Case 3:14-cv-03264-JD Document 1977 Filed 12/11/17 Page 1 of 4
`
`Joseph Saveri Law Firm, Inc.
`555 Montgomery St., Suite 1210
`San Francisco, CA 94111 
`
`December 11, 2017
`
`Via ECF and Hand Delivery
`
`Hon. Judge James Donato
`United States District Court
`450 Golden Gate Avenue
`Courtroom 11, 19th Floor
`San Francisco, California 94102
`
`Re:
`
`In re Capacitors Antitrust Litigation, No. 14-cv-3264-JD – Panasonic Clawbacks
`
`Your Honor:
`
`Direct Purchaser Plaintiffs (“Plaintiffs”) bring this motion to request that the Court compel
`Panasonic to produce three clawed-back documents (“clawbacks”) and 99 similar documents
`listed on Panasonic’s privilege logs within seven days of the Court’s order.1 These documents
`summarize facts regarding cartel activities and were drafted by Panasonic employees based on
`their personal knowledge of those facts. The Parties met and conferred but are at an impasse.
`
`This dispute arose after Plaintiffs, on November 15, 2017, sent Panasonic (the ACPERA appli-
`cant) a list of document exemplars they proposed be used to educate Panasonic’s Rule 30(b)(6)
`designees on cartel conduct. Three business days later, on November 20, 2017, counsel for Pana-
`sonic sent Plaintiffs a letter clawing back one of the exemplars and two similar documents Pana-
`sonic had produced. In that letter, Panasonic asserted Attorney-Client and Work Product objec-
`tions over these three documents for the first time. See Ex. 1.2 On November 28, 2017, at Plain-
`tiffs’ request, Panasonic’s counsel disclosed their bases for clawing back these documents. See
`Ex. 2. In addition, there are 99 similar documents on Panasonic’s privilege logs, and Plaintiffs
`requested that those documents also be produced, but Panasonic has refused.3 Based on Panason-
`ic’s descriptions of the clawbacks and the other similar documents, they are not privileged.
`
`                                                            
`1
`Defendants Panasonic Corp., Panasonic Corp. of North America, Sanyo Electric Co.,
`Ltd., and Sanyo North America Corp. are referred to herein collectively as “Panasonic.”
`2
`References to “Ex.” refer to Exhibits attached to this motion. Plaintiffs have highlighted
`the relevant portions of the attached documents to ease the Court’s review. The clawbacks at
`issue are Bates-numbered PAN-CU002024473, PAN-CU002024476, and PANCU002024585.
`Plaintiffs sequestered the documents immediately upon receipt of Panasonic’s clawback letter
`and will provide them to the Court for in camera review upon request.
`3
`Plaintiffs have identified 99 similar documents in Panasonic’s privilege logs. The insuffi-
`cient detail Panasonic provided, along with persistent errors in the logs, significantly complicated
`this task. Many of the descriptions on Panasonic’s logs, for example, do not match the relevant
`entry’s identifying information. Given that Panasonic’s privilege logs collectively comprise ap-
`proximately 100 pages of size 3-point font, Plaintiffs have not attached them to this motion. In-
`stead, Plaintiffs attach hereto a list of the 99 specific entries they are challenging. See Appendix
`
`

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`Case 3:14-cv-03264-JD Document 1977 Filed 12/11/17 Page 2 of 4
`
`Hon. James Donato
`December 11, 2017
`Page | 2
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`1. The Documents at Issue Are Not Protected by the Attorney-Client Privilege
`Panasonic does not claim that the documents at issue were created by counsel, upon counsel’s
`request, or for the purpose of obtaining legal advice from counsel. Rather, Panasonic claims the
`documents may be withheld because they contain charts of factual matter revised by Panasonic
`employee Shinichi Torii (or others) after other non-lawyer employees (at most) “convey[ed] a
`request from [counsel] that Torii add information.” Ex. 2.4 This purported basis is insufficient.
`
`First, an employee’s notes recording facts cannot be transformed into protected attorney-client
`communication unless they were communicated “between attorneys and clients” specifically “for
`the purpose of giving legal advice.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011).
`Panasonic does not assert, for example, that Mr. Torii conveyed his notes in confidence to any in-
`house or outside counsel. See Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535 EDL, 2011
`U.S. Dist. LEXIS 30872, at *18 (N.D. Cal. Mar. 11, 2011). Nor does Panasonic claim—or show—
`that these were communications made for purposes of obtaining legal advice.
`
`Second, it is not enough that the charts “relate[] to Panasonic’s counsel’s investigation of the
`conduct at issue in this litigation.” Ex. 2. Courts routinely reject such boilerplate assertions. See,
`e.g., Hynix Semiconductor Inc. v. Rambus Inc., No. CV-00-20905 RMW, 2008 U.S. Dist. LEXIS
`11764, at *21-22 (N.D. Cal. Feb. 2, 2008);United States ex rel. Parikh v. Premera Blue Cross, No.
`C01-476P, 2006 U.S. Dist. LEXIS 90814, at *19-20 (W.D. Wash. Dec. 15, 2006).
`
`Third, although the specific request of counsel might be privileged, none is at issue here. The
`privilege does not extend to the factual matter recorded or memorialized by Mr. Torii or other
`non-lawyer employees. At most, counsel’s request should be redacted, so that the factual matter
`may be disclosed. See Flintkote Co. v. Gen. Accident Assurance Co., No. C 04-01827 MHP, 2009
`U.S. Dist. LEXIS 44066, at *18-19 (N.D. Cal. May 26, 2009). Panasonic has failed to show why
`the entire document should be withheld. It should produce the charts and other documents.
`They are not attorney-client communications.
`2. The Documents at Issue Are Not Protected by the Work-Product Doctrine.
`The work-product doctrine protects “materials prepared by agents of [a party’s] attorney in prep-
`aration for litigation.” Richey, 632 F.3d at 567. The extent of attorney involvement in creating a
`document is highly relevant to whether it was created in anticipation of litigation, and “a party’s
`burden to demonstrate [such] purpose increases . . . as attorney involvement in creating the doc-
`ument decreases.” Largan Precision Co v. Genius Elec. Optical Co., No. 13-cv-02502-JD, 2015 U.S.
`Dist. LEXIS 2072, at *16 (N.D. Cal. Jan. 8, 2015) (quoting United States v. ISS Marine Servs., 905
`F. Supp. 2d 121, 134-35 & n.8 (D.D.C. 2012)). Without more, an attorney’s direction to investi-
`                                                                                                                                                                                                
`A. Panasonic asserted only an attorney-client privilege objection as to these entries and has there-
`fore waived any objection based on work product as to the challenged documents. Plaintiffs will
`provide the original logs with the challenged entries highlighted upon the Court’s request.
`4
`Panasonic provides no information regarding who created the charts. Nor does Panasonic
`name the individuals or entities identified in the actual request to Mr. Torii to input information.
`
`

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`Case 3:14-cv-03264-JD Document 1977 Filed 12/11/17 Page 3 of 4
`
`Hon. James Donato
`December 11, 2017
`Page | 3
`
`gate factual issues does not constitute work product. ISS Marine Servs., 905 F. Supp. 2d at 137
`n.9, 138. In the case of internal investigations, it must be shown—at a minimum—that the docu-
`ment at issue is the product of the exercise of counsel’s “strategic and legal expertise.” Id.
`
`Here, Panasonic does not claim that Mr. Torii’s additions (or those of other employees) were ei-
`ther (a) responsive to specific questions posed by counsel, or (b) ever communicated to counsel.
`The record shows attorney involvement in creating the documents was indirect and hard to dis-
`cern, i.e., not “direct and meaningful.” Id.; see also In re Lidoderm Antitrust Litig., No. 14-md-
`02521-WHO, 2016 U.S. Dist. LEXIS 105619 at *106 (N.D. Cal. Aug. 9, 2016). Of course, docu-
`ments used for ordinary-course disciplinary or compliance-related purposes are not protected.
`See Fine v. ESPN, Inc., No. 5:12-CV-0836, 2015 U.S. Dist. LEXIS 68704, *19-24 (N.D.N.Y. May
`28, 2015); S. Bell Tel. & Tel. Co. v. Denson, 632 So. 2d 1377, 1385-86 (Fla. 1994). Moreover, be-
`cause the purpose of the work-product doctrine is to protect attorney-led preparations for litiga-
`tion, a non-attorney’s unfiltered documentation of other employees’ personal knowledge is not
`protected—even if it were specifically requested by an attorney. See Dobbs v. Lamonts Apparel, 155
`F.R.D. 650, 653-54 (D. Alaska 1994). Here, Mr. Torii made his writings based on his own
`knowledge; counsel did not record or process them. Mr. Torii’s notes, therefore, almost certainly
`manifest his personal knowledge and do not reflect counsel’s analysis in anticipation of litigation.
`They must be produced.
`3. Even If the Documents Were Work Product, the Court Should Compel Production
`Based on Plaintiffs’ Substantial Need.
`
`Even if Panasonic were able to meet its burden of establishing that counsel directed Mr. Torii (or
`the other Panasonic employees at issue) to update the charts in anticipation of litigation, Plaintiffs
`request that the Court order production in accordance with Rule 26(b)(3)(ii)(A) for the following
`two reasons. First, no opinion work-product is at issue here.5 Second, the facts timely recorded
`during Panasonic’s investigations of employee involvement in cartel activity are central to Plain-
`tiffs’ claims. Plaintiffs “cannot, without undue hardship, obtain their substantial equivalent by
`other means,” Rule 26(b)(3)(A)(ii), as Panasonic has consistently thwarted discovery of this in-
`formation. Panasonic’s responses to DPPs’ Interrogatories 16 and 17 concerning participation in
`cartel meetings and communications, for instance, omit certain communications, many details
`regarding meeting attendees or matters discussed, and the sources of the information provided.
`Panasonic’s witnesses have been similarly evasive in response to questions concerning cartel ac-
`tivity, by, among other things, claiming faulty recollection or lack of knowledge. For example,
`Mr. Torii responded “I don’t know” or “I don’t recall,” or otherwise claimed not to know or
`remember the answer to a question, 327 times at his deposition. Moreover, “[d]iscovery of the
`material contained in a verbatim . . . witness statement by other means will simply not be the sub-
`stantial equivalent of the earlier written statement.” Dobbs, 155 F.R.D. at 653.
`                                                            
`5
`Even if counsel focused the inquiry, questions concerning who was involved in cartel
`communications or when and where they occurred ask for basic facts and thus would not reveal
`any legal theory. See Lidoderm, 2016 U.S. Dist. LEXIS 105619 at *105-06. Further, if the docu-
`ments were to reflect any after-the-fact legal analysis or opinion, such portions may be redacted
`prior to production. See Tennison v. City & Cty. of S.F., 226 F.R.D. 615, 624 (N.D. Cal. 2005). 
`
`

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`Case 3:14-cv-03264-JD Document 1977 Filed 12/11/17 Page 4 of 4
`
`Hon. James Donato
`December 11, 2017
`Page | 4
`
`
`* * *
`
`For the foregoing reasons, this Court should order Panasonic to produce (a) the three clawbacks,
`and (b) the 99 similar documents listed on Appendix A. Panasonic should be ordered to make
`these productions within seven days of the Court’s order.
`
`Respectfully,
`
`
`Joseph Saveri Law Firm, Inc.
`
`/s/ Joseph R. Saveri
`Interim Lead Class Counsel for Direct Purchaser Plaintiffs
`
`cc: All Counsel (via email)
`
`