I. INTRODUCTION

*1 Before the Court is Plaintiff's Motion to Compel Defendants to Further Respond to Discovery filed on January 18, 2021 in the joint stipulation format of Central District of California Local Civil Rule [1] 37-2 (“Motion”). (Mot., ECF No. 48-1.) In support of her portion of the joint stipulation, Plaintiff Brenda Dickson filed a Declaration of Louis P. Dell in Support of Motion to Compel Responses to Set One Discovery (“Dell Declaration”). (Dell Decl., ECF No. 48-2.) In support of its portion of the joint stipulation, Defendant Century Park East Homeowners Association (“CPEHA”) filed a Declaration of Karen Bleifer in Opposition to Plaintiff's Motion for Further Discovery Responses (“Bleifer Declaration”) (Bleifer Decl., ECF No. 48-9), and a Declaration of Wayne Pariser in Opposition to Plaintiff's Motion for further Discovery Responses (“Pariser Decl.”) (Pariser Decl., ECF No. 48-10). On February 9, 2021, Plaintiff also filed a Supplemental Memorandum of Law in Support of Motion to Compel Defendant Century Park East Homeowners Association to Further Respond to Discovery (“Supplemental P&A”). (Suppl. P&A, ECF No. 52.)

To obtain clarification regarding issues raised in the Motion that were not entirely clear to the Court, the undersigned Magistrate Judge set a Status Conference on the Motion for March 3, 2021 (“Status Conference”). (Status Conf. Order, ECF No. 56.) The following counsel appeared: Louis P. Dell on behalf of Plaintiff, Wayne Pariser on behalf of CPEHA, and Nancy Potter on behalf of Defendants Swedelson & Gottlieb (“Swedelson”) and Brian Moreno (“Moreno”). (Id.) The Court details the discussions among the parties and the Court during the Status Conference in the applicable sections below.

The Motion is now fully briefed and the Court finds the matter suitable for decision without oral argument. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons discussed below, the Motion is DENIED.

II. RELEVANT BACKGROUND

This case is proceeding pursuant to Plaintiff's First Amended Complaint, filed August 12, 2020 (“FAC”). (FAC, ECF No. 23.) The FAC names three defendants: CPEHA, Swedelson, and Moreno (collectively, “Defendants”). (See generally id.) The FAC alleges that CPEHA (the homeowner's association where Plaintiff resides), together with Swedelson (CPEHA's attorneys), and Moreno (an attorney at Swedelson) engaged in unlawful debt collection activities involving the collection of homeowner dues and other assessments against Plaintiff. (See generally FAC.) Plaintiff contends that in so doing, Swedelson and Moreno violated the federal Fair Debt Collection Practices Act (“FDCPA”), codified at 15 U.S.C. § 1692, et seq., and that CPEHA, Swedelson, and Moreno violated the California Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), codified at California Civil Code section 1788, et seq. (FAC ¶¶ 14–15.)

*2 According to the FAC, Plaintiff alleges as follows[2]: Plaintiff is an owner/resident of a condominium unit that, as part of the CPEHA, is subject to the regulations set forth in the CPEHA's Bylaws and Declaration of Covenants. (Id. at ¶ 6.) Swedelson is a debt collection law firm and Moreno is an attorney who works at Swedelson. (Id. at ¶¶ 9–10.) On February 3, 2020, the Defendants sent a pre-lien letter to Thompson Consumer Law Group (“February 2020 Letter”), an Arizona law firm that was representing Plaintiff in her lawsuit against Associated Lien Services to recover damages arising from a 2019 debt collection letter. (Id. at ¶ 27.) The February 2020 Letter sought to recover delinquent assessments, late fees, interest, attorneys' fees, past retrofit, reserve retrofit charges, and collection costs, all in the amount of $13,500.95, and warned that the property might be sold without court action, i.e., in a non-judicial foreclosure. (Id. at ¶¶ 27–28, 35.) On February 7, 2020, Thompson Consumer Law Group advised Defendants that it did not represent Plaintiff with respect to the debt alleged in the Feb. 2020 Letter. (Id. at ¶ 29.)

On March 12, 2020, Defendants sent Plaintiff another pre-lien letter seeking to recover delinquent assessments, late fees, interest, attorneys' fees, past retrofit, reserve retrofit charges, and collection costs, all in the amount of $16,398.77 (“March 2020 Letter”). (Id. at ¶ 36.) Defendants then recorded a lien on Plaintiff's property without complying with the Stirling-Davis Act thereby creating an unenforceable security interest and/or making the property exempt by law from such threatened dispossession. (Id. at ¶ 37.) On March 19, 2020, Defendants sent Plaintiff a Notice of Recording of Lien, which was the first time that Plaintiff became aware that Defendants were attempting to collect a debt. (Id. at ¶¶ 42–43.) Through this collection activity, Defendants sought to collect unreasonable collection fees. (Id. at ¶ 45–47.) On May 29, 2020, premised upon the March 2020 lien and the governing documents, Defendants filed a debt collection lawsuit against Plaintiff in the Los Angeles County Superior Court, entitled Century Park East Homeowners Association v. Dickson, Case No. 20SMC00756 (“Collections Lawsuit”). (Id. at ¶¶ 48–49.)

Plaintiff contends that the debt collection activities of the Defendants constitute violations of the FDCPA and Rosenthal Act and have caused her to suffer damages and incur attorneys' fees and costs. (Id. at ¶¶ 53–64.)

III. THE DISCOVERY DISPUTE

A. The Disputed Discovery Requests

Although the Motion sets forth fourteen discovery disputes, the parties resolved seven of those disputes during the Status Conference, as follows:

(See generally Status Conf. Order.) Accordingly, Plaintiff's request for an order compelling supplemental responses and production of documents as to those requests is DENIED as moot, but without prejudice to Plaintiff bringing a discovery motion related to additional disputes that may arise with respect to Defendants' responses thereto.

Remaining before the Court in this Motion is Plaintiff's request for an order compelling CPEHA and Swedelson to produce unredacted documents and answer interrogatories related to their collection activities with respect to Plaintiff's debt to CPEHA in response to the following discovery requests:

(Mot. 7, 11–14, 20–23.[4])

The specific discovery requests and the Defendants' responses thereto are set forth below:

*5 (Mot. 7, 11–14, 22–23; Dell Decl., Ex. 4.)

Plaintiff clarified at the Status Conference that the documents produced by CPEHA are those contained in Exhibit 5 of the Dell Declaration and the documents produced by Swedelson are those contained in Exhibit 6 of the Dell Declaration. CPEHA's production is comprised of forty-three pages of redacted documents and generally includes Swedelson's billings to CPEHA and checks from CPEHA to Swedelson. (Dell Decl., Ex. 5.) Swedelson's production is comprised of thirty-five pages of redacted documents and generally includes various communications involving Swedelson, Moreno, CPEHA, CPEHA's attorneys, a company name Data Systems Services, and Thompson Law Group; Swedelson's billings to CPEHA; and a grant deed. (Dell Decl., Ex. 6.)

CPEHA and Swedelson represented to the Court at the Status Conference that each has produced all non-privileged documents responsive to Plaintiff's requests and identified all documents withheld under privilege in their respective privilege logs.[9] Specifically, they have produced all the communications concerning the service of the subject pre-lien notice and the reason for filing the judicial foreclosure, but have withheld or redacted under privilege “communications concerning the more general topics of Plaintiff's debt, the state court judicial foreclosure action, and this federal action.” (Mot. 6) In addition, they have produced all of the billing statements without redacting the identity of the client, amount of the fee, the identification of payment by case file name. (Id. at 6, 18.)

Plaintiff represented to the Court at the Status Conference that, for purposes of this Motion, she accepts the representations of CPEHA and Swedelson that their respective productions and privilege logs are complete. Her challenge in this Motion is limited to the CPEHA's and Swedelson's invocation of the attorney-client privilege as the basis for their withholding and redaction of documents. (See generally Mot.)

*6 Thus, at bottom, as the parties confirmed at the Status Conference, all of the discovery disputes raised in this Motion will be resolved—one way or the other, but all in the same way—with the Court's ruling as to a single issue: the propriety of the invocation of the attorney-client privilege by CPEHA and Swedelson as the basis for withholding the discovery at issue.[10]

B. The Parties' Respective Positions

Plaintiff contends that CPEHA retained Swedelson as its debt collector and that, because information and documents concerning the debt collection efforts of a debt collector routinely is disclosed in FDCPA and Rosenthal Act cases, CPEHA and Swedelson should produce debt collection documents here. (Mot. 14–15.) Plaintiff notes that, even if Swedelson is both a law firm and a debt collector, communications that concern debt collection activities do not contain legal advice and are not privileged. (Id. at 15.) On this basis, Plaintiff urges the Court to conduct an in camera review of the withheld and redacted documents to determine whether the privilege is properly invoked as to those documents. (Id. at 14.)

CPEHA and Swedelson respond that CPEHA retained Swedelson not as its debt collector, as Plaintiff contends, but as its counsel to advise upon and prosecute the judicial foreclosure action against Plaintiff. (Id. at 17.) On this basis, they argue that they are entitled to assert the attorney-client privilege to protect the confidential communications between CPEHA and Swedelson regarding Swedelson's judicial foreclosure work, and that their limited disclosure of communications concerning the service of the subject pre-lien notice and the reason for filing the judicial foreclosure action does not waive the privilege as to the judicial foreclosure work. (Id. at 5–6, 17–18, 19.) Finally, they argue that, under California privilege law, the Court may not review the documents in camera in order to rule on a claim of privilege. (Id. at 19.)

Plaintiff replies that she is entitled to the withheld information notwithstanding any privilege the Court may find for two reasons. First, because CPEHA has waived the privilege by tendering the “bona fide error” defense available under both the Rosenthal Act and the FDCPA. (Id. at 4–5, 15.) Second, because the information is relevant to the questions of fact on which she bears the burden of proof. (Id. at 14, 16.)

For the reasons set forth below, the Court concludes that the attorney-client privilege applies to the documents withheld and redacted by CPEHA and Swedelson, that CPEHA has not waived the privilege, and that Plaintiff is not otherwise entitled to the information she seeks merely because she needs it to prosecute her case.

IV. DISCUSSION

A. The Documents and Information Sought by Plaintiff Lies Within the Scope of Permissible Discovery.

Federal Rule of Civil Procedure [11] 26(b)(1) provides as follows:

*7 Fed. R. Civ. P. 26(b)(1). Because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. Discovery may be denied where:

Fed. R. Civ. P. 26(b)(2)(C). It is “[t]he court's responsibility, using all the information provided by the parties, [ ] to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” Fed. R. Civ. P. 26(b) advisory committee's note to 2015 amendment.

Here, neither CPEHA nor Swedelson argue that the information Plaintiff seeks to discover is not relevant, that the discovery sought is disproportional to the needs of the case, or that the discovery sought should not be permitted under any of the Rule 26(b)(2) factors. (See generally Mot.) Nor could the Court so find. Certainly, information regarding the work performed by Swedelson for and on behalf of CPEHA concerning Plaintiff's debt to CPEHA bears upon the claims and defenses asserted in the FAC: violations of the FDCPA and the Rosenthal Act. Moreover, Plaintiff does not seek, at least for now, documents beyond those already produced by CPEHA and Swedelson. Thus, the Rule 26(b)(1) proportionality factors concerning burden, expense, and resources weigh in favor of production. So too do the Rule 26(b)(1) proportionality factors concerning the importance of the issues at stake here, the importance of the information to resolution of the case, the amount in controversy, and the parties' relative access to the information. The claims here are serious and significant, the information informs the claims and defenses asserted in the case, and CPEHA and Swedelson undoubtedly have the best access to the evidence regarding Swedelson's work. Finally, given that CPEHA and Swedelson do not deny having possession, custody, or control of this information, the Court is not aware of any source other than CPEHA and Swedelson that can provide this information in a more convenient, less burdensome, or less expensive manner. Additionally, the information sought is not unreasonably cumulative or duplicative of other information already provided and Plaintiff has not had an opportunity to obtain this information through other discovery. Indeed, CPEHA and Swedelson appear to carefully have guarded this information from disclosure altogether. Finally, as discussed above, the discovery is not outside the scope permitted by Rule 26(b)(1).

On this basis, the Court concludes that the discovery sought by Plaintiff satisfies the Rule 26(b)(1) relevance and proportionality inquiries and need not be limited under Rule 26(b)(2).

B. The Attorney-Client Privilege Applies to the Documents and Information Sought by Plaintiff and the Court Need Not Conduct an In Camera Review to So Conclude.

*8 While the Court concludes that the discovery sought by Plaintiff is permissible under Rules 26(b)(1) and (b)(2), it still must consider whether the information may be withheld pursuant to the attorney-client privilege. On this point, Plaintiff's argument that the information and documents at issue are not privileged flounders.

“The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, [ ] as well as an attorney's advice in response to such disclosures.” United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996) (quoting In re Grand Jury Investigation (Corp.), 974 F.2d 1068, 1070 (9th Cir. 1992)). “It is well established that a corporation is entitled to assert this privilege.” Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 23 (9th Cir. 1981). The purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “Clients must be able to consult their lawyers candidly, and the lawyers in turn must be able to provide candid legal advice.” United States v. Christensen, 828 F.3d 763, 802 (9th Cir. 2016) (citing Chen, 99 F.3d at 1499–1501).

“That a person is a lawyer does not, ipso facto, make all communications with that person privileged.” Chen, 99 F.3d at 1501. Instead, “[t]he privilege applies only when legal advice is sought ‘from a professional legal advisor in his capacity as such.’ ” Id. (citation omitted). Accordingly, the attorney-client privilege has eight elements:

United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002), as amended on denial of reh'g, 2002 WL 109292, 2002 U.S. App. LEXIS 3886 (9th Cir. Mar. 13, 2002) (citations omitted). “The core of the privilege is the element of the giving of legal advice where ‘the attorney must have been engaged or consulted by the client for the purpose of obtaining legal services or advice—services or advice that a lawyer may perform or give in his capacity as a lawyer, not in some other capacity.’ ” Regents of the Univ. of Cal. v. Micro Therapeutics, Inc., No. C 03 05669 JW (RS), 2007 WL 2069946, at *2, 2007 U.S. Dist. LEXIS 54054, at *8 (N.D. Cal. July 13, 2007) (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1978)).

The party asserting the attorney-client privilege has the burden of proving that the privilege applies to a communication or document. In re Grand Jury Subpoenas (Hirsch), 803 F.2d 493, 496 (9th Cir. 1986). Accordingly, when a party withholds otherwise discoverable information by claiming that the information is privileged, the party must describe the nature of the communications or documents in a way that will enable other parties to assess the claim. According to the Ninth Circuit, a party may meet this burden by producing a log that identifies “(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3 (9th Cir. 1989)). In addition, there exists a presumption that when a person hires a law firm, “the firm [is] engaged for its legal knowledge,” upon which the privilege attaches. United States v. Sanmina Corp. & Subsidiaries, 968 F.3d 1107, 1116 n.2 (9th Cir. 2020) (citing Chen, 99 F.3d at 1502). “This presumption is rebutted when the facts show that the lawyer was ‘employed without reference to his knowledge and discretion in the law.’ ” Id. at 1116 (quoting Chen, 99 F.3d at 1501).

*9 Here, Plaintiff contends that “CPEHA retained [Swedelson] as its debt collector law firm.” (Mot. 15; Suppl. P&A 2.) She argues that the withheld and redacted documents contain information regarding Swedelson's debt collection efforts as to Plaintiff's debt to CPEHA, and that such information routinely is disclosed in FDCPA and Rosenthal Act cases. (Mot. 14–15.) Plaintiff notes that, even if Swedelson is both a law firm and a debt collector, communications regarding debt collection activities do not contain legal advice and are not privileged. (Id. at 15.)

CPEHA and Swedelson respond that CPEHA's debt collection agency is ALS, not Swedelson, and that Swedelson was retained by CPEHA “solely to provide legal services in representing the Association in a judicial foreclosure action against Plaintiff, providing advice concerning and prosecuting that judicial foreclosure action” and for “no other purpose.” (Bleifer Decl. ¶¶ 2–3; Mot. 17.) In support of this assertion, they offer the Swedelson Legal Services/Litigation Fee Agreement, which states in the first paragraph that Swedelson was retained “for a judicial foreclosure action against Brenda Dickson ... in a complaint to be filed against the Defendant ....” (Bleifer Decl., Ex. A.) To further support the claim of privilege, CPEHA has served a privilege log listing 106 documents and detailing, as to each, the attorney and client involved, the date, the author, and all of its recipients. (Dell Decl., Ex. 4.) On this basis, CPEHA and Swedelson argue that they are entitled to assert the attorney-client privilege to protect the confidential communications between them, which include the substance of those communications and the subject matters of Swedelson's analysis and research. (Mot. 5–6, 17–18.) They also argue that their limited disclosure of communications concerning the service of the subject pre-lien notice and the reason for filing the judicial foreclosure action does not waive the privilege as to every communication concerning the more general topics of Plaintiff's debt, the state court judicial foreclosure action, and this federal action. (Id. at 19.)

The Court agrees with CPEHA and Swedelson. As a starting point, the Swedelson Legal Services/Litigation Fee Agreement makes clear that the work to be performed by Swedelson is limited to the judicial foreclosure action against Plaintiff. (Bleifer Decl., Ex. A.) Plaintiff disputes neither the authenticity nor the contents of this document. (See generally Mot.) In addition, the Court finds that CPEHA has asserted the privilege properly by serving a privilege log.[12] CPEHA's privilege log substantially complies with the requirements of In re Grand Jury Investigation, 974 F.2d at 1071, by stating, as to each document, the attorney and client involved, the author, all of the recipients, and the date. (Dell Decl., Ex. 4.) CPEHA's failure to state the nature of each document and the names of all persons or entities known to have been furnished the document or informed of its substance is of no consequence since it is self-evident by the description that the documents at issue are communications between CPEHA and Swedelson, and CPEHA has affirmed that, except to the extent already disclosed in this action, the documents have been kept confidential (Bleifer Decl. ¶ 3), from which the Court reasonably can conclude that no others have viewed the documents. Significantly, Plaintiff does not contend that CPEHA's privilege log is improper or otherwise does not satisfy CPEHA's obligation under In re Grand Jury Investigation.

*10 Instead, Plaintiff disputes CPEHA's sworn factual assertions that ALS was CPEHA's debt collector and that Swedelson was retained solely for the purpose of the judicial foreclosure. (See Bleifer Decl. ¶¶ 2–3.) She does so with nothing more than her bald, unsworn assertion that Swedelson was retained as a “debt collector law firm.” (Mot. 15; Suppl. P&A 2.) Although the Motion contains no facts—verified or otherwise—to support Plaintiff's position (see generally Mot.), at the Status Conference Plaintiff proffered the allegations in the FAC in support of her argument. Specifically, at Paragraph 12 and its subparts, Plaintiff alleges:

(FAC ¶ 12.)

Setting aside for the moment that allegations contained in a complaint are “mere pleadings” that do not constitute “competent evidence” (Corbett v. Insomniac Holdings LLC, No. CV 16-3604 PSG (JEMx), 2017 U.S. Dist. LEXIS 221191, at *15 n.2 (citing Celotex Corp. v. Catrett, 447 U.S. 317, 324 (1986))), these allegations nevertheless are insufficient to support Plaintiff's contention that CPEHA retained Swedelson for debt collection work. To begin with, Swedelson advertises itself as “Community Association attorneys.” (FAC ¶ 12(a) (emphasis added).) Moreover, the advertisement states that Swedelson provides “legal counsel to community associations” and identifies Moreno as one of those community association attorneys, an experienced litigator who “has represented and provided legal counsel to boards and managing agents of California condominium and planned developments.” (Id. at ¶¶ 12(a), (c) (emphasis added).) To the extent Plaintiff might rely on the statement that Swedelson can assist associations in “judgment collection,” she would be ignoring that the reference to “judgment collection” appears as part of a list of litigation services offered by Swedelson: “we can assist your association with all litigation matters, including ... judgment collection ....” (Id. (emphasis added).) Moreover, the advertisement clearly states that Swedelson offers collection services, not itself, but through one of its affiliates. (Id. at ¶ 12(b).)

*11 The Court concludes that Plaintiff has neither controverted CPEHA's under-oath facts, nor presented her own verified facts sufficient to rebut the presumption that CPEHA retained Swedelson for legal representation as to the judicial foreclosure action, not debt collection.

Plaintiff next argues that even if Swedelson is both a law firm and a debt collector, communications regarding debt collection activities do not contain legal advice and thus are not privileged, and thus, she is entitled to such information. (Mot. 15.) However, this argument fails for lack of factual support. As a starting point, the Court does not disagree with Plaintiff that communications with a law firm for the purpose of non-legal advice are not privileged. Sanmina, 968 F.3d at 1116, n.1 (collecting cases where the Ninth Circuit has so found). However, this does not change the fact that it remains Plaintiff's burden to demonstrate in the first instance that Swedelson provided non-legal work to CPEHA. As discussed above, this she has not done.

Perhaps in acknowledgment of this shortfall, Plaintiff urges this Court to conduct an in camera review of the withheld documents and redacted information to determine whether the privilege applies. (Mot. 14.) But this puts the cart before the horse.

The Ninth Circuit has found that “in camera review is an acceptable means to determine whether disputed materials fit within the privilege.” In re Grand Jury Investigation, 974 F.2d at 1074 (citations omitted).[13] The standard for conducting an in camera review of documents that a party believes are not privileged is the same as the standard applied for in camera review under the crime-fraud exception. Id. However, that standard provides that the Court may conduct an in camera review of disputed documents only if the party that is opposing the assertion of privilege has shown, through nonprivileged evidence, “a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged.” Id. at 1075; see also United States v. de la Jara, 973 F.2d 746, 749 (9th Cir. 1992).

*12 Even where the party makes such a showing, “the decision whether to conduct the review rests within the discretion of the district court.” In re Grand Jury Investigation, 974 F.2d at 1075. The court's discretion is guided by the factors enumerated by the Supreme Court in United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). See id. at 1072. Specifically, “[o]nce the threshold showing is made to allow in camera review, courts should make the decision to review in light of the amount of material they have been asked to review, the relevance of the alleged privilege material to the case, and the likelihood that in camera review will reveal evidence to establish the applicability of the [privilege] exception.” Id. at 1072–73 (citing Zolin, 491 U.S. at 572, 109 S.Ct. 2619).)

Under this standard, the Court concludes that an in camera review of the withheld documents and redacted information is not warranted. First, Plaintiff has not provided the requisite nonprivileged “factual basis sufficient to support a reasonable, good faith belief” that such an in camera review may reveal nonprivileged information. As discussed at length above, Plaintiff has not provided a factual basis to support any belief, let alone a reasonable, good faith belief, that the documents and redacted information are anything other than privileged. Indeed, CPEHA has established to this Court's satisfaction that it retained Swedelson solely for the purpose of prosecuting the judicial foreclosure action. On the other hand, Plaintiff has provided no credible evidence, beyond mere speculation, that Swedelson was retained for the purpose of debt collection. (See generally Mot.) Instead, she asks the Court to, itself, comb through the putatively privileged matter to find the basis to support an in camera review to find nonprivileged matter, a request that clearly contravenes the dictates of In re Grand Jury Investigation, Zolin, and de la Jara.

But even if Plaintiff could meet her threshold burden of showing that nonprivileged documents might be revealed through an in camera review, the Court still retains the discretion to decide whether to conduct such a review. Applying the Zolin factors to make this determination, the Court concludes that an in camera review is not warranted. While the first and second Zolin factors weigh in favor of conducting a review, the third Zolin factor weighs heavily against it. As to the first Zolin factor, the Court finds that the amount of material to review is minimal and would not constitute a significant burden on the Court. As the parties explained during the Status Conference, the only documents at issue are the 106 withheld documents listed in Exhibit 4 to the Dell Declaration, and the seventy-eight redacted pages provided in Exhibits 5 and 6 to the Dell Declaration. As to the second Zolin factor, as discussed above, the Court has concluded that the information at issue is relevant to the parties' claims and defenses.

However, it is with the third Zolin factor that Plaintiff's argument falls short. Given the convincing sworn evidence that CPEHA retained Swedelson solely for the purpose of the judicial foreclosure action, and the lack of credible, non-speculative evidence that Swedelson was acting as a debt collector, the Court concludes that there is little to no likelihood that an in camera review will reveal evidence to establish the applicability of an exception to the privilege. Indeed, as CPEHA and Swedelson aptly contend, even their limited disclosure of communications concerning the service of the subject pre-lien notice and the reason for filing the judicial foreclosure action does not waive the privilege as to every communication concerning the more general topics of Plaintiff's debt, the state court judicial foreclosure action, and this federal action, which is what CPEHA and Swedelson explain is the nature of the withheld information here. (Mot. 18–19 (citing Chevron Corp. v. Pennzoil, 974 F.2d 1156, 1162 (9th Cir. 1992).)

*13 Accordingly, the Court declines to conduct an in camera review to determine whether the attorney-client privilege applies and instead concludes that Plaintiff has failed to rebut Plaintiff's argument that the attorney-client privilege applies to the information and documents at issue.

C. CPEHA Has Not Waived the Attorney-Client Privilege To the Extent It Tenders the “Bona Fide Error” and “Advice of Counsel” Defenses.

Plaintiff next argues that, even if the Court were to find that the attorney-client privilege applies to the documents and information she seeks, she is entitled to that discovery because CPEHA has waived the privilege. (Mot. 15.) She argues that CPEHA's tender of the “bona fide error” defense found in the Rosenthal Act and its filing of a cross-claim against Swedelson and Moreno create a waiver of the privilege because such actions put at issue CPEHA's “intent” to violate the Rosenthal Act, which in turn puts the advice of its counsel at issue.[14] (Id. at 4–5, 15.)

A debt collector seeking to avoid liability by invoking the “bona fide error” defense under California Civil Code section 1788.30 must establish “by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation.” Cal. Civ. Code § 1788.30(e).

A party may waive the attorney-client privilege expressly or impliedly. Sanmina, 968 F.3d at 1116–17. An express waiver involves the voluntary disclosure of privileged documents to a third party. Id. (citing Brittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003)). An implied waiver “is based on the rule that ‘a litigant waives the attorney-client privilege by putting the lawyer's performance at issue during the litigation.’ ” Id. (quoting Brittaker, 331 F.3d at 718). Implied waivers are based upon the principle of “fairness” which, as described by the Ninth Circuit:

Id. (alteration in original) (citing Brittaker, 331 F.3d at 719).

The Ninth Circuit has articulated a three-pronged test for determining whether an implied waiver of the attorney-client privilege is effected. United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999). First, the court considers whether the party is asserting the “privilege as the result of some affirmative act, such as filing suit.” Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)). Second, the court examines whether “through this affirmative act, the asserting party puts the privileged information at issue.” Id. Finally, the court evaluates whether “allowing the privilege would deny the opposing party access to information vital to its defense.” Id.

*14 CPEHA indeed has asserted the “bona fide error” defense in its answer to the FAC (Answer ¶ 67, ECF No. 41), and it has filed an indemnity cross-claim against Swedelson and Moreno (Cross-Claim, ECF No. 42). Plaintiff contends that CPEHA's “bona fide error” defense is based on its lack of intent to violate the Rosenthal Act and its assertion that, if it violated the Rosenthal Act, it did so on the advice of its counsel, Swedelson. (Mot. 4–5.) However, CPEHA—the party asserting the defense—disputes Plaintiff's characterization of its affirmative defense and cross-claim. Instead, it explains that any “wrongful actions undertaken in the prosecution of the judicial foreclosure, as well as the prerequisite recording of the lien and service of the required notices, were undertaken by [Swedelson],” and that CPEHA filed an indemnity cross-claim against Swedelson “out of an abundance of caution in the unlikely event that the court or jury finds a violation, since the violation would have been committed by [Swedelson]. (Id. at 5–6.) Thus, argues CPEHA, neither its cross-claim against Swedelson nor its defenses “place in issue the advice of or communications with [Swedelson].” (Id. at 6.) Indeed, this is borne out by CPEHA's answer to the FAC, where it does not assert an “advice of counsel” defense (see generally FAC), and its cross-claim where it seeks indemnity and contribution from Swedelson on the ground that any damages suffered by Plaintiff “were directly, proximately, and legally caused by the negligent or wrongful acts or omissions of [Swedelson]” (see generally Cross-Claim).

The Court concludes that Plaintiff has not met her burden of establishing that CPEHA impliedly has waived the privilege—by asserting the “bona fide error” defense or through a purported reliance on the advice of its counsel—because she does not satisfy any of the Lane/Hearns factors. As to the first factor, CPEHA has made clear that it has not asserted the attorney-client privilege to protect any communications between it and Swedelson concerning the “bona fide error” defense. Plaintiff's contentions to the contrary have no basis in fact and are wholly speculative: “Thus, we can expect that the CPEHA will argue that, if it violated the Rosenthal Act, then it did so based upon the collection advice of its co-defendant [Swedelson], debt collector counsel.” (Mot. 5 (emphasis added).) As to the second factor, because CPEHA has confirmed that it does not intend to assert the advice of its counsel as the basis for its “bona fide error” defense (Mot. 5–6; Answer; Cross-Claim), the Court concludes that CPEHA has not put its communications with Swedelson on that subject at issue. Finally, the Court's allowance of the privilege does not deny Plaintiff access to information vital to her case since she could seek to obtain discovery regarding CPEHA's “bona fide error” defense through other non-privileged sources. And, as discussed below, even if such discovery were not available, her need for the information does not trump the privilege. Plaintiff's argument—that this conclusion could permit CPEHA and Swedelson to “sandbag” her in dispositive motions or at trial by using the information that it is withholding under privilege (id. at 12, 22)—is unavailing. Indeed, Rule 26(a) protects against this very chicanery by requiring each party to disclose, initially and prior to trial, information that it may present at trial, or otherwise use, to support its claims or defenses. See Fed. R. Civ. P. 26(a).

On this basis, the Court concludes that CPEHA's assertion of the “bona fide error” defense and its filing of an indemnity cross-claim against Swedelson and Moreno do not effect an implied waiver of its attorney-client privilege with respect to the information and documents it has withheld pursuant to that privilege.

D. Plaintiff is Not Entitled to the Privileged Information Merely Because She Needs It to Prove Her Case.

Finally, Plaintiff argues that she is entitled to the withheld documents and the redacted information because the information they contain is relevant to the questions of fact on which she bears the burden of proof, including whether CPEHA and Swedelson acted as debt collectors, whether the debt qualifies as a “credit transaction” under the Rosenthal Act, whether the charges imposed on her by CPEHA were unreasonable, and generally whether the conduct of CPEHA and Swedelson constitute a violation of the FDCPA and the Rosenthal Act. (Mot. 14, 16.)

It is unclear to the Court if this is Plaintiff's attempt to establish in the first instance that the information is discoverable on the ground that it satisfies the Rule 26(b)(1) relevance standard, or if this is a further basis upon which she argues that she is entitled to the information even if it is privileged. To the extent it is the former, the Court does not disagree. However, as detailed above, the Court's denial of Plaintiff's request to compel CPEHA and Swedelson to produce the information Plaintiff seeks is based not upon a lack of relevance, but upon the application of the attorney-client privilege.

*15 To the extent it is the latter, the Court cannot agree. Plaintiff's argument that “[D]efendants may be attempting to withhold these documents to prevent [her] from using them to show” the facts necessary to prove violations of the FDCPA and the Rosenthal Act is ineffectual. (See id. at 16.) Rule 26(b)(1) makes clear that only non-privileged matter is discoverable, even if the matter is wholly relevant to the claims or defenses in the case. See Fed. R. Civ. P. 26(b)(1). And, it is well established that, absent waiver (not present here) or other exception (also not present here), the attorney-client privilege “cannot be overcome,” even “by a showing of need.” Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1494–95 (9th Cir. 1989) (declining to create an exception to the privilege where the information sought by the plaintiff was not available through any other source, and finding that such an unavailability exception would render the privilege “so tenuous and uncertain that it would be ‘little better than no privilege at all.’ ”) (quoting Upjohn, 449 U.S. at 393, 101 S.Ct. 677).

V. CONCLUSION

For the foregoing reasons, the Court hereby ORDERS as follows: