Netskope, Inc. v. Fortinet, Inc.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NETSKOPE, INC.,
Plaintiff,
v.
FORTINET, INC.,
Defendant.
Case No. 22-cv-01852-TLT (AGT)
DISCOVERY ORDER
Re: Dkt. No. 209
Netskope requested production of certain emails sent or received by John Whittle, a
Fortinet executive who has held both business and legal counsel roles. Netskope seeks dis-
covery into Whittle’s internal communications pertaining to the patents at issue in this case,
pre-litigation licensing negotiations with Netskope, and negotiations with other companies.
Netskope asserts that these communications are relevant to Netskope’s affirmative defenses
(such as unclean hands) and to the value of the patents.
Fortinet has refused to produce the requested emails and instead offered to produce
only emails sent externally regarding the relevant patents, Netskope, and the other compa-
nies. The internal emails on those topics, Fortinet asserts, are either 1) privileged as attorney-
client communications or attorney work product, because all of Whittle’s communications
on those topics are inherently legal advice, or 2) irrelevant. Therefore, Fortinet asserts it
would be unduly burdensome to produce the documents and create a privilege log.
The Court finds that the communications Netskope seeks are likely relevant, under
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the broad standard of relevance of Federal Rule of Civil Procedure 26. Whittle was the
signatory on contractual agreements with other companies and was involved in pre-litigation
negotiations with Netskope. It is plausible that his emails contain information relevant to,
at least, Netskope’s affirmative defenses. See Dkt. 180 at 2.1
However, even relevant communications may be withheld if they are privileged.
“When a party withholds information otherwise discoverable by claiming that the infor-
mation is privileged,” the party must “describe the nature of the documents, communica-
tions, or tangible things not produced or disclosed[.]” Fed. R. Civ. P. 26(b)(5)(A). This
requirement is typically met through the production of a privilege log that “describe[s] the
nature of the documents, communications, or tangible things not produced or disclosed[.]”
Id. 26(b)(5)(A)(ii); see AGT’s Civil Standing Order § VII.D (listing privilege log require-
ments). Privilege logs must be specific: “blanket refusals inserted into a response to a Rule
34 request for production of documents are insufficient to assert a privilege.” Burlington N.
& Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005).
The party asserting the privilege bears the burden of establishing the privileged nature of the
communication. See United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009).
Fortinet has not produced a privilege log but denies that it is asserting a blanket priv-
ilege. Instead, Fortinet contends that it would be overly burdensome to produce a privilege
log because all or nearly all of Whittle’s relevant communications are privileged. Therefore,
Fortinet claims that “Netskope’s broad request is not proportional to the needs of the case.”
Dkt. 209 at 6.
The Court is unpersuaded by Fortinet’s arguments. First, though Whittle has worked
1 Pagination, here and throughout, refers to ECF-generated page numbers.
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as in-house counsel for Fortinet, it does not follow that his emails are automatically privi-
leged. Privileges are an exception from the normally liberal discovery standard and must be
strictly construed. See Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 24 (9th
Cir. 1981). “[Attorney-client] privilege does not protect an attorney's business advice. Cor-
porations may not conduct their business affairs in private simply by staffing a transaction
with attorneys.” United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D.
Cal. 2002). It seems entirely possible that Whittle has emailed relevant, non-privileged busi-
ness advice to colleagues at some point, particularly given his dual roles at Fortinet.
Netskope need not take Fortinet’s assertion to the contrary at face value—that is the purpose
of a privilege log. By failing to produce a privilege log, Fortinet has effectively asserted a
blanket privilege over all of Whittle’s internal communications, without stating whether it is
asserting attorney-client privilege or work product privilege (or both, or something else) over
specific emails. This is improper.
Second, Fortinet asserts that producing the emails would be unduly burdensome, but
this “effectively is a blanket privilege objection, since defendant's claim of burden rests on
general assertions regarding the existence of privileged material.” Green v. Baca, 219
F.R.D. 485, 491 (C.D. Cal. 2003) (emphasis in original). Further, Fortinet has not quantified
this potential burden by providing, for example, hit counts to Netskope’s proposed email
search terms, despite Netskope’s requests to do so. Thus, Fortinet’s burden claims must fail.
“Although it may be time-consuming to specifically assert the attorney-client or work prod-
uct privilege in a document intensive litigation, the courts nevertheless clearly require such
specific identification.” Eureka Fin. Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179,
183 (E.D. Cal. 1991).
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For these reasons, the Court ORDERS that Fortinet produce the requested emails by
November 28, 2025. See Dkt. 208-10, Ex. J, at 20 (describing email search terms). The
Court finds Netskope’s proposed search terms are reasonable and proportionate in the ab-
sence of any specific proof of burden by Fortinet. If Fortinet asserts privilege over any of
the emails, it must produce a privilege log in compliance with the undersigned’s standing
order.
IT IS SO ORDERED.
Dated: November 14, 2025
______________________________
Alex G. Tse
United States Magistrate Judge
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