Defendants' Motion in Support of Privilege Claim  🔗 **Source:** [Defendants' Motion in Support of Privilege Claim](https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.285.0_1.pdf) > [!note]+ Document Notes > tags: [attorney-client-privilege, discovery-dispute, trademark-strategy, slack-communications, wordpress-governance, privilege-clawback, in-house-counsel, woocommerce-trademark] > author: Defendants (Automattic Inc., Matthew Charles Mullenweg, WooCommerce Inc.) > source: CourtListener RECAP - N.D. Cal. 4:24-cv-06917-AMO > filing_type: motion > docket: 285.0_1 > > # 🏷️ Defendants' Motion to Protect Privileged Slack Communications on WooCommerce Trademark Strategy > > # 🧭 Table of Contents > - [References](#references) > - [Summary](#summary) > - [Main Content](#main-content) > - [Governance Digest](#governance-digest) > - [Analysis Sections](#analysis-sections) > > # 🔗 References > **Dockets:** 285 (this motion), 145 (Rule 502(d) order) > **Rules:** Federal Rule of Evidence 502, FRCP discovery rules > **Cases:** In re Grand Jury (9th Cir. 2021), AT&T Corp. v. Microsoft Corp., Upjohn Co. v. United States, In re Uber Technologies, Inc. > **Hearing:** June 24, 2026, 1:30 p.m., Judge Ajay S. Krishnan > > # 📝 Summary > Automattic seeks to protect attorney-client privilege over internal Slack communications (Bates A8C00706108-A8C00706110) from July 24, 2024, in a channel called "trademark-wpe-privileged." The communications involve business personnel discussing a legal strategy presentation deck prepared by WooCommerce's in-house counsel regarding trademark enforcement against WP Engine. Automattic initially produced a partially redacted version but clawed it back during CFO Mark Davies' deposition after recognizing the privilege issue. This filing reveals how WordPress trademark strategy was developed through confidential legal channels involving both Automattic executives and counsel, with significant implications for WordPress governance transparency. > > # 📖 Main Content > <!-- deep-read:sections start --> ## 🗒️ Notes **Privileged Channel Structure:** - "trademark-wpe-privileged" Slack channel created specifically for legal communications - Limited access: CEO Mullenweg, interim GC Jordan Hinkes, CFO Mark Davies, plus counsel-selected participants - 147 total communications, with privilege claimed over 135 (92%) **Legal Strategy Development:** - WooCommerce counsel Neil Peretz authored "Trademark Strategy" document - Jesse Friedman (business employee) collaborated to create presentation deck - Business personnel provided operational knowledge for legal advice - All deck versions prepared at counsel's direction **Clawback Incident:** - Original production partially redacted (failed to redact 11 of 12 non-lawyer comments) - WP Engine used document as deposition exhibit for CFO Davies - Automattic counsel noted privilege issue during deposition break - Full clawback asserted under Rule 502(d) procedures - WP Engine challenged after May 13, 2026 meet-and-confer **Privilege Arguments:** - Communications facilitated legal advice on trademark enforcement - Business participants acted as "necessary corporate intermediaries" - Channel name included "privileged" showing intent - Strict access controls maintained confidentiality - No independent business purpose beyond legal consultation # 📚 References - Hinkes Declaration (Jordan Hinkes, Automattic interim/permanent General Counsel) - Dore Declaration (Michael Dore, Gibson Dunn attorney) - Rule 502(d) clawback procedures (Dkt. 145) - WooCommerce Trademark Strategy document (withheld as privileged) # 🗣️ Paraphrase Automattic accidentally gave WP Engine a Slack conversation where executives discussed legal strategy about going after WP Engine for trademark issues. The conversation happened in a private channel that included lawyers and was meant to be confidential legal planning. When WP Engine tried to use it in a deposition, Automattic's lawyers said "wait, that's privileged" and asked for it back. WP Engine said no, so now they're asking a judge to decide if the conversation should stay secret under attorney-client privilege rules. # 📰 Governance Digest Behind closed digital doors, WordPress trademark enforcement strategy took shape in summer 2024 through a carefully constructed Slack channel mixing legal counsel with business executives. The "trademark-wpe-privileged" channel reveals how WordPress governance decisions flow through confidential legal processes, raising questions about transparency in an open-source ecosystem. When 92% of your strategy communications need privilege protection, perhaps your "open" governance model has some explaining to do. # 🧪 Hypotheses 1. **Governance Opacity Hypothesis:** WordPress trademark decisions systematically exclude community input through privileged legal channels 2. **Strategic Coordination Hypothesis:** Automattic/WooCommerce trademark enforcement involves coordinated legal-business planning beyond public governance processes 3. **Foundation Independence Hypothesis:** WordPress Foundation trademark enforcement decisions may be influenced by privileged Automattic strategy discussions 4. **Discovery Control Hypothesis:** Privilege claims will be used strategically to limit disclosure of WordPress governance decision-making processes 5. **Ecosystem Control Hypothesis:** Trademark strategy discussions reveal centralized control mechanisms inconsistent with open-source governance rhetoric # 📊 Methodology **Evidentiary Basis:** Two sworn declarations from legal counsel (Hinkes, Dore) providing personal knowledge of Slack channel creation, participation, and legal strategy development. **Procedural Posture:** Post-discovery motion under Rule 502(d) clawback procedures following deposition incident and failed meet-and-confer. **Personal Knowledge:** Hinkes declares direct involvement as interim General Counsel; Dore declares knowledge of clawback circumstances as litigation counsel. # ❓ Questions - How many other "privileged" channels exist in WordPress governance? - What role does WordPress Foundation play in trademark strategy if WooCommerce counsel leads enforcement? - Why did Automattic's initial production review miss obvious privilege issues? - How does privileged legal planning square with open-source governance principles? - What other trademark enforcement actions emerged from this July 2024 strategy session? - Who ultimately controls WordPress trademark enforcement decisions—Foundation or Automattic? # 🔮 Future Research **Litigation Threads:** Court's privilege ruling will establish boundaries for WordPress governance discovery; other privilege disputes likely pending. **Governance Threads:** WordPress Foundation's independence in trademark matters; community transparency in ecosystem governance; role of legal strategy in open-source control mechanisms; Automattic's influence over nominally independent WordPress entities. # 💡 Implications **Practice:** WordPress developers should understand trademark enforcement operates through privileged legal channels, not transparent governance processes. **Policy:** Open-source governance models may systematically exclude legal strategy from community oversight. **Security:** Trademark enforcement decisions affecting plugin developers lack transparent decision-making processes. **Education:** WordPress community needs awareness of how legal strategy shapes ecosystem governance behind closed doors. # 🧠 Learning Styles Assessment **Visual:** Court filing structure with clear headings and legal citations. **Aural:** Would benefit from oral argument discussion. **Verbal:** Heavy legal terminology requiring WordPress context. **Kinesthetic:** Abstract legal concepts without hands-on elements. **Logical:** Strong legal reasoning structure and precedent analysis. **Social:** Collaborative legal strategy discussions revealed. **Solitary:** Individual study of privilege doctrine required. **Naturalistic:** Pattern recognition in privilege application across communications. **Reading Level:** Graduate/professional (legal terminology, complex sentence structure, specialized knowledge required). # 📊 Accessibility Assessment **Structure:** Well-organized with clear headings and numbered sections. **Extractability:** Text-extractable PDF with proper formatting. **Navigation:** Standard court filing structure with table of contents. **WCAG 2.2 AA:** Likely compliant for text content; legal document format may challenge some users. **Artifacts:** Minimal formatting artifacts; clean legal document structure. # 🌍 DEIB Assessment **Cultural Breadth:** Limited to US legal framework and corporate governance culture. **Inclusive Language:** Standard legal terminology; no apparent bias. **Neurodiversity Support:** Dense legal text may challenge attention differences; clear structure helps navigation. **Representation:** Male-dominated legal team; limited diversity visible. **Psychological Safety:** Legal adversarial context inherently creates tension; professional tone maintained. # ✅ Logical Validity **Strong Reasoning:** Clear application of attorney-client privilege doctrine to specific factual circumstances. **Fallacies:** None detected; argument follows established legal precedent and procedure. **Tone:** Professional, defensive but measured; appropriate for privilege dispute context. # 🛡️ DARVO Analysis Not applicable to this source. This is a legal privilege motion defending confidentiality rights rather than addressing misconduct allegations or victim-offender dynamics. # 🎯 Conclusion This privilege fight exposes the tension between WordPress's open governance rhetoric and its closed legal decision-making reality. Automattic's need to protect 92% of its trademark strategy communications suggests WordPress governance operates through privileged channels that systematically exclude community oversight. **Watch Next:** Judge Krishnan's June 24 ruling on privilege scope and any similar privilege disputes over WordPress governance communications. # 🧱 Refactor Appendix ## 📚 Literature Atoms > [!quote] Channel Purpose and Control > "The 'trademark-wpe-privileged' Slack channel was created for the specific purpose of facilitating privileged communications regarding WooCommerce's legal strategy concerning WP Engine—not for general business planning, operational decisions, or any purpose other than facilitating privileged legal communications between counsel and the client personnel whose input was necessary to that legal advice." (Hinkes Decl. ¶ 6) > [!quote] Governance Through Legal Strategy > "Neil Peretz served as in-house counsel at WooCommerce from October 2022 to November 2024... Mr. Peretz was responsible for providing legal advice to WooCommerce regarding its trademark rights and potential enforcement actions against WP Engine, including a potential cease-and-desist letter and related litigation strategy." (Hinkes Decl. ¶¶ 4-5) > [!quote] Discovery Scope > "Of the 147 Slack communications produced from this channel, Defendants are asserting privilege over 135—demonstrating the consistently privileged nature of the channel's communications and the good-faith, tailored scope of Defendants' privilege assertion." (Hinkes Decl. ¶ 6) ### 🧠 Permanent Candidates - **Privileged Governance:** WordPress trademark decisions operate through confidential legal channels - **Channel Architecture:** Systematic use of privilege-marked communication channels for strategy - **Legal-Business Integration:** Coordinated planning between counsel and executives in open-source governance - **Discovery Resistance:** Strategic use of privilege claims to protect governance decision-making processes ## ✏️ Fleeting Queue - Connection between WooCommerce trademark strategy and WordPress Foundation independence claims - Pattern of privilege assertions across WordPress governance communications - Relationship between "nuclear war" rhetoric and systematic legal strategy development - Timing of July 2024 strategy session relative to public WordPress governance actions <!-- deep-read:sections end --> 📄 **Full text:** ![[Full Document Contents/Articles/Defendants' Motion in Support of Privilege Claim.md|Defendants' Motion in Support of Privilege Claim by WPGINE, INC., AUTOMATTIC, INC., MATTHEW CHARLES MULLENWEG, WORDPRESS FOUNDATION, WOOCOMMERCE INC.]] ## Highlights - 2 MOTION IN SUPPORT OF PRIVILEGE CLAIM CASE NO. 4:24-CV-06917-AMO 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 Gibson, Dunn & Crutcher LLP **PLEASE TAKE NOTICE** that on June 24, 2026 at 1:30 p.m. Pacific time, or as soon as the matter may be heard, in Courtroom 4, 3rd Floor, United States District Court, 1301 Clay Street, Oakland, California, before the Honorable Ajay S. Krishnan, Defendants Automattic Inc., Matthew Charles Mullenweg, and WooCommerce Inc. (collectively, "Defendants"), will and hereby do move this Court to find the document identified with Bates numbers A8C00706108 through A8C00706110 as attorney-client privileged pursuant to Federal Rule of Evidence 502. This Motion is made pursuant to the Court's Rule 502(d) Order (Dkt. 145) and is based on this Notice of Motion and Motion, the following Memorandum of Points and Authorities in support thereof, the Declaration of Jordan Hinkes, the Declaration of Michael Dore, and such documentary and oral evidence as may be presented at or before the hearing on this motion. DATED: May 20, 2026 By: /s/ *Michael H. Dore* Michael H. Dore *Attorney for Defendants Automattic Inc., Matthew Charles Mullenweg, and WooCommerce Inc. and Counterclaimant WordPress Foundation* ([View Highlight](https://read.readwise.io/read/01ksfvh2kex9294ahnhck09b81)) - Note: Docket 285: Defendants' motion to uphold privilege (FRE 502) over clawed-back document; hearing June 24. - Tags: wp-engine-automattic, legal