a 9 professional legal adviser in his capacity as such, (3) the communications relating to that purpose, 10 (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from 11 disclosure by himself or by the legal adviser, (8) unless the protection be waived.” United States 12 v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (quoting In re Grand Jury Investigation, 974 F.2d 13 1068, 1071 n.2 (9th Cir. 1992)). The privilege protects only communications and not underlying 14 facts. Upjohn v. United States, 449 U.S. 383, 396 (1981) (holding that a party “may not refuse to 15 disclose any relevant fact within his knowledge merely because he incorporated a statement of 16 such fact into his communication to his attorney”). 17 The attorney-client privilege is “narrowly and strictly construed,” and the party asserting it 18 has the burden of proving that the privilege applies. United States v. Gray, 876 F.2d 1411, 1415 19 (9th Cir. 1989) (citations omitted). The Ninth Circuit has “previously recognized a number of 20 means of sufficiently establishing the privilege, one of which is the privilege log approach.” N re 21 Grand Jury, 974 F.2d at 1071. “The Ninth Circuit has held that a party meets its burden of 22 demonstrating the applicability of the attorney-client privilege by submitting a log that identifies 23 (a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities 24 shown on the document to have received or sent the document, (d) all persons or entities known to 25 have been furnished the document or informed of its substance, and (e) the date the document was 26 generated, prepared, or dated.” Khasin v. Hershey Co., No. 5:12-cv-01862-EJD-PSG, 2014 WL 27 690278, at *2 (N.D. Cal. Feb. 21, 2014) (citing In re Grand Jury, 974 F.2d at 1071); see also Club 1 court’s determination that challenged privilege log satisfied Rule 26(b)(5) where privilege log 2 “disclosed the nature of the correspondence, the date of sending, the sender and recipient(s), and a 3 brief statement describing the subject of the content.”). 4 The Court has broad discretion and authority to manage discovery. U.S. Fidelity & Guar. 5 Co. v. Lee Inv. LLC, 641 F.3d 1126, 1136 n.10 (9th Cir. 2011) (“District courts have wide latitude 6 in controlling discovery, and their rulings will not be overturned in the absence of a clear abuse of 7 discretion.”); Laub v. U.S. Dep’t of Int., 342 F.3d 1080, 1093 (9th Cir. 2003). As part of its 8 inherent discretion and authority, the Court has broad discretion in determining relevancy for 9 discovery purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) 10 (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). A court’s determination as to 11 proportionality of discovery is also within the district court’s discretion. See Jones v. Riot 12 Hospitality Group LLC, 95 F.4th 730, 737–38 (9th Cir. 2024) (finding district court did not abuse 13 discretion on proportionality ruling). Ultimately, “the timing, sequencing and proportionality of 14 discovery is left to the discretion of the Court.” Toro v. Centene Corp., No. 19-cv-05163 LHK 15 (NC), 2020 WL 6108643, at *1 (N.D. Cal. Oct. 14, 2020). The Court’s discretion extends to 16 crafting discovery orders that may expand, limit, or differ from the relief requested. See 17 Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (holding trial courts have “broad discretion to 18 tailor discovery narrowly and to dictate the sequence of discovery”). For example, the Court may 19 limit the scope of any discovery method if it determines that “the discovery sought is unreasonably 20 cumulative or duplicative, or can be obtained from some other source that is more convenient, less 21 burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). 22 ANALYSIS 23 I. PRIVILEGE LOG DISPUTE 24 Dasagroup’s privilege log at issue includes, for each row corresponding to a withheld 25 email document, the following fields of information: (a) beginning and ending Bates numbers, (b) 26 Custodian, (c) Sent Date and Sent Time, (d) Email From, (e) Email To, (f) Email CC, (g) Email 27 BCC, (h) Email Subject, (i) File Name, (j) File Author, (k) Privilege Claimed, and (l) Privilege 1 With regard to certain entries for which Dasagroup redacted the “Email Subject” and “File 2 Name” fields, Jefferies argues that Dasagroup’s privilege log is insufficient to establish the 3 assertion of privilege. Id. at 1-2. Jefferies complains that these redactions fail to provide the 4 necessary information about the subject matter of these withheld documents, so as to allow 5 Jefferies to have a basis to determine whether the assertion of privilege is justified or not. 6 Dasagroup argues that the “Email Subject” lines from the withheld emails are themselves 7 privileged attorney-client communications and that they were redacted in order to avoid disclosing 8 the contents of those attorney-client communications embodied in the Email Subject lines. Id. at 9 3-4. Similarly, Dasagroup argues that the “File Names” of attachments to emails are such that the 10 names disclose attorney-client communications as well, and thus were redacted to avoid disclosing 11 those privileged attorney-client communications inherent in the File Names. Id. 12 To the extent Jefferies seeks an order requiring the privilege log entries to be unredacted or 13 amended to reveal these redacted Email Subject lines and File Names, that remedy is not well- 14 supported by Ninth Circuit law. As discussed above, the Ninth Circuit does not require a privilege 15 log to contain a verbatim recitation of the email subject line of a withheld email. In re Grand 16 Jury, 974 F.2d at 1071. Under Ninth Circuit standards, what is required for a privilege log in this 17 respect is “a brief statement describing the subject of the content” of the document (i.e., the nature 18 of the document). Id.; see also Club Level, 619 Fed. Appx. at 319. To the extent an email subject 19 line or a file name reasonably constitutes an attorney-client communication in and of itself, 20 redacting that information from a privilege log does not run afoul of the Ninth Circuit’s standards 21 or Rule 26(b)(5). 22 However, Jefferies argues that the final column or field for these privilege log entries, 23 titled “Privilege Description/General Subject Matter,” is equally deficient because for these 24 redacted entries Dasagroup has not provided any description of the contents or even general nature 25 of the withheld documents. [Dkt. 125 at 1-2]. Rather, the “Privilege Description/General Subject 26 Matter” for these documents with redacted email subject lines/file names consist of nothing more 27 than recitations of the assertion that each document is a privileged attorney-client communication, 1 “Privilege Description/General Subject Matter” field: “Privileged and confidential communication 2 between attorney and client set for the purpose of obtaining legal advice or in furtherance of 3 providing such advice.” Id. at 8 (entry for first row). Jefferies argues that, coupled with the 4 complete redaction of the “Email Subject” field and the “File Name” field, this text fails to 5 provide any information about the contents or general nature of the withheld document. 6 In this regard, Jefferies is correct. Dasagroup’s mere insertion of text which asserts the 7 conclusion that each withheld document is privileged, with nothing more, is plainly not a 8 disclosure of the “nature of the document” or a “brief statement of the subject of the content” of 9 the document, as required by the Ninth Circuit. For these redacted privilege log entries, 10 Dasagroup has failed to justify the assertion of privilege by failing to provide sufficient 11 description of the subject matter, substance, or contents to allow the Court to determine whether 12 the assertion of privilege is justified (which is the whole purpose of a privilege log, in the first 13 place). As to these redacted entries, Dasagroup is ORDERED to serve an amended privilege log 14 which provides, in the “General Subject Matter” field, sufficient textual description of the nature 15 of the document (i.e., a brief statement of the subject of the content) to justify the assertion of 16 privilege, both as to the underlying document and (to the extent different) as to the redacted 17 “Email Subject” and redacted “File Name” to the extent Dasagroup maintains that those constitute 18 attorney-client communications in and of themselves. 19 Second, Jefferies complains that several of the entries in the privilege log do not contain 20 information as to author or recipient, date, or “Email Subject” because these withheld documents 21 appear to be attachments to emails. Id. at 2. Dasagroup argues that every entry on the privilege 22 log identifies the senders and recipients of emails and attachments. Id. at 3. Based on 23 Dasagroup’s representation, and construing the privilege log in light of that statement, it appears 24 from the privilege log that these disputed documents are, in fact, attachments to an email in the 25 preceding row above. However, the privilege log’s “General Subject Matter” field is unhelpful in 26 this regard because, as noted, the text therein states merely that the document at issue is privileged 27 without providing a description of the nature of the document or a brief statement of the subject of 1 to the issue of whether an email subject line should be redacted in the privilege log—which is 2 further confusing because these documents do not appear themselves to be emails but rather 3 attachments to an email. 4 It may be that these attachments are themselves privileged communications but without 5 further information (such as privilege log entries for these documents setting forth the author, 6 recipient, date, and nature of the document) it is difficult to ascertain. For these reasons, the Court 7 finds that Dasagroup’s privilege log entries for these documents are insufficient to make a 8 determination whether these separately listed documents are privileged. As to these privilege log 9 entries, Dasagroup is ORDERED to serve an amended privilege log which provides information 10 on the author(s), recipient(s), date, and, in the “General Subject Matter” field, sufficient textual 11 description of the nature of the document (i.e., a brief statement of the subject of the content) to 12 justify the assertion of privilege as to each withheld document. The description of the document 13 in the “General Subject Matter” field shall also indicate whether each withheld document is, as 14 suspected, an attachment to an email (and identify the email such as by indicating that the 15 document is attached to the email described in the row above, or by Bates number or otherwise). 16 Because the privilege log entries for these withheld attachments or documents are to be edited, the 17 Court makes no finding at this time as to whether the privilege assertion is justified as to each such 18 withheld attachment or document but notes that the burden remains on Dasagroup to justify the 19 assertion of privilege as to each document. See City of Roseville Emps. Ret. Sys. v. Apple Inc., No. 20 19-cv-02033-YGR (JCS), 2022 WL 3083000, at *23 (N.D. Cal. Aug. 3, 2022). 21 II. DOCUMENTS WITHHELD ON TRADE SECRETS GROUNDS 22 Jefferies raises a dispute regarding hundreds of documents Dasagroup withheld from 23 production on the grounds that these documents reveal trade secrets owned by Dasagroup or a 24 third party. [Dkt. 125 at 2-3]. Jefferies argues that there is no basis for withholding documents on 25 these grounds because there has been an insufficient showing that disclosure would cause 26 sufficiently serious harms to warrant withholding, particularly in light of the fact that the 27 documents can be produced as Attorneys-Eyes Only confidentiality under the Stipulated ] Dasagroup clarifies that it only withheld documents which, if produced, would reveal 2 || Dasagroup’s trade secrets (and thus is not making a vicarious claim on behalf of a third party’s 3 || trade secrets). Jd. at 4-5. While maintaining that Dasagroup had a basis to withhold these 4 || documents, Dasagroup short-circuits this dispute by agreeing to produce within thirty days these 5 disputed documents with the proper Attorneys-Eyes Only designation under the Protective Order 6 || in this case. 7 Accordingly, the Court DENIES Jefferies’ motion to compel these documents as MOOT. 8 The Court ORDERS Dasagroup to honor its commitment and produce these disputed, withheld 9 || “trade secrets” documents on a rolling basis starting on or before September 15, 2025 (thirty days 10 || from the date of the instant letter brief) and concluding by no later than September 26, 2025. 11 CONCLUSION 12 For all the reasons set forth herein, the Court GRANTS the motion to compel Dasagroup 13 || to serve a revised privilege log. The Court ORDERS Dasagroup to serve a revised privilege log 14 || with such edits and revisions which SHALL address and correct the issues raised in this Order, by 3 15 September 26, 2025. a 16 The Court DENIES AS MOOT the dispute as to the documents withheld on the basis of 2 17 || trade secrets law. As Dasagroup agreed, the Court ORDERS Dasagroup to produce these no- Z 18 longer disputed documents, designated as AEO (or otherwise, as Dasagroup reasonably concludes) 19 || under the Stipulated Protective Order in this case, on a rolling basis starting on or before 20 September 15, 2025 and completed by September 26, 2025. 21 This RESOLVES Dkt. 125. 22 23 || ITIS SO ORDERED. 24 || Dated: September 10, 2025 eg 4 25 , 4

PETER H.KANG-~

26 United States Magistrate Judge 27 28