Usdc-Casd
Progressive Choice Insurance v. United States District Court for the Southern District of California
Opinion
Opinion
MEMORANDUM
Petitioner Progressive Choice Insurance Co. (“Progressive”) petitions for mandamus to vacate the district court’s order requiring Progressive to produce emails it claims are protected by attorney-client privilege. The magistrate judge held that Progressive waived its attorney-client privilege under California law based on its prior disclosures. The district court adopted the magistrate judge’s order.
This court considers five factors in granting mandamus:
Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir.2010) (citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977)). “[T]he absence of the third factor, clear error, is dispositive.” Id. (quoting Burlington N. & Santa Fe Ry. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir.2005)) (internal quotation marks omitted).
The district did not clearly err in determining that Progressive waived its privilege under California law. Because the district court’s interpretation finds support under current California case law, mandamus is inappropriate. Progressive cannot establish the necessary third factor, and so we deny the petition.
Progressive’s motion for judicial notice is denied.