*1 Relator Ben Ferris moves to compel certain discovery.[1] This motion is opposed by defendants Afognak Native Corporation and Alutiiq, LLC.[2] Oral argument was not requested and is not deemed necessary.

First, relator moves to compel one of defendants’ employees to provide an answer to one question that she did not answer at her deposition. On August 8, 2007, Amanda Huettl, the SBA compliance director at Alutiiq, was deposed. At her deposition, Huettl was being asked a series of questions about a 2012 email exchange between herself and someone at the SBA.[3] The exchange involved questions about whether Alutiiq Pacific had its own guard services division or whether a sole source contract was being pursued by Alutiiq, LLC's guard services division.[4] Huettl told the SBA that Alutiiq Pacific was the entity that was pursuing the sole source contract and that Alutiiq Pacific had its own guard services division.[5] Huettl testified that she would not have known whether or not Alutiiq Pacific actually had its own guard services division and she would have gone to somebody else to find out how to respond to the SBA's questions about which entity was pursuing the contract in question.[6] Huettl testified that she would have probably first gone to Alutiiq LLC's general counsel, Amy Shimek, to get the information that she provided to the SBA.[7] Huettl was then asked, “How often would Amy Shimek instruct you on what to say to the SBA in response to questions like this?”[8] Huettl was instructed not to answer that question “on the grounds of privilege and work product....”[9] Relator now moves to compel Huettl to provide a sworn answer to this question.

“A party seeking discovery may move for an order compelling an answer ... if ... a deponent fails to answer a question asked under Rule 30 or 31[.]” Fed. R. Civ. P. 37(a)(3)(B)(i). Huettl declined to answer the question at issue on instruction from defense counsel on the ground that the question was seeking privileged information. “ ‘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.’ ” Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 WL 397936, at *1 (S.D. Cal. Feb. 1, 2016) (quoting United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)). “The privilege protects communications; it does not protect facts related to a communication, such as the fact that a communication took place, or the time, date, and participants in the communication; it does not prevent disclosure of underlying facts which may be referred to within a qualifying communication.” AMCO Ins. Co. v. Madera Quality Nut LLC, Case No. 1:04-cv-06456-SMS, 2006 WL 931437, at *10 (E.D. Cal. April 11, 2006).

*2 Defendants argue that if Huettl were to answer the “how often” question, the answer would necessarily disclose the substance of communications between Huettl and Shimek. Specifically, defendants contend that if Huettl answered the question, she would be “disclos[ing] the specific substance of the communications, namely, that Ms. Shimek advised ‘what to say’ to the SBA in response to specific questions or types of questions.”[10]

The question as to “how often” Shimek instructed Huettl on how to answer questions from the SBA is an underlying fact, not a privileged communication. Huettl was not being asked what Shimek told her to say but simply how often Huettl asked Shimek what to say in response to the SBA. Defendants are compelled to provide to relator Huettl's sworn answer to the question, “How often would Amy Shimek instruct you on what to say to the SBA in response to questions like this?”

Second, relator moves to compel defendants to instruct Huettl and any other employees who might have corporate documents on their home computers to search their home computers for responsive documents. This request is based on an exchange that occurred during Huettl's deposition. During her deposition, Huettl was asked if she “ever worked from home” and if she ever used her “home computer for work-related purposes[.]”[11] Huettl responded that she “very rarely” worked from home but that she would “[r]espond to emails” using her home computer.[12] Huettl was asked if her home computer had ever been searched for documents related to this case and she replied that she did not know if anyone had done that and that she had not personally done so.[13] Relator argues that Huettl's responses suggest that she, as well as other employees of defendants, might have documents relevant to this case on their home computers. Relator has requested that defendants obtain copies of any responsive documents that might be on employees’ home computers and produce them, but defendants have refused.

“Under Rule 34, a party must produce or permit inspection of documents responsive to a request for production of documents when such documents are in the party's ‘possession, custody or control.’ ” A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006). “ ‘[F]ederal courts have consistently held that documents are deemed to be within [a party's] “possession, custody or control” for purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand.’ ” Id. (emphasis omitted) (quoting In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)). “Accordingly, a party has an obligation to conduct a reasonable inquiry into the factual basis of his responses to discovery and, based on that inquiry, [a] party responding to a Rule 34 production request ... is under an affirmative duty to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.” Id. (internal citations omitted). Thus, relator insists that defendants have an obligation to request that their employees search for responsive documents on their home computers and then produce any responsive documents the employees might find.

*3 Relator has made an adequate showing that defendants’ employees might have responsive documents on their home computers. In addition to Huettl's deposition testimony, two of defendants’ former employees, Richards Hobbs and Matt Daggett, both, in response to a subpoena, produced corporate documents that they had in their possession. Hobbs testified that he produced “my legal notepads with my to-do list and my notes, as well as my calendar from” the year he left defendants’ employ.[14] Daggett testified that he produced all documents that he had “concerning Afognak and Alutiiq and their corporate affiliates and subsidiaries....”[15]

Defendants have an obligation, in responding to relator's discovery requests, to seek information that is reasonably available from their employees. This would include any responsive documents that their employees might have on their home computers. However, relator's request that all of defendants’ employees search their home computers for responsive documents is not proportional to the needs of the case. Rule 26(b)(1) provides that “[p]arties 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[.]”

The proportionality problem can be addressed by limiting relator's request to any of the 37 designated custodians who are currently still employed by defendants. The designated custodians are the individuals who are most likely to have responsive documents on their home computers. Defendants are compelled to require any of the 37 designated custodians who are still employed by defendants to search their home computers for responsive documents.

Third, relator moves to compel defendants to produce an unredacted version of an email that Richard Hobbs, the former CEO and President of Afognak, sent to Dean Clowers, then a vice-president of defendants, and Shimek, Alutiiq LLC's general counsel.[16] At his September 14, 2017 deposition, Hobbs was asked about this email.[17] After Hobbs’ deposition, relator asked defendant to produce an unredacted version of the Hobbs’ email. Although defendants agreed to produce Clowers’ response to the Hobbs’ email, they continued to assert that a portion of the Hobbs’ email was privileged.

The Hobbs’ email consists of two sentences.[18] The first sentence reads: “Please see below.”[19] The “below” is an email relator sent to Hobbs about his concerns that defendants’ 8(a) entities might not be small businesses.[20] The second sentence of the Hobbs’ email begins: “I would appreciate your thoughts on” and the remainder of the sentence is redacted.[21]

Defendants have refused to provide an unredacted copy of the Hobbs’ email because they contend that the question that Hobbs asked is privileged because he was seeking legal advice. Relator however argues that Hobbs could not have been seeking legal advice because the email was sent to Clowers and the attorney-client privilege “ ‘protects only communications between a lawyer and client.’ ” In re Syncor ERISA Litig., 229 F.R.D. 636, 645 (C.D. Cal. 2005) (quoting Dombrowski v. Bell Atlantic Corp., 128 F. Supp. 2d 216, 219 (E.D. Pa. 2000)). Relator insists that Hobbs’ question to Clowers could not have been seeking legal advice, regardless of whether the same question was posed to Shimek.

*4 The attorney-client privilege can attach to a document sent to both a non-lawyer and a lawyer. See Engurasoff v. Zayo Group LLC, Case No. C–14–00689 DMR, 2015 WL 335793, at *2 (N.D. Cal. Jan. 23, 2015) (“The mere fact that a document includes multiple recipients or CC recipients does not mean that the privilege cannot attach”). “A document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds.” Santrade, Ltd. v. General Elec. Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993). Rather, the relevant inquiry is whether “the ‘primary purpose’ of the communication was securing legal advice.” United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002).

Hobbs avers that he sent the email to Shimek “for purposes of obtaining her legal advice....”[22] However, as relator points out, at his deposition, Hobbs was specifically asked whether he was “seeking legal advice” and he responded that he “was seeking Amy and Dean's feedback.”[23] Thus, relator argues that Hobbs’ after-the-fact averment that he was seeking legal advice rings hollows. Relator insists that because Hobbs “simultaneously” sent the email to both a lawyer and a non-lawyer, defendants “cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.” In re Vioxx Products Liability Litig., 501 F. Supp. 2d 789, 805 (E.D. La. 2007). “When e-mail messages [are] addressed to both lawyers and non-lawyers for review, comment, and approval, ... the primary purpose of such communications [is] not to obtain legal assistance since the same was being sought from all.” Id. at 809. Relator contends that the Hobbs’ email would be discoverable if it had been sent to Clowers alone, and he argues that defendants’ “choice[ ] of means and format in the communications between their lawyers and employees cannot limit [his] right to discovery of what otherwise is non-privileged and discoverable.” Id.

Factors the court may consider when determining whether the primary purpose of a communication is to obtain legal advice include 1) “the context of the communication and content of the documen[t],” 2) “the facts surrounding the creation of the document and the nature of the document[,]” 3) “whether the legal purpose so permeates any non-legal purpose that the two purposes cannot be discretely separated from the factual nexus as a whole[,]” 4) “the breadth of the recipient list in assessing the centrality of potential legal advice generated by the communication[,]” and 5) “whether a communication explicitly sought advice and comment.” Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 629 (D. Nev. 2013) (citations omitted). Here, the Hobbs’ email was sent to only two persons, a vice-president and general counsel, to get their feedback or thoughts on relator's email, which raised legal questions about defendants’ compliance with the 8(a) BD program. Despite Hobbs’ equivocal response at his deposition, the court finds that the primary purpose of the Hobbs’ email was to obtain legal advice. Defendants are not compelled to provide an unredacted version of the Hobbs’ email.

Finally, relator requests his reasonable expenses, including attorney's fees, incurred in bringing the instant motion. If a motion to compel is “granted in part and denied in part, the court ... may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion[.]” Fed. R. Civ. P. 37(a)(5)(C). The court, in its discretion, declines to award any reasonable expenses to relator.

*5 Relator's motion to compel[24] is granted in part and denied in part. Defendants shall provide relator with Huettl's sworn answer to the question, “How often would Amy Shimek instruct you on what to say to the SBA in response to questions like this?” Defendants shall also require that any of the 37 designated custodians who are still employed by defendants search their home computers for responsive documents and then defendants shall produce any responsive documents found by the employees that have not already been produced.

DATED at Anchorage, Alaska, this 29th day of November, 2017.

Docket No. 320.

Docket No. 331.

Deposition of Amanda Huettl at 256:12-14, Exhibit A, Declaration of Angela R. Jones [etc.], Docket No. 332.

Id. at 257:7-10.

Id. at 256:17-257:18.

Id. at 258:1-15.

Id. at 258:23-25.

Id. at 260:19-21.

Id. at 260:22-23.

Defendants’ Opposition to Relator's Second Motion to Compel at 7, Docket No. 331.

Huettl Deposition at 25:18-21, Exhibit A, Declaration of Michael J. Pendell [etc.], Docket No. 322.

Id. at 25:18-25.

Id. at 26:16-20.

Deposition of Richard M. Hobbs, II at 24:16-25, Exhibit A, Declaration of Michael J. Pendell [etc.], Docket No. 338.

Deposition of Matthew Daggett at 15:12-20, Exhibit B, Pendell Declaration, Docket No. 338.

SEALED Exhibit D, Pendell Declaration, Docket No. 322.

Deposition of Richard M. Hobbs, II at 195:3-21, Exhibit B, Pendell Declaration, Docket No. 322.

SEALED Exhibit D at 1, Docket No. 323.

Id.

Id. at 1-2.

Id.

Declaration of Richard M. Hobbs, II [etc.] at 2, ¶ 4, Docket No. 333.

Hobbs’ Deposition at 195:22-25, Exhibit B, Pendell Declaration, Docket No. 322.

Docket No. 320.