The matter came before the court for a hearing on August 29, 2017. Based on the papers filed and arguments made, the court denies plaintiff's motion to compel, for the reasons that follow.

On July 14, 2016, plaintiff United States of America filed a complaint against defendants Tarek M. Al-Shawaf, James D. Nowlin, and Donna L. Nowlin. Plaintiff asserts claims arising from a wildfire that originated near Mountain Center, California on July 15, 2013 (“Mountain Fire”), and which spread onto federally-owned land. There are also seven consolidated lawsuits currently pending in Riverside County Superior Court arising from the facts underlying this case. See Boyer Decl. ¶ 2.

Al-Shawaf, a resident of Saudi Arabia, owns private property in Riverside County that is maintained by his employees James D. Nowlin and Donna L. Nowlin. On July 15, 2013, the Mountain Fire ignited on Al-Shawaf's private property and spread to National Forest System lands within the San Bernardino National Forest, which are under the supervision, control, administration, and protection of the United States Department of Agriculture. Investigators determined an improperly secured plastic electrical junction box on Al-Shawaf's property caused an electrical discharge to spread onto dry ground vegetation. As a result, the Mountain Fire ignited and spread by causing timber, trees, brush, and grass to burn.

The Forest Service suppressed the Mountain Fire after incurring substantial costs and damages, including to 15,000 acres of land. Plaintiff seeks payment of the costs and damages incurred from defendants in the amount of $25 million. Plaintiff raises common law tort claims and various California statutory violations against defendants.

On January 31, 2017, plaintiff propounded requests for the production of documents to defendants. After three extensions, defendants had until April 7, 2017 to respond. See Coyle Decl., Exs. E-J. Defendants submitted their responses on April 7, 2017. See id., Exs. K-M.

On June 1, 2017, defendants served amended discovery responses to plaintiff. See id., Exs. R-T. The amended responses included privilege logs. See id., Exs. U, V. Defendants notified plaintiff that a reason for the delay in production stemmed from a realization that the Nowlins needed to obtain separate representation from Al-Shawaf, which occurred on May 26, 2017. See Bona Decl., Ex. A; see also Boyer Decl., ¶ 10. On June 20, 2017, defendants submitted amended privilege logs. See Coyle Decl., Exs. W, X. Nonetheless, plaintiff initially filed a motion to compel production of documents on June 5, 2017. See docket no. 22. Plaintiff then withdrew its motion on July 2, 2017. See docket no. 25.

*2 On July 20, 2017, the court granted an application for an extension of time for Al-Shawaf to prepare his portion of the instant joint stipulation. Seedocket no. 29. In this order, the court allowed plaintiff to notice the motion on shortened time, which plaintiff has done here.

After reviewing defendants' amended discovery responses, plaintiff moves to compel defendants to produce all withheld documents listed in their respective amended privilege logs. Defendants variously object in their respective privilege logs on the following bases: attorney-client privilege, work product, and premature discovery into consulting experts. See generally Coyle Decl., Exs. W, X.

Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L.Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)). In determining proportionality, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

A party may request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). A request is adequate if it describes items with “reasonable particularity”; specifies a time, place, and manner for the inspection; and specifies the form or forms in which electronic information can be produced. Fed. R. Civ. P. 34(b). “Thus, a request is sufficiently clear if it places the party upon reasonable notice of what is called for and what is not.” Richmond v. Mission Bank, 2015 WL 1637835, at *2 (E.D. Cal. Apr. 13, 2015) (internal citation and quotation marks omitted). The responding party must respond in writing and is obliged to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed. R. Civ. P. 34(a). Actual possession, custody, or control is not required. Alternatively, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 34(b)(2)(A)-(B).

Where a party fails to respond in accordance with Rule 34, the party seeking discovery may move for an order compelling production. Fed. R. Civ. P. 37(a)(3)(B)(iv).

The court initially considers whether defendants have broadly waived their privilege objections. Plaintiff contends defendants' privilege objections, as specified in the amended privilege logs, should be deemed waived in their entirety because the logs were provided five months after plaintiff propounded the initial discovery requests. See JS at 5-8. Defendants argue their objections were not waived because they were timely under the circumstances. See id. at 12-14.

*3 Rule 26(b)(5)(A) requires parties withholding otherwise discoverable information on the ground of privilege to expressly claim the privilege and “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ... will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Boilerplate assertions fail to satisfy this requirement. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148-49 (9th Cir. 2005) (boilerplate objections inserted into a response are insufficient to assert a privilege). A privilege log is the most usual format for the descriptions of documents withheld from discovery. See Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650-51 (E.D. Cal. 2010).

The court first addresses plaintiff's argument that all privilege objections were waived due to a significant delay in producing the privilege logs. Plaintiff cites Burlington as an example of a case where the court held a five-month delay in providing a privilege log constituted a waiver of the privilege objections. See JS at 5 (citing 408 F.3d at 1149). But the Ninth Circuit in Burlington rejected using a thirty-day time limit as a default guideline, instead stating the issue of waiver should be made on “a case-by-case determination” that considers various factors “in the context of a holistic reasonableness analysis.” Burlington, 408 F.3d at 1148-49. The factors include:

Id. at 1149.

As to the first factor, the court finds defendants have sufficiently stated their privilege objections, at least to avoid those objections being deemed waived. While plaintiff surely would like as much description as possible for each document, defendants cannot be expected to divulge the particulars of every document without undermining their privilege objections. See Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 638 (D. Nev. 2013) (“[i]t is difficult to say what additional information [defendant] could provide without necessarily revealing the purported privileged portion of a document”). Defendants' objections are not boilerplate where they provide information about the subject matter of each document. See Khasin v. Hershey Company, 2014 WL 690278, at *5 (N.D. Cal. Feb. 21, 2014). The privilege logs here sufficiently indicate defendants are withholding email documents regarding the seeking of counsel for this matter or finding information about liability insurance for a catastrophic fire on federal property. From these descriptions alone, plaintiff can identify the basic purpose of defendants' disclosures, and the descriptions are therefore sufficiently stated to assert the privileges.

The second factor considers the timeliness of defendants' objections and ensuing production of the privilege logs. Here, the privilege logs were originally due, after three extensions, on April 7, 2017. See Coyle Decl., Exs. J, K. But the initial privilege logs were not produced until June 1, 2017, approximately eight weeks after the initial deadline. See Boyer Decl., Ex. 3. As such, the delay in production here was not akin to the delay in Burlington. While eight weeks certainly exceeds the thirty-day guideline, this is not an egregious delay, especially considering the extenuating circumstances present, discussed below. Cf. Tatung Company, Ltd. v. Hsu, 2016 WL 695971, at *10 (C.D. Cal. Feb. 19, 2016) (finding a fifteen-month delay constituted “gross untimeliness” where defendants only produced log pursuant to court order and had withheld materials without notice). Indeed, other courts have deemed even lengthier delays do not warrant a finding of waiver if other factors weigh against that conclusion. See e.g., Khasin, 2014 WL 690278, at *5 (noting mitigating circumstances made 7-month delay in production “not unreasonable”); Carl Zeiss Vision Intern. Gmbh v. Signet Armorlite Inc., 2009 WL 4642388, at *4 (S.D. Cal. Dec. 1, 2009) (finding no waiver of privilege despite nine-month delay in production of privilege log). Despite the delay, defendants engaged in good faith efforts to comply with their discovery obligations by producing amended privilege logs in an attempt to address plaintiff's demands. See Khasin, 2014 WL 690278, at *5(noting Hershey's diligence and responsiveness in addressing objections or questions raised by Khasin spoke to its good faith efforts). Thus, the underlying delay was reasonable.

*4 Both parties agree the third factor, relating to the magnitude of production, favors plaintiff since the privilege logs indicate only 34 and 50 documents are being withheld on the basis of privilege by the Nowlins and Al-Shawaf, respectively. See JS at 8, 14.

The fourth factor again weighs in favor of defendants. Unlike Burlington, defendants here experienced mitigating circumstances that made it unusually hard to produce the privilege logs and contributed to the delay, of which plaintiff should have been aware. Specifically, the realization that defendants needed separate counsel, though perhaps belated, was an unusual circumstance in this case. Government counsel first served the instant discovery requests on January 31, 2017. Coyle Decl. ¶ 2, Ex. D. Defense counsel Boyer, who initially represented all three defendants, notes that his firm determined the Nowlins needed separate counsel from Al-Shawaf around mid-to-late April 2017. Boyer Decl. ¶ 8. On or about May 8, 2017, the Nowlins retained separate counsel. See Bona Decl. ¶ 2. All parties in both the state and federal actions attended, and prepared for, a global mediation on May 12, 2017. Boyer Decl. ¶ 9; Bona Decl. ¶ 7. The court approved substitution of counsel for the Nowlins on May 26, 2017, but the Nowlins' new counsel had attended the global mediation. Docket no. 21; see Boyer Decl. ¶ 10; Bona Decl. ¶ 7.

The court finds the delay in this case was justifiable and in good faith. Defense counsel Bona quickly and diligently appeared to inform himself of the details of this case such that he was able to provide the Nowlins' initial privilege logs within about a week after the substitution of counsel was approved. Moreover, unlike in Burlington, none of the defendants here appear to be “sophisticated corporate litigant[s]” or “repeat player[s]” in lawsuits such that tactical gamesmanship of the discovery process can be suspected. See 408 F.3d at 1149-50. While plaintiff contends much of the discovery at issue was produced in the state cases, and that likely is the case, that is not enough by itself to tip the fourth factor in plaintiff's favor. Thus, on balance, the circumstances of this case made it difficult to timely produce the privilege logs.

Finding waiver of privilege is an exceedingly severe outcome. See Loop AI Labs Inc. v. Gatti, 2016 WL 2908415, at *3 (N.D. Cal. May 13, 2016)(finding waiver in light of plaintiff's “repeated and unjustified failures to provide a timely and useable privilege log”). Burlington instructs the courts to make a case-by-case determination, rather than establishing a per se rule, for matters of privilege waiver precisely for situations such as this where unusual circumstances arise. See Burlington, 408 F.3d at 1149(noting absence of mitigating considerations in finding waiver for five-month delay). A holistic reasonableness analysis here finds defendants' failure to provide timely privilege logs was not so egregious, and a balancing of the Burlington factors militates in favor of a finding that defendants did not waive their privilege objections despite the eight-week delay in production.

Al-Shawaf asserts privilege objections on the basis of attorney-client privilege, work product privilege, and expert privilege. With one exception, the Nowlins assert only work product and expert privilege. The court evaluates each privilege claim below.

*5 Al-Shawaf asserts the first 39 documents in his amended privilege log are protected by the attorney-client privilege as well as the work product doctrine.[2] See Coyle Decl., Ex. W#s 1-39. Plaintiff contends the attorney-client privilege does not apply because none of the senders or recipients are attorneys. JS at 9 n.4; P. Supp. Mem. at 7. In addition, plaintiff argues that any applicable attorney-client privilege has been destroyed or waived in this case due to disclosure of communications with non-lawyers or other third parties. JS at 9 n.4; P. Supp. Mem. at 7-8. Al-Shawaf contends it was necessary for his associates—namely Joseph John, Darcel Hulse, and Hamza Badoun—to pass along the emails to him overseas. See JS at 18.

Application of the attorney-client privilege in a typical federal question case is governed in the first instance by the federal common law of privilege. Fed. R. Evid. 501; U.S. v. Zolin, 491 U.S. 554, 562 (1989); Agster v. Maricopa Cnty., 422 F.3d 839, 839 (9th Cir. 2005). But where federal law does not resolve the issue, a federal court may look to state law. Jaffee v. Redmond, 518 U.S. 1, 12-13 (1996); Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996).

The purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients.” Upjohn Co. v. U.S., 449 U.S. 383, 389, 101 S. Ct. 677, 66 L.Ed. 2d 584 (1981). The party asserting the privilege “ ‘has the burden of establishing the [existence of an attorney-client] relationship and the privileged nature of the communication.’ ” U.S. v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citations omitted). Confidential communications between a client and an attorney are protected from disclosure:

Id. (citation omitted). “ ‘Because it impedes the full and free discovery of the truth, the attorney-client privilege is strictly construed’ ” (id. (citation omitted)), and “ ‘applies only where necessary to achieve its purpose.’ ” U.S. v. Talao, 222 F.3d 1133, 1140 (9th Cir. 2000) (citations omitted). Communications are not privileged unless they included legal advice or were made for the purpose of assisting defense counsel in rendering legal advice. See In re Copper Market Antitrust Litig., 200 F.R.D. 213, 219 (S.D.N.Y. 2001) (finding privilege applied where communications “were made for the purpose of facilitating the rendition of legal services”).

Here, defendant Al-Shawaf asserts that 39 documents are protected from disclosure by the attorney-client privilege, even though no attorney was a party to any of the communications. Nor was an agent for an attorney a party to any of the communications. Instead, the communications at issue were between defendant and various of his associates, prior to the existence of any attorney-client relationship. The communications concerned, among other things, the retention of an attorney.

*6 When this matter was discussed at the hearing, defense counsel appeared to contend that the communications at issue contain matters the third parties intended defendant to ultimately pass on to his attorney once the attorney was retained, and therefore that the communications would ultimately be communicated to an attorney made them privileged. Putting aside the fact that the privilege log contains nothing that would support the factual basis for this theory—that is, nothing to indicate these communications were later shared with counsel—defendant's argument appears to be based on a misconception of the attorney-client privilege.

As noted above, the purpose of the attorney-client privilege is to promote candid and complete discussions between attorneys and clients. “The attorney client privilege, of course, requires that there be an attorney to whom information is given and from whom advice is sought.” Bice v. Robb, 2010 WL 5373904, at *2 (S.D.N.Y. Dec. 22, 2010). But here, there was no attorney involved in the communications. That the communications at issue may later have been relayed to an attorney does not make them privileged. “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn, 449 U.S. at 395. Non-privileged communications may not be made privileged simply by later communicating them to an attorney. Defendant cites no authority suggesting otherwise.

Defendant does cite one case discussing whether, under California law, “corporate communications not directly involving an attorney, but which discuss legal advice, come within [the attorney-client] privilege.” Zurich Am. Ins. Co. v. Superior Court, 155 Cal. App. 4th 1485, 1495, 66 Cal. Rptr. 3d 833 (2007). The California Court of Appeal held that such communications would come within the privilege, provided that they discussed legal advice or strategy of counsel and were shared only with those within the corporate client necessary to further the purpose of the legal consultation. Id. at 1503. Thus, Zurich involved attorney-client communications being distributed among the corporate client. It was not like this case, in which no attorney was even indirectly involved in the communications and they did not concern legal advice communicated from an attorney.

Because the 39 documents at issue here were not communications with an attorney or an agent for an attorney, nor were they relaying legal advice that had been communicated from an attorney, the court need not reach the question of whether the presence of third parties on these communications destroyed the privilege. None of these documents is protected by the attorney-client privilege in any event. But that does not necessarily mean they are not protected by the work product doctrine. The court therefore turns to that question.

Al-Shawaf claims the first 39 documents of his amended privilege log are protected by the work product doctrine. The work product doctrine is also claimed for all 34 documents of the Nowlins' amended privilege log.

The work product doctrine generally protects “documents and tangible things that are prepared in anticipation of litigation or for trial” so as to prevent “disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney.” Fed. R. Civ. P. 26(b)(3). “To qualify for work-product protection, documents must: (1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that other party's representative.” U.S. v. Richey, 632 F.3d 559, 567 (9th Cir. 2011) (internal quotation marks and citation omitted). The work product rule also covers the work product of non-attorneys which is prepared in anticipation of litigation by or for a party or any representative acting on his behalf. See Roberts v. Americable Intern. Inc., 883 F. Supp. 499, 507 (E.D. Cal. 1995) (citing Fed. R. Civ. P. 26(b)(3) Advisory Committee Notes). Additionally, when “a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the ‘because of’ test is used.” Richey, 632 F.3d at 568.

*7 Plaintiff argues defendants are improperly withholding email communications because defendants failed to show the documents were prepared in anticipation of litigation. See JS at 9-12. The court disagrees and finds defendants adequately demonstrated their email communications at issue in the privilege logs were prepared in anticipation of litigation.

The correspondence at issue began on July 15, 2013, the same day the Mountain Fire began. See Coyle Decl., Exs. W #1; Boyer Decl., Ex. 5 #1. The correspondence continued until July 23, 2013. See generally Coyle Decl., Exs. W, X. Defendants first contacted defense counsel Boyer's firm on July 24, 2013, and formally retained that firm on July 26, 2013. SeeBoyer Decl., ¶ 15. While plaintiff argues the immediacy of the communications weighs against a finding of work product protection, the court finds the opposite is true here.

A fire that originated on property owned or managed by a party, and which ultimately burned for two weeks while damaging 15,000 acres of federal land, would reasonably cause potential defendants to be concerned about being ensnared in future litigation. Surely defendants would rather not have been sued in this matter, but it was reasonable for them to prepare for possible litigation given the origination of the fire and the likelihood that it stemmed from defendants' electrical equipment. It was prudent to discuss seeking counsel, insurance liability coverage, and potential evidence in the days that followed. Further, both state and federal investigators were present on site at Al-Shawaf's property on the day of the fire, indicating the seriousness of the incident. Boyer Decl. ¶ 14 The investigators removed and confiscated electrical equipment that same day. Id. These facts suggest this was not a typical investigation, but one that posed specific legal threats to defendants. Contrary to plaintiff's arguments, numerous substantial and specific facts indicated defendants were preparing for litigation when they engaged in the disputed email communications. The causation element is also established, even if there was a dual purpose to the email communications, because defendants clearly contemplated retaining an attorney and their potential risk of liability, as many of the subject lines and descriptions state in the privilege logs. While it is true that litigation can be anticipated at the time almost any incident occurs, as plaintiff contends (seeJS at 10), the objective facts of the case support a finding there was a specific threat of litigation at the time of the correspondence at issue.

The court recognizes that the documents at issue here were created before counsel was even contacted, often several days before. Lower courts generally find that when documents were created prior to involvement of counsel, it leads to a finding that the documents were not created in reasonable anticipation of litigation. See e.g., Largan Precision Co., Ltd. v. Genius Electronic Optical Co., Ltd., 2015 WL 124557, at *5 (N.D. Cal. Jan. 8, 2015) (“the involvement of attorneys should be considered as part of the anticipation of litigation prong of the tests”) (internal quotations omitted); Wikel v. Wal-Mart Stores, Inc., 197 F.R.D. 493, 495 (N.D. Okla. 2000)(involvement of attorney is a highly relevant factor making materials more likely to have been prepared in anticipation of litigation).

*8 But at least one case has found the lack of involvement of counsel did not render documents unprotected under the work product doctrine. In Ruotolo v. City of New York, 2005 WL 823015, at *1 (S.D.N.Y. Apr. 7, 2005), the parties raised a discovery dispute regarding whether plaintiff could withhold from discovery handwritten notes made prior to his retention of counsel under work product. The defendants argued the doctrine was inapplicable since the plaintiff created the documents well before any reasonable anticipation of litigation. Id. Upon reviewing the notes in camera, the court noted “[t]he mere fact that the litigation had not yet commenced, or that plaintiff had not retained counsel, [did] not render the notes ineligible for work product protection.” Id. at *2. The Ruotolo court explained the work product doctrine “is an intensely practical one, grounded in the realities of litigation in our adversary system.” Id. (quoting U.S. v. Nobles, 422 U.S. 225, 238-39, 95 S. Ct. 2160, 45 L.Ed. 2d 141 (1975)). Likewise, the realities in the instant case indicate that, although defendants had not yet contacted counsel, the documents at issue were prepared in anticipation of litigation.

As to the second element of the work product doctrine, it is apparent that the correspondence documents were all prepared by or for defendants Al-Shawaf and the Nowlins, as required by Rule 26(b)(3). While the correspondence included communications with non-parties who were not attorneys or agents for attorneys, this does not preclude application of the work product doctrine. See In re Financial Corp. of America, 119 B.R. 728, 738 (C.D. Cal. 1990) (holding work product doctrine extends to materials prepared in anticipation of litigation by a non-party and materials prepared for trial with third parties in related matters relevant to the pending action); cf. U.S. v. AB Electrolux, 2015 WL 9950141, at *4-5 (D.D.C. Sept. 25, 2015)(declining to find all communications with a non-party in anticipation of litigation are protected by the work product doctrine where objecting party failed to meet its burden of showing the documents were created in anticipation of litigation, such as by submitting a privilege log). Further, “[t]he work product privilege is not automatically waived by any disclosure to third persons. Rather, the courts generally find a waiver of the work product privilege only if the disclosure ‘substantially increases the opportunity for potential adversaries to obtain the information.’ ” Pulse Engineering, Inc. v. Mascon, Inc., 2009 WL 3234177, at *4 (S.D. Cal. Oct. 2, 2009) (internal quotations and citations omitted). Nothing here suggests the non-parties were potential adversaries in any way.

The court agrees with plaintiff that defendants have not demonstrated the facts in the withheld documents can be considered “opinion” work product entitled to near absolute protection under Rule 26(b)(3), since defendants merely engage in supposition that the withheld documents “surely must” contain mental impressions or legal theories. See JS at 11; P. Supp. Mem. at 6. But even so, plaintiff has not established there is substantial need for the documents or that plaintiff is unable to obtain the substantial equivalent of the documents without undue hardship. See Fed. R. Civ. P. 26(b)(3)(ii). Therefore, even if the documents contact factual information, they are still protected work product that need not be produced. See ECDC Envtl., L.C. v. New York Marine & Gen. Ins. Co., 1998 WL 614478, at *16 (S.D.N.Y. June 4, 1998) (“ ‘If a document constitutes protected work product, the party possessing the document generally need not produce it—even if the document contains only factual information.’ ”) (citation omitted). That said, since the work product doctrine does not protect the facts, those facts may be obtained “ ‘through other means of discovery, such as through depositions or interrogatories.’ ” Id.

For the foregoing reasons, the court finds the work product doctrine protects the 39 and 34 documents at issue for Al-Shawaf and the Nowlins, respectively.

*9 Defendants contend photographs taken by their experts, which they have withheld from production but not listed on their logs, are protected by the work product doctrine because such expert discovery is premature at this point. See JS at 23-25. Defendants note these photographs are specifically responsive only to Request number 44 of plaintiff's initial discovery requests. See id. at 22. Plaintiff contends this argument was raised for the first time in the joint stipulation, as defendants had not included such objections in their initial or amended privilege logs or at the meet and confer on the motion. See P. Supp. Mem. at 8. As such, plaintiff asserts this objection has been waived. Id.

As an initial matter, the court finds defendants did not generally waive their expert privilege objections, as they sufficiently asserted them in their amended responses to Request numbers 14 and 44. See Bona Decl. ¶ 16; see also Boyer Decl., Ex. 4 at 7-8, 18 (asserting work-product privilege for Al-Shawaf on the basis that it is premature to seek expert-related documents and noting “[r]esponding party has not produced documents or file materials in the custody of experts and/or retained consultants”); Bona Decl., Ex. C at 7-8, 17-18 (same for James Nowlin); id., Ex. D at 7-8, 17-18 (same for Donna Nowlin). These initial responses were sufficiently specific enough to indicate defendants withheld documents on the basis of premature expert privilege, the merits of which are discussed below. Since the photographs are only responsive to Request number 44, defendants have properly preserved this objection.

Rule 26(b)(4)(D) provides that “[o]rdinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained ... in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.” Fed. R. Civ. P. 26(b)(4)(D). The Rule provides two exceptions: one dealing with physical and mental examinations, and another requires “showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P. 26(b)(4)(D)(I), (ii).

The photographs do not concern physical or mental examinations. Plaintiff has not made any showing that the “exceptional circumstances” exception applies here, instead arguing it cannot do so since defendants did not even list the photographs at issue on their logs or provided any other information to allow plaintiff to assess whether it can obtain the evidence by other means. See P. Supp. Mem. at 9. Defendants argue plaintiff is not entitled to these photographs without making the necessary showing under Rule 26(b)(4)(D). See JS at 23-24. As an initial matter, the court agrees withheld expert materials are ordinarily not expected to be included on a privilege log.

Further, defendants persuasively cite cases that find facts held by consulting experts need not be produced under the work product doctrine.[3]In Carnes v. Crete Carrier Corp., 244 F.R.D. 694 (N.D. Ga. 2007), non-party UPS was subpoenaed by the defendant to produce documents relating to an accidental death. UPS claimed work product protection because it hired an agent who took photographs at the accident scene; the court held the photographs were protected since UPS was a potential adverse party in the litigation, and Crete did not make any argument that it had substantial need or would encounter undue hardship in obtaining them independently. See also Security Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29, 31-32 (D. Conn. 2003) (report drafted for plaintiff's attorneys by non-testifying expert need not be produced without showing of “substantial need”). Additionally, there is reduced justification “for requiring production of the work product of an adversary or of a non-testifying expert” where “the party seeking disclosure had full access to the scene and was not precluded from creating a photographic record.” Chiquita Int'l, Ltd. v. M/V BOLERO REEFER, 1994 WL 263603, at *1 (S.D.N.Y. June 7, 1994) (citations omitted).

*10 Nothing suggests that plaintiff has not had access to the scene of the Mountain Fire, as a federal investigator was present at Al-Shawaf's property on the first day of the Mountain Fire. See Boyer Decl. ¶ 14. Further, plaintiff acknowledges it has had photographs taken by its own retained experts. See P. Supp. Mem. at 9. Defendants also have produced certain photographs, taken by a consultant a few weeks after the fire, because defendants deemed similar evidence was not otherwise available to plaintiff. See JS at 25 n.13. But as for the photographs withheld, at the hearing defendants' counsel stated the withheld photographs are of things accessible to all. As such, without a showing of substantial need and undue hardship, the photographs here are protected work product. See Chiquita, 1994 WL 263603, at *1.

Based on the foregoing, it is hereby ORDERED that plaintiff's motion to compel (docket no. 30) is DENIED.

The court draws its factual background from the allegations in plaintiff's Complaint, the instant motion and JS, and defendants' Answer.

Al-Shawaf asserts only the attorney-client privilege as to document numbers 41-49 on his amended log. Apart from the broad waiver argument discussed above, plaintiff does not appear to challenge the privileged status of documents 41-49, which in any event plainly appear to be protected attorney-client communications.

Plaintiff's cited cases are inapposite, as they do not address the premature expert discovery and work product objections present here. See Frontlines Med. Assocs., Inc. v. Coventry Health Care, 263 F.R.D. 567, 570 (C.D. Cal. 2009) (addressing initial disclosures); Alper v. U.S., 190 F.R.D. 281 (D. Mass. 2000)(discussing subpoena issued to expert).