*1 On September 3, 2019, these matters came before the Court for a hearing. Plaintiff Lloyd T. Briggs has moved to quash subpoenas served by Defendants on T-Mobile and Microsoft Corporation Online Services (“Microsoft”), or in the alternative for a protective order. (ECF Nos. 40, 41.) Defendants have opposed those motions. (ECF Nos. 58, 59.) Separately, the parties have filed a joint stipulation concerning Defendants' motion to compel production of documents. (ECF No. 53.) Plaintiff has also filed an application for the Court to conduct an in camera review of certain allegedly privileged documents. (ECF No. 60.) As set forth below, the Court grants Plaintiff's motions to quash, and grants in part and denies in part Defendants' motion to compel. The Court also denies the application for an in camera review.

1. Federal Rule of Civil Procedure 26(b)(1) 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[.]” Factors to consider include “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.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, a court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). In response to requests for production, a party has an obligation under Fed. R. Civ. P. 34 to produce non-objectionable, response documents within the party's possession custody or control. Further, the Federal Rules of Civil Procedure must be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

2. To the extent objections are raised regarding confidential or personal information, the right to discover relevant information must be weighed against the right to privacy, and confidential information may be required to be disclosed after such weighing – particularly when confidentiality can still be maintained via court orders. See Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604-05 (C.D. Cal. 1995); Ruben v. Regents of University of California, 114 F.R.D. 1, 3 (N.D. Cal. 1986).

3. Prior to class certification, discovery is typically limited and is permitted in the discretion of the court. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009); Shaw v. Experian Info. Sols., Inc., 306 F.R.D. 293, 297 (S.D. Cal. 2015); Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006). “Although in some cases a district court should allow discovery to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations. Absent such a showing, a trial court's refusal to allow class discovery is not an abuse of discretion.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).

*2 4. Plaintiff filed this putative class action alleging wage and hour violations by Defendants. In connection with their opposition to Plaintiff's motion for class certification, Defendants have served discovery seeking Plaintiff's and his counsel's communications with putative class members concerning possible declarations. At least some of these communications were via texts and email. In early July 2019, Defendants sent a letter to Plaintiff and his counsel notifying them of their duty to preserve documents regarding communications with putative class members. Plaintiff subsequently informed Defendants that he had lost his cell phone in approximately mid-July 2019 and could not or would not retrieve messages from the Cloud or other possible means.

5. Defendants have propounded requests for production (RFPs) to Plaintiff that they say are intended to obtain the written communications that Plaintiff and his counsel have had with putative class members relating to this lawsuit. According to Defendants, these communications are relevant to the issue of whether Plaintiff is an adequate class representative. Defendants have obtained evidence of text messages and emails from Plaintiff to one or more putative class members which they argue reflect offers of payment in exchange for declarations in support of the pending class certification motion. At issue are RFP 10 (seeking texts between Plaintiff (and his agents) and others regarding Defendants' allegedly wrongful wage and hour practices), RFP 11 (seeking texts between Plaintiff (and his agents) and others regarding this lawsuit), RFP 12 (seeking texts between Plaintiff (and his agents) and Raquel Betancourt regarding Defendants' allegedly wrongful wage and hour practices), RFP 13 (seeking texts between Plaintiff (and his agents) and Raquel Betancourt regarding this lawsuit), RFP 22 (seeking all communications sent or received by Plaintiff (and his agents) relating to the allegations in the complaint), and RFP 24 (seeking cell phone bills of Plaintiff (and his agents), as well as payments of those bills). The time period for the requests is stated as November 1, 2014 to the present. Plaintiff has responded with a host of objections, including attorney-client privilege, work product, vagueness, burden, lack of relevancy and privacy. Defendant has moved to compel responses to the RFPs.

6. On July 10, 2019, Defendants gave notice to Plaintiff of subpoenas that they were also serving on T-Mobile and Microsoft that sought all documents and electronically stored information (ESI) related to Plaintiff's account from May 13, 2019 to the present. The subpoenas further state that the documents and ESI shall be delivered to a retired state court judge at a private mediation organization, who would review the material and then deliver to counsel only the documents and ESI relating to the litigation – except for communications between Plaintiff and his counsel (other than those related to procurement of declarations from putative class members). Plaintiff has not consented to the discovery sought by the subpoenas or the procedure for review of the materials produced pursuant to the subpoenas.

7. Plaintiff has moved to quash the subpoenas to T-Mobile and Microsoft, or in the alternative to obtain a protective order regarding the subpoenas. Among the arguments raised by Plaintiff are that the subpoenas violate the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, et seq. because the SCA does not permit disclosure of the content of communications in response to civil discovery subpoenas, that the subpoenas seek information protected by the attorney-client privilege and private information of Plaintiff, that the subpoenas are overbroad, and that the subpoenas purport to unilaterally impose a discovery referee without court order or agreement of Plaintiff.

*3 8. Defendants respond, inter alia, that Plaintiff should be deemed to have consented to production of documents pursuant to the subpoenas to T-Mobile and Microsoft because he cannot or will not otherwise produce the requested material. Defendants also respond that certain of the requested materials are not privileged and that Plaintiff has waived any attorney-client privilege by failing to provide a privilege log and by disclosures in the declarations that he and his counsel signed and submitted with Plainitff's reply brief in support of class certification.

9. The Court finds that certain of Plaintiff's objections to the subpoenas and the RFPs plainly lack merit: The subpoenas and requests are relevant regarding whether Plaintiff is an adequate class representative to the extent they seek communications between Plaintiff (or his counsel) with putative class members. Plaintiff has not substantiated any claim of burden.

10. With regard to overbreadth of the requests, Defendants' written submissions and their representations at the hearing make clear that they seek only documents relating to communications by Plaintiff and his counsel regarding declarations (or potential declarations) in support of class certification. Narrowed in this way, the RFPs are not overbroad. As to privacy, concerns in this regard can be addressed by designating responsive material under the stipulated protective order in this case (ECF No. 19). See Ragges, 165 F.R.D. at 604-605; Ruben, 114 F.R.D. at 3. Plaintiff has not identified such a substantial interest in any particular personal information in these communications that would outweigh Defendants' right to discover relevant information – particularly where information may be designated under the protective order in this case.

11. Plaintiff's objections regarding privilege and work product are more substantial. Documents sought by the RFPs are Plaintiff's and his counsel's communications with third parties as part of their attempts to obtain declarations in support of class certification. Defendants also seek communications between Plaintiff and his counsel regarding the declarations. Different categories of these documents should receive different treatment in response to the privilege claims. First, Plaintiff and his counsel had unsolicited communications about possible declarations with certain putative class members who never responded or who did not seek to engage Plaintiff's counsel as their attorney. For these individuals, Plaintiff has presented no reasonable explanation how attorney-client privilege could apply to these communications, and under the law, they are not privileged. See In re McKesson HBOC, Inc. Sec. Litig., 126 F. Supp. 2d 1239, 1245 (N.D. Cal. 2000) (generalized duty to unnamed class member does not create an “inviolate attorney-client relationship” with putative class member); Sherman v. CLP Res., Inc., 2015 U.S. Dist. LEXIS 189636, at *13 (C.D. Cal. Feb. 4, 2015); see also Taylor v. Waddell & Reed, Inc., 2011 WL 1979486, at *4 (S.D. Cal. May 20, 2011) (pivotal question is whether putative class member sought legal advice or representation). As to work product production for communications, Plaintiff and his counsel communicated with these individuals without any agreement or indication that the recipients would keep the communications confidential or that the individuals were interested in participating in the case. Under those circumstances, the communications of Plaintiff and his counsel are not protected by the work-product doctrine. See United States E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503, 511-513 (E.D. Cal. 2009) (communications sent to a general group of putative class members waives work product protection, absent a showing of the requisite degree of circumspection and care by plaintiff). Second, Plaintiff's counsel had communications with other putative class members who ended up retaining Plaintiff's counsel to represent them. For these individuals, the preliminary communications leading up to the representation are subject to the attorney-client privilege and need not be produced to Defendants – unless there has otherwise been a waiver of the privilege. See Barton v. United States Dist. Court, 410 F.3d 1104, 1111-1112 (9th Cir. 2005) (preliminary communications are privileged when performed to retain the lawyer, secure legal advice, or to secure advice generally). Third, Defendants seek communications between Plaintiff and his counsel relating to the obtaining of declarations. These documents are clearly subject to the attorney-client privilege and work-product protection – unless Defendants can establish waiver.

*4 12. Defendants argue waiver on two grounds. First, they contend that Plaintiff has waived any privilege or work-product protection by not providing a log for the documents being withheld. While the lack of a privilege log may result in waiver in certain circumstances, see Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 282 (N.D. Cal. 2015) (ordering the plaintiff to produce a privilege log and “[i]f defendant fails to produce privilege logs by the[ ] deadline, its claim of privilege may be deemed waived.”), the Court declines to find waiver here where Plaintiff does not have possession of many of the documents due to the loss of his phone and where the precise nature of the documents being requested was broad in the original requests and narrowed only as a result of the briefing and oral argument on this motion. See Burlington No. 8 Santa Fe Ry. Co. v. United States, 408 F.3d 1142, 1149 (9th Cir. 2005) (applying a case-by-case analysis to determine potential waivers). Nevertheless, Plaintiff will be required to identify on a log any documents relating to the obtaining of declarations for the class certification motion over which Plaintiff properly claims privilege or work product – consistent with the rulings in this order regarding the scope of the privilege and waiver. Second, Defendants contend that Plaintiff has waived privilege and work product protection as a result of the declarations submitted in support of his class certification motion. The Court agrees. In Plaintiff's declaration (ECF No. 24-5), he purports to summarize conversations with his counsel regarding the declarations. (Id. at ¶¶ 5, 6.) Similarly, Plaintiff's counsel submitted his own declaration (ECF No. 24-1), in which he also summarized communications with Plaintiff regarding the obtaining of declarations. (Id. at ¶¶ 2, 3, 4, and 5.) These voluntary disclosures of the content of otherwise privileged discussions waived the privilege as to communications between Plaintiff and his counsel regarding declarations or possible declarations from putative class members. See United States v. Ruehle, 583 F.3d 600, 612 (9th Cir. 2009) (“any voluntary disclosure of information to a third party waives the attorney-client privilege”). Having made a disclosure of the communications in a way that Plaintiff presumably believes helps his case, he cannot resist discovery into related communications by raising privilege or work product for this same subject matter. See Apple, Inc. v. Samsung Elecs. Co., Ltd., 306 F.R.D. 234, 242 (N.D. Cal. 2015); Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010). Applying principles of fundamental fairness, the privilege may not be used as a sword and a shield.

13. With regard to the documents sought in the RFPs, Plaintiff's counsel admits that he has certain documents that reflect his communications with putative class members concerning possible declarations. He may also have communications with Plaintiff on this subject. Those documents are within Plaintiff's possession, custody or control as provided by Rule 34. See A. Farber & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (documents are deemed within possession of party if they have a legal right to obtain the documents on demand). Within his possession, custody or control, Plaintiff may also have responsive documents in his Hot Mail account and/or in the Apple iCloud. As discussed at the hearing, Plaintiff has the ability to obtain or reset his password for these accounts and is required to attempt to gain access to the accounts to search for documents pursuant to Fed. R. Civ. P. 34. See Soto v. City of Concord, 162 F.R.D. 603, 619-620 (N.D. Cal. 1995) (“the term ‘control’ includes the ‘legal right of the producing party to obtain documents from other sources upon demand.’ ”); A. Farber & Ptnrs., Inc., 234 F.R.D. at 189 (producing party has an affirmative duty to seek information reasonably available to it, including information from telecommunication companies it does business with).

14. Finally, Plaintiff challenges the subpoenas to T-Mobile and Microsoft pursuant to the provisions of the SCA. That statute generally prohibits providers of communication services (like T-Mobile and Microsoft) from divulging private communications, unless one of the specially enumerated exceptions in 18 U.S.C. § 2702(b) apply. See Mintz v. Mark Bartelstein & Assoc., Inc., 885 F. Supp. 2d 987, 991 (C.D. Cal. 2012). “The SCA does not contain an exception for civil discovery subpoenas.” Id. (citing cases). While documents could be produced under the SCA with Plaintiff' consent, see 18 U.S.C. § 2702(b)(3) (“A provider ... may divulge the contents of a communication with the lawful consent of the originator or an addressee or intended recipient of such communication, ...”), Plaintiff argues that he has not consented to production of the content of his messages by T-Mobile or Microsoft. Defendant responds that Plaintiff should be found to have implicitly consented because the documents may not be available other than via a subpoena. However, the Court concludes that the SCA requires actual consent by Plaintiff before a civil subpoena for his ESI can be enforced. See Negro v. Superior Court, 230 Cal. App. 4th 879, 890 (2014) (access to a service provider's stored messages required “user's actual consent.”); Mintz, 885 F. Supp. 2d at 993 (lacking consent, the provider was prohibited from disclosing the request content). Actual consent by Plaintiff is not present here. As a result, the SCA prohibits the production that Defendants seek by their subpoenas to T-Mobile and Microsoft, and Plaintiff's motion to quash those subpoenas is well taken.

*5 15. With regard to Plaintiff's request that the Court review certain documents in camera, Plaintiff has not established a valid basis for this request. During the hearing, Plaintiff's counsel stated that he is asking for an in camera review to show the Court that he did not act improperly in seeking the declarations. That, however, does not support the request that the Court review the documents to assess privilege, and the Court finds that an in camera review is not warranted at this time. See United States v. Zolin, 491 U.S. 554, 572 (1989) (the decision whether to engage in in camera review is at the courts discretion and should be made in “light of the facts and circumstances of the particular case”).

16. In summary, Plaintiff is ordered to produce all documents in his possession, custody or control relating to his and his counsel's efforts to obtain declarations from putative class members. This includes communications between Plaintiff and his counsel regarding this subject matter, but it excludes communications by Plaintiff's counsel with any putative class member who has retained Plaintiff's counsel in connection with this case. Plaintiff's production of these documents shall be made on or before September 30, 2019. Any withheld communications for which attorney-client privilege or work product protection is claimed (consistent with the rulings of this order) shall be listed in a privilege log to be provided to Defendants within 20 days of the date of this order.

17. Possession, custody or control includes Plaintiff's ability to obtain emails, texts and other documents from his Hot Mail account and from the Apple iCloud. To the extent Plaintiff cannot retrieve all responsive documents from those locations, he is required under Rule 34 and this order to contact the providers of the relevant communication services to obtain the responsive documents.[1]

18. Defendants' civil subpoenas to T-Mobile and Microsoft are quashed because they are prohibited by the SCA without Plaintiff's actual consent – which has not been provided.

IT IS SO ORDERED.