*1 This is a class action brought by Iola Favell, Sue Zarnowski, Mariah Cummings, and Ahmad Murtada (“Plaintiffs”) against University of Southern California (“USC” or “Defendant”) alleging that USC knowingly submitted false data about USC's Rossier School of Education to U.S. News & World Report (“US News”) to inflate Rossier's position in the well-known annual US News rankings.[1] The action is proceeding on two different dockets: case no. 2:23-cv-00846 (“Favell I”) and case no. 2:23-cv-03389 (“Favell II”). In Favell I, Plaintiffs bring one claim for equitable relief pursuant to Cal. Civ. Code § 1770 (“Consumer Legal Remedies Act” or “CLRA”). See Favell I, ECF Docket No. (“Dkt.”) 67 (“Favel I Second Amended Complaint” or “Favell I SAC”) at 61–65.[2] In Favell II, Plaintiffs bring three claims for legal relief: (1) a claim pursuant to California Bus. & Prof. Code § 17500 alleging that USC made untrue or misleading representations with the intent to induce members of the public to purchase USC's services; (2) a claim alleging that USC engaged in unfair competition as defined in the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”); and (3) a claim pursuant to the CLRA. See Favell II, Dkt. 58 (“Favell II First Amended Complaint” or Favell II FAC”) at 62–72. Plaintiffs brought these claims against USC's marketing partner, 2U, Inc. (“2U”), in addition to USC; however, the district court granted 2U's motions to dismiss, dismissing them as Defendants. See Favell I, Dkt. 101; Favell II, Dkt. 86 (“January 23, 2024 Order”).[3]

*2 On July 13, 2023, Plaintiffs propounded their First Set of Requests for Production (“RFP”) on USC. Declaration of Spencer S. Hughes in Support of Plaintiffs' Motion to Compel (“Hughes Decl.”), Ex. F.[4] USC first served responses on September 13, 2023. Hughes Decl., Ex. G. The parties exchanged emails and attempted to meet and confer by videoconference on numerous occasions. See Hughes Decl., Exs. H–K, M–N. Ultimately, the parties were unable to resolve their disputes with respect to six RFPs, and thus Plaintiffs filed the instant motions to compel on March 13, 2024, which are before the court on the parties' joint stipulation. Favell I, Dkt. 114-1; Favell II, Dkt. 100-1 (“Joint Stip.”). Plaintiffs filed a supplemental memorandum on March 20, 2024. Favell I, Dkt. 115; Favell II, Dkt. 101 (“Suppl. Mem.”).

On April 24, 2024, the Court held a hearing on these motions. See Favel I, Dkt. 128; Favell II, Dkt. 114. For the reasons discussed below, the motion to compel is GRANTED in part, and DENIED in part.

Generally, under the Federal Rules of Civil Procedure,

Fed. R. Civ. P. 26(b)(1).

Relevancy is broadly defined to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, a court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). “A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).

“In moving to compel the production of documents, the moving party bears the burden of demonstrating ‘actual and substantial prejudice’ from the denial of discovery.” Grossman v. Dirs. Guild of Am., Inc., No. EDCV 16-1840-GW (SPx), 2018 WL 5914242, at *4 (C.D. Cal. Aug. 22, 2018) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). In other words, the moving party bears the burden of demonstrating the sought discovery is relevant. Cabrales v. Aerotek, Inc., No. EDCV 17-1531-JGB-KKX, 2018 WL 2121829, at *3 (C.D. Cal. May 8, 2018). In addition, “[r]elevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). However, ultimately, “[i]t has long been settled in this circuit that the party resisting discovery bears the burden of showing why discovery should not be allowed.” United States ex rel. Poehling v. UnitedHealth Grp., Inc., No. CV 16-8697 MWF (SSX), 2018 WL 8459926, at *9 (C.D. Cal. Dec. 14, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”)).

A. REQUESTS FOR PRODUCTION NOS. 1, 2, AND 7

1. Requests and responses

*3 The first dispute centers around RFP Nos. 1, 2 and 7, which center around a public report generated by the law firm Jones Day that USC commissioned for the purpose of investigating the fraudulent statements at issue in this litigation. See Joint Stip. at 10–12; Hughes Decl., Ex. F at 12–13, Ex. G at 9–14. The primary issues presented in the joint stipulation are whether the sought documents are relevant and whether any of them would be protected by attorney-client privilege or the work-product doctrine. Joint Stip. at 12–37. Plaintiffs' RFPs and USC's responses are reproduced below:

2. Relevance and proportionality

The parties' dispute as to relevance and proportionality primarily relates to the 11,000 “pertinent” documents referenced in RFP No. 2. In the report, Jones Day described how it compiled the documents for its investigation as follows: “[t]he University collected documents from 29 individuals and Jones Day used targeted search terms and predictive analytics (a technology-assisted means of identifying relevant electronic documents) to identify and review more than 11,000 pertinent documents.” Hughes Decl., Ex. B at 5 (emphasis added). Plaintiffs argue that they are entitled to all non-privileged documents included in the 11,000 “pertinent” documents. Joint Stip. at 21–22.

USC notes that Jones Day ultimately only relied on 3,000 of those documents to generate their report and argues that the remaining 8,000 documents were simply results of false hits from Jones Day's search terms. Id. at 34–39; Hughes Decl., Ex. H at 1. USC argues that, because Jones Day determined these 8,000 documents—which the parties refer to as the “delta” documents—were not relevant to the report, it follows that they are not relevant to Plaintiffs' claims that rely on the report. Joint Stip. at 34–39. Accordingly, USC argues, Plaintiffs are only entitled to the 3,000 documents that Jones Day actually relied upon to generate their report, which USC has already produced (aside from those that USC asserts are privileged, as discussed below). Id.

At first blush, USC's logic is sound—the fact that Jones Day returned 11,000 documents after running targeted search terms does not, alone, render those documents relevant to the report (and thus relevant to Plaintiffs' claims based on the report). See Sullivan v. F.E. Moran, Inc. v. Fire Prot., of N. Ill., No. 16-CV-5660, 2017 WL 11884318, at *6 (N.D. Ill. Jan. 27, 2017) (“The fact that the search terms are relevant does not mean that every document identified in the search is relevant.”). If Jones Day did not rely on the 8,000 delta documents, and the documents were truly just false hits from the search terms, then it does not necessarily follow that they would be relevant and proportional to the needs of Plaintiffs' claims here. However, there is a critical hole in Defendant's argument: Defendant has not supported its contention that Jones Day relied only upon 3,000 documents to generate the report, nor have they explained—despite Plaintiffs' requests for them to do so—why Jones Day purportedly determined the delta documents to be irrelevant.

The report itself does not state that Jones Day only relied on 3,000 of the 11,000 documents, nor does it state that the remaining 8,000 documents were wholly irrelevant; rather, the report simply and clearly states that the investigation reviewed the 11,000 pertinent documents returned by its search terms, in addition to other materials provided by interviewees. Hughes Decl., Ex. B at 5. To support their contention that Jones Day determined the 8,000 delta documents to be irrelevant, USC cites only their own statements made in emails with Plaintiffs attempting to settle the discover dispute. Joint Stip. at 7–8 (citing Hughes Decl., Ex. H); id. at 35 (citing Hughes Decl., Ex. P). It appears that USC expects Plaintiffs and this Court to rely only upon their word for this allegation, which they treat as fact. The Court can understand why Plaintiffs are reluctant to do so, given the text of the report and USC's failure to offer any further explanation.

*5 On the other hand, the Court acknowledges that producing an additional 8,000 documents—which may require reviewing them for privilege issues—would be quite an undertaking, and may not be proportional to the needs of the case if many of them were truly false hits generated from Jones Day's search terms. Indeed, the report does not affirmatively establish that all 11,000 documents were relied upon in generating the report; all the report establishes is that 11,000 documents were identified and reviewed after using Jones Day's search terms.

Plaintiffs cite Doe 1 v. Baylor Univ., 320 F.R.D. 430 (W.D. Tex. 2017) to support their contention that USC should be compelled to produce all 11,000 documents. Indeed, the case is similar in many respects: Baylor University had hired the law firm Pepper Hamilton to “conduct an independent and external review” of the school's Title IX compliance, and later published results of the investigation. Id. at 434. During a lawsuit against Baylor brought by the sexual assault victims, the court found that Baylor had to produce all documents that Pepper Hamilton relied upon in their investigation, reasoning that: “[p]resumably, Baylor and Pepper Hamilton did not collect documents or conduct interviews that they did not expect to reveal information about the school's compliance under Title IX. The data collection and interviews conducted are similarly likely to be relevant to Plaintiffs' claims.” Id. at 443. However, as USC notes, in Baylor, Baylor had chosen and supplied the documents for Pepper Hamilton to review, which demonstrated Baylor's belief that the documents were relevant; the court found that Baylor could not “have it both ways,” and later argue that the documents were not relevant. Id. This distinguishes the case from the one here, where Jones Day apparently generated the documents at issue independently, using their own search terms.

However, it is in this fact that the Court discerns common ground between the parties: neither party wishes discovery in this case to be dictated by Jones Day's original search. Plaintiffs do not wish to be precluded from reviewing documents purely because Jones Day allegedly determined that they were irrelevant using some unidentified criteria, and USC does not want to produce all of the documents merely because they were identified using Jones Day's search terms, which were allegedly overbroad. In fact, there is even more agreement between the parties—USC acknowledges that they have not objected to Plaintiffs' proposed search terms, aside from the three that relate to the other disputed RFPs, discussed in more detail below. Joint Stip. at 36. The parties nearly reached a compromise whereby USC would incorporate the delta documents in a search using Plaintiffs' search terms. This way, Plaintiffs would be able to ensure they were receiving all documents that were relevant, as defined by their own terms, but USC would not have to produce all 8,000 delta documents. The sticking point was apparently whether USC would be entitled to unilaterally review the documents turned up by Plaintiffs' search terms for “responsiveness or privilege.” Joint Stip. at 8.

Ultimately, the Court accepts this compromise, and finds that USC may review the results for privilege issues[5], but may not review them for independent responsiveness. Indeed, all 8,000 delta documents are, by definition, “responsive” to Plaintiffs' RFP No. 2, regardless if they are ultimately relevant to Plaintiffs' claims. To the extent USC would like to independently review the results for relevance or would require the documents to be responsive to another RFP to be produced, this would appear to defeat the purpose of the compromise altogether. It would ultimately again require Plaintiffs to rely upon USC's bare assertion as to whether documents are “relevant” to Plaintiffs' claims. Indeed, as discussed below, the parties appear to disagree as to the scope of Plaintiffs' arguments—to leave USC in a position to unilaterally arbitrate what is and is not relevant to Plaintiffs' claims would likely only invite further dispute, not to mention create potentially unnecessary burden for USC.

3. Privilege and work-product doctrine

*6 USC asserts that Plaintiffs seek documents protected by both the attorney-client privilege and the work product doctrine. The parties agree that federal law applies to the question of whether any documents are protected under the work product doctrine, and whether those protections have been waived. Joint Stip. at 15, 32; see Kandel v. Brother Int'l. Corp., 683 F. Supp. 2d 1076, 1083 (C.D. Cal. 2010) (“Unlike the attorney-client privilege, the application of the work product doctrine in diversity of citizenship cases is determined under federal law.”). The parties also agree that, because this is a diversity action, state law applies to the question of whether an attorney-client relationship existed between USC and Jones Day. Joint Stip. at 14, 22; see KL Grp. v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987) (“The availability of the attorney-client privilege in a diversity case is governed by state law.”). However, the parties dispute whether state or federal law should apply to the question of whether USC has waived the attorney-client privilege, to the extent it existed.

Though the caselaw is admittedly less clear on this point, the Court finds that state law should apply to the question of whether USC has waived any attorney-client privilege in the specific circumstances of this case. Plaintiffs cite Fed. R. Evid. 502(f) (“Rule 502(f)”) to argue that federal law governs the scope of waiver in diversity cases. Joint Stip. at 14. Rule 502(a)–(b) describes the standard to determine whether the attorney-client privilege or work-product protection has been waived when information is either intentionally or inadvertently disclosed during a federal proceeding;[6] Rule 502(f) mandates that Rule 502 “applies even if state law provides the rule of decision.” Fed. R. Civ. P 502(a)–(b), (f). However, here, the disclosure at issue did not occur in any federal proceeding, and occurred far before the instigation of any litigation, state or federal. Accordingly, state law should apply to the question of the scope of the waiver warranted by the disclosure. See KL Grp., 829 F.2d at 918–19 (applying state law to the question of waiver of the attorney-client privilege in diversity case); Pinnacle Sur. Servs., Inc. v. Manion Stigger, LLP, 370 F. Supp. 3d 745, 750–51 (W.D. Ky. 2019) (noting that federal law “can govern waiver in a diversity case” but “only does so when ‘disclosure’ of the privileged communication is made, whether intentional or inadvertent, ‘in a federal proceeding[;]’ ” applying state law to the issue of waiver because “[n]one of the communications at issue...[had] been disclosed during discovery or otherwise during [the] federal proceeding”); see also Rule 502 advisory committee's note (“[W]hile establishing some exceptions to waiver, [This] rule does not purport to supplant applicable waiver doctrine generally.”).

Though Plaintiffs provide some examples of cases where district courts have applied federal law to the question of waiver of the attorney-client privilege, as Defendant notes, none of these cases involve a diversity case where the disclosures occurred outside of the federal proceeding. Some are diversity cases that involve disclosures during the course of the federal proceeding. See Madrigal v. Allstate Indem. Co., No. CV 14-4242 SS, 2015 WL 12748277, at *2 (C.D. Cal. Nov. 5, 2015); Century Aluminum Co. v. AGCS Marine Ins. Co., 285 F.R.D. 468, 470 (N.D. Cal. 2012). Others involve disclosures prior to the federal proceedings, but are federal question cases. See Wi-LAN, Inc. v. Kilpatrick Townsend & Stockton LLP, 684 F.3d 1364, 1366 (Fed. Cir. 2012) (patent dispute); Rains v. Westminster College, 627 F. Supp. 3d 1267, 1273 (D. Utah 2022) (Title VII claims); Doe 1 v. Baylor Univ., 320 F.R.D. 430, 430 (W.D. Tex. 2017) (Title IX action); Mills v. Iowa Bd. of Regents, 770 F. Supp. 2d 986, 990 (S.D. Iowa 2011) (federal civil rights claim). None of the cases present similar circumstances to those of this case—diversity cases where the disclosures at issue occurred prior to the federal proceedings.

*7 Ultimately, though neither party has identified a Ninth Circuit case addressing the question explicitly, Defendant has pointed to Ninth Circuit case law and published district court case law that would suggest state law should apply to the question of waiver in the specific circumstances of case. Plaintiffs have not identified any case law that suggests the opposite. Accordingly, the Court applies state law to this question of waiver of any attorney-client privilege.

Under California law, the party claiming privilege has “the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” Costco Wholesale Corporation v. Superior Court, 47 Cal. 4th 725, 733 (2009). Once that party establishes a prima facie claim of privilege, the communication is “presumed” to have been made in confidence and the opponent has “the burden of proof to establish that the communication was not confidential or that the privilege does not for other reasons apply.” Id.

Relevant to the prima facie step here, the attorney-client privilege does not attach to an attorney's communications “when the dominant purpose in retaining the attorney was something other than to provide the client with a legal opinion or legal advice.” Id. at 736; see also City of Petaluma v. Superior Court, 248 Cal. App. 4th 1023, 1032 (2016) (“In assessing whether a communication is privileged, the initial focus of the inquiry is on the dominant purpose of the relationship between attorney and client and not on the purpose served by the individual communication” (citations and quotations omitted)). For example, “the attorney-client privilege does not apply where the attorney was merely acting as a negotiator for the client, merely gave business advice, or was merely acting as a trustee for the client.” McAdam v. State National Insurance Co., 15 F. Supp. 3d 1009, 1015 (S.D. Cal. 2014) (quoting Clark v. Superior Court, 196 Cal. App. 4th 37, 37 (2011)).

Here, the “dominant purpose” of the relationship between USC and Jones Day is admittedly unclear. Plaintiffs argue that Jones Day was acting in purely fact-finding capacity, noting that the report does not offer any legal conclusions, nor does it purport to give legal advice, and that the report and USC's stated purpose at the time of hiring Jones Day was to commission an independent investigation that would ultimately result in a public report with factual findings. Joint Stip. at 15–17; Suppl. Mem. at 2. USC argues that the report does make legal opinions, but that, in any case, it is not necessary for the report to offer legal advice because, under California law, an attorney-client relationship can be created with a firm whose role was limited to factual investigation, provided that they were required to call upon their legal expertise. Joint Stip. at 24–28.

As an initial matter, the Court notes that it is USC's burden to demonstrate that the “dominant purpose” of the relationship between them and Jones Day was for the purpose of seeking legal services or advice.[7] To satisfy their burden, USC initially only pointed to the report. However, at the hearing, the Court invited USC to submit additional documentation—such as a retainer agreement—for in camera review. The Court is in receipt of a confidential declaration from Rasha Gerges Shields of Jones Day (“Shields Decl.”).[8] The Court finds that, through the Shields Decl., USC has sustained their burden to establish that an attorney-client relationship existed between them and Jones Day.

*8 As an initial matter, the Court notes that the report itself does not render a legal opinion or advice.

The report describes its purpose as follows:

Hughes Decl., Ex. B at 3. While the report establishes that Jones Day was asked to opine as to whether USC misreported information about the “selectivity” of its doctoral programs and whether the responsible party had a “persuasive justification,” neither of these opinions are legal ones. The report does not apply or discuss any type of law, nor does it make any conclusions about liability of any sort. Indeed, Jones Day uses the terms “examine,” rather than the terms “opine” or “conclude,” and the summary of the report on the first few pages lists factual findings only. See Hughes Decl., Ex. B. Ultimately, the text of the report indicates that the report's purpose was primarily, if not solely, to investigate and make factual findings.

To be sure, USC also argues that, even if the report was primarily factual in nature, this does not necessarily imply that the dominant purpose of the relationship between USC and Jones day was not to obtain legal services or advice. Here is where the parties disagree about the application of Petaluma, 248 Cal. App. 4th 1023. In Petaluma, the defendant retained outside counsel to investigate a former employee's charge of discrimination. Id. at 1028-29. Outside counsel's “role was limited to a factual investigation and did not extend to providing legal advice as to which course of action to take based upon the results of the investigation.” Id. at 1034. However, the court found that the defendant had “established a prima facie claim of privilege by presenting undisputed evidence that [outside counsel] was retained to use her legal expertise to conduct a factual investigation that would, in turn, be the basis for the City Attorney to provide legal advice to the city.” Id. at 1035. In so finding, the court relied upon language in the retention agreement between outside counsel and defendant to conclude that outside counsel “was not merely a fact finder whose sole task was to gather information and transmit it” to the defendant, but “was expected to use her legal expertise to identify the pertinent facts, synthesize the evidence, and come to a conclusion as to what actually happened.” Id. at 1034–35. Accordingly, the court reasoned, the “dominant purpose of [outside counsel's] representation was to provide professional legal services to the City Attorney so that he, in turn, could advise the [the defendant] on the appropriate course of action.” Id.

*9 USC is correct that, here, like in Petaluma, we have an entity with general counsel who hired outside counsel to conduct a factual investigation. However, it is not clear from Petaluma that this fact alone implies that outside counsel was required to call upon their “legal expertise” during the investigation, and thus was retained for the “dominant purpose” of providing legal services. Importantly, in Petaluma, the explicit purpose of outside counsel's investigation was to form the basis for general counsel's legal opinion. Thus, while the report itself did not offer legal advice, the dominant purpose in hiring the firm to write the report was ultimately to obtain legal advice, be it from another source. California Supreme Court caselaw, as well as federal courts interpreting California cases, underscore the importance of the seeking of legal advice in determining whether an attorney-client relationship existed, suggesting that Petaluma does not stand for the proposition that outside counsel provides legal services merely because they conduct an investigation, if the investigation was not ultimately intended to form the basis for legal advice. See, e.g., Costco, 47 Cal. 4th at 735–36 (citing with approval plaintiff's point that “privilege does not attach to an attorney's communications when the client's dominant purpose in retaining the attorney was something other than to provide the client with a legal opinion or legal advice”); Fed. Indus. Inc. v. Cameron Techs. US Inc., No. CV 07-1098-VBF(CTX), 2009 WL 10670395, at *3 (C.D. Cal. Jan. 30, 2009) (citing Scripps Health v. Superior Court, 109 Cal. App. 4th 529, 533 (2003), for the proposition that, “[u]nless it can be said that the dominant purpose of transmitting information to an attorney is the seeking of legal advice, the attorney-client privilege is non-existent”); Vieste, LLC v. Hill Redwood Dev., No. C-09-04024 JSW DMR, 2010 WL 4807058, at *7 (N.D. Cal. Nov. 18, 2010) (distinguishing California case finding privilege applied where legal and non-legal work was inextricable, because defendants had “made no showing at all that [outside counsel's] communications involved legal advice or opinion, and thus cannot sustain their claims of privilege for her communications”).

Here, as Plaintiffs point out, nothing in the report or in the public comments surrounding the report demonstrates that the dominant purpose in hiring Jones Day to author the report was to rely upon it to form a legal opinion. The report does not opine on or even mention the potential legal implications of the findings in the report. Indeed, the report and comments from USC at the time of the investigation indicated that Jones Day was making factual findings to be published for public consumption. See Hughes Decl., Ex. B at 3 (“The Office of the General Counsel at the University of Southern California ... retained Jones Day to conduct an independent investigation into whether the USC Rossier School of Education ... misreported data to U.S. News & World Report”); Gregory Yee & & Colleen Shalby, USC Pulls Education School Out of Annual Rankings Due to ‘History of Inaccuracies’ in Data, L.A. Times (Mar. 23, 2022), https://www.latimes.com/california/story/2022-03-23/uscrossier-school-education-pulls-out-of-us-news... (“USC has hired Jones Day, an independent law firm, to investigate the Rossier School's past submissions to U.S. News & World Report, [USC's Provost and Senior Vice President for Academic Affairs Charles Zukoski] said. ‘The investigation is well underway,’ he wrote. ‘We will share their findings when they are complete sometime within the next two weeks.’ ”).

However, the Shields Declaration clearly demonstrates that the investigation was commissioned to form the basis of legal advice, and suggests that Jones Day may have even provided some form of legal advice to USC. Attached to the Shields Declaration as Exhibit A is an email between USC and Jones Day, where the parties discuss the scope of Jones Day's retention; the parties confirm that, other than the fee rate, the representation will be governed by the terms of a prior retention agreement related to a different matter. Shields Decl. ¶ 6. That prior agreement is attached to the Shields Declaration as Exhibit B, and clearly states that USC and Jones Day have an attorney-client relationship and that the scope of the relationship may “expand beyond the matter described, but only if [the parties] agree to specific new or expanded engagements.” Id., Ex. B at 1. Indeed, the email in Exhibit A can be reasonably construed as an agreement to expand the relationship to include the investigation into USC's rankings reporting. See id., Ex. A. While the email only explicitly discusses the investigation, and does not discuss prospective litigation or the potential for legal advice, in a subsequent letter—attached to the Shields Declaration as Exhibit C—USC's general counsel explicitly requested Jones Day to label their materials with the “ATTORNEY/CLIENT PRIVILEGED COMMUNICATION PROTECTED UNDER ATTORNEY WORK PRODUCT” header because “[i]t is anticipated that the analyses, reports and/or other documents and materials from the review may result in litigation and/ or may require further legal advice from our office.” Id., Ex. C ¶ 8. Finally, Shields notes that, at the time Jones Day was retained, it had not yet been determined that their report would become public—Jones Day was hired before the LA Times article cited above was published, and Jones Day consulted with USC on the decision to publicly release the report. Id. ¶¶ 15–16.

*10 Ultimately, while the report itself is primarily factual in nature, the Shields Declaration and exhibits show that, as in Petaluma, here USC hired Jones Day to call upon their legal expertise to conduct this investigation and that Jones Day's Report would form the basis for legal advice from USC's general counsel, if not from Jones Day themselves. The Shields Declaration and exhibits also show that, as least until the public release of the report, USC intended for the investigation, certain documents provided to Jones Day, and communications concerning the investigation to be confidential. Accordingly, USC has met their burden to show that an attorney-client relationship existed between them and Jones Day, and the Court presumes communications between USC and Jones Day concerning the investigation were confidential and privileged.

As noted above, Plaintiffs argue that federal law should govern the question of waiver—the Court disagrees, and will apply state law. See subsection III.A.3.a. However, Plaintiffs argue that, under either federal or California law regarding waiver, USC waived attorney-client privilege as to all documents provided to Jones Day for their investigation by publicly disclosing the resulting report. Joint Stip. at 17–20. USC argues that neither federal nor California law supports such a broad subject-matter waiver. Id. at 28–31.

The Court agrees that California law does not support the broad subject-matter waiver that Plaintiffs advocate for. As discussed above, in addition to being primarily focused on federal law, Plaintiffs' cited authority largely deals with waiver in a different context—disclosure of privileged communications during litigation. In this context, waiver must extend to all communications regarding the same subject matter to ensure that a party cannot gain a litigation advantage by selectively revealing certain confidential communications when it is advantageous, while invoking the privilege as to other communications on the same matter that may not be favorable. This is not applicable here, where USC has not voluntarily disclosed any confidential communications in this litigation.

In fact, generally, under California law, “waiver of the attorney-client privilege is to be narrowly construed.” Garcia v. Progressive Choice Ins. Co., 2012 WL 3113172, *5 (S.D. Cal. July 39, 2012); see also Employers Ins. of Wausau v. Cal. Water Serv. Co., 2007 WL 2947423, *4 n.3 (N.D. Cal. Oct. 9, 2007 (“California law jealously guards the attorney-client privilege and interprets all waivers narrowly.”). Even in the context of waiver during litigation, “[t]he scope of [the] waiver is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver.” Sony Computer Ent. Am., Inc. v. Great Am. Ins. Co., 229 F.R.D. 632, 635 (N.D. Cal. 2005) (quoting Transamerica Title Ins. Co. v. Sup. Ct, 188 Cal. App. 3d 1047 (1987), and limiting waiver under California law to single email and any follow-up emails). “Privileged communications do not become discoverable simply because they are related to issues raised in the litigation.” Transamerica Title Ins. Co., 188 Cal. App. 3d at 1052. Here, USC published the report far before the instigation of any litigation, and has not voluntarily disclosed any portion of any confidential communication concerning the report or the underlying investigation. Given that California narrowly construes waiver even where privileged communications are disclosed during litigation, this Court cannot find that the publication of the report prior to the instant litigation waives privilege as to all communications related to the report or underlying investigation.

Indeed, to the extent that the general fairness principles underlying the federal cases cited by Plaintiffs could apply here, the instant case is distinguishable from Plaintiffs' cases. For example, in Baylor, the Court did decide a blanket subject-matter waiver was appropriate (again, based on federal law); however, the Court relied on the facts that, in other litigation, Baylor had actually publicly disclosed certain portions of confidential communications concerning details of the investigation. See Baylor, 320 F.R.D. at 437–440 (“It is enough that the university selectively disclosed confidential attorney-client communications publicly to warrant a finding that it waived the attorney-client privilege with respect to those communications as a whole... because of the level of detail publicly released about the investigation as a whole, the Court concludes that the waiver encompasses the entire scope of the investigation, and all materials, communications, and information provided to Pepper Hamilton as part of the investigation”). Again, here, USC has not voluntarily disclosed any details of the investigation, either publicly or in the context of litigation.

*11 Furthermore, in Baylor, as well as in other cases cited by Plaintiffs, the party asserting the privilege relied on the public reports for their defense, which implicitly put the integrity of the investigations at issue. Id.; Wadley v. Univ. of Iowa, No. 20-CV-366, 2022 WL 18780000, at *7 (S.D. Iowa June 24, 2022); Mills v. Iowa, 285 F.R.D. 411 (S.D. Iowa 2012); Rains v. Westminster Coll., 627 F. Supp. 3d 1267, 1280 (D. Utah 2022). Here, USC does not rely on the report or any details of the investigation for their defense, and thus is not using the report as a “shield”; if anything, in the context of this litigation, Plaintiffs themselves are using the report as a “sword.” Thus, even assuming the principles underlying the federal cases cited by Plaintiffs should apply here, circumstances distinguish Plaintiffs' case from those on which they rely—namely, the facts that USC has not made any aspect of the investigation public and that USC is not relying on the integrity of the investigation for their defense. Accordingly, Plaintiffs have failed to adequately support their argument that the public disclosure of the report constitutes a waiver of attorney-client privilege as to all documents related to the report or underlying investigation.

As a final note, at the hearing, USC argued for the first time that most of the documents at issue here are “doubly privileged,” given that the privileged portion of the 11,000 “pertinent” documents provided to Jones Day are being withheld as privileged not necessarily on the basis that they were confidential communications between USC and Jones Day, but because they were otherwise privileged documents provided to Jones Day for their investigation (e.g., communications to USC's general counsel). The parties do not devote any briefing to whether the underlying privilege is valid, despite the fact that this underlying privilege appears to be the primary basis on which USC has withheld the documents; indeed, USC has provided thousands of other documents that Jones Day reviewed for their investigation, and thus obviously (and correctly) does not consider a document privileged simply because it was provided to Jones Day for their investigation.

With respect to the underlying privilege, the Court notes that Plaintiff has not argued that any specific document identified in the privilege log was erroneously labeled as privileged; thus, the Court does not substantively address this question. However, the Court also acknowledges that USC's privilege log does not identify the position of the individuals involved in the communications or otherwise describe the context of the communications as to allow the Court to meaningfully determine whether USC might have improperly labeled the items as privileged. For example, the attorney-client privilege does not protect confidential communications to employees unless they reasonably needed to know of the communication to further the purpose of the attorney-client relationship. See Zurich Am. Ins. Co. v. Superior Ct., 155 Cal. App. 4th 1485, 1499–1500 (2007) (holding that a confidential communication remains privileged when it is communicated to a corporate employee if the employee reasonably needed to know of the communication in order to further the purpose of the legal consultation). Furthermore, the privilege only protects communications, not the underlying facts or factual documents if they are disclosed outside of the attorney-client relationship. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (noting that “privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney”). USC's privilege log identifies only the parties on the email and the subject line. See Hughes Decl., Ex. O. This information is not sufficient to determine whether the emails were between general counsel and the corporate client, whether the emails were actually communications as opposed to simply forwarded factual documents, or, if the emails were between employees, whether the emails made reasonably necessary disclosures. Accordingly, USC should reevaluate the items in their privilege log to ensure that any items being withheld based on underlying attorney-client privilege between USC's general counsel and USC are not outside the scope of the privilege. For both the items in the privilege log and those provided in supplemental responses, USC should supplement the log with sufficient information to allow Plaintiffs or the Court to determine whether the privilege is properly asserted.

*12 Under the work product doctrine, material obtained and prepared by an attorney or the attorney's agent in anticipation of litigation or preparation for trial may be immune from discovery. Fed. R. Civ. P. 26(b)(3). “Like the attorney-client privilege, the party claiming work product immunity has the burden of proving the applicability of the doctrine.” Kandel, 683 F. Supp. 2d at 1083 (citations omitted).

As was the case with the privilege objection, the work product dispute concerns two categories of documents allegedly protected by the work product doctrine: previous drafts of the report, as requested by RFP No. 1, and documents included in the 11,000 documents provided to Jones Day, requested by RFP Nos. 2 and 7. The application of the doctrine differs as to these two categories.

First, the Court addresses the prior drafts of the report. As discussed above, the report is largely factual and does not contain legal analysis. However, this does not necessarily imply that the report and the underlying investigation were not undertaken “in anticipation of litigation.” See In re Suprema Specialties, Inc., No. 02-10823 (JMP), 2007 WL 1964852 (Bankr. S.D.N.Y. July 2, 2007) (finding a purely factual internal audit report was protected by work-product doctrine because it was prepared in anticipation of litigation rather than in the course of normal business). Indeed, the Shields Declaration and attached exhibits demonstrate that USC retained Jones Day to investigate their misreporting with the knowledge “that the analyses, reports and/or other documents and materials from the review may result in litigation.” Shields Decl., Ex. C. While the report was eventually released to the public, the Shields Declaration clarifies that Jones Day was retained before USC decided to release the results of the investigation, and that Jones Day consulted on this decision. Shields Decl. ¶¶ 15–16. Accordingly, with this context, the public statements are not sufficient to show the rebut USC's showing that the investigation and report were commissioned in anticipation of litigation. See Baylor 320 F.R.D. at 441–42 (rejecting plaintiff's reliance on public statements to argue report was not prepared in anticipation of litigation because the public statements were contradicted by evidence submitted by defendant, including declarations from counsel and Baylor regent, as well as circumstantial evidence in the form of news articles).

Furthermore, the fact that the final draft of the document was publicly released does not render prior drafts unprotected by the work product doctrine. See In re Air Crash Disaster at Sioux City, Iowa on July 19, 1989, 133 F.R.D. 515, 527 (N.D. Ill. 1990) (““[D]rafts, if they are otherwise work product, do not lose that status because the final document is made public.”); S.E.C. v. Schroeder, No. C07-03798, 2009 WL 1125579, at *7 (N.D. Cal. Apr. 27, 2009) (observing an “underlying privilege attaching to drafts of the final product is not destroyed” simply because “a final product is disclosed to the public”); ePlus Inc. v. Lawson Software, Inc., 2012 WL 6562735, at *6 (E.D. Va. Dec. 14, 2012) (“Of course, the production of the final draft of a document waives work product protection as to that draft. Nevertheless, this does not lead to the waiver of the work product protection for the earlier drafts of the document.”). Ultimately, because USC has shown the investigation and report were commission and anticipation of litigation, prior drafts of the report are protected by the work-product doctrine, even despite the ultimate public disclosure of the final draft of the report. Accordingly, USC's objection is sustained with respect to RFP No. 1, which seeks prior drafts of the report.

*13 With respect to USC's assertion of the work-product doctrine as to documents turned over to Jones Day for the investigation, the Court's analysis is similar to that for attorney-client privilege: Plaintiffs do not substantively argue that the doctrine is improperly asserted as to any specific document, but USC's privilege log does not provide sufficient information for Plaintiffs or the Court to determine the context of the allegedly protected documents. For example, the log does not describe the document beyond the email title, which does not always obviously indicate that the email involves “mental impressions, conclusions, opinions, or other legal theories of a party's attorney or other representatives concerning litigation.” Fed. R. Civ. P. 26(b)(3)(B). Accordingly, for both the items in the privilege log and those provided in supplemental responses, USC should supplement the log with sufficient information to allow Plaintiffs or the Court to determine whether the work-product doctrine is properly asserted.

Accordingly, Plaintiffs' motions are DENIED with respect to RFP No. 1 due to USC's validly asserted objection on the basis of work-product protection. Plaintiffs' motions are GRANTED in part and DENIED in part with respect to RFP Nos. 2 and 7, with USC's privilege and work-product objections being sustained in part, as described in this subsection, and their relevance and proportionality objections sustained in part, as described above in subsection III.A.2.[9]

B. REQUESTS FOR PRODUCTION NOS. 27, 65, AND 66

1. Requests and responses

The second dispute centers around RFP Nos. 27, 65, and 66, which seek documents related to the contract between USC and 2U and documents and communications related to USC's compliance with the federal “incentive compensation ban,” which prohibits higher education institutions providing enrollment-related incentive compensation to their contractors. See Joint Stip. at 37– 39; Hughes Decl., Ex. F at 16, 22–23, Ex. G at 27–28, 61–62. Plaintiffs' RFPs and USC's responses are reproduced below:

2. Relevance

Here, the parties dispute over the relevance of Plaintiffs' RFPs hinges on a dispute as to the scope of Plaintiffs' claims against USC. USC argues that their contract with 2U and their compliance with the incentive compensation ban is irrelevant to Plaintiffs' remaining claims. Joint Stip. at 42–45. However, the operative complaint in Favell II clearly and explicitly brings a claim based on the UCL's “unfair” prong against USC based on allegations that their contract with 2U resulted in unfair marketing practices in violation of the incentive compensation ban, including the misrepresentations of data that are central to this action. Favell II FAC at 9–16 (“As discussed herein, USC and 2U's tuition-sharing model resulted in the persistent, unfair, and oppressive marketing and recruitment practices that the Incentive Compensation Ban is designed to stop.”); 64 (bringing claim against 2U and USC alleging that contract violated UCL's unfair prong); 68 (“Spurred by their tuition sharing agreement, USC authorized the dissemination of doctored rankings...”).

*15 Nonetheless, USC argues that the district judge's January 23, 2024 Order shows that this claim is not viable, either as a result of the dismissal of all claims against 2U or because a brief footnote shows that the district judge has interpreted Plaintiffs' claims based on the UCL to pertain only to USC's alleged misrepresentations, rather than any violation of the incentive compensation band. Joint Stip. at 42–45; see also January 23, 2024 Order at 21 (“Because Plaintiffs have not sufficiently alleged that the statements at issue are actionable against 2U, or that 2U exercised control over the statements made by USC, the Court dismisses Plaintiffs' claims under the FAL, UCL,[n.14] and CLRA.), n.14 (“Plaintiffs maintain that their claim based on violation of the UCL's “unfair” prong should survive notwithstanding the deficiencies noted above. However, Plaintiffs have not alleged an independent basis for such a claim that is not premised on the same alleged misrepresentations the Court has found to be nonactionable.”).

Ultimately, the Court does not find it necessary or appropriate to wade into the viability of the merits of Plaintiffs' theories of liability or to divine the district judge's future intent from a two-sentence footnote in order to resolve this discovery dispute. As noted above, the operative complaints clearly and explicitly allege that USC's contract with 2U violated the incentive compensation ban, and clearly and explicitly bring a claim under the UCL against USC based on this conduct. Plaintiffs' RFPs appear clearly relevant to their allegations underlying this claim—indeed, USC does not appear to dispute that the RFPs would not be relevant to the claim as pled in the complaints. Furthermore, the district judge's January 23, 2024 order did not dismiss, or even discuss, any of Plaintiffs' claims against USC. See generally January 23, 2024 Order.[10] This Court therefore cannot assume that the district judge's footnote had any effect on Plaintiffs' claims or theories of liability against USC. Given that the RFPs seek information obviously relevant to claims clearly pled in the complaints that have not been dismissed by the district judge the RFPs seek allowable discovery within the scope of Rule 26.[11] Accordingly, Plaintiffs' motions are GRANTED with respect to RFP Nos. 27, 65, and 66.

C. COSTS AND FEES

Fed. R. Of Civ. P. 37(a)(5)(C) provides that “if the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C) (emphasis added).

Here, the Court notes that neither party requests costs in the joint stipulation. In any case, the motions were granted in part, which demonstrates, to an extent, that both parties had justifiable arguments. Furthermore, though, on balance, the Court may have ruled more in Plaintiffs' favor, the Court finds that USC's positions were reasonable and their arguments worthwhile. Accordingly, the Court declines to apportion costs and fees in this case.

*16 IT IS THEREFORE ORDERED that:

IT IS SO ORDERED.