1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IN RE LDK SOLAR SECURITIES

LITIGATION,

 

This document relates to:

ALL ACTIONS.

)

)

)

)

)

)

)

)

)

)

No. C07-5182 WHA (BZ)

NINTH DISCOVERY ORDER

Before the Court is lead plaintiff’s motion to compel

defendant to produce information it redacted from Dr. Yuepeng

Wan’s handwritten notebooks. Dr. Wan, defendant’s Chief

Technology Officer, kept notebooks in which he recorded

information he received at meetings of company officers and

employees. Defendant has produced Dr. Wan’s notebooks but has

redacted certain information which it claims is protected by

the work-product rule. It does not assert the attorney-client

privilege as to any of the redacted information. 

Initially, I reviewed the redacted information and issued

the Eighth Discovery Order which invited briefing on the scope

of the work-product rule unless defendant was prepared to turn

Case 3:08-cv-00799-WHA Document 44 Filed 01/07/10 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 “Discovery was hardly intended to enable a learned

profession to perform its functions either without wits or on

wits borrowed from the adversary.” Hickman, 329 U.S. at 516.

2

over the redacted information. Two rounds of additional

briefing and one hearing followed. With the benefit of the

additional briefing and a better understanding of the context

in which the meetings were conducted, I again reviewed the

redacted information in camera.

Prior to Hickman v. Taylor, 329 U.S. 495 (1947), at least

some of what we now call work-product appears to have been

discoverable. See concurrence of Justice Jackson, id. at 518,

referring to Hickman v. Taylor, 4 F.R.D. 479 (E.D.Pa. 1945). 

The Supreme Court created the work-product doctrine in Hickman

to advance two principal objectives: (1) to protect the mental

impressions and conclusions of counsel and (2) to prevent less

diligent lawyers from taking unfair advantage of more

productive opponents.1 See Admiral Ins. Co. v. United States

Dist. Court, 881 F.2d 1486, 1494 (9th Cir. 1989). 

Whatever its genesis, the work-product rule was expanded

to where it now protects information “prepared in anticipation

of litigation or for trial by or for another party or its

representative.” Rule 26(b)(3) as amended in 1970. 

Various courts have since read the Rule quite broadly to

protect a variety of information. See e.g. Goff v. Harrah’s

Operating Co., 240 F.R.D. 659, 660 (D.Nev. 2007) (“It may be

surprising to long-time practitioners that ‘a lawyer need not

be involved at all for the work product protection to take

effect,’”); Hertzberg v. Veniman, 273 F.Supp.2d 67, 77 (D. DC

Case 3:08-cv-00799-WHA Document 44 Filed 01/07/10 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. There is an exception for documents which would have

been prepared in the ordinary course of business, even if there

had been no litigation. See Schwarzer, et al., Federal Civil

Procedure Before Trial §11:842; U.S. v. Adlman, 134 F.3d 1202

(2d Cir. 1998).

3 Lawyers may have been attended some of the meetings,

but the attorney-client privilege is not being asserted.

3

2003) and cases collected therein. This means that even if a

document prepared by a party’s employee does not contain an

attorney’s mental impressions or conclusions, was not prepared

at an attorney’s request or for an attorney’s use, and is

sought for legitimate purposes and not to simply take

advantage of the opposing party’s pretrial preparation, it may

be entitled to protection if it was prepared “because of” the

litigation. In re Grand Jury Subpoena, 357 F.3d 900, 907 (9th

Cir. 2004).2

Dr. Wan’s notes do not fit neatly within any established

rule. Having reviewed them in camera, I find that they do not

contain the mental impressions or conclusions of counsel. Nor

is there any evidence that counsel, directly or indirectly,

asked Dr. Wan to take these notes or that they were made for

counsel’s use. For the most part, they are Dr. Wan’s notes of

routine intra-company meetings at which the litigation was

discussed and record information such as what lawyers will be

retained and what types of assistance Dr. Wan and his coemployees might expect to render the attorneys.3 The specific

discussions would not have occurred and the redacted

information would not have been recorded but for the

litigation. Yet it is hard to understand why it should not be

discoverable if otherwise relevant and it is difficult for me

Case 3:08-cv-00799-WHA Document 44 Filed 01/07/10 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 “[A] determination that communications or materials

are privileged is simply a choice to protect the communication

and relationship against claims of competing interests. Any

inequity in terms of access to information is the price the

system pays to maintain the integrity of the privilege.”

Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486,

1494 (9th Cir. 1989). I do not see much of a societal interest

in protecting Dr. Wan’s notes. 

4

to believe the Hickman court would have granted the redacted

information any protection.4 Nonetheless, I am constrained by

the literal wording of Rule 26(b)(3) and by its construction

by the courts to find that the information was prepared by a

party representative, Dr. Wan, because of the litigation, and

constitutes work-product. 

Plaintiff claims that even if the information is “workproduct,” it still must be disclosed because he has shown a

sufficient need. He argues that he believes there was a

cover-up of the true facts concerning the quality of LDK’s

inventory. 

I find this argument largely unpersuasive. First, as 

defendant points out, plaintiff has produced little if any

evidence in support of this contention and appears not to have

pursued it in other discovery. Second, my review of the

redacted information discloses no information that would

suggest any such cover-up. There are three entries which

pertain to inventory. Balancing the minimal work product

content of the information, against the asserted need for the

contemporaneous record of defendant’s Chief Technology Officer

on this issue, I find sufficient need to order their

production. In re Harmonic, Inc. Sec. Litig., 245 F.R.D. 424,

429 (N.D. Cal. 2007). Defendant shall produce by January 12,

Case 3:08-cv-00799-WHA Document 44 Filed 01/07/10 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

2010, the third redacted line in #15480; redacted lines 

6-11 in #15503; and redacted lines 1-7 in #15527. The motion

is otherwise DENIED. 

Dated: January 7, 2010 

 Bernard Zimmerman 

 United States Magistrate Judge

G:\BZALL\-REFS\LDK SOLAR SECURITIES LITIGATION\DISC ORD 9.FINAL VERSION.wpd

Case 3:08-cv-00799-WHA Document 44 Filed 01/07/10 Page 5 of 5