Party Discovery: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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CARROLL, BURDICK &

MeDonouGe LLP:
Arronners at base
SAN FRANCISCO

Garrett Sanderson HI, Bar No. 131026
gsanderson@cbmlaw.com

Jonathan Yank, Bar No. 215495
jyank@cbmlaw.com

Peter H. Cruz, Bar No. 220850
peruz@cbmlaw.com

CARROLL, BURDICK & McDONOUGH LLP

Attorneys at Law

44 Montgomery Street, Suite 400
San Francisco, California 94104
Telephone: 415.989.5900
Facsimile: 415.989.0932

Attorneys for Defendant Volkswagen Group of

America, Inc.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 21 2014

Clerk of the Court
BY: EDNALEEN JAVIER
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and NANCY KARIDIS-
KOEPKE,

Plaintiffs,
v.
FORD MOTOR COMPANY, et al.,
Defendants.

Case No. CGC-13-276217

OPPOSITION TO MOTION TO COMPEL
DEFENDANT VOLKSWAGEN GROUP OF
AMERICA, INC. TO PROVIDE FURTHER
DEPOSITION TESTIMONY OF PMQ WITNESS
ROBERT CAMERON

Date: April 29, 2014

TIME: 9:00 A.M.

Derr.: 503

Action Filed: December 3, 2013
Trial Date: June 16.2014

OPPOSITION TO MOTION TO COMPEL DEFENDANT VOLKSWAGEN GROUP OF AMERICA, INC. TO PROVIDE FURTHER
DEPOSITION TESTIMONY OF PMQ WITNESS ROBERT CAMERONCO 2 IW DW B® WN we

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Iv.

TABLE OF CONTENTS

INTRODUCTION
FACTUAL BACKGROUND
ARGUMENT
A. Defendant VWGoA Will Permit Mr. Cameron to Answer Limited
Foundational Questions Concerning Conversations Not Involving Attorneys
and Regarding the Timing, Location, and Frequency of Meetings Involving
VWGoA and VWGA Staff and Attorneys oo. eeesssstestesseseesessseesecseesaneseneaeneeneene 3
B. Defendants’ Question Regarding the Subject Matter of All Conversations
With VWAG Corporate Officers Over the Span of Two Decades Goes
Beyond the Scope of the Deposition Notice and Is Vastly Overbroad and
Harassing ......sccssssccesescssseessvesesseverssessssercurnsreeecessvesdessaseesseeneesaeeceepeaseeeeesesesentsepenenseees 4
c. Because Communications Between Mr. Cameron and Attorneys for VWAG
Are Protected by the Attorney-Client Privilege, Questions Regarding the
Substance of Those Communications Must Be Disallowed .
D. Because the Privilege at Issue Belongs to VWAG and VWGoA, Questions
as to Whether Mr. Cameron Believed He was “Represented” by Attorneys
for Those Companies Are Irrelevant and Should Be Disallowed .........ccsecssosseesenee 9
E. Mr. Cameron Did Not Clearly and Unmistakably Waive VWGoA and
VWAG’s Attorney-Client Privilege
CONCLUSION wo..sesecsscessseesesssecsssssessseessecsnsessscsecasesssessecsneatecssecsaseaesussaearsesedtastssecseneesneerrassens il

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TABLE OF AUTHORITIES

Page(s)

Cases

Bank of America, N.A. v. Superior Court of Orange County
(2013) 212 Cal.App.4th 1076

Cooke y. Superior Court
(1978) 83 Cal.App.3d S82 .cccccscsssssscssssssessssssssescssissostsenessesienstssssseestiestesseeiestneetee 6

Costco Wholesale Corp. v. Superior Court
(2009) 47 Cal. 4th 725 ...ccccccccssssessessesseessessseesssessssnesciessusssseesauesessveneaucancsassnesseavsensssesresnress 6,8

First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co.
(N.D.Cal.1995) 163 FIR.D. 574 oceesceesssesseesssesssessssssssneesneavasesecsesesnesnsssnscsesqunseaneqsacenneenseess 8

Insurance Company of North America v, Superior Court
(1980) 108 Cal App.3d 758... escsssesecssesssesssseesssocssseessucssscsusecsneessapersneessecssanerssssesst 7, 8,9

Oxy Resources California LLC v. Superior Court
(2004) 115 Cal.App.4th 874..

State Compensation Ins. Fund v. WPS, Inc.
(1999) 70 Cal. App.4th 644... cise cssssecsseecsnesssssesseeesneesessesnsscseteessesseecnvecerssneeneeesaee® 10, 11

Wells Fargo Bank v. Superior Court
(2000) 22 Cal.4th 201

Statutes

Evidence Code
section 952.

Evidence Code

SOCHON 91 7(A) ssccccsseeseesersnerseecsssvesssesapeeseesessvesessnesesesssssseeecesnssesnsbaesserseeressenueeneessesneareaneees 6,8
Evidence Code
SOCHON 954 (a) aceceesrecsesessessesscerssssssssesssesssersssersnssssecsscsussusseneeasereneeneenesseeesaneeneenesnecteenese 9,10
aii

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Avtonnars af Law
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1
INTRODUCTION

It is well-established that legal communications between an attorney for a parent or
subsidiary company and a representative of either company are protected by the attorney-client
privilege. For that reason and because additional subject matter sought by Plaintiffs is irrelevant
to this litigation and/or not referenced in the deposition notice, Plaintiffs’ motion to compel
disclosure of the substance of discussions that Bob Cameorn had with attorneys for Defendant
Volkswagen Group of America (“VWGoA”) and Volkswagen AG (“YVWAG”), as well as other
matters that are irrelevant to this case, should be denied.

I.
FACTUAL BACKGROUND

Defendant VWGoA is a wholly-owned subsidiary of VWAG. (Declaration of Robert
Cameron [“Cameron Decl.”], 43; Declaration of Garrett Sanderson III [Sanderson Decl.”], 4.)
VWAG, the parent company, designs and manufactures most Volkswagen automobiles.
(Cameron Decl., {| 5; Sanderson Decl., § 4.) VWGoA, the subsidiary, is the importer and
distributor of Volkswagen vehicles in the United States. (Cameron Decl., 5; Sanderson Decl., |
4.) Lawsuits involving defect allegations, including asbestos-related personal injury claims,
implicate a common interest between these two entities, based on their respective roles involving
Volkswagen automobiles. (Cameron Decl., {| 5; Sanderson Decl., #3, 4, and 7 .)

Robert Cameron heads the “Product Liaison” group at VWGoA. (Cameron Decl.. 23.
Sanderson Decl., § 8.) Mr. Cameron was produced as a “person most qualified” in this matter on
subjects in plaintiffs’ deposition notice that are relevant to this case and has already provided two
full days of deposition testimony, consuming more than 15 hours of on-record time, and 687 pages
in a two volume iranscript. (Sanderson Decl., {8 and 9.) During those two days of deposition,
Plaintiffs’ counsel was permitted to question Mr. Cameron extensively on matters relevant to this
case. (Sanderson Decl., 9.) The present dispute stems primarily from questions asked by
Plaintiffs’ counsel pertaining to confidential communications involving Mr. Cameron in his

capacity as an employee of VWGoA and attorneys for VWGoA and VWAG, as well as questions

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concerning whether those attorneys represented Mr. Cameron individually during those
discussions. (See Plaintiff's CRC 3.1345 Separate Statement in Support of Motion to Compel
Further Deposition Testimony from Robert Cameron [‘Plaintiff's Separate Statement”], Item Nos.
2-5, 6-8, 9, 10, 14, 18-19.)

One of the primary roles of the VWGoA Product Liaison group is to serve as the liaison
between the company and counsel representing VWGoA in products liability actions. (Cameron
Decl., 2.) In his capacity as head of the Product Liaison group, Mr. Cameron has periodically
met to discuss legal matters with attorneys for VWGoA and/or VWAG and with company
engineers, (Cameron Decl., {4 2 and 5.) These meetings are confidential, and it is expressly
stated at the outset that discussions therein are intended to be confidential and remain confidential.
(Cameron Decl., § 5.) Legal advice is provided during these meetings, and the opinions,
impressions, and strategies of counsel are communicated as well. (Cameron Decl., € 5.)

During Mr. Cameron’s deposition, counsel for Plaintiffs repeatedly asked questions
regarding the substance of those meetings and whether Mr. Cameron or others at VWGoA were
“represented” by the attorneys involved in those meetings. (Plaintiff's Separate Statement, Item
Nos. 4-5, 7, 9, 10, 14, 18-19.) Plaintiffs’ counsel continued to badger Mr. Cameron with such
questions, even afier counsel for VWGoA repeatedly objected and instructed him not to answer on
the grounds that, inter alia, the subject matter of the meetings was protected by the attorney-client
privilege and work product doctrine, and that Mr. Cameron lacked foundation or legal Knowledge
to determine whether the attorneys “represented” him. (Plaintiff's Separate Statement, Item Nos.
4-5, 7,9, 10, 14; 18-19.)'

In spite of those well-founded objections, Plaintiffs now move to compe! Mr. Cameron to
answer questions regarding the substance of his discussions with VWGoA and VWAG attorneys.

Ud.) Plaintiffs also seek to compel Mr. Cameron to answer questions—over objections

' Plaintiffs also asked questions concerning various conversations not directly involving attorneys
and the timing, location, and frequency of meetings involving counsel, and Mr. Cameron was
instructed not to answer based on VWGoA’s counsel’s concerns that his responses would divulge
privileged information. As detailed in Section IILA., having assuaged those concerns, VWGoA
now agrees that Mr. Cameron can answer those questions.

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concerning breadth and relevance—about two decades worth of communications with VWAG
corporate officers and whether he believed he was personally represented by attorneys for VWAG
and/or VWGoA during confidential meetings discussing legal matters. (Plaintiff's Separate

Statement”, Item Nos. 1, 2-3, 6, and 8.)

TIL.
ARGUMENT
A. Defendant VWGeA Will Permit Mr. Cameron to Answer Limited
Foundational Questions Concerning Conversations Not Involving Attorneys
and Regarding the Timing, Location, and Frequency of Meetings Involving
VWGoA and VWGA Staff and Attorneys

During Mr. Cameron's deposition in this matter, he was asked a number of questions
concerning meetings with VWAG personnel outside the presence of counsel. (See Plaintiff's
Separate Statement, Item Nos. 15-17.) Plaintiffs’ counsel also asked Mr. Cameron a series of
questions concerning the timing, location, and frequency of meetings involving VWGoA and
VWAG staff and attorneys. (See Plaintiff's Separate Statement, Item Nos. 11-13.) Because
VWGoA’s attorneys were concerned that Mr. Cameron’s answers to those questions might reveal
protected information, he was instructed not to answer in order to preserve the attorney-client
privilege and work product protections. After meeting and conferring with counsel for Plaintiffs,
VWGoA has concluded that Mr. Cameron can answer those questions without revealing the
substance of privileged communications.

However, the categories in plaintiffs’ deposition notice do not include the subject matter of
the questions described supra. Furthermore, those questions arose solely during Mr. Cameron’s
testimony regarding why Volkswagen automobiles featured brakes containing chrysotile asbestos
prior to the transition to non-asbestos brakes (category 67) and in the context of questioning
pertaining to product safety warnings (category 74). Accordingly, those questions and any
answers to be provided by Mr. Cameron should be limited to foundational questions pertaining to

Categories 67 and 74.

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B. Defendants’ Question Regarding the Subject Matter of All Conversations
With VWAG Corporate Officers Over the Span of Two Decades Goes Beyond
the Scope of the Deposition Notice and Is Vastly Overbroad and Harassing

During Mr. Cameron’s deposition, the following colloquy occurred:

Q. During what decades have you talked to corporate officers from
Volkswagen AG?

A. 70s and 80s.
Q. What would you be talking to them about?

MR. SANDERSON: I’m going to instruct him not to answer. It’s beyond
the scope of the deposition notice.

(See Plaintiff's Separate Statement, Item No. 1.) Not one of the eighty-eight (88) subject-matter
categories in Plaintiffs’ deposition notice seeks testimony about any such conversations. The
instruction not to answer is proper.

Plaintiffs now assert that “[t]his question clearly pertains to notice categories 44, 49, 50,
and 52.” (See Plaintiff's Separate Statement, Item No. 1.) But category 44 related to
investigations conducted by VWGoaA to obtain information and documents sought in the
deposition notice. (Declaration of Ryan Harris, Exh. A, 11:2-3.) And categories 49 (business
relationship between VWAG and VWGoA, defined as mergers, purchase, acquisition, etc —to
which VWGoA objected), 50 (agreements between VWAG and VWGoA relating to the
manufacture, import and distribution of vehicles), and 52 (correspondence between VWAG and
VWGoA pertaining to the acquisition, purchase, or use of asbestos-containing friction products)
have nothing whatsoever to do with the question asked. (Declaration of Ryan Harris, Exh. A,
11:12-13.) The objection that the question asked went beyond the scope of the deposition notice
was, if anything, an understatement, and Plaintiffs’ motion to compel an answer to the question
should be denied.

CG Because Communications Between Mr. Cameren and Attorneys for VWAG

Are Protected by the Attorney-Client Privilege, Questions Regarding the
Substance of Those Communications Must Be Disallowed
Plaintiffs’ questions of Mr. Cameron directly sought the substance of meetings involving

confidential legal discussions among VWGoA and VWAG’s attorneys and agents:

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Q. And are you—are you ready to answer questions about the
conversation that you had with the lawyers for Volkswagen AG
regarding asbestos matters?

(See Plaintiff's Separate Statement, Item No. 4.)

Q. Are you prepared to answer questions regarding conversations that you
had with lawyers at Volkswagen AG regarding matters involving
asbestos?

(See Plaintiff's Separate Statement, item No. 5.)

Q. And tell me about that conversation [with lawyers from Volkswagen
AG about asbestos]. What did you talk about?

(See Plaintiff's Separate Statement, Item No. 7.)
Q, Now, did you and Dr. von Huelson [VWAG’s attorney] in the 1980s
talk matters related to asbestos?
(See Plaintiff's Separate Statement, Item No. 9.)
Q. Dr. von Huelson [VWAG’s attorney], from late -- 1969 until the late
1980s, how many conversations did you have with Dr. von Huelson of
Volkswagen AG regarding matters related to asbestos?
(See Plaintiff's Separate Statement, Item No. 10.)
Q. But as a result of that, the Volkswagen AG lawyers conferred with
you and your group about the matters that came up in that trial,
correct?
(See Plaintiff's Separate Statement, Item No. 14.)
Q Now, Mr, Brinkman, did you ever discuss with Mr. Brinkman any
asbestos matters?
(See Plaintiff's Separate Statement, Item No. 18.)
Q And, without telling me the substance of the conversation, have you
discussed asbestos with him?
(See Plaintiff's Separate Statement, Item No. 19.) Every one of the foregoing questions seeks
information regarding the subject matter of discussions at meetings involving VWGoA and
VWAG attorneys and personnel concerning pending and anticipated legal disputes. Those

communications are presumptively privileged, and Plaintiffs’ have presented no evidence capable

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of overcoming that presumption or the evidence submitted here by VWGoA supporting
application of the privilege.

The attorney-client privilege protects confidential communications with a lawyer, as well
as information transmitted to persons “present to further the interest of the client ... [and] to whom
disclosure is reasonably necessary for ... accomplishment of the purpose for which the lawyer is
consulted ....” (Evid. Code § 952.) “The law is that privilege extends to communications which
are intended to be confidential, if they are made to attorneys, to family members, business
associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of
the communication is reasonably necessary” to the legal representation. (Cooke v. Superior Court
(1978) 83 Cal.App.3d 582, 588.)

On the subject of the burden of proof relating to a claim that subject matter is protected by
the attorney-client privilege, Evidence Code section 917(a) provides:

Ifa privilege is claimed on the ground that the matter sought to be disclosed is a

communication made in confidence in the course of the lawyer-client, physician-

patient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assault

counselor-victim, or domestic violence counselor-victim relationship, the

communication is presumed to have been made in confidence and the opponent of

the claim of privilege has the burden of proof to establish that the communication
was not confidential.

Cd. [emphasis added].) Construing this provision in Costco Wholesale Corp. v. Superior Court
(2009) 47 Cal.4th 725, the California Supreme Court stated: “Once that party establishes facts
necessary to support a prima facie claim of privilege, the communication is presumed to have been

made in confidence and the opponent of the claim of privilege has the burden of proof to establish

the communication was not confidential or that the privilege does not for other reasons apply.”

(Ud, at 733 [emphasis added].) The prima facie claim is made by showing the existence of an
attorney-client relationship, that the communication related to the subject matter of the
representation, and that it was not “disclosed to a third party other than those ‘present to further
the interest of the client in the consultation or those to whom disclosure is reasonably necessary
for the transmission of the information....’” (Bank of America, N.A. v. Superior Court of Orange

County (2013) 212 Cal.App.4th 1076, 1100 [quoting Evid. Code § 952].)

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In regard to VWGoA’s establishment of a prima facie claim of privilege, the decision of
the Court of Appeal in Insurance Company of North America v. Superior Court (1980) 108
Cal.App.3d 758 is particularly instructive. There the appellate court addressed “the general
question whether under California law an officer or employee of a holding or affiliated company
can receive legal advice from counsel employed by a wholly-owned subsidiary or affiliate without
destroying the confidentiality of the attorney-client communication.” (/d. at 765.) The Court held
that the same rule applies if counsel for the parent is providing legal advice to a subsidiary or its
employees: “We conclude, at least in the instance of wholly-owned subsidiaries and affiliates, that
the presence of a representative of a parent or affiliated company at a legal briefing ofa
subsidiary, and vice versa, does not destroy confidentiality of communication between counsel
and client.” (/d. at 769-770 [emphasis added].) Thus, under the holding of Insurance Company of
North America, the privilege applies to communications made during confidential meetings
conducted by counsel for either company.

Insurance North America emphasizes that communications involving both VWAG and
VWGOoA personnel, with counsel present, are privileged because of this “unity of interest”
between separate legal entities in a parent-subsidiary relationship:

“The chain of command in military, business, government, and private societies .

is an accepted pattern of modern civilization.’ Such being the case,

simultancous delivery of legal advice to a subsidiary client and a controlling

parent company, a delivery which facilitates speed and accurate determination

of business policy by the parent, furthers the interests of the client in the

consultation. Because in a pragmatic sense the parent company can be viewed

as [the lawyer’s] ultimate client, the purpose of the consultation would be

served by permitting counsel to. simultaneously communicate with his direct

client and with his ultimate client. It is true that INA, the wholly-owned

subsidiary, is a separate legal entity from INA Corporation, the parent holding

company. Yet for purposes of confidential communication under section 952

there is sufficient unity of interest and identity between the parent company and

its wholly-owned operating subsidiary to make the presence of a representative

of the former at a legal briefing for representatives of the latter one which
furthers the interest of the client.

(id. at 768-769.) Because of this “unity of interest” between separate legal entities with a parent-
subsidiary relationship, it is of no consequence that the communications are with an attorney for

the subsidiary or an attorney of the parent company. Legal proceedings against a subsidiary

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company potentially affect the parent entity, which is itself sufficient to create such a “unity of
interest” for purposes of the attorney-client privilege.

Here, the evidence submitted by VWGoA establishes that the meetings about which
Plaintiffs seek testimony were intended to be confidential, concerned pending and anticipated
litigation in which VWGoA and VWAG had a common interest, and were between VWGoA and
VWAG attorneys and employees of those company whose presence was necessary to facilitate the
legal representation. (Cameron Decl., {9 2 and 5.) As such, the subject matter of discussions at

those mectings is presumptively privileged. (Evid. Code § 917(a); Costco Wholesale, supra, 47

|| Cal.4th at 733.)

Plaintiffs assert that, because VWGoA and VWAG are distinct entities, the discussions
involved disclosure to a third party and were therefore not privileged. However, due to their
parent-subsidiary relationship and unity of interest in the subject of the underlying legal issues,
“for purposes of confidential communication under section 952 there is sufficient unity of interest
and identity between the parent company and its wholly-owned operating subsidiary” to support
application of the privilege. (inswrance Company of North America, supra, 108 Cal.App.3d 758,
768-769.) Therefore, the fact that the two companies are distinct has no bearing on application of
the privilege.

Because the attorney-client privilege is supported both by the presumption established

under Evidence Code section 917 and by the undisputed evidence submitted by VWGoA,

2 Although not essential to finding the communications are privileged, the common interest
doctrine also preserves the privilege. “[T]he common interest doctrine is ... a nonwaiver doctrine,
analyzed under standard waiver principles applicable to the attorney-client privilege and the work
product doctrine.” (Oxy Resources California LLC v. Superior Court (2004) 115 Cal.App.4th
874, 889.) The doctrine provides that the attorney-client privilege is not waived by disclosure
involving a third party if the following circumstances exist: (1) “the communicated information
would otherwise be protected from disclosure by a claim of privilege” (/d. at 890); (2)
“participants in an exchange have a reasonable expectation that information disclosed will remain
confidential” (Id. at 891); and (3) “the two parties have in common an interest in securing legal
advice related to the same matter—-and that the communications be made to advance their shared
interest in securing legal advice on that common matter” (/d. [quoting First Pacific Networks, Inc.
v. Atlantic Mut. Ins. Co. (N.D,Cal.1995) 163 P.R.D, 574, 581)).

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Plaintiffs’ motion to compel Mr. Cameron to answer questions concerning meetings with VWGoA
and VWAG attorneys should be denied.

D. Because the Privilege at Issue Belongs to VWAG and VWGoA, Questions as to

Whether Mr. Cameron Believed He was “Represented” by Attorneys for
Those Companies Are Irrelevant and Should Be Disallowed

During the deposition, Mr. Cameron was asked several times whether be believed or
understood that the attorneys present at meetings with him and staff for VWAG and VWGoA
were there representing him personally or others at VWGoA. (See Plaintiff's Separate Statement,
Ttem Nos. 2-3, 6, and 8.) Plaintiffs claim that answers to those questions are necessary to explore
the basis of VWGoA’s asserted privilege objections. Plaintiffs are wrong because the privilege at
issue here is not Mr. Cameron’s, and his understanding of the answers to those questions has no
bearing on the existence of the privilege here.

The attorney-client relationship at issue here is that between VWAG, VWGoA, and their
attorneys, and it is well-established that “{t]he privilege belongs to the holder, which in this
context is the attorney’s client.” (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 213
[citing Evid.Code, § 954(a)].) Therefore, Mr. Cameron’s understanding as to whether VWAG’s
attorneys represented him or others at VWGoA and whether he had assisted them in asbestos
litigation has no bearing on the privileged nature of confidential meetings involving these
attomeys and their client representatives.

Rather, what is critical is that Mr. Cameron, the attorneys, and other client representatives
present at the meetings in question understood that the conversations were confidential, related to
issues underlying ongoing and anticipated litigation, and were for the purpose of facilitating legal
representation. (Cameron Decl., {2 and 5.) For those reasons and others discussed supra, the
communications during those meetings are privileged. (See Insurance Company of North
America, supra, 108 Cal.App.3d 758, 768-770; see also Oxy Resources, supra, 115 Cal.App.4th at
889-891.)

Because Mr. Cameron or others’ belief concerning their representation by attorneys for
VWGoA or VWAG are irrelevant, Plaintiffs’ motion to compel answers regarding such belief or

understanding should be denied.

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E, Mr. Cameron Did Not Clearly and Unmistakably Waive VWGoA and
VWAG’s Attorney-Client Privilege
Plaintiffs’ fanciful assertion that Mr. Cameron somehow waived VWGoA.and VWAG’s
attorney-client privilege and work product protection has no legs. In support of its waiver
argument, Plaintiffs cite a single question and answer in the March 28, 2014 transcript. (See
Plaintiffs’ Memorandum of Points and Authorities, 9:25-10:11.) The problem with Plaintiffs’
argument is that the question and answer do not reference privileged conversations with counsel

and, therefore, cannot establish a waiver of the privilege:

Q we
Did you ever go back and update the information about what VW of

America is informed and believes based on any information from Germany?

MR. SANDERSON: Objection. Assumes facts.

THE WITNESS: As I’ve testified to before, { think in this case yesterday,

and in many other cases that we did continually over the years in handling

these cases, we’re in discussions with VWAG and have repeatedly been

assured and still are assured from V WAG that the type of asbestos that we

have in our vehicles is not a safety hazard to our customers.

(Declaration of Ryan Harris, Exh. F, 457:8-15.)

And even if Mr. Cameron’s answer could be construed as referencing communications
with counsel, it would not meet Plaintiffs’ burden of establishing waiver. “A waiver is an
intentional relinquishment of a known right.” (Wells Farge, supra, 22 Cal. 4th at 211.) “A trial
court called upon to determine whether inadvertent disclosure of privileged information
constitutes waiver of the privilege must examine both the subjective intent of the holder of the
privilege and the relevant surrounding circumstances for any manifestation of the holder’s consent
to disclose the information.” (State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal-App.4th
644, 652-653.)

Here, the holders of the privilege are VWGoA and VWAG, not Mr, Cameron. (Wells
Fargo, supra 22 Cal.4th at 213 [“The privilege belongs to the holder, which in this context is the
attorney’s client.”] [citing Evid.Code, § 954(a)].) VWGoA and VWAG took all appropriate steps

to protect the privilege, including involving counsel in the discussions, allowing only necessary

employees to be present, and prefacing every meeting with statements that discussions were

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OPPOSITION TO MOTION TO COMPEL DEFENDANT VOLKSWAGEN GROUP OF AMERICA, INC. TO PROVIDE FURTHER
DEPOSITION TESTIMONY OF PMQ WITNESS ROBERT CAMERONOo Oo YN DH BW NY

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CARROLL, BURDICK &

McDonouci LLP
ATTORAEYS ATA
SAN FRANCISCO

confidential. (Cameron Decl., {5.) Furthermore, Mr. Cameron was neither authorized to nor
intended to waive the privilege. (Cameron Decl., § 6.) And VWGoA and VWAG specifically
invoke the privilege regarding those communications. (Sanderson Decl., ¥ 10.)

Taking account of “both the subjective intent of the holder of the privilege and the relevant
surrounding circumstances for any manifestation of the holder’s consent to disclose the
information” in this case, as we are required to do (see State Compensation Ins. Fund, supra, 70
Cal.App.4th at 652-653), there can be no finding of “an intentional relinquishment of a known
right” (Wells Fargo, supra 22 Cal.4th at 211). Therefore, Plaintiffs cannot establish that Mr.
Cameron waived VWGoA and VWAG’s attorney-client privilege and work product protections,
and Plaintiffs’ assertion to that effect should be rejected.

Iv.
CONCLUSION
For the foregoing reasons, and with the exception of those items conceded by VWGoA.

supra, Plaintiffs’ motion should be denied.

Dated: April 21, 2014 CARROLL, BURDICK & McDONOUGH LLP

Attorneys for Defendant Volkswagen Group of
America; Inc.

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OPPOSITION TO MOTION TO COMPEL DEFENDANT VOLKSWAGEN GROUP OF AMERICA, INC. TO PROVIDE FURTHER
DEPOSITION TESTIMONY OF PMQ WITNESS ROBERT CAMERON