Case 3:14-cv-03264-JD Document 2076 Filed 03/06/18 Page 1 of 4
`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108 
`
`March 6, 2018
`
`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, Nos. 17-md-2801, 14-cv-3264-JD –Panasonic’s
`February 2018 Clawbacks
`
`Your Honor:
`Direct Purchaser Plaintiffs (“Plaintiffs”) bring this motion to request that the Court compel
`Panasonic to produce the additional 485 documents clawed back in its letters dated February 1,
`2018, and February 12, 2018.1 See Ex. 1-2. The Parties have met and conferred but remain at an
`impasse.
`
`As Plaintiffs noted in a prior motion, on November 20, 2017, after receiving a list of 39 exemplar
`documents that Plaintiffs selected to help guide Sanyo’s preparation of its Rule 30(b)(6) witness,
`counsel for Panasonic and Sanyo sent Plaintiffs a letter to claw back one of the exemplars and
`four related documents. See ECF No. 1977-2. That letter resulted in Plaintiffs’ December 11,
`2017 motion to compel, which is pending before the Court. See ECF No. 1977.
`
`Panasonic subsequently sent Plaintiffs two more clawback letters—the ACPERA applicant’s sev-
`enth and eighth since March 2016—to claw back 485 more documents that it produced to Plain-
`tiffs long ago (18 months to over two years). First, on February 1, 2018, Panasonic clawed back
`482 documents based on their purported similarities to the November 20, 2017 clawbacks. See
`Ex. 1.2 Then, on February 8, 2018, at the Panasonic Rule 30(b)(6) deposition, Panasonic’s coun-
`sel clawed back two additional documents after they were entered as exhibits. When counsel for
`Panasonic sent their February 12, 2018 letter formally to claw back the two exhibits introduced at
`the deposition, counsel clawed back one additional, purportedly similar document.3 See Ex. 2. In
`total, Panasonic has clawed back 506 documents in eight separate letters. The number of claw-
`backs is unusually high, even in a case of this size.
`
`                                                            
`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
`Panasonic has represented that the documents and the privilege claims at issue in its Feb-
`ruary 1, 2018 and November 20, 2017 letters are similar. Plaintiffs agree with Panasonic that the
`February 1, 2018, clawbacks should therefore be resolved together with Plaintiffs’ December 11,
`2017 motion to compel. See ECF No. 1977.
`3
`Plaintiffs sequestered or destroyed all of the clawbacks immediately upon receipt of the
`letters. On March 2, 2018, Panasonic sent Plaintiffs a supplemental privilege log containing 50
`entries. More than a third of the entries lack subject or title information, and all but two lack any
`English-language description of the subject matter beyond general, conclusory statements.
`
`
`

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`Case 3:14-cv-03264-JD Document 2076 Filed 03/06/18 Page 2 of 4
`Hon. James Donato
`March 6, 2018
`Page | 2
`
`Panasonic’s piecemeal, haphazard, and unreasonably delayed clawing back of documents it pro-
`duced years ago has unreasonably disrupted Plaintiffs’ management of discovery in this complex
`cartel case. Plaintiffs have devoted hundreds of hours to reviewing these documents and synthe-
`sizing them with other discovery materials in the case. Putting Panasonic’s lack of care aside, the
`documents do not appear to be privileged or otherwise protected. See ECF No. 1977. Plaintiffs
`respectfully request the Court review the three documents in the February 12, 2018 letter in cam-
`era and order their production, and further order the production of the 482 documents identified
`in Panasonic’s February 1, 2018 letter.
`1. Panasonic Waived Its Privilege Claims by Failing to Identify and Notify Plaintiffs of
`the Clawbacks in a Prompt and Reasonable Manner
`
`Under the agreed-upon clawback procedure in this case, a party that wishes to assert a privilege
`or protection over an inadvertently produced document must “promptly notify the receiving par-
`ties of the claim of privilege.” ECF No. 782 at ¶ 7(b). Panasonic has failed to do so here. As
`noted, it took Panasonic anywhere from 18-27 months to clawback these documents. Panasonic’s
`unreasonable tardiness in identifying and notifying Plaintiffs of its privilege claims highlights its
`failure to take reasonable precautions against disclosure, as well as the unfairness of the belated
`clawbacks to Plaintiffs. Moreover, Panasonic has not offered any explanation for its failure to
`withhold these documents in the first instance. These considerations, along with the considerable
`extent to which Plaintiffs have reviewed and utilized these documents, call for a finding of waiver.
`
`It is Panasonic’s burden to protect its privilege claims. The record shows that Panasonic failed to
`take prompt or reasonable steps to do so. Recognizing the large volume of discovery in this multi-
`year, complex price-fixing cartel case, Plaintiffs and Defendants agreed that the “mere produc-
`tion” of a privileged document as part of a mass production does not in itself constitute waiver.
`Id. at ¶ 7(a). Because Panasonic is now attempting to claw back approximately hundreds docu-
`ments and took years to do so, Panasonic’s conduct goes beyond “mere production.” See Koch
`Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 118 (D.N.J. 2002).
`
`The agreement does not give Panasonic carte blanche. It does not manifest a blanket no-waiver
`agreement and does not excuse Panasonic’s negligence. See id. (rejecting “blanket” disclosure
`provisions that would “immuniz[e] attorneys from negligent handling of documents”). The
`clawback procedure’s ‘prompt notification’ requirement is directly tied to a party’s good faith
`discovery of the inadvertently produced document. ECF No. 782 at ¶ 7(b). But, here, Panasonic
`raised its privilege claims 18 to 27 months after the relevant production dates and only did so af-
`ter Plaintiffs sought to use the documents in this litigation.4 Panasonic thus failed to take
`                                                            
`4
`When another defendant sought to claw back a total of 140 documents, the Court ex-
`pressed that the inadvertent disclosure of such a large number, even as part of a production of
`millions of documents, generally indicates insufficient efforts to protect privileged documents.
`Hr’g Tr. (Feb. 9, 2017) at 17-18. The record shows that Panasonic took no efforts for many
`months to identify inadvertently produced materials. Instead, Panasonic’s approach has been to
`wait until Plaintiffs identify documents, in depositions or other litigation events, and then to as-
`sert privilege. This approach is inconsistent with Panasonic’s affirmative duty to take steps to
`protect privileged documents. See Burlington N. & Santa Fe Ry. v. United States Dist. Court, 408
`F.3d 1142, 1149-50 (9th Cir. 2005).
`
`
`

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`Case 3:14-cv-03264-JD Document 2076 Filed 03/06/18 Page 3 of 4
`Hon. James Donato
`March 6, 2018
`Page | 3
`
`reasonable precautions to prevent Plaintiffs’ use of the produced materials and waived its privi-
`lege claims by sleeping on its rights.
`
`Panasonic’s cavalier approach is further evidenced by their conduct with respect to Rule 30(b)(6)
`depositions. Plaintiffs provided documents to Panasonic to assist in the preparation for the depo-
`sition on December 12, 2017. Panasonic waited until February 1, 2018, less than a week before the
`deposition, to assert its privilege claims. See Ex. 1. Panasonic had nearly two months to review the
`documents, identify any privilege claims, and promptly notify Plaintiffs. Instead, Panasonic belat-
`edly waited until the last minute to do so, further exacerbating the prejudice and unfairness to
`Plaintiffs. See Clarke v. J.P. Morgan Chase & Co., 2009 U.S. Dist. LEXIS 30719, at *21 (S.D.N.Y.
`Apr. 10, 2009) (“Plaintiffs should not have been forced to alter their deposition preparation at
`the last minute, so as to take account of Defendant’s belatedly raised claim.”).
`
`By the time that Panasonic clawed back the 485 documents at issue, the documents had already
`been reviewed by many of Plaintiffs’ lawyers. This use further supports a finding that Panasonic
`has waived any claim of privilege over the recently clawed back documents. See Santiago v. Laf-
`ferty, No. 13-cv-12172-IT, 2015 U.S. Dist. LEXIS 19793, at *22-23 (D. Mass. Feb. 19, 2015) (cit-
`ing Ciba-Geigy Corp. v. Sandoz Ltd., 916 F. Supp. 404, 414 (D.N.J. 1995) and Amgen Inc. v.
`Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 292 (D. Mass. 2000)).
`2. The Documents at Issue Are Not Protected under the Attorney-Client Privilege or
`the Work-Product Doctrine
`
`For the reasons set forth in Plaintiffs’ December 11, 2017 submission to the Court concerning
`Panasonic’s previous set of inappropriate clawbacks, see ECF No. 1977, the clawbacks here at is-
`sue are not privileged.5 The documents do not reflect confidential client communications with a
`professional legal adviser, acting in his capacity as such, that relate to requests for legal advice. See
`United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011); 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).6 Further,
`because in-house communications made for business purposes are not privileged, there is no pre-
`sumption that communications involving in-house attorney are privileged. See Apple Inc. v. Sam-
`sung Elecs. Co., 306 F.R.D. 234, 244 (N.D. Cal. 2015). Panasonic has not identified the involve-
`ment of any attorneys, let alone met its burden of “establish[ing] that the in-house counsel identi-
`fied were not acting in a purely or primarily business capacity.” Id. at 244-45.7
`
`* * *
`
`                                                            
`5
`Because Panasonic has represented that its recent clawbacks on work-product grounds
`share the same basis for that protection as its November 20 clawbacks, Plaintiffs incorporate the
`work-product arguments in their December 11 letter brief here. See ECF No. 1977 at 2-3. Further,
`as set out in Plaintiffs’ earlier motion, even if the documents are protected under the work-prod-
`uct doctrine, they should be produced to Plaintiffs. Id. at 3.
`6
`Indeed, the documents contain relevant facts. Panasonic’s supplemental privilege log in-
`cludes, for example, employees’ reports about their attendance at competitor meetings.
`7
`To the extent that non-lawyer members of Panasonic’s compliance department are in-
`volved in the communications, Plaintiffs highlight that Panasonic’s compliance department is
`largely responsible for providing day-to-day business advice.
`
`

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`Case 3:14-cv-03264-JD Document 2076 Filed 03/06/18 Page 4 of 4
`Hon. James Donato
`March 6, 2018
`Page | 4
`
`For the foregoing reasons, Plaintiffs respectfully request that the Court review the three docu-
`ments identified in Panasonic’s February 12, 2018 clawback letter in camera and then order Pana-
`sonic to produce those documents, along with the 485 documents identified in Panasonic’s Feb-
`ruary 1, 2018 clawback letter, 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)
`
`