Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 1 of 27
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`CITY OF ROSEVILLE EMPLOYEES'
`RETIREMENT SYSTEM,
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`Plaintiff,
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`v.
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`APPLE INC., et al.,
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`Case No. 19-cv-02033-YGR (JCS)
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`ORDER RE DOCKET NOS. 372 AND
`374
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`Re: Dkt. Nos. 372, 374
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`Defendants.
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`I.
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`INTRODUCTION
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`This Order addresses the parties’ ongoing dispute relating to Defendants’ withholding of
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`documents on the basis of attorney-client privilege. There are two parts to the dispute. First, the
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`district judge has instructed the undersigned to reconsider the question of whether Defendants
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`should be compelled to re-review for privilege all of the documents they have withheld as
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`attorney-client privileged because of the Supreme Court’s dismissal of the writ of certiorari in In
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`re Grand Jury, 143 S. Ct. 543 (2023), despite the fact that the parties had already narrowed the
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`scope of their discovery dispute to a subset of withheld documents. Dkt. no. 372. Second,
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`Plaintiff continues to challenge the withholding of 55 documents, winnowed down from over 500
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`disputed documents through the parties’ meet and confer efforts, that Apple contends it has
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`properly withheld based on the Court’s August 3, 2022 discovery order (dkt. no. 272) (“August 3
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`Order”). The parties have briefed the first issue and supplied a joint discovery letter addressing
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`the second issue. The Court held a hearing on both issues on August 18, 2023. The Court’s
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`rulings are set forth below.
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 2 of 27
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`II. WHETHER RULE 26 OBLIGATES APPLE TO RE-REVIEW ALL WITHHELD
`DOCUMENTS
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`A. Background
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`This dispute relates to 1,630 documents that Apple designated as privileged in connection
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`with its original review of the documents and refuses to produce. Motion at 1; Black Decl., Ex. 1
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`(excerpt of February 23, 2022 privilege log listing documents that are the subject of this dispute).
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`During the briefing that led up to the Court’s August 3 Order, Apple represented to Plaintiffs and
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`to the Court that in conducting its initial privilege review it applied In re Grand Jury’s “the
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`primary purpose” test. See, e.g., dkt. no. 233 at 3-4 (citing In re Grand Jury and asserting
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`“[p]rivilege applies if ‘the primary or predominate purpose of the communication is to seek legal
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`advice or assistance’”); dkt. no. 248 at 2, 6-7, 10, 12 (claiming the disputed documents were
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`created or sent “primarily for a legal purpose”).
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`It was not until after the Court issued its August 3 Order – and after the parties had
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`narrowed the documents in dispute through meet and confer efforts to 232 documents – that Apple
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`made clear that as to documents with both legal and business purposes it had not, in fact, applied
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`“the primary purpose” test set forth in In re Grand Jury when it conducted its original document
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`review but instead, had applied a different test, asking whether seeking legal advice was “a
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`primary purpose” of the communication. See dkt. no. 276 (Defendants’ Motion for Relief from
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`Pretrial Order of Magistrate Judge) at 2.1 In challenging the August 3 Order, Apple insisted that it
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`had applied the correct test and that the undersigned had erred in following the test in In re Grand
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`Jury. The district judge found, however, that Apple’s approach did not comport with the law in
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`the Ninth Circuit:
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`[D]efendants argue that Judge Spero erred by applying “the” primary
`purpose test for determining if documents with multiple purposes are
`privileged rather than the more expansive “a” primary purpose test,
`as articulated by the D.C. Circuit in In re Kellogg Brown & Root, Inc.,
`756 F.3d 754, 760 (D.C. Cir. 2014)). The Ninth Circuit in In re Grand
`Jury affirmed “that the primary-purpose test governs in assessing
`attorney-client privilege for dual-purpose communications” and “left
`open” whether the more expansive “a primary purpose” test
`articulated by the D.C. Circuit in Kellogg should ever be applied. In
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`1 At oral argument, Apple conceded that it did not disclose this fact to Plaintiff when the parties
`were meeting and conferring prior to issuance of the Court’s August 3, 2022 Order.
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 3 of 27
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`re Grand Jury, 23 F.4th 1088, 1090 (9th Cir. 2021). Kellogg is not the
`standard in the Ninth Circuit and it was not clearly erroneous for
`Judge Spero not to apply it.
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`Dkt. no. 302 (September 12, 2022 Order).
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`Apple continued to assert that the correct test was the D.C. Circuit’s “more
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`expansive ‘a primary purpose’ test” in its motion to certify the September 12, 2022 order for
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`interlocutory appeal. Dkt. no. 304 at 2. The district court denied that motion but stayed
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`production, first pending resolution of Apple’s petition for writ of mandamus filed in the Ninth
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`Circuit and then pending the Supreme Court’s review of In re Grand Jury, as to which it had
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`granted certiorari. Dkt. nos. 317, 335. When the Supreme Court’ dismissed In re Grand Jury in
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`January 2023, leaving the standards articulated in that case in place, Defendants went forward with
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`production as to the documents that were at issue in the August 3 Order. They maintained,
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`though, that they were not required to re-review the remaining documents on their privilege log
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`because the parties had already narrowed the dispute through their meet-and-confer efforts. See
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`dkt. no. 348 (March 7, 2023 joint discovery letter). The undersigned agreed, denying Plaintiff’s
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`request that Apple be compelled to re-review all of the remaining documents on the privilege log
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`based on the parties’ previous agreements narrowing the documents in dispute. Dkt. no. 349
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`(March 8, 2023 Order).
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`Plaintiffs sought relief from the Court’s March 8, 2023 Order, arguing before the district
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`judge that Apple was obligated to conduct a new review of the documents on the privilege log
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`under Rule 26(e) of the Federal Rules of Civil Procedure once the Supreme Court dismissed In re
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`Grand Jury. The district court granted relief as to that ruling, returning the issue to the
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`undersigned for “further consideration and guidance on how his decision intersects with
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`defendants’ Rule 26 obligations.” Dkt. no. 372 (June 30, 2023 Order) at 4.
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`In the Motion, Plaintiff asserts Apple should be compelled to re-review the remaining
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`documents on its privilege log (other than the 232 documents addressed in the Court’s August 3
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`Order) and produce those that are non-privileged because: 1) Apple does not dispute that in
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`conducting its initial review it applied a more expansive test than the one required under In re
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`Grand Jury, which is the applicable standard; 2) it has represented that “most or all of the
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 4 of 27
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`documents it continues to withhold have at least some business purpose and thus would be subject
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`to the ‘the primary-purpose test[;]’” and 3) “based on the descriptions of the withheld
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`documents on Apple’s privilege log, and informed by the documents already turned over, there is
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`strong evidence indicating that Apple continues to improperly withhold non-privileged
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`documents.” Motion at 2.
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`Plaintiff makes several arguments in support of its assertion that if Apple re-reviewed the
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`documents under the correct standard some would have to be produced. First, Plaintiff argues that
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`“Apple continues to withhold documents concerning the same business processes that the Court
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`found did not justify Apple’s blanket withholding of all related communications, such as the
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`critical ‘Q&A’ process related to Apple’s earnings preannouncement.” Id. at 7.
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`Second, “Apple did not review the ‘family’ documents (i.e., attachments or parent emails)
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`to non-privileged documents if they were not listed among the 232 challenged documents, despite
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`this clear indicator of potential error.” Id. Plaintiff notes that “Apple refuses to review the parent
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`email to the extremely relevant ‘Q&A’ draft Plaintiff submitted as supplemental evidence in
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`opposition to Defendants’ motion for summary judgment.” Id.
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`Third, “hundreds of documents remain on Apple’s log that are described in the same or
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`similar manner as now-produced, non-privileged documents.” Id. at 8. As one example, Plaintiff
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`points to “978 still-withheld documents [that] purportedly ‘reflect[] legal advice from in-house
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`counsel’– [which is] the same inaccurate description of dual-purpose documents as 58 non-
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`privileged documents now produced.” Id.
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`Fourth, Plaintiff asserts that “Apple has not carried through the results of the initial
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`challenge to the remainder of the documents withheld.” Id. “Thus, Apple has produced certain
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`instances of documents (or portions thereof) that it continues to withhold in similar or related
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`documents.” Id.
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`Finally, Plaintiff notes that documents that remain on the privilege log include “more than
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`500 documents [that] are dated within the Class Period” and “91 reference [to] ‘Interview prep’
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`[that] may be related to the highly-relevant January 2, 2019 interview Cook gave to CNBC about
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`Apple’s $9 billion revenue miss and its causes, or the Company’s end-of-quarter conference call
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 5 of 27
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`just 27 days after the end of the Class Period.” Id. at 10.
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`Apple counters that Plaintiff’s reliance on Rule 26(e) to “undo the parties’ prior
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`agreement” is improper, especially at this stage of the case, when the discovery cut-off has passed
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`and a trial date has been set. Opposition at 1, 3-5. It further contends that even if the parties had
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`not narrowed their dispute, Rule 26(e) would not impose a duty on Apple to revisit its entire
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`privilege log because Rule 26(e) “does not impose a duty to check the accuracy of prior
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`responses” and only “prevents knowing concealment by a party or attorney” where the party has
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`“actual knowledge” that its responses are incorrect or incomplete. Id. at 5 (citing Fed. R. Civ. P.
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`26, Advisory Committee’s Notes to 1970 Amendments). There is no such “actual knowledge”
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`here, Apple asserts, as Plaintiff only contends it is “likely” that re-review would result in
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`additional document production. Id. at 6. In fact, Apple argues, Plaintiff overstates the evidence
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`that re-review would result in production of additional documents. Id. at 6-9.
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`B. Discussion
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`1. Legal Standards
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`Under Rule 26(e), “[a] party who has made a disclosure under Rule 26(a) – or who has
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`responded to an interrogatory, request for production, or request for admission – must supplement
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`or correct its disclosure or response . . . in a timely manner if the party learns that in some material
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`respect the disclosure or response is incomplete or incorrect, and if the additional or corrective
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`information has not otherwise been made known to the other parties during the discovery process
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`or in writing.” Fed. R. Civ. P. 26(e)(1)(A). The 1970 Advisory Committee notes explain that
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`under this provision, there is a duty to supplement when “a party, or more frequently his lawyer,
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`obtains actual knowledge that a prior response is incorrect”; it “does not impose a duty to check
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`the accuracy of prior responses, but it prevents knowing concealment by a party or attorney.”
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`2. Whether Rule 26(e) Imposes a Duty to Supplement
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`Apple contends this provision does not require it to re-review the documents on its
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`privilege log because it does not have “actual knowledge” that any of its privilege determinations
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`were incorrect or that if it were to re-review the documents it would find that any specific
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`withheld document is non-privileged. The Court finds no authority that supports this reading of
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`Rule 26(e) or Apple’s assertion that it may withhold as privileged documents that it reviewed
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`under the wrong legal standard. Apple’s position is particularly troubling because it has
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`repeatedly represented to the Court that many of the documents on its privilege log have both a
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`legal and a business purpose and thus, it matters which test was applied. See, e.g. dkt. no. 286
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`(Defendants’ Reply in Support of Motion for Relief from Pretrial Order of Magistrate Judge) at 2
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`(“After all, Grand Jury explained that applying Kellogg’s test would ‘change the outcome of a
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`privilege analysis’ in some cases. 23 F.4th at 1094-95. This is one such case.”).
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`Apple has cited only a single case in support of its position regarding the “actual
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`knowledge requirement,” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). In
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`that case, the court addressed whether the plaintiff was entitled to an adverse inference instruction
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`or other sanction because the defendant had deleted relevant emails, partly due to counsel’s failure
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`to ensure that they were preserved. In evaluating whether the destruction of emails should be
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`considered willful, the Court looked to Rule 26(e) to determine the scope of counsel’s ongoing
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`obligation to ensure that a client preserves discoverable information. There is simply nothing in
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`that case that has any bearing on whether a party who applied the wrong legal standard in
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`conducting its privilege review has actual knowledge that its disclosures are in some “material”
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`respect “incorrect” – and therefore has a duty to review the documents under the correct standard –
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`when it becomes clear that the legal theory it has relied upon to justify that approach is not
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`consistent with applicable law.
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`The Court concludes that on its face, the language of Rule 26(e) imposes an obligation on
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`Apple to conduct a review that applies the correct legal standard once it becomes clear that
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`counsel applied the wrong standard in conducting the original review. This question might be
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`more difficult if the test that Apple applied when it conducted its original review was consistent
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`with governing law at the time and the test was later modified as a result of a change in the case
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`law. Here, however, In re Grand Jury was good law when Apple conducted its initial review and
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`it continues to be good law. At best, Apple had a good faith belief that the Supreme Court might
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`adopt a more expansive test for dual purpose documents that would justify its approach to
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`conducting its privilege review. To find that Rule 26(e) permits Apple to continue to rely on its
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`faulty privilege review under these circumstances would confer an improper benefit on Apple.
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`The Court also finds that Apple’s reliance on the 1970 Advisory Committee Note is
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`misplaced. In addressing the requirements imposed under subsection e, the Advisory Committee’s
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`focus is on the scenario where “new information renders substantially incomplete or inaccurate an
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`answer which was complete and accurate when made.” Fed. R. Civ. P. 26(e), 1970 Advisory
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`Committee Note (emphasis added). Here, the privilege log was incomplete and inaccurate when
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`made because Apple applied a test from another circuit that had not been (and still has not been)
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`adopted by the Ninth Circuit. Therefore, the Court concludes that absent some binding agreement
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`between the parties that waived Plaintiffs’ right to seek production (or at least, review under the
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`correct legal standard) of the documents that Apple continues to withhold as privileged, Rule 26(e)
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`requires that Apple re-review the documents it has withheld as privileged under the correct legal
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`standard.
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`3. Whether the Parties’ Agreements Narrowing the Scope of the Privilege
`Dispute Through Meet-and-Confer Excuse Apple’s Failure to Supplement
`its Disclosures under Rule 26(e)
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`Apple asserts that even if Rule 26(e) would otherwise require that it supplement its
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`disclosures by re-reviewing the documents on its privilege log, it does not apply here because the
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`parties agreed to limit their dispute to a subset of the documents on the privilege log. Apple points
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`to two cases in support of its position, In re High Fructose Corn Syrup Antitrust Litigation, 2000
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`WL 33180835 (C.D. Ill. Jul. 19, 2000) and Arconic Inc. v. Novelis Inc., 2022 WL 2669201 (W.D.
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`Pa. Apr. 1, 2022). In both, the court rejected arguments that new information or expert opinions
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`triggered a duty to supplement under Rule 26(e) to produce documents responsive to prior
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`discovery requests beyond the end date to which the parties had previously agreed. But neither
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`court ruled out the possibility that there might be circumstances under which a party would have a
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`duty to supplement under Rule 26(e) despite a prior agreement limiting discovery. See In re High
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`Fructose Corn Syrup Antitrust Litig., 2000 WL 33180835, at *2 (“This Court fully expects all
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`parties to this action to honor their agreements and will not permit any party, absent a proper
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`showing, to break such agreements”); Arconic Inc. v. Novelis Inc., 2022 WL 2669201, at *3
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`(distinguishing Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) on the basis that in
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`that case, “the party had failed to comply with its discovery obligations in the first instance—a
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`contention Arconic does not make here.”).
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`While these cases stand for the general proposition that an agreement to limit the scope of
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`discovery can relieve a party of its responsibility to supplement its discovery responses under Rule
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`26(e) in some respect, Apple’s reliance on the parties’ agreement is misplaced under the specific
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`facts of this case for the following reason: at the time the parties were engaged in narrowing the
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`scope of the dispute through meet and confer efforts it was not clear to Plaintiff or the Court that
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`Apple had applied the test in Kellogg to dual purpose documents in conducting its original
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`privilege review. It was only after Plaintiff had agreed to limit the scope of the dispute that Apple
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`spelled out that it had applied a more expansive test than is called for under In re Grand Jury.
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`Because Plaintiff reasonably believed, based on Apple’s representations, that Apple had applied
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`the standard set forth in In re Grand Jury when it conducted its initial review, its agreement to
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`narrow the dispute to 232 documents was based, at least in part, on a misunderstanding of the facts
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`related to Apple’s privilege determinations.
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`Under those circumstances, enforcing the parties’ agreement to limit the documents in
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`dispute would be unfair to Plaintiff – except as to documents as to which Plaintiff agreed to drop
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`its challenge for reasons that had nothing to do with whether the documents were privileged. For
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`example, Apple points to evidence that Plaintiff agreed to drop its challenges to a number of
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`documents on the privilege log based on representations from Apple that the documents were not
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`relevant. See dkt. no. 246-4 (Black Decl. iso Supp. Brief) ¶ 8.2 Plaintiff conceded at the hearing
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`that its misunderstanding of the standard Apple applied in conducting its privilege review was not
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`material to its agreement to narrow the dispute as to those documents. In addition, at oral
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`argument the parties agreed to limit the scope of re-review to exclude documents on Apple’s
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`privilege log created before September 15, 2018 or after January 30, 2019. Aside from those
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`documents, the Court concludes that the agreement to limit the scope of the parties’ privilege
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`2 The privilege log entries Plaintiff agreed were non-relevant and therefore not in dispute are: 34-
`36, 94-96, 155-159, 244-248, 251-254, 259, 786-790, 795-798, 800-802, 829-830, 900-901, 928-
`929, 1030-1031, 1086, 1142, 1166, 1169, 1858, and 1860-1863. Dkt. no. 246-4 (Black Decl. iso
`Supp. Brief) ¶ 8.
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 9 of 27
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`dispute cannot be enforced and does not excuse Apple from its obligations under Rule 26(e).
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`III. WHETHER APPLE HAS PROPERLY WITHHELD THE REMAINING 55
`DISPUTED DOCUMENTS
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`A. Background
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`With respect to the documents that were the subject of the Court’s August 3 Order, the
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`parties report that they have narrowed their disputes to 55 documents, which are the subject of the
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`parties’ joint discovery letter. Dkt. no. 374 (“Joint Discovery Letter”) & Ex. C (excerpted
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`privilege log listing disputed documents). According to the parties, “just 26 documents need to
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`be reviewed to determine the privilege status of all 55 remaining documents.” Joint Discovery
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`Letter at 4-5. They are entry nos. 286, 391, 400, 402, 403, 404, 417, 515, 517, 522, 524, 526, 532,
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`536, 539, 544, 574, 583, 594, 618, 619, 622, 651, 673, 682, and 692.3 In light of the large
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`percentage of documents the Court previously found to be non-privileged upon conducting an in
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`camera review of a sample of withheld documents, as well as the fact that the parties have been
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`attempting to resolve their disputes about the remaining documents for over a year and trial is
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`scheduled to commence in only nine months, the Court finds that there is good cause to review in
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`camera all of the 26 remaining documents that the parties have identified. It is the Court’s
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`expectation that its rulings will dispose of all of the remaining disputes related to implementation
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`of the August 3 Order.
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`B. Discussion
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`The Court’s in camera review of the remaining disputed documents, like its review of the
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`sample documents, is guided by the legal standards set forth in its August 3 Order, which are
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`incorporated herein.
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`3 In the Joint Discovery Letter, the parties appear to agree that the Court would need to review
`only 26 documents to resolve their privilege disputes and do not suggest that the Court would need
`to review any documents other than the 26 that are specifically identified in the letter. At oral
`argument, Plaintiff suggested that the parties’ disputes might be resolved by in camera review of
`only 19 of those documents but did not elaborate. As neither side has asked the Court to review
`any additional documents beyond the 26 identified in the Joint Discovery Letter, the Court
`concludes that its in camera review of those 26 documents will be sufficient to resolve the parties’
`remaining privilege disputes related to the August 3 Order.
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 10 of 27
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`1. Entry No. 286 (withheld)
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`According to Apple’s privilege log, this document is an email from Luca Maestri (a non-
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`attorney) to Kate Adams (counsel for Apple), with Tim Cook cc’ed. Ex. C. It is described as
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`“Email requesting legal advice from in-house counsel regarding board of directors
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`call and pre-announcement of revenue guidance miss.” Id. The privilege log reflects that the
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`entire document was withheld. In the Joint Discovery Letter, Apple justifies its withholding of
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`this document on the basis that Entry No. 286, “includes only emails that were part of the chain in
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`Entry No. 285, which this Court reviewed in camera and held to be privileged. Id. (citing August 3
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`Order at 24).
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`The portion of the August 3 Order that is relevant to whether this document was properly
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`withheld states as follows:
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`The sixth subcategory (Entry Nos. 285-291, and 298-300), contains
`the emails addressed in paragraph 4 of the Adams supplemental
`declaration, described as a set of emails
`that “includes
`communications in which Mr. Cook asked me and Mr. Maestri for
`feedback relating to topics he planned to cover in an upcoming
`meeting of the Company’s board of directors.” The Court finds based
`on in camera review that Entry 288, a generic request for feedback
`from Cook to both Adams and Maestri that does not reference any
`specific legal concerns, is not primarily aimed at seeking legal advice
`and therefore is not privileged. This document should be produced.
`Entries 285 and 287 are privileged because they contain Adam’s
`response to Cook’s request for input from her and address legal topics,
`thus constituting legal advice. The Court further finds based on its in
`camera review of Entry 290, which is an email exchange between Tim
`Cook and Luca Maestri on which Adams is copied, that that
`communication was not sent with the primary purpose of obtaining
`legal advice and does not reveal any legal advice. Merely copying in-
`house counsel on an email exchange does not make a communication
`privileged. This document should be produced.
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`August 3 Order at 24-25.
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`Based on its review of Entry No. 286, the Court finds that Apple improperly withheld
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`portions of the document that were already found to be non-privileged by this Court. In particular,
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`the message from Tim Cook to Kate Adams dated December 16, 2018 that is part of the email
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`chain in Entry No. 286 is identical to the email in Entry No. 288 that the Court found to be non-
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`privileged because it was a “generic request for feedback.” The first two messages in the chain,
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`on the other hand, are a request for legal advice and Kate Adams’s response providing legal
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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 11 of 27
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`advice. These are identical to messages that the Court found privileged in Entry No. 285 and are
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`clearly privileged. The Court may have caused confusion by allowing Apple to withhold in its
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`entirety Entry No. 285 – even though that document also included the non-privileged
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`communication from Tim Cook that is in Entry No. 288; given that the Court had concluded that
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`288 was non-privileged, Entry No. 285 should have been produced in redacted form. Instead, the
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`Court suggested in its August 3 Order that it could be withheld in its entirety. The reasoning of
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`the August 3 Order, however, makes clear that part of Entry No. 285 (the part that is found in
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`Entry No. 288) is non-privileged. The same is true of Entry No. 286. Therefore, Apple is ordered
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`to produce a redacted version of Entry Nos. 285 and 286.
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`2. Entry Nos. 391, 402, 515, 522, 524, 526, 532, 539, 574, 594, 682
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`All of these documents are drafts of the Investor Letter that include comments and
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`proposed edits by both in-house counsel and non-attorneys. In particular, the drafts include
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`comments and edits by in-house counsel Sam Whittington and by non-attorneys Adam Talbot and
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`Steve Dowling, with the comments and edits of each individual reflected in different colors.
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`Although Apple’s privilege log describes these documents as being attached to emails, the emails
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`themselves are not identified and it is unclear who sent or received any of these documents. No
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`sender or recipient is listed on the privilege log. Apple withheld all of these documents in their
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`entirety.
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`All of these documents except Entry No. 5744 are described in paragraph three of the
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`Supplemental Declaration of Sam Whittington Regarding Documents Withheld as Privileged (dkt.
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`no. 246-13) (“Whittington Supp. Decl.”), entitled “Documents Relating to the Preparation of the
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`Cook Letter.”5 As to these documents, Whittington states, “In my role as Director, Corporate Law,
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`4 In the Whittington Supplemental Declaration (dkt. no. 246-13), this document was included in
`the paragraph addressing documents for which privilege was claimed on the basis that the
`communication involved counsel’s efforts to collect information in support of statements in the
`Investor Letter. Whittington Supp. Decl. ¶ 4. _Based on the Joint Discovery Letter, however, it
`appears that Apple now claims this document is privileged on the basis that it – like the other
`disputed Investor Letter drafts – involved requests or provision of legal advice in connection with
`the Investor Letter. Having reviewed the document in camera, the Court agrees that this is the
`more appropriate category for this document. Therefore, the Court’s discussion of the documents
`in this grouping covers Entry No. 574.
`5 Consistent with its August 3 Order, the Court refers to this letter as “the Investor Letter.”
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`

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`Case 4:19-cv-02033-YGR Document 403 Filed 08/25/23 Page 12 of 27
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`I was closely involved in, and provided legal advice with respect to, the Company's decision of
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`whether to release the Cook Letter, as well as the process by which the Cook Letter was prepared
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`and released. I also provided legal advice regarding the contents of the Cook Letter, reviewing and
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`commenting on drafts of the Cook Letter as they were prepared, with an eye towards ensuring
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`compliance with reporting requirements and minimizing legal risk to the Company.” Whittington
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`Supp. Decl. ¶ 3.
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`In the Joint Discovery Letter and attached privilege log (Joint Discovery Letter, Letter Ex.
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`C), Apple claims that these documents are privileged because they contain legal advice or requests
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`for legal advice. It points to the Court’s conclusion that Entry No. 471 is privileged because it
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`contains legal advice from Apple attorney Sam Whittington. Joint Discovery Letter at 6 (citing
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`August 3 Order at 42) (“This document is a draft of the Investor Letter reflecting Whittington’s
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`legal advice. The Court finds that this document is privileged.”). It also points to the Court’s
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`discussion of subcategory one in its August 3 Order. Subcategory one contained “documents that
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`Whittington states were sent to him and included explicit requests for legal advice.” August 3
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`Order at 20.
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`In its discussion of subcategory one, the Court stated as follows:
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`As to the first subcategory of documents, Plaintiff has stipulated in its
`supplemental brief that Whittington’s supplemental declaration
`stating that these documents were sent to him and contained explicit
`requests for legal advice about the Investor Letter is sufficient to
`establish attorney-client privilege as to those requests. The Court
`agrees but finds that in Entry 382, the request for legal advice at the
`beginning of the document is the only privileged material in the
`document; the remainder of the document involves business advice.
`Therefore, the privilege log and declarations supplied by Defendants
`in support of withholding this document are su