*1 Plaintiff filed a motion to enforce discovery orders, for discovery sanctions, and to compel further responses from the CVS Defendants.[1] (Dkt. No. 97.) The CVS Defendants filed an opposition. (Dkt. Nos. 109-111.) Plaintiff filed a reply. (Dkt. No. 112.) The matter came on for hearing on January 9, 2024.

Although it is not entirely clear, Plaintiff's motion appears to seek production of redacted portions of “Risk Notes” that have been withheld by the CVS Defendants on the basis of attorney client privilege and work product doctrine. Because the parties' briefing focuses on the attorney client privilege, the court does not address the work product doctrine except to note that the outcome would be the same.

Federal law governs the application of the attorney client privilege and work product doctrine in this federal civil rights case. United States v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009); Bozzuto v. Cox, 255 F.R.D. 673, 677 (C.D. Cal. 2009) (work product); see Fed. R. Civ. P. 26(b)(3); Fed. R. Evid. 501.

The party asserting the attorney-client privilege has the burden of establishing the existence of the attorney-client relationship and the privileged nature of the communication. United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010). The Ninth Circuit applies an eight-part test for the attorney client privilege: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.” Ruehle, 583 F.3d at 607 (citation omitted); see also United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020).

“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.” Ruehle, 583 F.3d at 607 (citation omitted); United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997). “The attorney client privilege applies to communications between lawyers and their clients when the lawyers act in a counseling and planning role, as well as when lawyers represent their clients in litigation.” United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). “It also extends to those papers prepared by an attorney or at an attorney's request for the purpose of advising a client, provided the papers are based on and would tend to reveal the client's confidential communications.” In re Fischel, 557 F.2d 209, 211 (9th Cir. 1977). “An entire document or set of documents may be privileged when it contains privileged portions that are ‘so inextricably intertwined with the rest of the text that they cannot be separated.’ ” United States v. Christensen, 828 F.3d 763, 803 (9th Cir. 2016) (citation omitted).

*2 The CVS Defendants have satisfied their burden of establishing the attorney-client privilege and the privileged nature of the redacted communications. When a claim is received from a retail customer, the General Liability Team in CVS' Risk Management Department works with CVS' third party vendor, Sedgwick Claims Management (“Sedgwick”), to investigate and evaluate the claim. CVS and Sedgwick jointly use a platform known as “Risk Notes” to preserve their work on the claim. (Brolsma Decl. ¶¶ 3-4.)

The Risk Notes on Plaintiff's claim were produced with a privilege log listing 13 redacted items during the period February 27, 2023 through April 3, 2023. (Dkt. No. 97-2.) Plaintiff filed the complaint against the CVS Defendants in state court on January 6, 2023 (Dkt. No. 1-2) and apparently served the complaint on the store and sent a copy to Sedgwick in February 2023. (Dkt. No. 111-1 at 22, 24.)[2] After Plaintiff's demand was received, the claim was transferred to the Claims and Litigation Team within CVS' Risk Management Department on February 24, 2023. (Id. at 16-17.) Outside counsel was retained on February 27, 2023. (Brolsma Decl. ¶ 8.) Each of the 13 redacted items in the Risk Notes for Plaintiff's claim is a communication with members of the outside law firm (LaFolette, Johnson, DeHaas, Fesler & Ames) during the period February 27, 2023 through April 3, 2023. (Dkt. No. 97-2 (listing communications with Marissa Warren, Merna Abdelmalak). Although Plaintiff claims the CVS Defendants have not satisfied their burden, the reasonable inference – drawn from the chronology of Plaintiff's lawsuit, Plaintiff's demand, the unredacted portions of the Risk Notes, and the timing of the communications with outside counsel in the Risk Notes – is that the communications were made for purposes of legal advice in connection with Plaintiff's lawsuit. A party is not required to reveal “information itself privileged or protected” in the privilege log in order to claim the privilege. Fed. R. Civ. P. 26(b)(5)(A). Indeed, courts routinely do not require a party to log communications with outside counsel during the pending litigation. The court declines Plaintiff's request for in camera review because there is no basis for the request.

Plaintiff argues that Sedgwick's joint access to Risk Notes waives the attorney client privilege. Sedgwick has access to Risk Notes solely as a function of its role in helping CVS investigate and evaluate Plaintiff's claim. Sedgwick directly communicated with Plaintiff's attorney. As such, Sedgwick's presence does not waive the attorney client privilege. “[A] communication from the attorney to a third party acting as his agent ‘for the purpose of advising and defending his clients’ also may be protected if it reveals confidential client communications.” United States v. Christensen, 828 F.3d 763, 802 (9th Cir. 2016) (citation omitted) (private investigator); see also United States v. Judson, 322 F.2d 460, 462 (9th Cir. 1963) (accountants retained by client “facilitate[d] an accurate and complete consultation between the client and the attorney about the former's financial picture” and “constituted confidential communications within the attorney-client privilege”); KB Home v. Ill. Union Ins. Co., 2023 U.S. Dist. LEXIS 84314, *39-*40 (C.D. Cal. Mar. 30, 2023) (presence of third party claims adjuster hired by defendant to help investigate claim did not waive attorney client privilege).

*3 Finally, Plaintiff contends that the CVS Defendants are “withholding key information relevant to the plaintiff's cause of action.” (Motion at 4.) As a legal matter, the Ninth Circuit does not recognize such an exception to the attorney client privilege.[3] See Bruno v. Equifax Info. Servs., LLC, 2019 U.S. Dist. LEXIS 24502, *6-*8 (E.D. Cal. Feb. 14, 2019) (“While attorney-client communications may be highly relevant to plaintiff's claims for violation of the FCRA, absent a waiver plaintiff is not entitled to discovery containing such communications.”).

As a factual matter, Plaintiff's contention is wholly unsupported. Specifically, CVS produced the Risk Notes and Surveillance Templates regarding identification of the video and cameras for the two incidents on January 13 and 19, 2021. (Dkt. No. 97-2 at 63-64; Id. at 67-68.) For the January 13, 2021 incident, the Surveillance Template dated June 24, 2021 indicates that the store manager identified Plaintiff in video from cameras 1, 5, 14, 15 and 17. (Id. at 63-64.) For the January 19, 2021 incident, the Surveillance Template dated May 24, 2021 indicates the store manager identified Plaintiff in video from cameras 1, 3 and 5. (Id. at 67-68.) These Surveillance Templates were produced in unredacted form and the CVS Defendants do not claim privilege as to them. Rather, the CVS Defendants' claim of attorney client privilege is limited to communications with outside counsel during the period February 27, 2023 through April 3, 2023, close to two years later. There is no basis in the record to connect the redacted portions with outside counsel in 2023 with the identification of cameras back in 2021.

IT IS ORDERED that Plaintiff's motion is DENIED IN ITS ENTIRETY.