Kleiman v. Wright, No. 2:2020cv00593 - Document 29 (W.D. Wash. 2020)
Court Description: ORDER granting Plaintiff's 15 Second Motion to Compel and striking as moot Mr. Nguyen's 18 Motion to Seal. Further, the Court hereby ORDERS the parties to meet and confer to agree on redactions for the transcript of Mr. Nguyen's deposition. Dkt. No. 21 . The parties shall either file a redacted transcript within three (3) business days of this order or report to the Court with any disputes for the Court to resolve. Signed by Judge Barbara J. Rothstein. (TH)
Download PDF
<![CDATA[
the 4 attorney-client privilege only if the party acts as the attorney’s agent. Id. at 922; see also, e.g., 5 Richey, 632 F.3d at 566 (“[t]he attorney-client privilege may extend to communications with third 6 parties who have been engaged to assist the attorney in providing legal advice”); Bronsink v. Allied 7 Prop. & Cas. Ins. Co., No. 09-cv-00751, 2010 WL 597489, at *2 (W.D. Wash. Feb. 16, 2010) 8 9 (“Generally, when a third party intrudes on these communications, whether intentionally or 10 unintentionally, those communications lose the privilege. An exception exists when that third 11 party is an agent of the attorney or the client and they are essential to the giving of legal advice.”) 12 (Internal citations removed). This is simply not the case for Mr. Nguyen. 13 14 15 Furthermore, Mr. Nguyen has failed to present sufficient evidence to show that Dr. Wright’s difficulty communicating necessitates a liaison. The only analogous case the Court has seen in the parties’ briefing is that of Witte v. Witte, 126 So. 3d 1076 (Fla. Dist. Ct. App. 2012). 16 17 In that case, the court recognized that, under Florida law (and not federal common law), a 74 year 18 old woman who suffered short term memory loss, glaucoma, and deafness and who required 19 translation of documents from a foreign language she could not read, might be able to utilize her 20 daughter to facilitate communications with the mother’s attorney. Id. at 1077. It is notable that 21 22 the appellate court in that case remanded the matter to the trial court for further factual development as to how reasonably necessary the aid of the daughter was. Id. at 1078–79. 23 24 25 Here, Mr. Nguyen fails to even come close to this level of necessity. He does not contend that Dr. Wright possesses any specific hindrance or disability that impedes his ability to 7 Case 2:20-cv-00593-BJR Document 29 Filed 05/13/20 Page 8 of 11 1 2 communicate. Mr. Nguyen does not claim Dr. Wright is constrained by language barriers or infirmity. To the contrary, Mr. Nguyen has described Dr. Wright as a “headline speaker” at 3 conferences around the globe. Dkt. No. 8 at 11. And as Plaintiffs point out, Mr. Wright has 4 asserted under oath in the Southern District of Florida case that he has an LLM, has completed 5 solicitor training in the United Kingdom, and taught law at a university level. Dkt. No. 24 at 4. 6 The Court finds that Mr. Nguyen’s role as Dr. Wright’s litigation liaison does not entitle 7 him to the protection of the attorney-client privilege. Thus, any communications involving Mr. 8 9 10 Nguyen serving in that capacity, are not protected by the privilege and Mr. Nguyen must testify as to their contents. 11 Nor does Mr. Nguyen’s reliance on his former positions at nChain save him from this 12 conclusion. To be sure, attorney-client privilege applies in the corporate context and protects the 13 communications of both corporate officers and employees. See Upjohn Co. v. United States, 449 14 U.S. 383, 394–95 (1981); see also Graf, 610 F.3d at 1158 (“[i]n Upjohn, the Supreme Court held 15 that a corporation’s privilege extends to communications between corporate employees and 16 17 corporate counsel as long as the communications are ‘made at the direction of corporate superiors 18 in order to secure legal advice’”) (quoting United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 19 1996)). Thus, any communication conducted by Mr. Nguyen as nChain’s CEO or Chair of its 20 Strategic Advisory Board in order to secure legal advice on its behalf is protected by the attorney- 21 22 client privilege. Plaintiff, however, has specifically eschewed the right to seek additional testimony on these sorts of communications. Dkt. No. 24 at 2. Thus, the corporate attorney-client 23 24 privilege affords Mr. Nguyen no protection against this motion. 25 8 Case 2:20-cv-00593-BJR Document 29 Filed 05/13/20 Page 9 of 11 B. Common Interest Doctrine 1 Mr. Nguyen’s reliance on the common interest doctrine is similarly unavailing. Under 2 3 federal common law, the common interest doctrine serves as an exception to the rule that attorney- 4 client privilege is waived when the communication is voluntarily disclosed to a third-party. Baden 5 Sports, Inc. v. Kabushiki Kaisha Molten, No. 06-cv-0210, 2007 WL 1185680, at *1 (W.D. Wash. 6 Apr. 20, 2007) (citing United States v. Zolin, 809 F.2d 1411, 1415 (9th Cir. 1987), overruled on 7 8 9 10 other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)); see also In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“[r]ather than a separate privilege, the ‘common interest’ or ‘joint defense’ rule is an exception to ordinary waiver rules designed to allow attorneys 11 for different clients pursuing a common legal strategy to communicate with each other”). The 12 exception applies where (1) the communication was made by separate parties in the course of a 13 matter of common interest; (2) the communication was designed to further that effort; and (3) the 14 15 privilege has not been waived. Baden Sports, 2007 WL 1185680, at *1 (citing In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 126 (3d Cir. 1986)). 16 A “common interest,” however, means more than just “a shared desire to see the same 17 18 outcome in a legal matter.” In re Pac. Pictures Corp., 679 F.3d at 1129. “Instead, the parties must 19 make the communication in pursuit of a joint strategy in accordance with some form of 20 agreement—whether written or unwritten.” Id.5 Further, the interest in question must relate to a 21 22 23 5 24 25 Mr. Nguyen identifies two common interest agreements: one signed between Dr. Wright and Mr. Nguyen on nChain’s behalf in April of 2018 while Mr. Nguyen still served as nChain’s CEO (“2018 Agreement”) and the other signed in April 2020 shortly before his deposition between Dr. Wright, Mr. Nguyen in his personal capacity, and nChain’s current holding company (“2020 Agreement”). Dkt. No. 19 at 5. 9 Case 2:20-cv-00593-BJR Document 29 Filed 05/13/20 Page 10 of 11 1 2 3 “common legal, as opposed to commercial, interest.” Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 579 (N.D. Cal. 2007) (quoting Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995)) (emphasis added). 4 In line with its previous determination, the Court concludes that the common interest 5 doctrine cannot stretch the attorney-client privilege so far as to cover the communications Mr. 6 Nguyen seeks to protect. Mr. Nguyen does not claim to have an individual stake in the litigation. 7 Instead, Mr. Nguyen claims his interest stems from his position as Dr. Wright’s litigation liaison. 8 9 Dkt. No. 20 at ¶ 21 (“I have a common interest with nChain and Dr. Wright . . . because I continue 10 to act as Dr. Wright’s liaison with his litigation counsel”). As the Court has already held, litigation 11 liaison is not a valid ground for asserting attorney-client privilege. Protecting a non-existent 12 privilege, then, cannot serve as a common legal interest. 13 14 Reliance on his former positions at nChain again does not save Mr. Nguyen from this conclusion. While communications conducted by Mr. Nguyen while planning the strategy of 15 nChain related to this litigation are privileged, these are not the communications Plaintiffs are 16 17 18 19 seeking. The Court, therefore, finds that Mr. Nguyen’s assertion of privilege pursuant to the common interest doctrine cannot be sustained. V. CONCLUSION 20 For the foregoing reasons, the Court hereby GRANTS Plaintiffs’ second motion to compel 21 compliance with a subpoena, Dkt. No. 15, and STRIKES AS MOOT Mr. Nguyen’s motion to seal, 22 23 Dkt. No. 18. Further, the Court hereby ORDERS the parties to meet and confer to agree on redactions for the transcript of Mr. Nguyen’s deposition. Dkt. No. 21. The parties shall either file 24 25 a redacted transcript within three (3) business days of this order or report to the Court with any 10 Case 2:20-cv-00593-BJR Document 29 Filed 05/13/20 Page 11 of 11 1 disputes for the Court to resolve. 2 3 DATED this 13th day of May, 2020. 4 _______________________________ BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
