Case 3:14-cv-03264-JD Document 2119 Filed 05/07/18 Page 1 of 4
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`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
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`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
`
`May 7, 2018
`
`Re:
`
`In re Capacitors Antitrust Litigation, Nos. 17-md-2801, 14-cv-3264-JD –Plaintiffs’
`Motion to Compel Production of Panasonic’s April 2018 Clawbacks
`
`Your Honor:
`Direct Purchaser Plaintiffs (“Plaintiffs”) bring this motion to request that the Court compel
`Panasonic (the ACPERA Amnesty Applicant) to produce the two clawed-back documents in its
`letter dated April 24, 2018. Ex. A. These two documents bear the bates numbers PAN-C3631775-
`778 and PAN-C3666203-205 and relate to issues discussed by non-attorney members of
`Panasonic’s “Global Risk Management Group.” See Ex. A (privilege log, note field).
`
`Such communications are not protected by either the attorney-client or work product privileges,
`and Panasonic did not identify them promptly. Plaintiffs sequestered these documents and
`requested that Panasonic cancel its clawback request. Panasonic refused. The Parties met and
`conferred but remain at an impasse. Plaintiffs therefore respectfully request the Court review the
`two documents identified in the April 24 letter in camera and order their production.1
`1. Panasonic Waived Its Privilege Claims by Failing to Identify and Notify Plaintiffs of
`the Clawbacks in a Prompt and Reasonable Manner
`
`Instead of acting with care, diligence or reasonableness, Panasonic has sent a string of nine letters
`clawing back 508 documents. See FRE 502(b). Panasonic has also clawed back two documents
`during the deposition of its Rule 30(b)(6) corporate designee.2 Panasonic’s approach is
`fundamentally inconsistent with Rule 502)(b) and its affirmative duty to take steps to protect
`privileged documents. See Burlington N. & Santa Fe R.R.. v. United States Dist. Court, 408 F.3d
`1142, 1149-50 (9th Cir. 2005). The disclosure is not inadvertent. See FRE 502(b)
`The Court has previously warned Defense counsel not to exceed a reasonable number of
`clawbacks in this case. See Hr’g Tr. (Feb. 9, 2017) at 17-18.
`
`
`The fact that this is the third letter brief Plaintiffs have had to file with respect to Panasonic’s
`voluminous clawbacks evidences that Panasonic is beyond careless. See ECF Nos. 1977 and 2076.
`In our first letter brief on this issue, Plaintiffs challenged Panasonic’s clawback of 102 documents
`(three subject to a clawback and 99 similar documents on Panasonic’s privilege log.). See ECF
`No. 1977. The Court, after hearing oral argument, conducted an in camera review of the three
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`1
`For the purposes of this letter, the term “Panasonic” includes Panasonic Corp.,
`Panasonic Corp. of North America, Sanyo Electric Co., Ltd., and Sanyo North America Corp.
`2  
`These documents were marked as Exhibits 4510 and 4515.
`
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`1
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`Case 3:14-cv-03264-JD Document 2119 Filed 05/07/18 Page 2 of 4
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`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
`clawbacks and six of the 99 documents on Panasonic’s privilege log (nine documents total). See
`Hearing Tr. (Jan. 11, 208) at 42; and Minute Order (MD-ECF No. 2) at 1. 
`
`On February 1 and 12, 2018—during the pendency of the Court’s review of these nine
`documents—Panasonic sent two letters clawing back an additional 485 documents. See ECF No.
`2076. On March 6, 2918, Plaintiffs filed a letter brief challenging these clawbacks. Id.
`
`On April 24—with Plaintiffs’ prior clawback motions pending—Panasonic clawed back another
`two documents. See Ex. A. Importantly, one of these documents was a cover email that attached
`two documents that Panasonic counsel previously withheld based on attorney-client privilege. In
`other words, Panasonic initially claimed privilege as to the attachments but not the cover email.
`This evidences waiver not inadvertence.
`
`These repeated, last-minute privilege assertions and clawbacks frustrate—and have frustrated—
`Plaintiffs’ ability to prepare for depositions and to efficiently prosecute this case. See Clarke v.
`J.P. Morgan Chase & Co., No. 08 Civ. 02400 (CM) (DF), 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”).
`
`
`2. The Documents at Issue Are Not Protected Under the Attorney-Client Privilege or
`the Work-Product Doctrine
`
`Attorney-Client Privilege Does not Apply. No attorneys are identified by name as authors or
`recipients of the communication. It is black letter law in this Circuit that attorney-client privilege
`cannot attach. See United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011).  
`
`Work Product Privilege Does Not Apply. Remarkably, while Panasonic has in the past argued
`that the work product doctrine protected these documents, its log does not so indicate.3 In any
`event, work product protection does not apply, because, as evidenced by the testimony of
`Panasonic’s corporate representatives, these materials were prepared for business purposes.
`The compliance function is a business function, not a legal one. Consequently, these materials
`were not prepared by lawyers but by non-attorney staff charged with day-to-day responsibility for
`compliance and corporate social responsibility (CSR). In fact, Panasonic witnesses admit that
`such activities were part of Panasonic’s “day-to-day business operations” and were “not specific
`to any particular litigation. . . .” See Deposition of Panasonic Rule 30(b)(6) Witness – Komoda, at
`150-5 (testimony below).
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`3
`Panasonic’s delinquent April 24, 2018 privilege log appears to set forth the basis of the
`privilege claim. It only identifies “Attorney-Client (AC)” the abbreviation for attorney client
`communication.
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`Case 3:14-cv-03264-JD Document 2119 Filed 05/07/18 Page 3 of 4
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`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
`Q. . . . . In other words, this is just for general compliance purposes, not for any
`specific litigation-driven purpose. Another way of saying this is that this is
`compliance for day-to-day business operations? …
`
`A. Yes, my understanding is that this is not related to any one specific thing,
`but that this is an organization that is established to make sure all employees
`follow the compliance rules.
`
`Id.
`
`
`Recognizing that there are no attorneys on these two communications—the first email is from
`from K. Nakatani and the second is from from Y. Murayama, both non-attorneys—Panasonic
`states that each document was sent by Kazuhide Ebine, a non-legal employee working in
`Panasonic’s in-house legal department, “from the email address of the Global Risk Management
`Group within Panasonic Legal Headquarters.” Ex. A (privilege log, note field). However, even if
`the fact the risk management function may have involved in-house legal staff, this does not
`extend the work product protection to documents created in this department. As the testimony
`of Panasonic’s corporate designee indicates, these compliance-related activities—and the
`documents created in furtherance of them—were not conducted “in anticipation” of this
`litigation, as they must be to qualify for work product protection.
`
`Panasonic also claims that the documents contained information sent or received “at the
`direction of counsel for the purpose of providing legal advice regarding internal investigations,”
`but there is no factual predicate for this claim. In fact, this cannot possibly be the case, because
`the two documents at issue are dated in December 2009, which is over five years before the onset
`of this litigation, when outside counsel were retained to conduct investigations into this lawsuit.
`
`In sum, these 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. Richey, 632
`F.3d at 566; 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). Further, because in-house communications made for
`business purposes are not privileged, there is no presumption that communications involving in-
`house attorney are privileged. See Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 244 (N.D.
`Cal. 2015). Panasonic has not identified the involvement of any attorneys, let alone met its
`burden of “establish[ing] that the in-house counsel identified were not acting in a purely or
`primarily business capacity.” Id. at 244-45. It is Panasonic’s burden to provide a factual
`predicate to support the privilege claim. Panasonic fails to do so.
`
`
`* * *
`
`For the foregoing reasons, Plaintiffs therefore respectfully request the Court review the two
`documents in the April 24 letter in camera and order their production based on that review.
`
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`Case 3:14-cv-03264-JD Document 2119 Filed 05/07/18 Page 4 of 4
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`Joseph Saveri Law Firm, Inc.
`601 California St., Suite 1000
`San Francisco, CA 94108
` 
`
`Respectfully,
`
`
`Joseph Saveri Law Firm, Inc.
`
`/s/ Joseph R. Saveri
`Interim Lead Class Counsel for Direct Purchaser Plaintiffs
`
`cc: All Counsel (via email)
`
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`4
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