*1 Pending before this Court is Plaintiffs’ Motion to Compel Production of Claris Communications (Doc. No. 65). For the reasons below, the Court DENIES the Motion.

I. BACKGROUND

On January 10, 2020, the Parties jointly notified this Court of a dispute regarding the discoverability of certain communications. Since 2012, Defendants have contracted with Claris Solutions Group, Inc. (“Claris”), a non-party to this Action, to perform various projects, including a 2013 study of Defendants’ business operations. Pursuant to Federal Rule of Civil Procedure 30(b)(6), Plaintiff subpoenaed Claris for deposition regarding its contractual dealings with Defendants during the relevant time period. Once served with the subpoena, on the advice of defense counsel, Claris retained its own counsel. Defendants and Claris then entered into a joint defense agreement. Subsequently, defense and Claris’ counsel engaged in a series of communications regarding this litigation (“Claris communications”). Counsel specifically strategized around Claris’ response to Plaintiffs’ Rule 30(b)(6) subpoena for deposition. Thereafter, Claris designated an appropriate witness for deposition (“Claris witness”), and the deposition went forward.

Following Claris’ deposition, Plaintiffs propounded certain Requests for Production of Documents (“RFPs”) onto Defendants. Plaintiffs’ RFP No. 3 is at the heart of the instant dispute. The RFP requests “DOCUMENTS constituting COMMUNICATION between YOU (including YOUR counsel) on the one hand, and Mayer, LLP (Claris’ counsel), on the other hand, limited to the time period from and after 19 January 2018 and further limited to COMMUNICATIONS which refer to, and/or relate to, the above-captioned civil action.” Defendants objected to the RFP and asserted that, “Counsel for Defendants and Claris Systems Group, LLC are parties to a joint defense agreement, and therefore the communications sought by Request No. 3 are protected by the attorney-client privilege.” In connection with their responses to the RFPs, Defendants also served Plaintiffs with a privilege log, where, in relevant part, Defendants identified that they were withholding the Claris communications on privilege grounds in response to RFP No. 3.

Given their impasse regarding the Claris communications’ discoverability, the Parties met and conferred consistent with Chambers’ Civil Rule IV(A). However, they failed to reach resolution informally. As a result, on January 10, 2020, the Court issued an order setting a discovery conference and briefing schedule. (Doc. No. 63.) The Parties timely submitted their briefing, consisting of the authority upon which they now rely to address whether the Claris communications are privileged and non-discoverable. On January 21, 2020, the Court convened a discovery conference, pursuant to its January 10, 2020 Order. David Gallo appeared for Plaintiffs and Mark Knueve appeared for Defendants. The Parties articulated their positions as condensed here.

During the discovery conference, Plaintiffs’ counsel also alerted the Court to a matter related to Defendants’ withholding of the Claris communication, which has had an inflammatory effect on this discovery dispute. Specifically, Plaintiffs’ counsel noted that, in deposition, the Claris witness testified that Claris had produced all records, communications, and documents responding to Plaintiffs’ subpoena. (Doc. No. 66, 7:7-8; Exhibit (“Exh.”) 2, 8:11-24.) Concurrently, at no time during the deposition did defense counsel interject to note that the Claris communications were being withheld on privilege grounds. Because Defendants’ discovery responses and privilege log were not served until after the Claris deposition, Plaintiffs’ counsel did not know while taking the Claris witness’ deposition that Claris had not in fact produced all documents subject to Plaintiffs’ subpoena.

*2 To date, Defendants have stood on their objections and have not produced any of the Claris communications on the basis of (1) attorney-client privilege; (2) the Attorney Work-Product Doctrine; and (3) the Common Interest Doctrine. Plaintiffs dispute Defendants’ position and move the Court to compel production of the contested communications.

II. DISCUSSION

“The Common Interest Doctrine is not a privilege in and of itself, but rather serves as an exception to the waiver of the attorney-client privilege or the attorney work-product privilege.” Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). The Doctrine applies when (1) the communication is made by separate parties in the course of a matter of common interest; (2) the communication is designed to further that effort; and (3) the privilege has not been waived.” U.S. v. Bergonzi, 216 F.R.D. 487, 495 (N.D. Cal. 2003) (internal citations omitted). Further, though it does not require a complete unity of interests among the parties, the Doctrine mandates that parties share a common legal interest, as opposed to a commercial interest. Nidec, supra, 249 F.R.D. at 579 (quoting Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995)); United States v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012) (citing Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964)). Importantly, at all times, the Doctrine is narrowly construed to avoid “creating an entirely new privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1128 (9th Cir. 2018)).

Here, the common legal interest that Defendants and Claris purportedly share is too attenuated to invoke the Common Interest Doctrine's protections. Although a joint defense agreement governs Defendants and Claris’ relationship in the context of this Action, the existence of the agreement is not dispositive of whether the two entities share a sufficient common legal interest to merit the Doctrine's applicability. Gonzalez, supra, 669 F.3d at 981 (“the existence of an express or implied joint defense agreement is not necessarily an all-or-nothing proposition”); In re Pac. Pictures Corp., supra, 679 F.3d at 1129 (“the parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement- whether written or unwritten”). The Court is not persuaded that a common legal interest exists based on the mere fact that Defendants and Claris entered into a joint defense agreement[1].

Instead, the Court focuses its inquiry on the nature and quality of the purported common legal interest and, in doing so, fails to see such an interest has materialized. The Ellis case upon which Defendants heavily rely does not move the needle towards a finding that Defendants and Claris share an adequate legal interest to warrant the Common Interest Doctrine's protections. In Ellis, the communications at issue were between defendant Chase Bank, N.A. (“Chase”) and various vendors with whom Chase contracted, none of whom were parties to the action. Ellis v. J.P. Morgan Chase & Co., 2014 WL 1510884, *1 (N.D. Cal. Apr. 1, 2014). Plaintiff sought disclosure of the communications between Chase and the vendors’ counsel, arguing that the communications were not privileged. Id. The Court disagreed and found that, in the context of Plaintiff's Racketeering Influenced and Corrupt Organizations (“RICO”) claims against Chase, “the vendors [were] potential co-defendants” and there was “at least an implied common interest privilege.” Ellis, supra, 2014 WL 1510884 at **6-7.

*3 The Ellis conclusion cannot be extended here. Unlike the RICO claims in Ellis, the instant claims arise under California wage and hour law that do not remotely invoke any common enterprise or otherwise conspiratorial elements. Indeed, that non-party Claris would be named as a potential co-defendant at some unknown time in the future is both speculative and unlikely, given this action's longstanding history. In fact, Plaintiffs’ counsel stated unequivocally during the deposition of the Claris witness that Claris is not being sued nor is it alleged that Claris has done anything wrong. (Doc. No. 65; Exh. 2:8-9.) As a management consulting firm, Claris contracted their services to facilitate Defendants’ study of how their Store Team Leaders (“STLs”) managed their time during their work shifts. Claris’ data reporting and statistical inferences about STLs’ time management in no way suggests that Claris had a hand in directing or controlling Plaintiffs’ employment with Defendants, including, but not limited to, the manner in which their employment was classified. Under these circumstances, the Court strains to see exactly how Claris is analogous to the Ellis vendors, who had a direct hand in performing the default-related services that gave rise to the Ellis action.

The purported common legal interest between Claris and Defendants becomes less convincing when considering that Defendants primarily cite the need to “properly respon[d] to Plaintiffs’ subpoena and advance[e] the litigation without being subject to a distracting claim for sanctions.” (Doc. No. 64.) As a threshold matter, Claris has no interest in advancing this litigation as it is not a named party. Further, more likely than not, Claris will remain a non-party to this Action, given its project-based work for Defendants had no bearing on the terms and conditions of Plaintiffs’ employment with Defendants. To that end, Claris has never been subject to a sanctions motion by Plaintiffs as it first became involved in this litigation when Plaintiffs subpoenaed Claris for deposition. Defendants overreach and place undue emphasis on the supposition that Claris would be subject to a sanctions motion as Defendants previously have been. Additionally, Defendants’ emphasis that “Claris is a long-time contractor” and that it has an “ongoing business relationship” with Defendants is unpersuasive, as it reflects only a common commercial interest rather than a legal one. At all times, the Common Interest Doctrine must be construed narrowly to avoid creating a new privilege. In re Pac. Pictures Corp., supra, 679 F.3d at 1128. Defendants’ position is at odds with the Doctrine's narrow application because it implicitly suggests that an adequately common legal interest arises any time a party assists a non-party with responding to a subpoena. Ultimately, Defendants fail to establish a viable common legal interest between themselves and Claris to invoke the Common Interest Doctrine's protections.

As a foundational matter, the attorney-client privilege protects from disclosure any confidential communications between a client and their attorney for purposes of obtaining legal advice. Regents v. University of California v. Affymetrix, Inc., 326 F.R.D. 275, 278 (S.D. Cal. June 19, 2018). In part, Defendants argue that the Claris communications are non-discoverable because they are attorney-client privileged. (Doc. No. 64.) Consistent with this position, Defendants objected to producing the communications in their response to RFP No. 3, stating that the communications “are protected by the attorney-client privilege.” (Id.) By maintaining the privilege in the communications on this basis, Defendants bear the burden of first establishing the existence of an attorney-client relationship and, secondly, that the nature of the communications are privileged. United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997); see also United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000).

Defendants, however, have not and cannot meet their burden precisely because there is no attorney-client relationship to protect the Claris communications. Defense counsel and Claris do not share such a relationship, and the same is true for Defendants and Claris’ counsel. Indeed, Defendants and Claris are represented by their respective counsel and Claris’ decision to retain separate counsel was deliberate and based upon defense counsel's advice. Accordingly, any communications between Defendants and Claris’ attorneys do not fall within the ambit of the attorney-client privilege. Because an attorney-client relationship wholly lacks and Defendants cannot create an attorney-client relationship by simply entering into a joint defense agreement with Claris, the Court finds that the attorney-client privilege does not apply to the Claris communications and they are not protected from disclosure on that basis.

*4 The Attorney Work-Product Doctrine protects from discoverability “documents and other tangible things that are prepared in anticipation of litigation or for trial by of for another party or its representative, including the other party's attorney, consultant, surety, indemnitor, insurer, or agent.” In re Grand Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004) (citing Admiral Ins. Co. v. United States District Court, 881 F.2d 1486, 1494 (9th Cir. 1989)). At its core, the work-product doctrine “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” Stevens v. Corelogic, Inc., 2016 WL 397936 at *8 (S.D. Cal. Feb. 2, 2016) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)).

In their Memorandum of Facts and Contentions, Defendants argue that the Claris communications are additionally privileged pursuant to the Attorney Work-Product Doctrine. (Doc. No. 64.) Plaintiffs’ Motion to Compel does not address privilege under the Attorney Work-Product Doctrine explicitly. Nevertheless, Plaintiffs more broadly argue that “the subject communications are relevant and not privileged” to any extent, and thus impliedly reject the applicability of the Attorney Work-Product Doctrine. (Doc. No. 65.)

At all times, the party asserting work-product immunity over a piece of evidence bears the burden of establishing the Doctrine's applicability to the particular circumstances. Skynet Elec. Co. Ltd. V. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 WL 6623874, at *2 (N.D. Cal. Dec. 13, 2013). Defendants have met that burden here. During the January 21, 2020 conference and in Defendants’ Memorandum of Facts and Contentions, defense counsel represented that their communications with Claris’ counsel memorialize counsel's impressions and thoughts surrounding this litigation. Counsel further represented that this exchange of confidential information was carried out for the express purpose of strategizing around Claris’ response to Plaintiffs’ 30(b)(6) deposition notice. Taken together, these facts demonstrate that counsel's communications arose not tangentially to this action, but rather directly because of it and were intended to remain confidential. Accordingly, counsel's work product was prepared for purposes of this litigation, specifically deposition preparation. The existence of a joint defense agreement provides corroboration of defense counsel's subjective intent that the Claris communications were to be confidential; thus, the communications fall squarely within the parameters of the Work-Product Doctrine. Under these circumstances, there can be no ambiguity that the communications are immune from discoverability under the Attorney Work-Product Doctrine.

As noted, Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery here and provides that parties may discover any non-privileged 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). The Rule was promulgated to “emphasize the need to impose ‘reasonable limits on discovery.’ ” OOIDA Risk Retention Grp., Inc. v. Bordeaux, 2016 WL 427066, at *3 (D. Nev. Feb. 3, 2016). Notably, the Rule bars even relevant evidence from discoverability if such evidence is privileged. Real v. Cont'l Grp., Inc., 116 F.R.D. 211, 213 (N.D. Cal. Nov. 10, 1986). At the same time, under extremely narrow circumstances, Rule 26(b)(3) allows discovery of documents prepared in anticipation of litigation or trial “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed. R. Civ. P. 26(b)(3); Candle Corp. v. Boole & Babbage, Inc., 1985 WL 1087794, at *5 (C.D. Cal. Aug. 2, 1985) (citing same). As elaborated below, the Work-Product Doctrine protecting the Claris communications from disclosure remains intact, given Plaintiffs’ resounding lack of factual and legal authority supporting the communications’ discoverability.

*5 Glaringly, Plaintiffs’ Motion fails to set forth any factual basis for Plaintiffs’ belief that defense and Claris’ counsel purportedly schemed to puppeteer the Claris witness’ testimony for deposition. At all times, it is Plaintiffs’ burden to make this fact-specific showing, given that they seek the disclosure of otherwise privileged communications and documents. Candle Corp., supra, 1985 WL 1087794, at *5 (noting that moving to compel production of privileged communications “shifts the standard presumption in favor of discovery and requires the party seeking discovery to show ‘adequate reasons’ why the work product should be subject to discovery”) (citing In re Sealed Case, 676 F.2d 793, 810 (D.C. Cir. 1982)). During the January 21, 2020 discovery conference on this matter, Plaintiffs’ counsel argued that the Claris communications should be disclosed because they are not privileged and Plaintiffs require the communications for impeachment purposes. Plaintiffs’ Motion to Compel asserts the same and goes further. The Motion is colored by Plaintiffs’ belief that defense and Claris’ counsel conspired to coach the Claris witness for purposes of evading Plaintiffs’ counsel's inquiry during deposition on the discrete topic of “task work.”

Plaintiffs’ Motion postulates that the Claris communications “constitute evidence from which the Jury may infer that these communications affected the content of the testimony of Claris’ designee when he essentially testified that the Final Project Report doesn't mean what its words appear to say (in regard to how the store managers actually expend their working time).” (Doc. No. 65.) Plaintiffs’ Motion is premised upon their unsupported speculation that the Claris witness was coached or otherwise influenced to define the term “task work” in a manner contrary to Plaintiffs’ expectation. Plaintiffs offer no factual basis to support their suspicion that defense and Claris’ counsel colluded to sway the Claris witness’ testimony. On this front alone, Plaintiffs failed to meet their burden. Plaintiffs have not shown a substantial need for the Claris communications for speculative-at-best impeachment purposes, nor that they are unable to obtain the information by other means[2], such that the work-product immunity should be set aside in favor of the communications’ discoverability.

Even assuming Plaintiffs’ speculation regarding counsel's conduct is well-founded, Plaintiffs cite to no legal authority evidencing that any court has permitted the disclosure of attorney work-product communications under such circumstances. Indeed, Plaintiffs’ Motion asserts that Plaintiffs seek the production of the Claris communications for vaguely defined, highly abstract, and unsubstantiated impeachment purposes that fail to establish why the Work-Product Doctrine here should be set aside in favor of discoverability. Candle Corp., supra, 1985 WL 1087794, at *5 (barring the introduction of work-product privileged documents into evidence after Plaintiff failed to “ma[ke] the minimal showing that it has a substantial need for the documents and is unable without undue hardship to obtain the substantial equivalent of the materials by other means”); Stevens, supra, 2016 WL 397936, at *9 (denying Plaintiffs’ motion to compel disclosure of attorney work-product protected documents, noting that “the Court is not persuaded the work product doctrine does not protect the ‘handful’ of documents Defendant's counsel specifically selected from “thousands of pages” to review with the witnesses before their depositions,” which included communications with counsel); U.S. Specialty Ins. Co. v. Capitol Films U.S., LLC, 2008 WL 11340369, at *6 (C.D. Cal. Oct. 7, 2008) (denying defendant's motion to compel disclosure of attorney work-product communications because “[defendant] has made no showing that [plaintiff] intends to call [counsel] as a witness, or that [plaintiff] has placed [counsel's] opinions at issue in this case. Moreover, even assuming that the document at issue contains non-opinion work product, [defendant] has failed to demonstrate a substantial need and inability to obtain the equivalent without undue hardship”); see also Holmgren v. State Farm Mutual Automobile Insurance Co., 976 F.2d 573, 577 (9th Cir. 1992) (observing that a party seeking work-product protected discovery must show that counsel's mental impressions are at issue in the case and that the need for the material is compelling and that an example of compelling need in the context of attorney work-product occurs when an opposing party intends to calls its attorneys to testify as to their opinions).

*6 In so finding, the Court recognizes that this discovery dispute was invited by defense and Claris’ counsel's reticence during the Claris deposition. Had counsel clarified the record during the deposition to acknowledge that the Claris communications were being withheld, rather than allowing the Claris witness to inaccurately testify that all documents had been produced, this discovery dispute could have been averted altogether. Defense and Claris’ counsel's compounding failure to correct the record following the deposition and prior to Defendants’ service of their discovery responses and privilege log aggravated the matter. Notwithstanding Plaintiffs’ failure to substantiate their suspicions of counsel's misconduct, defense and Claris’ counsel's omissions during the Claris deposition had the effect of magnifying Plaintiffs’ purported concerns of counsel's impropriety in preparing the Claris witness for deposition.

At all times, counsel has an affirmative duty to ensure the accuracy of the record by being candid with the Court and, equally so, their opponent. Corbello v. Devito, 2011 WL 3859466, at *3 (D. Nev. Aug. 31, 2011) (finding that “counsel[’s] decision to wait until the end of deposition to see if the inaccurate testimony was corrected on cross examination was a serious error of judgment” because... “counsel has a duty of candor to the court and to opposing counsel and an ethical obligation to correct the record when false testimony is given”); In re SK Foods, L.P., 2018 WL 784451, at *9 (Bankr. E.D. Cal. Feb. 6, 2018) (rejecting counsel's argument that “incorrectly assumes an attorney's duty of candor and truthfulness – to both opposing counsel and the court – arises only if he succeeds in hood-winking one or the other”).

III. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs’ Motion to Compel Claris’ Communications on the basis that the Claris communications are protected under the Attorney Work-Product Doctrine. Unless they voluntarily waive the applicable privilege, Defendants need not produce the Claris communications to Plaintiffs.

Notwithstanding the Court's ruling on Plaintiffs’ Motion, the Court recognizes Defense and Claris’ counsel failed to meet their obligation of candor by withholding their knowledge, during and immediately after the Claris deposition, that the Claris communications had not been produced. To ensure that Plaintiffs are not prejudiced by Defendants’ omission, the Court GRANTS Plaintiffs’ counsel leave to reopen the deposition of the Claris designee for the limited purpose of inquiring about the Claris witness’ deposition preparation, including the witness’ review of any documents and communications responsive to Plaintiffs’ subpoena. With this in mind, the Court underscores the deposition shall not exceed one hour and shall be limited to questions solely regarding the Claris witness’ deposition preparation, and specifically whether the witness was in any way coached, instructed, or advised by anyone to alter his definition of “task work” and “managing staff,” as those terms are used in Claris’ Final Project Report to Defendants. Finally, each party shall bear its own costs for purposes of the Claris witness’ subsequent deposition, should Plaintiffs wish to reopen it consistent with this Order.

IT IS SO ORDERED.

Defendants failed to attach Defendants and Claris’ joint defense agreement as an evidentiary exhibit to Defendants’ Memorandum of Facts and Contentions (Doc. No. 64). Nonetheless, the Court's finding that the Claris communications are attorney work-product obviates the need to review the joint defense agreement for purposes of adjudicating Plaintiffs’ Motion to Compel Claris Communications (Doc. No. 65). The Court elaborates below.

As discussed infra, Plaintiffs have available to them alternative means to obtain the information they seek.