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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
` DANIEL J. BERGESON, SBN 105439
`dbergeson@be-law.com
`CAROLINE McINTYRE, SBN 159005
`cmcintyre@be-law.com
`JAIDEEP VENKATESAN, SBN 211386
`jvenkatesan@be-law.com
`SUSAN E. BOWER, SBN 173244
`sbower@be-law.com
`BERGESON, LLP
`111 N. Market Street, Suite 600
`San Jose, CA 95113
`Telephone: (408) 291-6200
`Facsimile: (408) 297-6000
`
`Attorneys for Defendants
`SAVAYIA BERO, TAMI PASCALE, VINCE
`TANNER-DURAN, KIM WONG, AND
`ANDREA ZECHMANN
`
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF SANTA CLARA
`TESLA INC.,
`
`Plaintiff,
`
`v.
`
`RIVIAN AUTOMOTIVE, INC., RIVIAN
`AUTOMOTIVE, LLC, VINCE TANNER -
`DURAN, KIM WONG, TAMI PASCALE,
`JESSIE YOSTE, SAVAYIA BERO, JESSICA
`SIRON, CARRINGTON BRADLEY,
`ANDREA ZECHMANN, ASHWIN
`ALINKIL, SAIKAT DAS, DAVID WU, and
`DOES 8-20,
`
`Defendants.
`
` Case No. 20CV368472
`
`INDIVIDUAL DEFENDANTS’ MOTION
`TO COMPEL PRODUCTION OF
`DOCUMENTS IMPROPERLY
`WITHHELD AS PRIVILEGED BY
`TESLA AND TO PRODUCE FURTHER
`SUPPLEMENTAL PRIVILEGE LOG ,
`AND TO COMPEL VERIFICATIONS
`
`Date: August 28 and 29, 202 4
`Time: 9:00 a.m.
`
`Judge: Hon. Theodore C. Zayner
`Dept.: 19
`
`DISCOVERY REFEREE APPOINTED;
`NO ACTION NEEDED BY COURT
`
`Action Filed: July 17, 2020
`
`
`Electronically Filed
`by Superior Court of CA,
`County of Santa Clara,
`on 7/24/2024 7:06 PM
`Reviewed By: R. Walker
`Case #20CV368472
`Envelope: 16049712
`20CV368472
`Santa Clara – Civil
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
`TABLE OF CONTENTS
`Page
`I. INTRODUCTION...................................................................................................................... 5
`II. FACTUAL AND PROCEDURAL BACKGROUND ............................................................. 6
`III. ARGUMENT ............................................................................................................................. 8
`A. Tesla Fails To Meet Its Burden Of Establishing That Certain Documents
`Are Privileged Attorney Client Communications Or Attorney Work Product .......... 8
`1. The Legal Standard For Attorney Work Product Protection .......................... 8
`2. Tesla’s Logs Provide Inadequate Bases To Support Many Of The
`Privilege And Work Product Designations ..................................................... 9
`B. Communications Between Non-Attorney Investigators And Non-Attorney
`Employees. ................................................................................................................... 10
`C. Denial Of Discovery Would Cause Unfair Prejudice Or Result In Injustice
`To The Individual Defendants .................................................................................... 13
`D. Tesla Must Produce Communications With Valerie Workman Post -Jan.
`2020 .............................................................................................................................. 15
`E. Tesla Must Produce To Andrea Zechmann’s Counsel Responsive Privileged
`Documents And Communications She Saw While Employed At Tesla .................. 17
`F. Tesla Must Produce A Further Supplemental Privilege Log .................................... 19
`G. Tesla Must Produce Verified Responses .................................................................... 19
`IV. CONCLUSION ........................................................................................................................ 19
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
`TABLE OF AUTHORITIES
` Page(s)
`Cases
`AorTech Int’l PLC v. Maguire ,
`No. 2:14-CV-00171-RJS-EJF, 2016 U.S. Dist. LEXIS 154595 (D. Utah Nov. 4,
`2016).............................................................................................................................................. 14
`Armenta v. Superior Court ,
`101 Cal. App. 4th 525 (2002) ........................................................................................................ 9
`BP Alaska Exploration, Inc. v. Superior Court ,
`199 Cal. App. 3d 1240 (1988) ................................................................................................... 5, 7
`In re Braniff, Inc.,
`153 B.R. 941 (Bankr. M.D. Fla. 1993) ................................................................................. 13, 14
`City of Long Beach v. Superior Court ,
`64 Cal. App. 3d at 65, 79 (1976) ................................................................................................... 9
`Coito v. Superior Court,
`54 Cal. 4th 480 (2012) ................................................................................................................... 7
`Gottlieb v. Wiles,
`143 F.R.D. 241 (D. Co. 1992) ..................................................................................................... 13
`Hyde Park Venture v. FairXchange, LLC ,
`292 A.3d 178 (2023) .................................................................................................................... 13
`McRae v. Tautachrome, Inc .,
`No. 17-1260-EFM-GEB, 2019 U.S. Dist. LEXIS 205151 (D. Kan. Nov. 26,
`2019).............................................................................................................................................. 13
`Uber Technologies, Inc. v. Google LLC ,
`27 Cal. App. 5th 953 (2018) .................................................................................................... 9, 10
`Williamson v. Superior Court of Los Angeles County ,
`21 Cal. 3d 829 (1978) ..................................................................................................................... 5
`Statutes
`Cal. Civ. Proc. Code § 2018.030(a) ..................................................................................................... 5
`Cal. Evid. Code § 915(b) ...................................................................................................................... 5
`Other Authorities
`F.R. Civ. P. 26(b)(3) ........................................................................................................................... 13
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`F.R. Evid. 612 ..................................................................................................................................... 13
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`I. INTRODUCTION
`Despite numerous meet and confer efforts by the Individual Defendants 1 over the past two
`years, Tesla continues to improperly withhold documents as privileged and/or work product and
`fails to provide proper support in its privilege log for its privilege designations. 2
`First, Tesla has not met its burden of establishing that documents are protected by the
`attorney client privilege and/or work product protection. In particular, Tesla improperly has
`withheld communications between non-attorney investigators and non-attorn ey employees under
`the guise of work product protection. But deposition testimony shows that Tesla’s attorneys were
`not involved in at least some of these communications. Even if they constitute qualified work
`product, denying production to the Individual Defendants would unfair ly prejudice them by
`denying access to relevant and potentially exonerating evidence related to Tesla’s investigations,
`particularly given Tesla’s investigators have testified that they do not recall critical portions of the
`investigations.
`Second, Tesla has also improperly withheld communications with Valerie Workman after
`
`1 This motion is filed on behalf of Individual Defendants Savayia Bero, Tami Pascale, Vince
`Tanner-Duran, Kim Wong, Andrea Zechmann, Jessie Yoste, David Wu, Carrington Bradley, and
`Jessica Siron (collectively, the “Individual Defendants”).
`2 The Individual Defendants move to compel production of documents regarding nos. 1, 7, 11, 12,
`13, 14, 15, 17, 18, 19, 21, 22, 26, 27, 32, 37, 38, 39, 40, 41, 42, 44-45, 48, 49, 50, 51, 52, 54, 55,
`56, 57, 59, 72, 78, 79, 84, 85, 94, 100, 102, 103, 104, 105, 106, 109, 110, 114, 115, 118, 119, 121,
`130, 132, 135, 136, 137, 144, 145, 150, 154, 158, 161, 162, 163, 164, 167, 176, 179, 180, 183,
`192, 193, 194, 197, 205, 218, 224, 225, 226, 228, 229, 230, 231, 233, 236, 237, 238, 239, 240,
`241, 246, 247, 248, 249, 254, 256, 257, 265, 266, 272, 273, 274, 275, 276, 277, 279, 281, 282,
`283, 285, 286, 287, 288, 290, 292, 293, 294, 295, 296, 308, 309, 310, 311, 312, 313, 314, 315,
`316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334,
`335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 354, 355,
`356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 373, 374, 379,
`380, 381, 382, 383, 384, 385, 387, 388, 389, 390, 402, 403, 404, 405, 406, 408, 410, 411, 412,
`413, 414, 415, 417, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 443, 444, 445,
`446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464,
`466, 467, 468, 469, 471, 474, 475, 476, 477, 479, 483, 485, 486, 487, 488, 489, 490, 491, 492,
`493, 494, 495, 496, 497, 509, 519, 520, 529, 535, 543, 544, 545, 547, 548, 549, 552, 553, 554,
`555, 556, 557, 562, 563, 564, 566, 569, 570, 572, 573, 574, 579, 580, 583, 584, 585, 586, 588,
`589, 590, 591, 592, 593, 594, 595, 596, 598, 607, 621, 622, 623, 624, 625, 627, 628, 629, 630,
`631, 632, 633, 634, 635, 636, 641, 642. A chart detailing the applicable privilege log descriptions
`is attached to the Declaration of Caroline McIntyre (“McIntyre Decl.”) as Exhibit 10.
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`January 2020.
`
` Tesla must produce documents where the only basis
`for the privilege is that Ms. Workman participated in the communication.
`Third, Tesla has improperly refused to provide to counsel for Andrea Zechmann
`doc
`uments where she was the author or the recipient while she was employed at Tesla. Contrary
`to Tesla’s assertion, producing these documents to counsel for Ms. Zechmann does not result in a
`waiver of privilege. The documents should be produced, though perhaps to allay concerns, subject
`to a “For Ms. Zechmann’s and Her Attorney’s Eyes Only” designation, which eliminate s any
`concerns that the documents could be shared with anyone besides Ms. Zechmann and her counsel.
`Finally, Tesla has failed to abide by the Discovery Referee’s prior orders that it provide
`verified responses to the Individual Defendants’ discovery requests , as well as a verified response
`regarding its search of custodians ordered in the Discovery Referee’s May 5, 2023 Order.
`For these reasons, the Individual Defendants’ Motion to Compel should be granted.
`II. F ACTUAL AND PROCEDURAL BACKGROUND
`On September 22, 2022, the Individual Defendants filed their Motion to Compel, seeking,
`among other things, to compel Tesla to produce documents and information relating to Tesla’s
`investigation and monitoring of the Individual Defendants that Tesla put at issue in the litigation.
`On October 20, 2022, the Discovery Referee issued her Order granting the Individual
`Defendants’ Motion to Compel. The Order instructed Tesla on the need to provide a robust
`privilege log of any documents it was withholding as privileged. In particular, the Discovery
`Referee stated, “[u]nder California caselaw, whether investigative materials are privileged will
`depend on a variety of factors, including but not limited to, who initiated the investigation, the
`purpose of the investigation and the purportedly protected communication, the type of information
`being communicated about the investigation in the communication, and who is doing the
`communication. Issues of privilege and/or work product protection waiver will also require
`careful analysis. Thus, Tesla shall include as much descriptive information as possible about the
`documents it is withholding in its privilege log while still maintaining the documents’
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`protections.” McIntyre Decl., ¶ 3, Ex. 1.
`Tesla produced its initial privilege log in response to the Oct ober 22, 2022 Order on
`November 28, 2022. Id., ¶ 4. Despite that Order’s clear direction to Tesla to provide details
`supporting its privilege designations, Tesla’s privilege log was deficient in numerous respects.
`On February 2, 2023, the Individual Defendants sent correspondence to Tesla outlining the
`deficiencies in Tesla’s privilege log and requesting a supplemental privilege log correcting those
`deficiencies. Id., ¶ 5, Ex. 2.
`Tesla produced a privilege log on June 21, 2023 (the “6/21/23 L og”) and a supplemental
`privilege log on July 24, 2023 (the “7/24/23 L og”) after the parties negotiated a protocol
`governing the parties’ disclosures on their respective privilege logs. Id., ¶ 6, Exs. 3 and 4. Many
`of the entries failed to address the deficiencies identified in the Individual Defendants’ February 2,
`2023 correspondence and did not abide by the October 22, 2022 Order or the agreed upon
`protocol. The Individual Defendants sent correspondence on November 3, 2023, outlining those
`deficiencies and requesting further supplemental logs. Id., ¶ 7, Ex. 5.
`On April 19, 2024, Tesla sent correspondence responding to the November 3, 2023 letter.
`Tesla agreed to provide a further supplemental privilege log correcting certain deficiencies
`identified by the Individual Defendants. Id., ¶ 8, Ex. 6.
`On May 24, 2024, the Individual Defendants sent correspondence responding to Tesla’s
`April 19, 2024 letter reiterating that Tesla’s 6/21/23 Log and 7/24/23 Log are deficient on multiple
`grounds and did not provide a basis for Tesla’s privilege claims. The Individual Defendants
`requested Tesla to provide a further supplemental log and produce the documents Tesla
`improperly withheld as privileged by May 31, 2024. Id., ¶ 9, Ex. 7.
`On June 21, 2024, Tesla sent correspondence to the Individual Defendants responding to
`the May 24, 2024 letter and following up on subsequent meet and confer. Tesla provided its
`position and stated it considered the issues raised by the Individual Defendants to be resolved.
`Tesla also provided a further supplemental privilege log (the “6/21/24 Log” ) (the 6/21/23 Log, the
`7/24/23 Log, and the 6/21/24 Log collectively are referred to as the “Logs”) . Id., ¶ 10, Ex. 8.
`On June 25, 2024, Tesla and the Individual Defendants had a call regarding Tesla’s
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
`privilege logs. The parties agreed that they were at an impasse regarding the issues raised by the
`Individual Defendants. The Individual Defendants noted that Tesla failed to provide a list of the
`attorneys identified in entries listed on its 6/21/24 Log. Tesla said they would confirm and get
`back to the Individual Defendants. Id. , ¶ 11. The Individual Defendants ’ July 16, 2024 letter
`memorialized that call and again asked Tesla to identify the attorneys listed on the 6/21/24 Log.
`As of the filing of this motion, however, Tesla has not done so. Id., ¶ 12, Ex. 9. The Discovery
`Referee should order Tesla to confirm the list of attorneys identified in entries on the 6/21/24 Log.
`In addition to its deficient privilege logs, Tesla has failed to abide by the Discovery
`Referee’s order that it produce verified responses to discovery. On May 5, 2023, the Discovery
`Referee issued her Order On Discovery Issues From April 26, 2023 Hearing (the “May 5, 2023
`Order”). Among other items, the Discovery Referee ordered Tesla to conduct a search of a sample
`of cloud accounts of the investigators and produce relevant documents identified in the sampled
`searches or provide a verified response stat ing that it has conducted the search and found no
`responsive documents that have not been produced via other searches. Id., ¶ 1 9, Ex. 16. Tesla has
`failed to produce any documents or provide the required verified response. Id.
`Tesla has failed to provide verified responses to numerous special interrogatories, form
`interrogatories, and requests for admission, despite repeated requests by the Individual
`Defendants. On April 18, 2024, counsel for the Individual Defendants sent an email to counsel for
`Tesla detailing the more than thirty -five outstanding verifications and asking Tesla to serve the
`outstanding verifications by April 24, 2024. Id., ¶ 20, Ex. 17. As of the filing of this motion,
`Tesla has failed to serve the outstand ing verifications or to provide a date certain by which it will
`do so. Id., ¶ 20.
`III. ARGUMENT
`A. Tesla Fails To Meet Its Burden Of Establishing That Certain Documents Are
`Privileged Attorney Client Communications Or Attorney Work Product
`1. The Legal Standard For Attorney Work Product Protection
`Tesla contends that many documents, which were created by non-attorneys or are
`communications between non-attorneys, are protected by the attorney-client privilege and/or work
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
`product doctrine. But Tesla provides no support that these documents are entitled to such
`protections. As the party relying on the work product protection, Tesla must do more than state a
`conclusion that material is work product. Instead, Tesla has the burden to establish preliminary
`facts showing the material is entitled to protection. BP Alaska Exploration, Inc. v. Superior Court,
`199 Cal. App. 3d 1240, 1261 (1988).
`To establish facts showing the material is entitled to the absolute protection of attorney
`work product, Tesla must establish the documents reflect an attorney’s impressions, conclusions,
`opinions, or legal research or theories which would prohibit compelling production. Cal. Civ.
`Proc. Code § 2018.030(a). Here, Tesla has not made the requisite showing that the documents at
`issue are entitled to the absolute protection of attorney work product.
`To make a prima facie showing that a qualified or conditional work product privilege is
`applicable, a person claiming the work product protection must establish the following preliminary
`facts: (1) that a client sought the attorney’s legal counsel and (2) that the matter sought to be
`protected is derived from the attorney’s initiative in the course of providing legal counsel.
`Williamson v. Superior Court of Los Angeles County , 21 Cal. 3d 829, 834 (1978).
`To the extent that Tesla contends that the documents sought by the Individual Defendants
`are protected as qualified work product, Tesla has not met its burden of establishing qualified
`work product.
`3
`2. Tesla’s Logs Provide Inadequate Bases To Support Many Of The Privilege
`And Work Product Designations
`Tesla’s Logs reference numerous documents prepared by non-lawyers, or communications
`between non-lawyers, with inadequate bases for withholding the communications a s privileged or
`work product. These communications should be produced, and the entries removed from a
`Further Supplemental Privilege Log.
`
`
`3 To the extent that the Discovery Referee cannot determine the applicability of the work product
`privilege to certain documents based on the parties’ briefing of these issues , an in camera review
`of certain documents may be appropriate. Cal. Evid. Code § 915(b).
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`B. Communications Between Non-Attorney Investigators And Non -Attorney
`Employees.
`Communications between non-attorney investigators and non-attorney employees that are
`not made at the direction of counsel are not privileged and must be produced. These documents
`do not become privileged merely because they are shared at some point with counsel.
` Te sla makes the conclusory assertion that its “investigations regarding the facts and
`circumstances giving rise to this lawsuit were conducted at the direction of Tesla’s attorneys and
`for their benefit,” therefore, “the documents that Tesla’s investigators created (including all
`reports, summaries, memoranda, and notes) and their internal communications regarding those
`investigations are protected by the attorney-client privilege and/or work product doctrine.”
`McIntyre Decl. Ex. 6. Te sla’s own testimony shows this is not entirely correct .
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`(McIntyre Decl., ¶ 14, Ex. 11 (Nocon July 24, 2023 TR a t 316:16-23))
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`(Id., a t 328:11-16)
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`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`
`
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`(McIntyre Decl., ¶ 14, Ex. 11 ( Nocon July 14, 2023 TR at 176:2-24.)
`As the party asserting privilege or work product protection, Tesla has not met its burden to
`establish preliminary facts showing that documents – on their face created by non-attorneys or are
`communications between non-attorneys – are attorney-client privileged communications or
`contain attorney work product. BP Alaska Exploration, 199 Cal. App. 3d at 1261.
`The materials are factual documents regarding events provable at trial, and are not brought
`within the work product privileges simply by transmitting the information to an attorney. These
`investigation materials would not be entitled to absolute work product protection because they do
`not contain an attorney’s impressions, conclusions, opinion, or legal research or theories. T he
`investigation materials reflect the results of a factual investigation into alleged conduct of former
`employees, which Tesla’s investigators admit were done at least in part without involvement of
`legal counsel, much less the filter of impressions, conclusions, opinions, or legal theories.
`To the extent that Tesla contends that documents sought by Individual Defendants are
`protected as qualified work product, they must also have been prepared at the direction of counsel.
`With regards to witnesses’ statements or notes from witness interviews, for example, work product
`protection only applies to “attorney-directed interview[s].” Coito v. Superior Court , 54 Cal. 4th
`480, 499–500 (2012). Here, Tesla has not established that its investigators’ interviews were
`conducted at the direction of an attorney such that interview -related materials are its work product.
`As to any interviews that were conducted at an attorney’s direction:
`[A] witness statement obtained through an attorney -directed interview is entitled as
`a matter of law to at least qualified work product protection. A party seeking
`disclosure has the burden of establishing that denial of disclosure will unfairly
`prejudice the party in preparing its claim or defense or will result in an injustice. If
`the party resisting discovery alleges that a witness statement, or portion thereof, is
`absolutely protected because it “reflects an attorney ’s impressions, conclusions,
`opinions, or legal research or theories” that party must make a preliminary or
`foundational showing in support of its claim. The trial court should then make an in
`camera inspection to determine whether absolute work product protection applies to
`some or all of the material.
`Id. (citations omitted, emphasis added).
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` 12
`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
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`oreover, Tesla has produced other documents related to the investigations, and has not
`articulated any basis for producing such documents while withholding other documents regarding
`the investigations. For example,
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` McIntyre Decl., ¶ 17, Ex. 14. In
`addition,
` Id., ¶ 18, Ex. 15. If these investigations documents are not
`attorney work product, then the investigation-related documents sought herein cannot be attorney
`work product. Tesla cannot pick and choose which documents to produce and which to claim
`privileged and only produce those documents it believes support its claims.
`Tesla m ust , therefore, remove from its logs and produce all reports, summaries,
`memoranda or notes created by non- attorney investigators such as Charles Finfrock and Jake
`Nocon that were not created or sent at the direction of Tesla’s counsel . See, e.g., nos. 42, 44-45,
`287, 419; 627-628, and 629-631. Tesla must also produce related communications between non-
`attorney investigators and non-attorney employees regarding the investigations. 4
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`4 See, e.g., nos. 7, 11, 12, 13, 14, 19, 21, 22, 26, 27, 32, 37, 41, 52, 54, 55, 57, 59, 72, 78,
`79, 84, 85, 93, 100, 102, 106, 109, 110, 115, 119, 130, 135, 136, 137, 158, 161, 162, 163, 164,
`179, 180, 183, 192, 193, 194, 197, 205, 225, 229, 230, 237, 247, 249, 254, 256, 257, 272, 273,
`274, 275, 276, 277, 279, 281, 282, 285, 287, 288, 290, 308, 313, 314, 315, 316, 317, 318, 319,
`320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338,
`339, 340, 342, 343, 344, 345, 346, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371,
`373, 374, 379, 380, 381, 382, 383, 384, 385, 387, 388, 389, 390, 402, 403, 404, 405, 406, 408,
`410, 411, 412, 413, 414, 415, 417, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437,
`443, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462,
`463, 464, 466, 467, 468, 469, 471, 474, 475, 476, 477, 479, 483, 485, 486, 487, 488, 489. 490,
`491. 492. 493, 494. 495, 496, 497, 509, 519, 520, 529, 535, 543, 544, 545, 547, 548, 549, 552,
`553, 554, 555, 556, 557, 562, 563, 564, 566, 569, 570, 572, 573, 574, 579, 580, 583, 584, 585,
`586, 588, 589, 590, 591, 592, 593, 594, 595, 596, 598, 607, 621, 622, 623, 625, 627, 628, 629,
`630, 631, 632, 633, 634, 635, 636, 641, 642.
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` 13
`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
`C. Denial Of Discovery Would Cause Unfair Prejudice O r Result In Injustice To
`The Individual Defendants
`Even if the documents created by Tesla’s investigators and internal communications about
`the investigations are deemed qualified attorney work product, the denial of such discovery to the
`Individual Defendants will cause unfair prejudice or result in injustice. City of Long Beach v.
`Superior Court, 64 Cal. App. 3d at 65, 79 (1976). Unfair prejudice results where the party seeking
`discovery establishes that there exists “no adequate substitute” for the material generated by the
`expert. Armenta v. Superior Court, 101 Cal. App. 4th 525, 535 (2002); Uber Technologies, Inc. v.
`Google LLC, 27 Cal. App. 5th 953, 969 (2018).
`In Uber, two former employees of Google LLC (“Google”) started the self -driving vehicle
`company Ottomotto LLC (“Otto”). Google considered Otto a competitor to its own self -driving
`vehicle project. After Otto was acquired by Uber Technologies, Inc. (“Uber”), Google initiated
`arbitration proceedings against the two former Google employees. Google sought discovery from
`Uber related to preacquisition due diligence done at the request of Uber and Otto’s outside counsel
`by the investigative firm Stroz Friedber g LLC (“Stroz”). The engagement letter with Stroz stated
`that ‘“the purpose of the investigation is to ascertain facts that, in the opinion of [outside counsel],
`bear on issues of whether certain current or prospective employees …of Ottomotto have
`improperly retained on devices or in storage repositories not belonging to former employers,
`confidential information belonging to former employers, and whether such current or prospective
`employees breached any fiduciary duty, duty of loyalty, or other confident iality, non-solicitation,
`non-competition or other obligations based in contract, statute or otherwise.”’ Id., at 963.
`Stroz began its investigation under the supervision and direction of outside counsel and
`collected from the former employees various electronic devices and access to various cloud -based
`storage accounts, and interviewed the former employees. Id., at 964. Stroz then gave Uber’s
`counsel an oral report on its preliminary fact finding and memos of interviews of the former
`Google employees. Stroz also issued a final, written report to outside counsel for Uber and Otto,
`and labeled it “Privileged & Confidential Attorney Work Product.” Id.
`Over Uber’s objections, the arbitration panel determined the due diligence documents were
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` 14
`INDIVIDUAL DEFS’ MOTION TO COMPEL PRODUCTION OF DOCS IMPROPERLY WITHHELD AS
`PRIVILEGED BY TESLA AND PRODUCE FURTHER SUPP PRIVILEGE LOG, Case No. 20CV368472
`
`not protected attorney-client communications or attorney work product. The superior court then
`vacated the arbitration panel’s discovery order, from which Google appealed.
`The Court of Appeal considered whether the due diligence materials prepared by Stroz
`were entitled to attorney work product protection and found:
`The Stroz Materials do not reflect an attorney’s impressions, conclusions, opinions, or
`legal research of theories. Rather, the Stroz Materials reflect the result of a factual
`investigation into possible past misconduct committed by [the former Google employees]
`in the course of leaving so that Uber could decide whether to proceed with the Otto
`transaction and indemnify [the former Google employees]. The materials summarize what
`[the former Google employees] told Stroz without the filter of Stroz’s impres sions,
`conclusions, opinions or legal theories…In addition, the engagement letter between Stroz
`and counsel further indicates that Stroz was not authorized to practice law and its services
`were ‘limited to non-legal services.’ Thus, the Stroz Materials do not constitute opinion
`work product that is absolutely protected under section 2018.030, subdivision (a).
`
`Nor do the Stroz Materials qualify for the limited privilege for nonopinion work product
`set forth in section 2018.030 subdivision (b).