*1 Pending before the Court is a discovery dispute between Plaintiff Cher (“Plaintiff”) and Defendant Mary Bono (“Defendant”) regarding Defendant's assertion of the attorney-client privilege and the work product doctrine for Defendant and her counsel's communications with third parties Wixen Music Publishing, Inc. (“Wixen”) and Warner Chappell Music Publishing, Inc. (“Warner Chappell”). The Court and the parties agreed to have the dispute resolved via letter briefing in lieu of a formal motion to compel, with the understanding that the ruling on the dispute would be binding on both parties to the same extent as an order on a formal motion to compel. The Court set a letter briefing schedule pursuant to the parties' proposal. Dkt. No. 57. Plaintiff filed her opening letter brief, with exhibits, on November 13, 2023. Dkt. No. 59 (“Pl. Br.”). Plaintiff emailed the Court with copies of Exhibits 5, 6, 7, and 11 as Defendant has designated those exhibits as confidential under the protective order. Defendant filed her opposition letter brief, with one exhibit, on November 20, 2023. Dkt. No. 63 (“Def. Br.”). Plaintiff filed a reply letter brief on December 1, 2023. Dkt. No. 60 (“Pl. Reply Br.”).

After reviewing the briefing, the Court determined that an in camera review was warranted of the communications for which Defendant asserted work product protection. Dkt. No. 83. Defendant lodged those communications on December 21, 2023.

The Court has reviewed the parties' briefs and conducted an in camera review of the documents for which Defendant asserted work product protection. The Court finds the matter suitable for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons set forth below, the Court GRANTS Plaintiff's request to overrule Defendant's assertions of attorney-client privilege and work product protection for communications including the third parties Wixen and Warner Chappell, and orders Defendant to produce those communications unredacted with one exception as set forth under Section III.B.2.

I. BACKGROUND

In 1978, Sonny Bono (“Sonny”) assigned to Plaintiff fifty percent of all musical composition royalties that he, his successors, or heirs received from any source with respect to musical compositions Sonny authored, co-authored, or acquired prior to their separation. Pl. Br. at 1; see also Pl. Br., Ex. 2 at 6-8, Ex. 3 at 6-7, Ex. 4. As part of a Creditor's Claim Agreement from 1998, Plaintiff and Defendant agreed to cooperate in the collection and disbursement of royalties. Pl. Br. at 1 & Ex. 4. In 2011, the parties jointly engaged Wixen to collect and disburse these royalties on their behalf. Pl. Br. at 1. Plaintiff, as trustee of the Inshallah Trust (the “Trust”), and defendant, as trustee of The Bono Collection Trust (the “Estate”), entered into three written agreements with Wixen: a Collection Agreement, an Administration Agreement, and a Promotion Agreement (collectively, the “2011 Agreements”). Pl. Br. at 1-2 & Exs. 5-7.[1] Pursuant to the 2011 Agreements, Wixen agreed to: collect royalties for the musical compositions and disburse payments to the Estate and the Trust, Pl. Br., Ex. 5; maintain and administer the Estate's and Trust's respective interests in the musical compositions, Pl. Br., Ex. 6; and promote the musical compositions on behalf of the Estate and the Trust, Pl. Br., Ex. 7.

*2 In 2016, Defendant and her two children served a Section 304(c) notice terminating Sonny's pre-1978 grants on the grantees, with the earliest terminations beginning in 2018 and then continuing through 2026. Pl. Br. at 2. District Judge Kronstadt has ruled at the pleading stage that the notice of termination did not terminate Plaintiff's rights to 50% of the composition royalties. Id. at 2; see also Dkt. No. 43.

In 2019 or 2020,[2] Defendant and her children entered into a separate administration agreement with Wixen (the “2019/2020 Agreement”). Pl. Br., Exs. 11, 12. The 2019/2020 Agreement refers to the 2011 Collection Agreement. Pl. Br. at 5 & Ex. 11. Pursuant to the 2019/2020 Agreement, Plaintiff's percentage of the royalties to the musical compositions was diverted to the Bonos. Pl. Br. at 2 & Ex. 11.

In September 2021, Defendant's lawyer disclosed to Plaintiff's transactional counsel that, at Defendant's direction, Wixen had begun diverting Plaintiff's share of composition royalties to Defendant and the other heirs of Sonny. Pl. Br. at 2.

II. LEGAL STANDARDS

A. Attorney-Client Privilege

In a federal question case, such as the instant action, federal law governs any claims of privilege. See In re TFT-LCD (Flat Panel) Antitrust Litigation, 835 F.3d 1155, 1158 (9th Cir. 2016) (federal law of privilege applies where there are federal question claims and pendent state law claims). “Under federal law, the attorney-client privilege is strictly construed.” United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009). “The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The application of the privilege is determined by an eight-part test:

Id. (citing United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010)).

“The attorney-client privilege may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice, as well as to communications with third parties acting as agent of the client.” Id. (internal punctuation and citations omitted). Voluntary disclosure of privileged documents to third parties will generally destroy the privilege. Id. An express waiver “occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public.” Id. at 1116-17.

“The party asserting the privilege bears the burden of proving each essential element.” Ruehle, 583 F.3d at 608. This includes that there was no waiver. See Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981) (“One of the elements that the asserting party must prove is that it has not waived the privilege.”).

B. Work Product Doctrine

*3 The application of the work product doctrine in federal court is determined under federal law. See Arfa v. Zionist Organization of America, No. CV 13-2942 ABC (SS), 2014 WL 815496, at *2 n.3 (C.D. Cal. Mar. 3, 2014); Kandel v. Brother Intern. Corp., 683 F. Supp. 2d 1076, 1083 (C.D. Cal. 2010).

The federal work product doctrine is set forth in Federal Rule of Civil Procedure 26 (“Rule 26”). Rule 26(b)(3) provides 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.” Fed. R. Civ. P. 26(b)(3)(A). But materials constituting work product may be discovered if they are otherwise discoverable under Rule 26(b)(1), and the requesting party “shows that it has 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). If a court orders discovery of work product, it must protect against disclosure of opinion or absolute work product, which consists of “the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).

To qualify for work product protection, “documents must have two characteristics: (1) they must be prepared in anticipation of litigation or for trial, and (2) they must be prepared by or for another party or by or for that other party's representative.” In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), 357 F.3d 900, 907 (9th Cir. 2004) (internal citation and quotation marks omitted); Fed. R. Civ. P. 26(b)(3). “The work-product rule is not a privilege but a qualified immunity,” and work-product materials “may be ordered produced upon an adverse party's demonstration of substantial need or inability to obtain the equivalent without undue hardship.” Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989). The primary purpose of the doctrine is to prevent one party from exploiting the other party's efforts in preparing for litigation. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 576 (9th Cir. 1992).

The standard for waiver of the work product doctrine differs from the standard for waiver of the attorney-client privilege. “While the attorney-client privilege is designed to protect confidentiality, so that any disclosure outside the magic circle is inconsistent with the privilege, work-product protection is provided against adversaries, so only disclosing material in a way inconsistent with keeping it from an adversary waives work product protection.” Sanmina, 968 F.3d at 1120 (internal punctuation and citations omitted). Thus, “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 punctuation and citation omitted). The inquiry is fact intensive, and “ultimately guided by the same principle of fundamental fairness that underlies much of [the Ninth Circuit's] common law doctrine on waiver by implication.” Id.at 1122. Because fairness guides the inquiry, the waiver should be “no broader than needed to ensure the fairness of the proceedings before it.” Id.

*4 The party claiming work product protection has the burden of proving the applicability of the doctrine. A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 192 (C.D. Cal. 2006). The party asserting that work product protection has been waived has the burden of proving waiver. McKenzie Law Firm, P.A. v. Ruby Receptionists, Inc., 333 F.R.D. 638, 642 (D. Or. Dec. 16, 2019) (noting that there was no decision from the Ninth Circuit addressing this question but collecting a Fifth Circuit case and out-of-circuit district court cases); see also Greer v. Cnty. of San Diego, 634 F. Supp. 3d 911, 918 (S.D. Cal. 2022) (“Unlike the attorney-client privilege, the party asserting waiver of work-product protection bears the burden of demonstrating that a waiver of that protection has occurred.” (internal quotation marks omitted)).

III. DISCUSSION

Defendant does not dispute that the communications at issue are within the scope of discovery under Rule 26. Def. Br. at 2. Thus, the analysis focuses on the assertion of the attorney-client privilege and work product doctrine, and not on the relevance of the communications or other considerations of discoverability.

A. Warner Chappell

The parties' briefing on the assertion of the attorney-client privilege with respect to communications including Warner Chappell is limited. Defendant explains that Warner Chappell is a publisher of Sonny's music compositions and collected musical composition royalties. Def. Br. at 2. Warner Chappell is also one of the grantees to whom a notice of termination was sent in 2016. Id. at 2. Defendant states that Warner Chappell continues to serve as the music publisher for the foreign rights of Sonny's compositions. Id. at 3. There is no other explanation regarding Warner Chappell's relationship with Defendant, or how that relationship is one of principal and agent. Defendant does not demonstrate how or why she expected confidentiality from Warner Chappell as to otherwise privileged communications. Nor does she demonstrate that Warner Chappell was included to assist in providing legal advice, other than the unsupported statement in her letter brief that Warner Chappell employees participated in communications to provide information needed by her counsel to provide legal advice and to discuss legal matters. See Def. Br. at 2. Thus, Defendant falls short of meeting her burden to support the assertion of the attorney-client privilege as to communications including Warner Chappell. As to work product protection, the Court has reviewed the highlighted entries in the privilege log and does not see any assertions of the work product doctrine for communications including employees from Warner Chappell. See Pl. Br., Ex. 1. In sum, the Court overrules Defendant's assertion of the attorney-client privilege for communications including Warner Chappell.

B. Wixen

The Court finds that Defendant has not met her burden to demonstrate assertion of the attorney-client privilege for communications including Wixen.

First, the Court finds that Defendant has not met her burden to show that the attorney-client privilege attaches to communications including Wixen because Defendant has not sufficiently shown that the communications were made in confidence. The relevant inquiry for determining whether a communication is confidential is whether the client had a reasonable expectation of confidentiality. Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995). Defendant's statement that Wixen did not have an obligation to share her private information with Plaintiff does not equate to an obligation that Wixen maintain confidentiality of communications including Wixen between Defendant and her counsel. Defendant does not point to any provision or agreement between her and Wixen regarding confidentiality. The Court finds that Defendant could not have reasonably expected Wixen to keep communications regarding royalties that fall under the scope of the 2011 Agreements confidential from Plaintiff given Defendant's knowledge and understanding that Wixen acted as both Plaintiff and Defendant's agent pursuant to the 2011 Agreements. See Lauffs v. Carr, Civil No. 04-CV-809-WQH (WMc), 2005 WL 8173346, at *15 (S.D. Cal. Nov. 14, 2005) (describing an agent's fiduciary duty of disclosure).

*5 Second, even assuming Defendant did have a reasonable expectation of confidentiality, the Court finds that Defendant has not met her burden to show that she did not waive the attorney-client privilege by voluntarily disclosing communications to Wixen.

Under federal law, the agency exception to waiver of the attorney-client privilege applies only if the agent is retained for legal purposes. See Sanmina, 968 F.3d at 1116 (“If the advice sought is not legal advice, but, for example accounting advice from an accountant, then the privilege does not exist.”); Mark R. Kiesel Living Trust v. Hyde, CV 22-109-M-KLD, 2023 WL 3480142, at *5 (D. Mont. May 16, 2023) (“If the client retains the third party agent or consultant ‘for non-legal purposes, the privilege is lost.’ ”).[3] The burden is on Defendant to demonstrate “both that the communications were made for the purpose of obtaining legal advice, and that the communications were necessary for effective legal consultation.” Kiesel, 2023 WL 3480142, at *6. “The involvement of the third party must be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications.” ChromaDex, Inc. v. Elysium Health, Inc., No. SA CV 16-02277-CJC (DFMx), 2019 WL 8227385, at *3 (C.D. Cal. Dec. 20, 2019). In Kiesel, the plaintiffs had retained an architect to assist in the investigation, design, and eventual construction of a residential home on a property the plaintiffs had purchased from the defendant. 2023 WL 3480142, at *1. The court found that the plaintiffs had not demonstrated that the architect's presence on the communications was “reasonably necessary for effective consultation” between the plaintiffs and their attorney. Id. at *7. Similarly, in Sweet v. City of Mesa, No. CV-17-00152-PHX-GMS, 2022 WL 326406 (D. Ariz. Feb. 3, 2022), the court found that a mother's involvement with preparation of her daughter's case did not create an agency relationship for purposes of the federal law of attorney-client privilege because the mother and daughter did not establish that the mother's services were necessary to assist the daughter's attorneys in providing their legal advice. Id. at *2-3.

Here, Defendant has not met her burden to show that Wixen's involvement was indispensable or served some specialized purpose in facilitating the attorney-client communications. The unsupported statement in Defendant's letter brief that Wixen was included in Defendant's communications with her counsel “in order to provide her counsel with information needed to provide legal advice and to discuss legal matters,” Def. Br. at 2, is not sufficient. The Court has reviewed the 2011 Agreements and the 2019/2020 Agreement, and nothing within those agreements suggests that Wixen was retained to provide information to counsel for legal advice or for some specialized purpose to facilitate attorney-client communications. See Pl. Br., Exs. 5-7, 11. Rather, the scope of Defendant's relationship with Wixen appears to be limited to non-legal purposes, such as collection and administration of royalties for musical compositions and promotion of such musical compositions. See id. Like the plaintiffs in Kiesel and Sweet, Defendant has not shown that Wixen's services were necessary for Defendant's consultations with her attorneys. Thus, the inclusion of Wixen waived the attorney-client privilege. Although Defendant argues that she would not have included Wixen in her communications with counsel if she did not reasonably understand that her communications were privileged, subjective intent is not relevant to waiver. See Sweet, 2022 WL 326406, at *3 (finding immaterial that the plaintiff or her attorneys may have not subjectively intended to waive the privilege).

*6 The Court is not persuaded by any of the additional arguments by Defendant. Defendant states that she worked with Wixen on matters related to the music composition royalties at issue in this case and on other matters related to Sonny that were not related to Plaintiff. Def. Br. at 1. However, Defendant concedes relevance of the communications at issue. See id. at 2 (“Representative Bono does not dispute that the communications at issue are within the scope of discovery under Rule 26.”). Thus, it does not appear that any of the communications at issue would involve these other unrelated matters.

Defendant also argues that Wixen, as a music publisher, did not owe Plaintiff any fiduciary duties. However, Defendant agrees that Wixen was Plaintiff's agent and Defendant's agent, and an agent owes a principal fiduciary duties. See Chemical Bank v. Sec. Pacific Nat'l Bank, 20 F.3d 375, 377 (9th Cir. 1994) (“The very meaning of being an agent is assuming fiduciary duties to one's principal.”); see also Lusida Rubber Products v. Point Indus., LLC, CV-15-08677-MWF-GJS, 2016 WL 7469592, at *6 (C.D. Cal. Feb. 5, 2016) (“California courts define an agent as anyone who undertakes to transact some business, or manage some affair, for another, by authority of and on account of the latter, and to render an account of such transactions.”). If Wixen did not owe Plaintiff fiduciary duties, then Wixen was not Plaintiff's agent. But if the 2011 Agreements were not sufficient to establish an agency relationship with Wixen, it is unclear how the 2019/2020 Agreement established an agency relationship between Defendant and Wixen. Thus, Defendant's argument would lead to a conclusion that Wixen was never an agent to either Defendant or Plaintiff. The inclusion of a non-agent third party on an otherwise privileged communication would also waive the privilege.

Finally, Defendant's reference to Wixen having other clients has no bearing on the analysis. See Def. Br. at 3. Here, Plaintiff and Defendant together retained Wixen to administer the royalties for the musical compositions at issue. This is relevant to whether Defendant reasonably expected confidentiality from Wixen on issues falling under the scope of the 2011 Agreements. Whether other clients of Wixen—who presumably do not have similar joint agreements with Plaintiff—could reasonably expect confidentiality from Wixen is a different inquiry.

In sum, the Court finds that Defendant has not met her burden to support her assertion of the attorney-client privilege on communications including Wixen.

Plaintiff argues that the communications at issue are not protected by the work product doctrine because they were not prepared in anticipation of litigation or for trial. Pl. Br. at 5. Plaintiff contends that the communications were prepared because Defendant sought to use the notice of termination to convince Wixen to divert Plaintiff's royalties, and the fact that litigation might have ensued once Plaintiff found out was only a possible consequence of what Defendant sought to accomplish. Id. at 6. Plaintiff asserts that Defendant also waived work production protection in disclosing to Wixen, Cher's agent. Id. Wixen has made clear that it is willing to disclose the communications to Plaintiff and answer questions in deposition if the Court determines the privilege does not apply. Id.

In response, Defendant points to the deposition testimony of one of her attorneys who handled the termination notice. Def. Br. at 3-4 & Ex. A. That attorney testified that there was a general understanding that Plaintiff might object to the termination notice and take legal action. Id. Defendant also contends that some of the communications designated as work product relate to potential causes of action involving Plaintiff that are not related to the issues in this litigation. Id. at 4. Defendant also argues that there was no waiver because Wixen is not a conduit to Plaintiff and the fact that Wixen is willing to share the information in response to a subpoena is different from whether Wixen was going to share the information at the time of receipt. Id. at 5.

*7 Plaintiff replies that the attorney who was deposed was not a sender or recipient of any of the challenged communications. Pl. Reply Br. at 2-3. Although Plaintiff maintains that Defendant has not shown that the communications were prepared in anticipation of litigation, Plaintiff suggests an in camera review to evaluate this factor. Id. at 3.

Defendant has lodged the documents for which it has asserted work product protection for an in camera review. However, Defendant has withdrawn the assertion of work product for a number of documents.[4] The Court has reviewed the portions highlighted as work product and finds that Defendant has not met her burden to show that they were prepared in anticipation of litigation. On the face of these emails, there is no reference that they were made in anticipation of litigation. The attorney does not state or imply that he is preparing materials for Defendant for litigation, but rather it appears that he is counseling Defendant on transactional matters, many of which were with Plaintiff. As noted by Plaintiff, the attorney who testified that there may have been an understanding that Plaintiff could take legal action regarding the termination notices is not the attorney on the lodged communications or even from the same law firm. Thus, her testimony is of little value in assessing whether the email communications at issue were made in preparation of litigation. Moreover, the fact that there was a general understanding that Plaintiff could take legal action is not sufficient on its own to show that these emails prior to the initiation of this litigation were in anticipation of litigation. In sum, looking at the totality of the circumstances, the Court finds that Defendant has not met her burden to show that the emails at issue were made in anticipation of litigation.

However, the Court will permit Defendant to maintain redactions of the following highlighted portions in Document #8301: page 4 of the PDF, 12:35 p.m. email from Daniel J. Schacht, the second paragraph in its entirety; and page 5 of the PDF, 11:09 a.m. email from Daniel J. Schacht, the portion in the second paragraph in parentheses.[5] These portions include the attorney's mental impressions, conclusions, opinions, or legal theories, and the Court finds that they should remain protected as they are of limited, if any, relevance to this litigation.

Because the Court finds that Defendant has not met her burden to show application of the work product doctrine, the Court need not address the parties' arguments regarding waiver.

IV. CONCLUSION

The Court overrules Defendant's assertions of attorney-client privilege and work product protection for communications including Wixen and Warner Chappell. Defendant is ordered to produce the communications at issue without redactions, with one exception as set forth above. Defendant shall produce the communications by January 9, 2024.

IT IS SO ORDERED.