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MORGAN & MORGAN 

COMPLEX LITIGATION GROUP 

John A. Yanchunis (Admitted Pro Hac Vice) 

201 N. Franklin Street, 7th Floor 

Tampa, FL 33602 

Telephone: 813/223-5505 

813/223-5402 (fax) 

jyanchunis@ForThePeople.com 

ROBBINS GELLER RUDMAN 

 & DOWD LLP 

Stuart A. Davidson (Admitted Pro Hac Vice) 

120 East Palmetto Park Road, Suite 500 

Boca Raton, FL 33432 

Telephone: 561/750-3000 

561/750-3364 (fax) 

sdavidson@rgrdlaw.com 

CASEY GERRY SCHENK FRANCAVILLA 

 BLATT & PENFIELD LLP 

Gayle M. Blatt (122048) 

110 Laurel Street 

San Diego, CA 92101 

Telephone: 619/238-1811 

619/544-9232 (fax) 

gmb@cglaw.com 

MILBERG TADLER PHILLIPS 

GROSSMAN LLP 

Ariana J. Tadler (Admitted Pro Hac Vice) 

One Pennsylvania Plaza, 19th Floor 

New York, NY 10119 

Telephone: 212/594-5300 

212/868-1229 (fax) 

atadler@milberg.com 

LOCKRIDGE GRINDAL NAUEN P.L.L.P.

Karen Hanson Riebel (Admitted Pro Hac Vice) 

Kate M. Baxter-Kauf (Admitted Pro Hac Vice) 

100 Washington Ave. South, Suite 2200 

Minneapolis, MN 55401 

Telephone: 612/339-6900 

612/339-0981 (fax) 

khriebel@locklaw.com

Attorneys for Plaintiffs and Proposed Class Counsel

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION 

IN RE: YAHOO! INC. CUSTOMER DATA 

SECURITY BREACH LITIGATION 

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No. 16-md-02752-LHK 

REPLY MEMORANDUM IN SUPPORT 

OF PLAINTIFFS’ MOTION TO COMPEL 

DISCOVERY 

Date: September 12, 2018 

Time: 1:00 p.m. 

Courtroom: 7, 4th Floor 

Judge: Hon. Nathanael Cousins 

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Plaintiffs submit this reply brief in further support of their Motion to Compel. 

I. YAHOO HAS INADEQUATELY ESTABLISHED THE PRIVILEGE 

Yahoo has failed to meet its burden to show that the claimed privilege or protection applies 

in its produced privilege logs. Yahoo nevertheless argues that no “waiver of the attorney-client 

privilege” may be imposed “as a sanction” under California law. See Catalina Island Yacht Club 

v. Superior Court, 242 Cal. App. 4th 1116, 1127-28 (Cal. Ct. App. 2015). 

Yahoo is wrong. First, Plaintiffs do not argue that Yahoo should be sanctioned for failing 

to provide adequate logs. Rather, Yahoo has failed to make an adequate showing that the privilege 

attaches. See United States v. Bergonzi, 216 F.R.D. 487, 493 (N.D. Cal. 2003) (requiring a “prima 

facie showing” that privilege applies). As a result, Yahoo has failed to satisfy Rule 26(b)(5)(A) 

and the documents at issue must be produced. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. 

Court for Dist. of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005). This procedural requirement is true 

when applying California law. See Travelers Prop. Cas. Co. of Am. v. Homes, 2015 WL 11438186, 

at *5–6 (E.D. Cal. Dec. 18, 2015) (applying California law to require that the standards of Rule 

26(b)(5) be met in order to meet burden privilege attaches); see also Helm v. Alderwoods Grp., 

Inc., 2010 WL 2951871, at *2 (N.D. Cal. July 27, 2010) (ordering documents and communications 

to be produced if party with inadequate log failed to supplement with appropriate author 

information).

In the alternative, Yahoo should be required to amend all five of its logs to include all 

necessary information, and produce all documents for which it cannot provide complete and 

adequate information. Accord Helm, 2010 WL 2951871, at *2; see also Friends of Hope Valley v. 

Frederick Co., 268 F.R.D. 643, 651 (E.D. Cal. 2010); Kelly v. Provident Life & Accident Ins. Co., 

2009 WL 10664172, at *7 (S.D. Cal. May 29, 2009). 

I. YAHOO’S LOGS ARE FACIALLY INADEQUATE 

1. No Attorney Identified and Other Missing Fields 

Yahoo misses the point of Plaintiffs’ arguments about the lack of author or other 

information on the produced logs. The argument is not about formally failing to “populate” 

particular fields on an Excel spreadsheet box. Cf. ECF No. 283 at 3-7. Rather, without adequate 

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author information, neither Plaintiffs nor the Court can adequately assess whether the privilege 

attaches. This standard is true whether a document or communication is an email or standalone 

document; adequate author information is critical for a proper assessment of privilege. See, e.g., 

In re 3dfx Interactive, Inc., 347 B.R. 394, 402–03 (Bankr. N.D. Cal. 2006) (quoting Wellpoint 

Health Networks, Inc. v. Superior Court, 59 Cal. App. 4th 110, 130 (Cal. Ct. App. 1997)). 

Yahoo argues that the Plaintiffs’ cases are inapposite because they arise from the context 

of email communications and not standalone documents. First, that is inaccurate – Helm 

considered both email communications and other documents collectively, and then discussed an 

argument made specific to email chains. 2010 WL 2951871, at *1–2. Second, there is no logical 

distinction between the two in terms of authorship. Yahoo is correct that non-email documents 

might lack recipients, but it is essential to determine whether those documents were authored by 

an attorney, at the direction of an attorney, and by whom, in order to assess a privilege claim. 

Accord Coleman v. Schwarzenegger, 2008 WL 2237046, at *4–5 (E.D. Cal. May 29, 2008). This 

is especially the case when a missing author is coupled with “conclusory” descriptions. See id. 

Yahoo’s explanation of their log entries proves Plaintiffs’ point. Some of the entries 

include custodian information and a specific attorney identified in a description; others have an 

attorney custodian but no specific attorney names referenced; still others provide a cursory 

description or file name. See MDL_Priv_00080 (document containing description with specific 

attorney names but no author); Log ID #2104 (document with cursory description and no attorney 

identified as giving advice); Log ID #2081 (referencing only “in-house counsel”). Under any of 

these circumstances, neither the mere provision of a document or communication to counsel, nor 

the mere custody of a document by an attorney, is sufficient to establish that the privilege attaches. 

See Helm, 2010 WL 2951871, at *1 (noting that without the author of a document it is impossible 

to determine whether a document or communication has been provided to third parties as required 

to establish the privilege attaches). 

Yahoo’s claim that “Yahoo” as the only custodian without any specific person identified 

as either the author or custodian of the document is similarly unavailing, especially when the 

communications cited fail to identify a single specific attorney or employee acting at the direction 

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of an attorney. Yahoo concedes that more than half of the exemplar entries in this category contain 

no person’s name in either the custodian or author field. This is patently different than Baxter 

Healthcare Corp. v. Fresenius Med. Care Holding, Inc., 2009 WL 533124, at *1 (N.D. Cal. Mar. 

3, 2009), where the author was an attorney and it was simply unclear which of several attorneys at 

a particular law firm a communication or memo had been directed. If the reason this information 

is being withheld is because Yahoo simply cannot identify from metadata or other available 

sources who the author is, then Yahoo has failed to meet its burden and no privilege attaches. See 

Carlson, 2017 WL 3581136, at *17; see also In re Pac. Pictures Corp., 679 F.3d at 1126; Bergonzi, 

216 F.R.D. at 493. 

2. Attachments Lacking an Independent Basis for Privilege 

Yahoo argues that it is not required to separately log attachments because California law 

treats a parent email and any attachments as “one full communication to which the attorney-client 

privilege attaches.” ECF No. 283 at 13.1

 In support of this claim, Yahoo cites Ritchie v. Sempra 

Energy, No. 10CV1513-CAB(KSC), 2015 WL 12912030, at *6 (S.D. Cal. June 11, 2015). In 

Richie, the Southern District of California determined that attachments could potentially be 

withheld even if they were not independently privileged if transmitted by an attorney to a client as 

part of the rendering of legal advice. See id. (quoting Costco Wholesale Corp. v. Superior Court, 

47 Cal. 4th 725, 733 (Cal. 2009)). But such a statement does not absolve Yahoo of the duty to 

separately establish that the privilege attaches for these attachments. Travelers Prop. Cas. Co. of 

Am., 2015 WL 11438186, at *6–7 (granting motion to compel under California law for attachments 

for which privilege was not established separately). In addition, most of the entries on the logs 

simply are not the type of direct attorney-client communication contemplated by Richie or Costco. 

Rather, they are documents with no author, no named custodian, and which appear on their faces 

to be dealing with business, rather than legal advice. Such attachments are not privileged and must 

 

1

 Yahoo incorrectly argues that Plaintiffs raise this argument for the first time in this motion; this 

is simply untrue, as Plaintiffs have raised the claim from their very first letter. See Ex. 2 at 13. The 

issue was also raised at the August 8, 2018 hearing, with no surprise by Yahoo’s counsel. See Tr. 

at 14. 

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be separately produced. See L.A. Cty. Bd. of Supervisors v. Sup’r Court, 2 Cal. 5th 282, 294 (Cal. 

2016). 

3. Non-Responsive Privileged Family Members 

Yahoo argues that it is not required to produce entries described only as a “Non-Responsive 

Privileged Family Member,” with no independent privilege or protection assertion, because they 

were not produced to the SEC, and are thus not responsive to Request for Production 47. As an 

initial matter, Yahoo cannot argue that all emails and their attachments should be considered one 

“communication” for purposes of analyzing attachments and then withhold these documents; 

under Yahoo’s own theory, they would be responsive as completing the transmission. See supra. 

Additionally, these documents are responsive. Yahoo agrees that all documents on the SEC 

logs are documents that were responsive to the SEC’s requests but withheld on privilege grounds, 

and are thus responsive to Request No. 47. Whether or not Yahoo calls them “Non-Responsive” 

on its SEC logs, the completeness doctrine and context mandates that they be produced together, 

and as a result, are responsive to Plaintiffs’ Request. See, e.g., S2 Automation LLC v. Micron Tech., 

Inc., 2012 WL 3656454, *25 (D.N.M. Aug. 9, 2012). The analogy to a “relevance redaction” thus 

follows: if an email and its attachments should be considered together in order to fairly consider 

context, then unilaterally withholding one portion is equivalent to doing the same in individual 

documents and should be rejected as improper. As a result, these documents should be produced 

or independently logged. 

4. Vague Descriptions 

Despite multiple amendments to its five privilege logs, Yahoo still has documents that have 

only the description ““Communication from in-house counsel reflecting legal advice about 

undisclosed topic;” and “Communication reflecting legal review regarding legal strategy.” See Log 

I.D. # 24938; Log I.D. ##8328-30. These entries are simply not adequate to establish privilege, 

and Yahoo provides no argument to the contrary. 

Yahoo argues that its entries that contain only a description that they “reflect” or “enable” 

legal advice are appropriate. Yahoo is incorrect, and its cited case law to the contrary is unavailing. 

For example, in Kintera, the claim that documents were “Confidential communication reflecting 

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legal advice and written at the direction of counsel for the purpose of obtaining information 

necessary to provide legal advice related to this litigation,” was supported by factual declarations, 

additional information about the creation and maintenance of confidentiality, and complete author 

and recipient information. See Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 515 & n.3 (S.D. Cal. 

2003). The same was true for Chrimar Sys. Inc v. Cisco Sys. Inc., 2016 WL 1595785, at *4 (N.D. 

Cal. Apr. 21, 2016). Here, on the other hand, many of the documents “reflecting legal advice” 

contain no information about the document or communication’s author, attorney involvement, or, 

in some cases, no person as an identified custodian. See, e.g., Doc ID #8946; Doc ID #28112; 

MDL_Priv_00668; MDL_Priv_00782. And many simply do not contain sufficient additional 

description. See, e.g., MDL_Priv_02000 (“Communication among employees and consultants 

providing information to enable the rendering of legal advice re: breach investigation.”). James 

involves log entries where “legal advice was either sought or given,” not “reflected” or “enabled.” 

James v. UMG Recordings, Inc., 2014 WL 555179, at *3 (N.D. Cal. Feb. 10, 2014).2

 

This motion is limited to facial deficiencies. Plaintiffs are not advancing their substantive 

arguments regarding business/technical advice or the crime-fraud exception. Rather, Plaintiffs 

argue that, given the vague nature of the descriptions given, it is impossible for Plaintiffs or the 

Court to assess whether the “dominant purpose of the relationship” is legal. See ECF No. 283 at 

14 (quoting Richie, 2015 WL 12912030, at *7). A document being withheld on the basis of a 

privilege log entry that describes advice related to “consultant security assessment and analysis” 

may or may not be privileged depending on the underlying document and the advice being given. 

See, e.g., MDL_Priv_01716. But without a fully adequate description or referenced attorney, such 

an assessment is not possible. Accord Kelly, 2009 WL 10664172, at *5. The same is true for the 

crime-fraud exception. 

Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion to Compel. 

 

2

 Yahoo is also incorrect that Plainitffs failed to raise deficiencies with the Second Log before this 

motion. The Second Log is referenced throughout the letters. See, e.g., Ex. 2 (referencing the 

Second Log as having the same deficiencies as others). The telephone meet and confers between 

the parties also included explicit statements by Plaintiffs that all deficiencies identified applied to 

all logs. 

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DATED: August 29, 2018 MORGAN & MORGAN 

COMPLEX LITIGATION GROUP

John A. Yanchunis 

s/ John A. Yanchunis 

 John A. Yanchunis

201 N. Franklin Street, 7th Floor 

Tampa, FL 33602 

Telephone: 813/223-5505 

813/223-5402 (fax) 

ROBBINS GELLER RUDMAN 

 & DOWD LLP 

Stuart A. Davidson 

 120 East Palmetto Park Road, Suite 500 

Boca Raton, FL 33432 

Telephone: 561/750-3000 

561/750-3364 (fax)

CASEY GERRY SCHENK FRANCAVILLA 

 BLATT & PENFIELD LLP 

Gayle M. Blatt 

110 Laurel Street 

San Diego, CA 92101 

Telephone: 619/238-1811 

619/544-9232 (fax) 

MILBERG TADLER PHILLIPS 

GROSSMAN LLP 

Ariana J. Tadler 

One Pennsylvania Plaza, 19th Floor 

New York, NY 10119 

Telephone: 212/594-5300 

212/868-1229 (fax) 

 

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s/ Kate M. Baxter-Kauf

 Kate M. Baxter-Kauf 

LOCKRIDGE GRINDAL NAUEN P.L.L.P.

Karen Hanson Riebel 

Kate M. Baxter-Kauf 

100 Washington Ave. South, Suite 2200 

Minneapolis, MN 55401 

Telephone: 612/339-6900 

612/339-0981 (fax) 

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CERTIFICATE OF SERVICE 

I hereby certify that August 29, 2018, I authorized the electronic filing of the foregoing 

with the Clerk of the Court using the CM/ECF system which will send notification of such filing 

to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify 

that I caused to be mailed the foregoing document or paper via the United States Postal Service to 

the non-CM/ECF participants indicated on the attached Manual Notice List. 

I certify under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct. Executed on August 29, 2018. 

s/ Kate M. Baxter-Kauf

 Kate M. Baxter-Kauf 

LOCKRIDGE GRINDAL NAUEN P.L.L.P.

Karen Hanson Riebel 

100 Washington Ave. South, Suite 2200 

Minneapolis, MN 55401 

Telephone: 612/339-6900 

612/339-0981 (fax)

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