*1 The following matters have been referred to this Court by the Honorable Benjamin H. Settle, for resolution of all discovery matters. See Dkt. 81. Before the Court is defendant City of Vancouver's (“defendant City”) motion to compel disclosure of documents withheld from discovery by plaintiff (Dkt. 243) and motion to extend time to complete discovery for a limited purpose. See Dkt. 248. Plaintiff opposes both motions. See Dkts. 245, 253.

The Court has reviewed the parties’ submissions related to defendant City's motion to compel (Dkt. 243), has reviewed in camera the remaining disputed 62 documents withheld by plaintiff from discovery (Dkt. 252), and finds the following: defendant City's motion to compel (Dkt. 243) is denied in part because a number of the documents currently at issue contain protected work product prepared by plaintiff and her attorneys in anticipation of litigation. Plaintiff did not waive the work product protection by forwarding these documents to her domestic partner, Patrick McDonnell (“McDonnell”), because he is not an adversary in this litigation. Therefore, plaintiff is not required to produce disputed documents to the extent that they contain plaintiff and her attorneys’ protected work product, as discussed below.

However, the Court grants in part defendant City's motion to compel (Dkt. 243) because some of the disputed documents at issue were prepared by McDonnell, who is neither a party to this litigation, nor is he plaintiff's representative, and therefore, those documents are not protected work product. Further, these documents are not protected under the “common interest” doctrine, as discussed below. Therefore, plaintiff must produce these documents as outlined in this Order.

The Court further grants defendant City's motion to compel plaintiff to produce any disputed documents exchanged between plaintiff and McDonnell regarding the payment or receipt of payment of plaintiff's legal fees because those documents are also not protected work product. Plaintiff must produce these documents to defendant City.

Finally, the Court grants defendant City's motion to extend time to complete discovery for a limited purposed (Dkt. 248) as the Court finds the limited extension necessary in light of this Court's ruling.

Accordingly, the parties shall comply with this Order as discussed herein on or before September 18, 2020.

On August 6, 2020, defendant City filed its motion to compel disclosure of a number of documents withheld from discovery by plaintiff. See Dkt. 243. On August 17, 2020, plaintiff filed her response in opposition to the motion to compel based on her subsequent disclosure of many of the documents that defendant City seeks. See Dkt. 245. The parties do not dispute that certain communications between plaintiff and her attorneys are protected by the attorney-client privilege. See Dkts. 245, at 7; 250, at 3. However, plaintiff continues to assert that 62 documents exchanged with her domestic partner, McDonnell, should not be disclosed on the basis of the work-product and common interest doctrines. See Dkt. 245, at 7–10.

*2 On August 25, 2020, this Court ordered plaintiff to submit the remaining disputed 62 withheld documents exchanged between plaintiff and McDonnell for in camera review by the Court. See Dkt. 252. Plaintiff submitted the disputed documents on September 1, 2020, and the Court has completed its in camera review of those documents. Having reviewed the disputed documents and the parties’ submissions related to the instant motion to compel (Dkt. 243), the Court finds that oral argument is unnecessary and makes the following findings and rulings.

I. Meet and Confer Requirement

As an initial matter, plaintiff asserts that defendant City failed to meet and confer with plaintiff prior to filing the motion to compel. See Dkt. 245, at 5. Any motion for an order compelling disclosure or discovery must include a certification that the moving party has in good faith conferred or attempted to confer with the party failing to make disclosure or discovery in an effort to obtain it without court action. Fed. R. Civ. P. 37(a)(1); Local Civil Rule (“LCR”) 37(a)(1). The certification, which may be included in the moving party's motion, a declaration, or affidavit, must list the date, manner, and participants to the conference. See LCR 37(a)(1). Where the moving party fails to include such a certification, the court may deny the motion without addressing the merits of the dispute. See id.

Here, it is clear that defendant City attempted to confer in good faith with plaintiff prior to filing the instant motion to compel. See Dkts. 244, 251. On July 9, 2020, defendant City requested a LCR 37 conference with plaintiff regarding her July 1, 2020, production of documents and privilege log. See Dkt. 251-1, at 2. Defendant City outlined its concerns regarding documents withheld from discovery by plaintiff on the basis of the attorney-client privilege, as well as the work-product and common interest doctrines, asserted by plaintiff in her privilege log. See id. at 1. The parties held the LCR 37 conference on July 13, 2020. See Dkts. 244, at 4; 247, at 2. Following the LCR 37 conference, plaintiff submitted two revised privilege logs; however, no additional documents were produced, and the parties’ remained in disagreement at to plaintiff's asserted privileges in the privilege logs. See Dkts. 244, at 4–7; 251, at 2–3. Accordingly, the Court finds that defendant City complied with the federal and local rules to meet and confer in good faith. See Fed. R. Civ. P. 37(a)(1); LCR 37(a)(1).

II. Motion to Compel Disclosure of Disputed Documents

Defendant City argues that plaintiff should be compelled to disclose the remaining disputed 62 documents exchanged between plaintiff and McDonnell. See Dkts. 243, at 4–8, 11–12; 250, at 3–5. In response, plaintiff argues that the motion to compel should be denied because the disputed documents are protected on the basis of the work-product and common interest doctrines. See Dkt. 245, at 7–10.

The work-product doctrine is a “qualified privilege” that protects “from discovery documents and tangible things prepared by a party or [her] representative in anticipation of litigation.” Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989) (citing Fed. R. Civ. P. 26(b)(3)(A)). Documents need not be prepared solely at the behest of a party's counsel in order to be protected under the work-product doctrine. See Fed. R. Civ. P. 26(b)(3)(A) (protecting work product prepared by a party or her representative); see also In re Grand Jury Subpoenas (Dated June 5, 2008), 329 Fed. App'x 302, 303 (2d Cir. 2009) (finding that a chronology prepared by a party, who was “between lawyers,” constituted protected work product prepared in anticipation of litigation); United States v. Stewart, 287 F. Supp. 2d 461, 466–68 (S.D.N.Y. 2003) (finding that a criminal defendant's email recalling her recollection of factual events constituted protected work product under Fed. R. Civ. P. 26(b)(3) because the content of the email was prepared by a party in anticipation of litigation).

*3 “The primary purpose of the work-product [doctrine] is to ‘prevent exploitation of a party's efforts in preparing for litigation.’ ” United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020) (quoting Admiral Ins. Co., 881 F.2d at 1494). The party invoking the work-product doctrine bears the burden of establishing that it applies. See United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011).

A party may waive work-product protection by disclosing or placing the work product at issue during the course of litigation. See Sanmina Corp., 968 F.3d at 1119. However, “disclosure of work product to a third party does not waive the protection unless such disclosure is made to an adversary in litigation or has substantially increased the opportunities for potential adversaries to obtain the information.” Id. at 1121 (internal citations omitted).

Having reviewed the disputed documents in camera, the Court finds that the communications, messages, and/or documents exchanged between plaintiff and her attorneys qualifies as work product and is entitled to work-product protection because they were prepared in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3)(A). This includes work product prepared by plaintiff's attorneys’, and the attorneys’ agents. See id. Plaintiff's disclosure or forwarding of her attorneys’ work-product, including emails and attached documents, to McDonnell did not waive the qualified privilege because McDonnell is not an adversary in this litigation. Sanmina Corp., 968 F.3d at 1121. Further, reviewing the circumstances under which plaintiff disclosed these documents to McDonnell, her disclosures did not “substantially increase[ ] the opportunities for potential adversaries to obtain the information,” nor was the disclosure “inconsistent with the maintenance of secrecy from [plaintiff's] adversary” in this litigation. Id. (citing Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001)); see also Dkt. 246, at 2 (plaintiff's declaration that documents sent to McDonnell were under an expectation of confidentiality). Accordingly, plaintiff is not required to produce documents containing her attorneys’ work product sent or forwarded by plaintiff to McDonnell.

The Court further finds that communications and/or documents prepared by plaintiff in anticipation of litigation and sent to McDonnell also qualify as protected work product. See Fed. R. Civ. P. 26(b)(3)(A); In re Grand Jury Subpoenas (Dated June 5, 2008), 329 Fed. App'x at 303; Stewart, 287 F.Supp.2d at 466–68. Reviewing these documents in light of the timing and circumstances under which they were prepared, the Court finds that these documents qualify for work product protection because they were prepared in anticipation of litigation and reflect plaintiff's litigation strategy. As discussed above, plaintiff's disclosure of her work product to McDonnell did not waive work product protection because McDonnell is not an adversary in this litigation, and disclosure of the work product to McDonnell did not substantially increase the opportunity for potential adversaries to obtain the information. Accordingly, plaintiff is not required to disclose documents containing work product prepared by her in anticipation of litigation that she sent or forwarded to McDonnell. Sanmina Corp., 968 F.3d at 1121.

*4 However, the Court finds that the communications, notes, and documents prepared by McDonnell and exchanged with plaintiff are not protected work product. McDonnell is not a party to this litigation, nor is he plaintiff's representative. See Fed. R. Civ. P. 26(b)(3)(A).

The Court finds that plaintiff's asserted “common interest” doctrine does not apply to these documents. See Dkt. 245, at 9–10. The common interest doctrine is an exception to the work-product doctrine designed to allow co-parties and others pursuing a common legal strategy to communicate with each other with confidentiality. See In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012); Kittitas Cnty. v. Allphin, 416 P.3d 1232, 1243 (Wash. 2018). However, “a shared desire to see the same outcome in a legal matter is insufficient to bring communication between two parties within this exception.” In re Pac Pictures Corp., 679 F.3d at 1129; see also Kettitas, 416 P.3d at 1244 (noting that more than a “mere interest” or “mere shared desire to see a similar outcome in a legal matter” is required to invoke the common interest doctrine). Here, although it appears that McDonnell would like to see plaintiff prevail, there appears to be no “common interest” in the outcome of this litigation. Also, the fact that McDonnell is represented by plaintiff's attorneys, and that he provides plaintiff with financial assistance in this litigation, does not establish that plaintiff and McDonnell are pursuing a common legal strategy against a common adversary. See Kittatas Cnty., 416 P.3d at 1243–44 (citing United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980)). Accordingly, communications, notes, and/or documents prepared by McDonnell and exchanged with plaintiff must be produced to defendant City. To the extent that these materials include protected work product, as detailed above, plaintiff may redact only the protected work-product of plaintiff and her attorneys before producing the documents to defendant City. See Fed. R. Civ. P. 26(b)(3)(B) (“If the court orders discovery of [protected] materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a [party or the] party's attorney or other representative concerning the litigation.”). Additionally, the Court finds that plaintiff's document (QUINN-INCAM0054–0055) is protected work product prepared by plaintiff in anticipation of litigation with additional notes prepared by McDonnell. Disclosing McDonnell's notes without the context of the document as a whole is meaningless, and therefore, this document in its entirety shall also be considered protected work product that plaintiff is not required to disclose.

Regarding communications or documents exchanged between plaintiff and McDonnell that reflect the payment of or the receipt of payment of plaintiff's legal fees, the Court finds that these documents are not protected work product, as these documents do not reveal plaintiff's litigation strategy or her attorneys’ advice regarding the litigation. See Clarke v. Am. Commerce. Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992). Accordingly, plaintiff must produce these documents to defendant City.

Finally, although ordinarily not subject to discovery, protected work-product may be discoverable if “(1) it is otherwise discoverable under [Fed. R. Civ. P.] 26(b)(1); and (2) the [moving] party shows that there is a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). “The effort of a party or [her] representative in generating information needed [in anticipation of litigation or] for trial generally does not create information that will not be available to others willing to invest similar effort in discovery.” Admiral Ins. Co., 881 F.2d at 1494. Here, although defendant City has invested significant effort in obtaining discovery from plaintiff, the Court finds that defendant City has not shown a substantial need for the withheld, protected documents other than an assertion that it is “entitled” to those documents (see Dkt. 243, at 12–13) and that plaintiff lacks credibility. See Dkt. 250, at 5. While defendant City has not made a showing of substantial need at this time, the Court will consider a renewed motion after defendant City reviews the documents produced by plaintiff pursuant to this Order.

*5 In sum, plaintiff shall produce any withheld documents as consistent with the Court's discussion above no later than September 18, 2020. Plaintiff shall also produce to defendant City an updated privilege log of any documents that plaintiff continues to withhold consistent with this Order no later than September 18, 2020. See also Dkt. 238, at 3 (reflecting required components of plaintiff's privilege log).

III. Request for Sanctions

In its motion to compel, defendant City requests permission to bring a motion for sanctions against plaintiff after it has had the opportunity to review documents produced as a result of the motion to compel. See Dkts. 243, at 2; 250, at 1. Per defendant City's request, the Court shall defer ruling on any motion for sanctions until such time as defendant City brings such a motion, if it so choses to do so.

IV. Motion for Extension of Time to Complete Discovery

The Court finds that the parties satisfied the meet and confer requirement with respect to this motion. See Dkts. 248, at 2; 249, at 1–2.

Having considered defendant City's motion to extend time to complete discovery (Dkt. 253) in conjunction with the instant motion to compel (Dkt. 243), as well as the additional time necessary for the Court's in camera review and consideration of the disputed documents (Dkt. 252), the Court finds that a limited extension of time to complete discovery in this case is appropriate.

Accordingly, defendant City's motion to extend the discovery deadline for a limited purpose (Dkt. 248) is GRANTED. Having consulted with Judge Settle's chambers, the following deadlines supersede the deadlines set forth in the Court's minute order resetting discovery and pretrial deadlines. See Dkt. 238. Accordingly, the following deadlines shall apply:

All other dates set forth in Judge Settle's Order resetting trial and pretrial dates (Dkt. 241) remain binding on the parties, absent further order of the Court.

As set forth above, the Court ORDERS that:

Dated this 11th day of September, 2020.