*1 This matter is before the Court on Defendant MillerCoors, LLC's Motion to Compel (ECF No. 107), filed on February 12, 2019. Plaintiff filed its Response (ECF No. 114) on February 26, 2019, and Defendant filed its Reply (ECF No. 117) on March 5, 2019. The Court conducted a hearing in this matter on March 12, 2019.

Plaintiff Bonanza Beverage Co. (“Bonanza”) is a wholesale distributor of alcoholic beverages in Nevada. Defendant MillerCoors LLC (“MillerCoors”) is a supplier of malt beverages to wholesalers in Nevada and other jurisdictions. Bonanza entered into a Distributor Agreement with MillerCoors in 2009. Complaint (ECF No. 1-2), Exhibit 1. The dispute in this case involves Bonanza's desire to sell its distribution business to Southern Glazer's Wines & Spirits (hereinafter “Southern Glazer's” or “SGWS”).

Under Section 8 of the Distributor Agreement, Bonanza is required to notify MillerCoors of its intent to sell its distributorship through a Sale Notice, and to meet with MillerCoors to discuss the proposed sale. Upon receipt of the Sale Notice, MillerCoors has the right to inspect Bonanza's business, books and records and it has the option to negotiate exclusively to purchase Bonanza's distributorship, as contemplated by the Sale Notice, for a period of 90 days. MillerCoors may assign its rights regarding the proposed sale to a wholesaler of its choosing. If MillerCoors does not exercise its exclusive negotiation right, or does so, but good faith negotiations are not fruitful, and Bonanza decides to negotiate with a third party, then Bonanza must send MillerCoors a bona fide nonbinding Letter of Intent within 5 business days of the parties signing it or at least 90 days before the close of the proposed sale. Upon receiving the Letter of Intent, MillerCoors has the irrevocable right and option to purchase that portion of Bonanza's business that is the subject of the Letter of Intent upon the same terms and conditions, and for the agreed purchase price. If MillerCoors does not exercise its right of first refusal, then Bonanza can proceed to close the sale subject to the provisions of Section 8.9 of the Distributor Agreement. Bonanza is required to deliver to MillerCoors a Distributor Application completed by the proposed purchaser, and the executed final purchase and sale agreement. MillerCoors must then evaluate the purchaser's qualifications to be a distributor of its products and decide whether to approve the sale. Complaint (ECF No. 1), Exhibit 1, Distributor Agreement.

After Bonanza notified MillerCoors on May 3, 2018 that it intended to sell its distributorship to Southern Glazer's, MillerCoors assigned its right to negotiate a purchase of Bonanza's business to Breakthru Beverage Nevada Beer, LLC (“Breakthru”). Bonanza informed MillerCoors that it preferred to sell to Southern Glazer's which was willing to purchase all of Bonanza's assets and to consider hiring Bonanza's employees, including Bonanza's vice-president and co-owner. Bonanza nevertheless met with Breakthru to discuss a potential sale of the business, but decided that it was not in its best interests to sell to Breakthru. Bonanza alleges that MillerCoors never responded to its repeated requests to consider Bonanza's proposed sale to Southern Glazer's. MillerCoors argues, however, that Bonanza never presented it with a nonbinding Letter of Intent to sale its business to Southern Glazer's as required by Section 8.8. MillerCoors states that if presented with a Letter of Intent, it plans to assign the right of first refusal to Breakthru.

*2 Bonanza commenced this lawsuit on July 26, 2018. It seeks a declaratory judgment that the change of ownership provisions in Section 8 of the Distributor Agreement violate Nevada statutory law governing the relationship between suppliers, wholesalers and retailers of alcoholic beverages, and, in particular, violate NRS 597.157.1 which states that:

Bonanza also alleges that Section 8 violates NRS 597.162.5 which prohibits suppliers from engaging in the wholesale distribution of alcohol. Bonanza seeks recovery of damages, attorney's fees and costs resulting from MillerCoors’ statutory violations.

The Court has held that NRS 597.157.1 permits the parties to establish terms for substituting a new wholesaler in place of the old one and permits the supplier to impose reasonable standards on its wholesalers. Order (ECF No. 88), at 7. The Court stated, however, that Bonanza may be able to show that some change-in-control provisions in the Distributor Agreement, individually or together, constitute an unreasonable delay or denial of approval of the transfer of a wholesaler's distributorship. Id. at 8 n. 38. The Court has also held that Bonanza has sufficiently alleged that the provision of Section 8 violate NRS 597.162.5.

1. Draft Asset Purchase Agreement Between Bonanza and Southern Glazers.

MillerCoors seeks to compel Bonanza to produce a draft Asset Purchase Agreement between Bonanza and Southern Glazer's that was provide to Bonanza's damages expert. This document is within the scope of MillerCoors’ Request for Production No. 3 which seeks all documents exchanged between Bonanza and Southern Glazer's, including ... “draft agreements.” Motion to Compel (ECF No. 107), at 12.

According to the December 14, 2018 report of Bonanza's damages expert, Jennifer Vanderhart:

Motion to Compel (ECF No. 107), Exhibit E, at 5.

Ms. Vanderhart relied on provisions of the draft Asset Protection Agreement (also referred to herein as “draft agreement”) in explaining the basis of her damages calculations. Id. at 9-13. In response to MillerCoors’ discovery requests, Bonanza produced a heavily redacted copy of the draft Asset Protection Agreement. Motion to Compel (ECF No. 107), Exhibit I. The only parts of the draft agreement that Bonanza produced were those that Ms. Vanderhart allegedly considered in preparing her report. (MillerCoors asserts that even some of those provisions are redacted.) Bonanza argues that the draft agreement is irrelevant because it has no obligation under the Distributor Agreement to provide it to MillerCoors. Response (ECF No. 114), at 4. Bonanza also claims that the draft agreement is protected by the work product doctrine. MillerCoors argues that the draft agreement is relevant; is not protected by the work product doctrine; and that Bonanza waived any work product protection by providing the draft agreement to its expert witness for her consideration.

*3 Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties 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 party moving to compel discovery has the initial burden of establishing that a request satisfies the relevancy requirements of Rule 26(b)(1). Krause v. Nevada Mutual Ins. Co., 2014 WL 496936, at *3 (D.Nev. Feb. 6, 2014) (citing Hinkley v. Vail, 2013 WL 2444214, at *1 (W.D.Wa. June 14, 2013), order rescinded in part by, 2013 WL 3852984 (W.D.Wa. July 24, 2013)). If the discovery sought appears relevant on its face, the party resisting discovery has the burden of establishing lack of relevance by demonstrating that the requested discovery is not within the broad scope of relevance, or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.[1] If the relevancy of the requested discovery is not apparent, then the moving party has the burden of showing that the request is relevant. Id. (citing Pulsecard, Inc. v. Discover Card Services, Inc., 168 F.R.D. 295, 309 (D.Kan.1996)). See also Avalon Construction-Ruidoso, LLC v. Mueller Company, Inc., 2014 WL 12597809, at *1 (D.N.M. Jan. 3, 2014); MGA Entertainment, Inc. v. National Products Ltd., 2011 WL 4550287, at *3 (C.D.Cal. Oct. 3, 2011).

Bonanza's objection to Request No. 3 dances around the issue of relevance. It objects that the request is vague and ambiguous and then states: “Due to the vagueness of this Request, Bonanza objects to [it] as being overbroad and unduly burdensome because it encompasses any document that refers to Bonanza's efforts to sell its Business regardless of relevance to this matter.” Motion to Compel (ECF No. 107), at 12. Although inartfully asserted, Bonanza's objection to Request No. 3 adequately objects on grounds of irrelevance.

Under the terms of the Distributor Agreement, MillerCoors is entitled to obtain the executed final purchase and sale agreement prior to approving the sale. Bonanza, however, filed this lawsuit before the sales process reached the stage where Bonanza and Southern Glazer's had executed a final purchase and sale agreement. The draft Asset Purchase Agreement would potentially have been irrelevant, but for the fact that Bonanza made it relevant by providing it to its expert witness to consider in calculating Bonanza's alleged damages. Ms. Vanderhart's report appears to assume that the draft Asset Purchase Agreement sets forth the terms and conditions of the agreement that Bonanza and Southern Glazer's would enter into if MillerCoors approved the sale.

Bonanza also asserts that the draft agreement is protected work product. Rule 26(b)(3)(A) states that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative....” The materials may be discovered, however, if they are otherwise discoverable under Rule 26(b)(1) and the party seeking discovery shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. The party asserting the work product doctrine has the burden of demonstrating that it applies. Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D.Nev. 2013) (citing Tornay v. U.S., 840 F.2d 1424, 1426 (9th Cir.1988); U.S. v. Hirsch, 803 F.2d 493, 496 (9th Cir.1986); Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D.Cal.2003)).

In order to qualify for work-product protection, the document must be prepared in anticipation of litigation or for trial. United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011) (citing In re Grand Jury Subpoena, (Torf), 357 F.3d 900, 907 (9th Cir. 2004)). Richey further states:

Id. at 567-68 (internal quotation marks and citation omitted).

The defendants/taxpayers in Richey sought a charitable deduction for the donation of an easement on real property. To support the deduction, the taxpayers obtained an appraisal which was attached to their tax return. The appraisal report stated that it “may not include full discussion of the data, reasoning, and analysis that were used in the appraisal process to develop the appraiser's opinion of value. Supporting documentation concerning the data, reasoning, and analyses is retained in the appraiser's file.” Id., 632 F.3d at 563. The IRS later served a summons on the appraiser to provide testimony, documents, books, records, and information relating to the services he provided to the taxpayers. The taxpayers’ attorney directed that the appraiser not comply with the summons. The Ninth Circuit noted that the appraisal report was required by Treasury Regulations in order for the taxpayers to claim the charitable deduction. If an appraisal report had not been attached to the tax return, then the taxpayers “would have been ipso facto ineligible for any charitable deduction.” There was no evidence that the appraiser would have prepared his appraisal work file differently in the absence of prospective litigation. Therefore, it could not be concluded that the appraisal work file was prepared because of the prospect of litigation. Id. at 568.

In Viasat, Inc. v. Space Systems/Loral, Inc., 2013 WL 12061801 (S.D.Cal. Jan. 1, 2014), the plaintiff sued defendant SS/L for patent infringement and breach of contract. After the lawsuit was filed, non-party MDA agreed to purchase SS/L. The plaintiff thereupon requested documents from MDA relating to the analysis of SS/L's business operations, satellite manufacturing service, and documents regarding the purchase agreement and negotiations surrounding MDA's acquisition. The court found that the requested documents were relevant. In holding that the documents were not protected work product, the court stated that they “would have been created in essentially similar form during MDA's acquisition of SS/L, whether or not Defendants were involved in the instant litigation with Plaintiffs. Therefore, the Court cannot find that the information sought in Request Numbers 1 and 7 are protected by the work-product doctrine, or are entitled to protection under the common legal interest doctrine.” Id. at *6.

It is reasonable to believe that Bonanza and Southern Glazer's prepared the draft Asset Protection Agreement with an eye on the pending lawsuit and MillerCoors’ alleged rights under Section 8 of the Distributor Agreement. The purpose of the draft agreement, however, was presumably to set forth the terms and conditions on which Bonanza would sell and Southern Glazer's would buy the distributorship. Bonanza has not shown that the draft agreement would have been substantially different, but for the pending litigation. The draft Asset Protection Agreement is therefore not protected from disclosure by the work product doctrine.

*5 Bonanza also waived any alleged work production protection when it provided the full, unredacted draft agreement to its expert witness. Rule 26(b)(4)(C)(ii) states that the work product doctrine protects communications between the party's attorney and any expert witness required to provide a report under Rule 26(a)(2)(B), except to the extent that the communications identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed. The advisory committee's notes “indicate that the requirements should ‘be interpreted broadly’ to encompass ‘any material considered by the expert, from whatever source, that contains factual ingredients’ but to exclude the ‘theories or mental impressions of counsel.’ ” Republic of Equador v. Mackay, 742 F.3d 860, 869 (9th Cir. 2014) (citing Fed.R.Civ.P. 26(a)(2)(B) advisory committee's notes (2010 amendments)). Discoverable factual information includes material that the expert considered, i.e., was provided or otherwise exposed to, in the course of developing his or her opinions, rather than the narrower spectrum of material that the expert relied upon. Id. at 869-70 (citing Allstate Ins. Co. v. Electrolux Home Prods., Inc., 840 F.Supp.2d 1072, 1080. (N.D.Ill. 2012)). The opposing party is entitled to know what factual materials the expert rejected as irrelevant to her opinion, just as much as it is entitled to know what materials the expert relied upon in forming her opinions. Lewert v. Boiron, Inc., 212 F.Supp.3d 917, 931 (C.D.Cal. 2016) (citing United States v. City of Torrance, 163 F.R.D. 590, 593-94 (C.D.Cal. 1995); In re Google Adwords Litig., 2010 WL 5185738, at *3 (N.D.Cal. Dec. 8, 2010); and Propat Int'l Corp. v. Rpost, Inc., 2005 WL 5957834, at *1 (C.D.Cal. Sept. 19, 2005)). See also Immunex Corp. v. Sanofi, 2018 WL 1941714, at *5 (C.D.Cal. Feb. 27, 2018).

The draft Asset Purchase Agreement is “factual” material within the meaning of Rule 26(b)(4)(C)(ii). Like the Letter of Intent that Bonanza has apparently produced, it sets forth the terms and conditions of the proposed sale of the distributorship. Theoretically, if Bonanza's counsel wanted Ms. Vanderhart to consider only a few discrete provisions in the draft agreement, then he should have provided only those provisions to her. Bonanza has not disputed that the entire draft agreement was provided to Ms. Vanderhart. The only effective way for MillerCoors’ counsel to cross-examine Ms. Vanderhart is to have access to the same documents that were provided to her for review and consideration in rendering her opinions. Bonanza is, therefore, ordered to provide an unredacted copy of the draft Asset Purchase Agreement to MillerCoors.[2]

2. Other Documents Subject to Request For Production No. 3.

MillerCoors’ Request No. 3 seeks all documents exchanged between Bonanza and Southern Glazer's, including, but not limited to, communications, agreements, draft agreements, letters of intent, proposals, and offers that refer or relate to the sale or potential sale of Bonanza's business or any portion of its business. Motion to Compel (ECF No. 107), at 12. MillerCoors argues, in particular, that it is entitled to a prior letter of intent that Southern Glazer's provided to Bonanza for the purchase of its business. The Court agrees with Bonanza that this request is overbroad and seeks irrelevant information.

Assuming for sake of argument that the provisions of Section 8 of the Distributor Agreement are valid, MillerCoors is entitled to receive a nonbinding Letter of Intent that “set[s] forth all of the essential terms of the Sale Transaction, including the assets, rights, and other property subject to the Transfer, the consideration to be paid, the representations and warranties to be given by Distributor, and all other material terms and conditions that would be contained in a definitive purchase and sale agreement and related schedules.” Complaint (ECF No. 1), Exhibit A, Distributor Agreement, § 8.8.2. Once the process reaches the stage where the Sale Transaction is to proceed, MillerCoors is entitled to a copy of the executed final purchase and sale agreement. Id., § 8.9.1.

*6 The principal issue in this case is whether the provisions of Section 8 of the Distributor Agreement violate Nevada law because they permit MillerCoors to unreasonably delay or withhold approval of the sale of a distributorship in violation of NRS 597.157; and/or because they violate NRS 597.210. Ultimately, the issue is whether MillerCoors’ has unlawfully obstructed Bonanza's right to sale its distribution business to Southern Glazer's. As to this issue, MillerCoors is entitled to obtain the Letter of Intent and the purchase and sale agreement in order to determine whether it has legitimate grounds to object. MillerCoors’ motion does not adequately explain why prior letters of intent and documents relating to the discussions and negotiations between Bonanza and Southern Glazer's are relevant. MillerCoors’ counsel argued at the hearing that the documents may contain relevant information. He further stated:

Transcript of Hearing (ECF No. 121), at 45:13-23.

These statements exemplify a speculative fishing expedition which the court need not condone. Rivera v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004). “[W]hile the standard of relevancy is a liberal one, it is not so liberal as to allow a party to roam in shadow zones of relevancy and to explore matter which does not appear germane merely on the theory that it might become so.” Justiano v. G4S Secure Solutions, Inc., 291 F.R.D. 80, 83 (D.N.J. 2013). See also Dorato v. Smith, 163 F.Supp.3d 837, 865 (D.N.M. 2015); Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010); and United States v. Kellogg Brown & Root Services, Inc., 284 F.R.D. 22, 36-37(D.D.C. 2012). MillerCoors has not presented any evidence that Southern Glazer's has engaged in a pattern or practice of violating its contractual duties to suppliers or retailers, or has engaged in fraudulent conduct such that there is a reasonable basis to inquire into its underlying communications with Bonanza. The Court therefore denies MillerCoors’ motion to compel further responses to Request No. 3.

3. Bonanza's Assertion of Attorney Client Privilege and Work Product Doctrine Regarding Email Communications Between Bonanza and Southern Glazer's and Their Attorneys.

Because Bonanza's relevancy objection to Request for Production No. 3 is sustained, it is unnecessary for the Court to decide whether the email communications between Bonanza and Southern Glazer's, and/or their attorneys, are protected by the attorney-client privilege or work product doctrine. The Court will, however, address the issue to the extent there are relevant documents that Bonanza claims are privileged.

Bonanza's attorney states that he “jointly represents” Bonanza and Southern Glazer's “in connection with these proceedings.” He further states:

Response (ECF No. 114), Exhibit 1, Reid Declaration, at ¶¶ 2-3.

Counsel also states that Bonanza hired David Alexander of Macadam Capital to act as an “advocate” for Bonanza and to advise Bonanza on the structure of the transaction between itself and Southern Glazer's and to evaluate other transactional terms. Mr. Alexander was authorized to work with legal counsel to review and negotiate documentation, and to communicate on Bonanza's behalf with stakeholders and others, including counsel. Id. at ¶¶ 7-8. Bonanza asserts the attorney-client privilege and the work product doctrine to numerous email communications between Bonanza and Southern Glazer's and their counsel, including those in which Mr. Alexander was a sender or recipient. See Sealed Notice of Filing Privilege Log in Compliance with the Court's March 12, 2019 Order (ECF No. 122) (hereafter “Privilege Log”).

(a) Common Interest Doctrine.

*7 Because the claims in this action are governed by Nevada law, the Nevada attorney-client privilege applies. RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., 2017 WL 2292818, at *2 (citing Kandel v. Brother Intern Corp., 683 F.Supp.2d 1076, 1081 (C.D.Cal. 2009) and Fed.R.Evid. 501). As a general rule, the attorney-client privilege is waived when the client voluntarily reveals a confidential communication to a person outside the scope of the privilege. Id. (citing Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 891 P.2d 1180, 1186 (1995); Manley v. State, 115 Nev. 114, 979 P.2d 703, 707 (1999)). NRS 49.095.3 extends the protection of the attorney-client privilege to communications between the client's lawyer and a lawyer representing another in a matter of common interest–where the communication is “[m]ade for the purpose of facilitating the rendition of professional legal services to the client.” The Nevada Supreme Court has not construed this provision of the statute.

Federal court decisions construing the common interest doctrine have adopted three requirements for its application: (1) the communication is made by separate parties in the course of a matter of common legal interest; (2) the communication is designed to further that effort; and (3) the privilege has not been waived. Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D.Cal. 2007); Diva Limousine, Ltd. v. Uber Technologies, Inc., 2019 WL 144589, at *8 (N.D.Ca. Jan. 9, 2019); and Regents of the University of California v. Affymetrix, Inc., 2018 WL 4896066, at *3 (S.D.Cal. Oct. 9, 2018). No written agreement is required for the common interest doctrine to apply because an agreement may be implied from the conduct and circumstances, such as attorneys exchanging confidential communications from clients who have common interests in litigation. Diva Limousine, Ltd., at *7. The common interest doctrine does not apply, however, if the disclosure was made for business purposes, rather than for the purpose of pursuing a common legal strategy. RKF Retail Holdings, 2017 WL 2292818, at *3 (citing Nidec, 249 F.R.D. at 579, and cases cited therein). “ ‘Parties seeking to use the common interest doctrine must in practice demonstrate cooperation in forming a common legal strategy because the doctrine does not encompass a joint business strategy which happens to include as one of its elements a concern about litigation.’ ” Id., at *5 (quoting Del Monte Internat'l GMBH v. Ticofrut, S.A., 2017 WL 1709784, at *7 (S.D.Fla. May 2, 2017)).

The common interest doctrine operates differently in regard to work product information. As explained in California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 645 (E.D.Cal. 2014):

*8 See also Youngevity Int'l, Inc. v. Smith, 2017 WL 4227025, at *4 (S.D.Cal. Sept. 22, 2017); Wichansky v. Zowine, 2015 WL 5693521, at *4 (D.Ariz. Sept. 29, 2015); and RKF Retail Holdings, 2017 WL 2292818, at *6.

There was obviously a business purpose in the communications between Bonanza and Southern Glazer's. Bonanza and Southern Glazier's also reasonably have a common legal interest in opposing MillerCoors’ effort to require Bonanza to sell to its designated wholesaler, and to prevent MillerCoors from refusing to approve Southern Glazer's as a distributor of its products in place of Bonanza. Mr. Reid's statement that he was retained to represent both Bonanza and Southern Glazer's with respect to Nevada laws governing the change-in-control provisions for distributor assets and in anticipation of litigation with MillerCoors, is sufficient to establish a common legal interest. Bonanza is still required to show that individual email communications between Bonanza and Southern Glazer's, and their lawyers, involved confidential discussions regarding the anticipated or pending legal dispute with MillerCoors.

(b) Whether David Alexander is the Functional Equivalent of a Bonanza Employee.

MillerCoors argues that the attorney-client privilege or work product doctrine was waived with respect to emails on which David Alexander was a sender or recipient. Bonanza argues, however, that Mr. Alexander is the “functional equivalent” of an employee and, therefore, is within the scope of the attorney-client privilege and the protection for work product material. In Fosbre v. Las Vegas Sands Corp., 2016 WL 183476, at **3-4 (D.Nev. Jan. 14, 2016), this court followed decisions which have adopted “a broad practical approach” to determining whether an independent consultant such as Mr. Alexander is the functional equivalent of an employee. The court quoted In re Flonase Antitrust Litigation, 879 F.Supp.2d 454, 459 (E.D.Pa. 2012) as follows:

*9 The court in Flonase stated that this approach comports with the purpose of the attorney-client privilege set forth in Upjohn Company v. United States, 449 U.S. 383, 101 S.Ct. 677 (1981), and also reflects the reality that “ ‘corporations increasingly conduct their business not merely through regular employees but also through a variety of independent contractors retained for specific purposes.’ ” Fosbre, at *4 (quoting Flonase, at 460). Recent cases have also recognized that an independent contractor, including a financial consultant, may qualify as the functional equivalent of an employee. BankDirect Capital Finance, LLC v. Capital Premium Finance, Inc., 326 F.R.D. 176, 183 (N.D.Ill 2018) and Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 324 (Tenn. 2019).

The court in Dialysis Clinic listed the following non-exclusive factors that a court should consider in determining whether an independent contractor or consultant is the functional equivalent of an employee: “whether the nonemployee performs a specific role on behalf of the entity; whether the nonemployee acts as a representative of the entity in interactions with other people or other entities; whether, as a result of performing its role, the nonemployee possesses information no one else has; whether the nonemployee is authorized by the entity to communicate with its attorneys on matters within the nonemployee's scope of work to facilitate the attorney's representation of the entity; and whether the nonemployee's communications with the entity's attorneys are treated as confidential.” If the court determines that the consultant is the functional equivalent of an employee, then it must decide on a communication-by-communication basis “whether the communication involves the subject matter of counsel's representation of the entity and whether the communication was made with the intent that the communication be kept confidential.” Id.

According to Mr. Reid's declaration, Mr. Alexander was retained to act as Bonanza's advocate and advise it on the structure of the transaction with Southern Glazer's and evaluate other transactional terms. Mr. Alexander was authorized to work with Bonanza's legal counsel and review and negotiate documentation, and to communicate on Bonanza's behalf with stakeholders and others, including counsel. Mr. Alexander personally participated in meetings regarding the transaction with MillerCoors, and MillerCoors included him as a recipient on communications pertaining to the transaction. Reid Declaration, at ¶¶ 7-9. MillerCoors argues that these representations do not provide the “detailed factual showing” required to find that an independent contractor or consultant is the functional equivalent of an employee. See United States v. Ormat Industries, Ltd., 2016 WL 4107683, at *7 (D.Nev. Aug. 1, 2016) (citing Energy Capital Corp v. United States, 45 Fed.Cl. 481, 492 (2000) and Horton v. United States, 204 F.R.D. 670, 672 (D.Colo. 2002)). Based on Bonanza's counsel's description of Mr. Alexander's role and activities in its response, it will probably be able to make the requisite showing even if Mr. Reid's declaration lacks sufficient detail. A determination would also still need to be made as to whether the individual email communications in which Mr. Alexander participated are protected from disclosure by the attorney-client privilege or work product doctrine.

The privilege log provided by Bonanza does not contain sufficient information to show that the attorney-client privilege or work product doctrine applies to the listed email communications. Rule 26(b)(5)(A) states that “[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must (i) expressly make the claim; and (ii) describe the nature of the documents, communications or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” In RKF Retail Holdings, 2017 WL 2292818, at *6, this court stated:

Bonanza provides the following description for each email: “Discussion of legal matters between clients and counsel.” Privilege Log (ECF No. 122). This conclusory statement does not allow MillerCoors or the Court to make a reasonable assessment whether the emails contain privileged information. In Feld v. Fireman's Fund, 991 F.Supp.2d at 248, the court set forth examples of privilege log entries that complied with the requirements of Rule 26(b)(5)(a). There is no reason why Bonanza cannot provide similar descriptions of the emails listed in its privilege log. In fact, during the hearing on this motion, Bonanza's counsel provided a description of the February 20, 2018 email communication in Bonanza's privilege log, BON PRIV 197-198, that comports with descriptions approved in Feld. Transcript of Motion Hearing (ECF No. 121), at 33:11-23. Because Bonanza's relevance objection to producing the emails has been sustained, however, the Court will not require it to supplement its privilege log at this time. If MillerCoors hereafter shows that communications regarding certain topics are relevant, then Bonanza will be required to provide adequate descriptions of the allegedly privileged or protected communications.

4. Interrogatory No. 6.

MillerCoors moves to compel Bonanza to answer Interrogatory No. 6 which asks it to “[d]escribe the standards you claim a Supplier must use to evaluate a proposed purchaser of the distribution rights of its products in Nevada. Provide the factual and legal basis for your answer.” Bonanza objected to this interrogatory on the grounds that it seeks a legal conclusion and an interpretation of NRS 597.157 which “speaks for itself.” MillerCoors argues in its motion that Interrogatory No. 6 specifically “asks Bonanza to apply the requirements of NRS 597.157 ... to the facts of this proposed transaction. Bonanza repeatedly has asserted that Southern Glazer's meets ‘reasonable standards’ under NRS 597.157. Bonanza should be required to explain what it believes those reasonable standards are.” Motion to Compel (ECF No. 107), at 19.

Rule 33(a)(2) states that “[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact.” “Generally, the fact that an interrogatory calls for a legal conclusion is not grounds for objection. Thomas v. Cate, 713 F.Supp.2d 1012, 1029-30 (E.D.Cal. 2010) (citing cases). “ ‘The only kind of interrogatory that is objectional on the basis that it calls for a legal conclusion is one that extends to legal issues unrelated to the facts of the case.’ ” Id. at 1030 (quoting Holland v. GMAC Mortg., 2005 WL 1285678, at *3 (D.Kan. May 27, 2005)). See also Santos v. Baca, 2016 WL 1611584, at *1 (D.Nev. April 21, 2016) (“What is clear, however, is that Rule 33 does not permit interrogatories directed to issues of ‘pure law,’ i.e. legal issues unrelated to the facts of the case. Committee Notes to 1970 amendment to Rule 33(b) (citation omitted).”

*11 Bonanza's objection to Interrogatory No. 6 is sustained because the interrogatory asks a purely legal question. i.e., what are the reasonable standards that apply to approval of a transfer of a wholesaler's distributorship under NRS 597.151.1.[3] If MillerCoors had asked the question set forth in its motion to compel, then Bonanza's objection would have been invalid. The Court, however, is not required to rewrite an interrogatory to identify a narrower request that the responding party might be able to answer. Mailhoit v. Home Depot U.S.A., 2012 WL 12774129, at *3 (C.D.Cal. Sept. 4, 2012); Frieri v. Sysco Corp., 2017 WL 3387713, at * (S.D.Cal. Aug. 4, 2017). See also Beneficial Franchise Company, Inc. v. Bank One, N.A., 205 F.R.D. 212, 224 (N.D.Ill. 2001) (“The Court will not rewrite the interrogatory to seek information that is not requested by its plain terms.”).

5. Bonanza's Confidentiality Assertions.

MillerCoors argues that Bonanza has improperly marked every document in its production as “Confidential.” It states that “many (if not most) of the documents included in Bonanza's production have no conceivable basis for a confidentiality designation.” Motion to Compel (ECF No. 107), at 23. In support of its assertion, MillerCoors’ counsel cites three documents as examples of improper confidentiality designations. Motion (ECF No. 107), Exhibit 1, Fleicshmann Declaration, at ¶ 33. MillerCoors asks that Bonanza be ordered “to review its production and reevaluate in good faith which documents merit a confidentiality designation, removing the designation from those that do not.” Id. at 24. Bonanza responds that the stipulated protective order “provides a specific mechanism and process by which the parties may challenge the confidentiality of documents that are marked,” and that MillerCoors should follow that process if it disagrees with Bonanza's designations. Response (ECF No. 114), at 21.

The Stipulated Protective Order (ECF No. 54) permits the parties to designate documents to be produced as “Confidential” or “Attorney's Eyes Only.” Section 14 of the protective order places the burden on the receiving party to file a motion challenging the producing party's confidentiality designations. It does not, however, shift the burden of proving that documents or information are entitled to confidentiality protection to the receiving party. Section 28 of the protective order states that “[t]he Court may modify the terms and conditions of this Order for good cause, or in the interest of justice, or on its own order at any time in these proceedings.”

Rule 26(c)(1) states that the court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. “While courts generally make a finding of good cause before issuing a protective order, a court need not do so where ... the parties stipulate to such an order. Where the protective order ‘was a stipulated order and no party ha[s] made a good cause showing, the burden of proof remains with party seeking protection.’ ” In re Roman Catholic Archbishop of Portland In Or., 661 F.3d 417, 424 (9th Cir. 2011) (quoting Phillips ex rel. Estates of Byrd v. G.M. Corp., 307 F.3d 1206, 1211 n. 1 (9th Cir. 2002)).

The utility of a stipulated protective order depends on the good faith of the parties in designating documents or information as confidential. This is particularly true when the produced documents and the confidentiality designations are voluminous. “In granting a stipulated protective order, the court delegates to the litigants significant discretion to decide what shall be treated as confidential.” Louisiana Pacific vv. Money Market 1 Inst'l Inv., 285 F.R.D. 481, (N.D.Cal. 2012) (citing Google, Inc. v. American Blind & Wallpaper Factory, Inc., No. 03–cv–5340 JF (RS), 2006 WL 5349265, at *2 (N.D.Cal. Feb. 8, 2006) (citing In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 101 F.R.D. 34, 41 (C.D.Cal.1984)). “But ‘[a] problem arises if it later appears that the parties have abused their authority to designate documents ‘Confidential’ or that, for some reason, some of the sealed information should not legitimately remain closed to the public.’ ” Id. The Court has the authority modify a protective order as necessary to correct such abuses.

*12 MillerCoors has not made a sufficient showing, based on three examples, that Bonanza has improperly designated voluminous document as confidential. Its request that Bonanza be ordered to reevaluate its confidentiality designations and remove the designations that do not reasonably apply is therefore denied, without prejudice. If MillerCoors shows that Bonanza has, in fact, abused the protective order, one option for the Court is to modify Section 14 of the stipulated protective order as follows: Instead of the receiving party being required to file a motion challenging the other party's confidentiality designations, the producing party will be required to file a motion showing that the disputed confidentiality designations are proper. If the producing parties fails to file a motion within a reasonable time as required by the modified protective order, then the disputed documents will automatically lose their confidentiality protection. The parties are directed to further meet and confer on this matter and attempt to resolve their disagreement If the disagreement cannot be resolved, then MillerCoors may file a properly supported motion that Bonanza has, in fact, abused the stipulated protective order.

6. Other Issues.

The other issues raised in MillerCoors’ motion were either resolved prior to the March 12, 2019 hearing or were decided by the Court during that hearing. Accordingly,

IT IS HEREBY ORDERED that Defendant MillerCoors, LLC's Motion to Compel (ECF No. 107) is granted, in part, and denied, in part as follows:

1. Bonanza is ordered to produce to MillerCoors a complete copy of the draft Asset Purchase Agreement, previously provided to its expert witness, within fourteen (14) days of the filing of this order.

2. MillerCoors’ motion to compel production of other documents pursuant to Request For Production No. 3; and to require Bonanza to answer Interrogatory No. 6 is denied.

3. MillerCoors’ motion regarding Bonanza's allegedly improper confidentiality designations is denied without prejudice. The parties are ordered to again meet and confer regarding the validity of Bonanza's confidentiality designations. If the parties are unable to resolve their dispute, then MillerCoors may refile its motion to compel, subject to the condition that it makes an adequate showing that Bonanza has abused the stipulated protective order by improperly designating documents or information as confidential. If MillerCoors makes the requisite showing, then the Court reserves the option of requiring Bonanza to make an individualized showing that each document it has designated as confidential or attorney's eyes only is entitled to that protection.

DATED this 17th day of April, 2019.

Under the current language of Rule 26(b)(1), the requested discovery would be characterized as not proportional to the needs of the case.

Bonanza has also asserted that the draft Asset Purchase Agreement is protected by the “common interest privilege.” There is no separate common interest privilege. Under federal law, the disclosure of work product information to a person with a common legal interest may not result in waiver of work product protection. Because the draft Asset Purchase Agreement was provided to Bonanza's expert witness, however, any protection afforded to it by the work product doctrine was waived.

Bonanza's assertion that NRS 597.157.1 “speaks for itself” is not a valid statement because the statute does not define the “reasonable standards” that the supplier may impose.