Oasis Med., Inc. v. I-Med Pharma, Inc.
Oasis Med., Inc. v. I-Med Pharma, Inc.
2024 WL 3512822 (C.D. Cal. 2024)
July 5, 2024

Garnett, Sherilyn P.,  United States District Judge

Clawback
Waiver
Attorney-Client Privilege
Failure to Produce
Attorney Work-Product
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Summary
The court considered whether designating a witness as an expert in a legal case constitutes an implied or express waiver of attorney-client privilege. The court found that the designation of a witness as an expert can waive privilege to varying degrees, but that the scope of waiver ordered by the court was contrary to California law. The court ultimately granted the defendants' objections and narrowed the scope of the waiver.
Oasis Medical, Inc.
v.
I-Med Pharma, Inc., et al
Case No. 2:21-cv-08879-SPG (AGRx)
United States District Court, C.D. California
Filed July 05, 2024

Counsel

Mark D. Kachner, Ben Kaito Shiroma, Knobbe Martens Olson and Bear LLP, Los Angeles, CA, Lauren K. Katzenellenbogen, Knobbe Martens Olson and Bear LLP, Irvine, CA, Michael K. Friedland, Friedland Cianfrani LLP, Irvine, CA, Nicholas Andrew Belair, Knobbe Martens Olson and Bear LLP, San Francisco, CA, for Plaintiff.
Kelly Doyle Dahan, Lesley Holmes, Rebecca Yuan Lawlor, Norton Rose Fulbright US LLP, Los Angeles, CA, Courtney B. Perez, Pro Hac Vice, E. Leon Carter, Pro Hac Vice, Carter Arnett PLLC, Dallas, TX, David H Ben-Meir, Law Office David Ben-Meir, Sherman Oaks, CA, Omer Salik, Carter Arnett PLLC, Hermosa Beach, CA, for Defendant I-Med Pharma USA Inc., I-MED Pharma Inc.
David H. Ben-Meir, Law Office David Ben-Meir, Sherman Oaks, CA, Damien P. Lillis, Lillis Pitha LLP, San Francisco, CA, Omer Salik, Carter Arnett PLLC, Hermosa Beach, CA, Stephan E. Kyle, Kyle Law Corporation, San Francisco, CA, Martin L. Pitha, Lillis Pitha LLP, Newport Beach, CA, for Defendant Ilan Hofmann.
Garnett, Sherilyn P., United States District Judge

Proceeding: (IN CHAMBERS) ORDER GRANTING IN PART MOTION OBJECTING TO JUDGE ROSENBERG'S ORDER ON PLAINTIFF'S MOTION TO COMPEL EXPERT DISCOVERY (ECF No. 272)

*1 Before the Court is Defendants l-Med Pharma, Inc., I-Med Pharma USA, Inc., and llan Hofmann's (collectively, “Defendants”) Motion Objecting to Judge Rosenberg's Order on Plaintiff's Motion to Compel Expert Discovery pursuant to Rule 72 of the Federal Rules of Civil Procedure. (ECF No. 272). Having considered the parties' submission, the relevant law, the parties' oral arguments, and the record in this case, the Court GRANTS, in part, Defendants' Motion.
Background
This case arises out of a dispute over contractual rights to certain eye-drop lubricant products, the factual background of which has been discussed at length in a previous order. See, e.g., (ECF No. 156). The procedural background relevant to the present dispute has also been discussed by this Court and the Magistrate Judge. See (ECF No. 247 (February 8, 2024, Order granting Plaintiff's motion to extend expert discovery); ECF No. 268 (Magistrate Judge Rosenberg's order on the present dispute). The following facts and procedural history are relevant to the present Motion.
Pursuant to a previous version of the case scheduling order, the parties were to complete expert discovery, “includ[ing] hearing of discovery motions,” by November 20, 2023. (ECF No. 155 at 2).[1] On October 11, 2023, Defendants disclosed Defendant IIan Hofmann as a non-retained, non-reporting expert pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) and served upon Plaintiff the associated disclosures. See (ECF No. 233 ¶ 5; ECF No. 233-1 at 26). On November 1, 2023, Plaintiff requested that Defendants produce by November 13, 2023, among other items, “all documents and communications, including documents and communications with counsel,” that Defendant IIan Hofmann “considered, generated, saw, read, reviewed, and/or reflected upon in connection with the analysis contained in his disclosure or the subjects listed in his disclosure ....” (ECF No. 233 ¶ 10; ECF No. 233-1 at 51–53).
Defendants produced various documents pursuant to Plaintiffs request for expert discovery related to Hofmann on November 20, 2023. (ECF No. 233-1 at 13–14). This production included exchanges of drafts of Hofmann's Rule 26(a)(2)(C) disclosure between Defendants' counsel and Defendant IIan Hofmann. See (id. at 12–13). On November 27, 2023, Plaintiff wrote to Defendant raising its objection to the purportedly deficient production in response to Plaintiff's request for communications between counsel and Hofmann, (Id.). The parties agreed to meet and confer on December 1, 2023. (ECF No. 233 ¶ 4; ECF No. 233-1 at 10). On December 1, 2023, prior to counsel's conference, Defendants sent Plaintiff a “clawback” request for the return or destruction of what Defendants described as an inadvertent disclosure of a privileged document. (ECF No. 233 ¶ 7; ECF No. 233-1 at 17–19).
*2 On December 11, 2023, Plaintiff sought relief from this Court, namely to extend the expert discovery deadline so that the parties could resolve the various issues arising from IIan Hofmann's expert discovery. This Court granted that motion on February 8, 2024, and extended expert discovery until April 1, 2024, per the parties' stipulation. (ECF Nos. 247, 250).
The parties thereafter briefed and argued for Magistrate Judge Rosenberg the issues pertaining to Defendant IIan Hofmann's expert discovery. Specifically, Plaintiff sought to compel production of communications between Defendant IIan Hofmann and his counsel based on a purported waiver of the attorney-client privilege and work-product protection. On March 28, 2024, Judge Rosenberg granted that request. See (ECF No. 268 (“Order”) at 10). On April 11, 2024, Defendants timely filed objections to the Order and asked this Court to review—and reverse—Judge Rosenberg's findings. (ECF No. 272-2 “Mot.”).
A. Magistrate Judge Rosenberg's March 28, 2024, Order
On March 28, 2024, Judge Rosenberg granted in part Plaintiff's motion to compel Defendants to produce documents and communications that Defendant IIan Hofmann generated, saw, read, reviewed, and/or reflected upon, and that relate to the subject matters of his proposed expert testimony (the “Order”). See (Order at 10). Judge Rosenberg found when Defendants designated Defendant IIan Hofmann as a non-retained expert, Defendants waived the attorney client privilege and work product privilege over documents previously claimed to be privileged that related to IIan Hofmann's expert testimony.
Judge Rosenberg based her finding of waiver upon the various disclosure rules for experts under the Federal Rules of Civil Procedure. In particular, she noted Rule 26 currently provides for two types of expert witnesses. Rule 26(a)(2)(B) provides the disclosure obligations for witnesses who “must provide a written report,” often referred to as either retained or reporting experts. Rule 26(a)(2)(C) provides a party's disclosure obligations for “witnesses who do not provide a written report,” often referred to as a “non retained” expert or a non-reporting expert. Defendants designated IIan Hofmann as the latter. Judge Rosenberg acknowledged that the Ninth Circuit has not addressed whether parties waive privilege when they designate a fact witness (or a party representative) as a non-retained expert. (Id. at 2). Without direct guidance from the Ninth Circuit, Judge Rosenberg instead looked to the Advisory Committee notes for Rule 26 and specifically the notes accompanying the 1993 and 2010 amendments for expert disclosure requirements and the accompanying minutes of the Advisory Committee meetings. The Order summarized these amendments as follows. In 1993, Rule 26 was amended to require most testifying experts to prepare reports “to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert's opinions.” See Republic of Ecuador v. Mackay, 742 F.3d 860, 868 (9th Cir. 2014) (quoting Fed. R. Civ. P. 26(a)(2) 1993 advisory committee's notes). Accompanying the new requirement for an expert report came a finding that, “[gi]ven this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions—whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.” Id.
*3 In 2010, the Advisory Committee again amended expert disclosure obligations to provide some protection against the “undesirable effects” arising from the 1993 amendment and the interpretations of courts that the amendment “authorize[d] discovery of all communications between counsel and expert witnesses and draft reports.” (Order at 3). Specifically, as the Order explains, Rule 26(b)(4)(C) was added to “govern the scope of disclosure of communications between counsel and retained experts.” (Id.). Rule 26(b)(4)(C) provides that Rule 26's work production privilege and protection against disclosure of mental impressions of counsel also “protect[s] communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B),” subject to three exceptions not relevant here. Fed. R. Civ. P. 26(b)(4)(C)). The Order observed that the Advisory Committee expressly noted that “[t]he protection is limited to communications between an expert witness required to provide a report,” and the rule “does not itself protect communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(c)(2)(C).” (Order at 3 (quoting Fed. R. Civ. P. 26(a)(2)(B) advisory committee's notes)). The Order also looked to the minutes of the Advisory Committee meetings, analyzed by a different district court in 2011, and observed that the minutes “reveal that the committee discussed various considerations but ultimately concluded that ‘the time has not yet come to extend the protection for attorney expert communications beyond experts required to give an (a)(2)(B) report.” (Order at 4 (citing United States v. Sierra Pac. Indus., 2011 WL 2119078, at *23 (E.D. Cal. May 26, 2011))).
Because the new Rule 26(b)(4)(C) only provided certain work product protection over materials for reporting experts, Judge Rosenberg reasoned that the pre-2010 practice—finding waiver upon designating an expert witness—still applied to non-reporting experts. The Order found waiver to be consistent with the requirements under the Federal Rules of Evidence for expert testimony, namely that a party “has the advance knowledge ... essential for effective cross examination,” a “safeguard[ ]” which had historically been “reinforced by the discretionary power of the court to require preliminary disclosure.” (Order at 5 (quoting Fed. R. Evid. 705, and 1972 advisory committee's note)). Ultimately, the Order concluded that when a party designates a witness as a non-reporting expert witness—including when it designates itself or any of its employees—the party waives applicable privileges because it “necessarily contemplates” that the expert will satisfy the requirements of Rules 702, 703, or 705 of the Federal Rules of Evidence. (Id. at 6).
Judge Rosenberg found that this conclusion aligned with the “majority of cases” that similarly find implicit waiver for the subject matters of a non-retained expert's proposed expert testimony. (Id. (citing cases)). The Order also noted that, contrary to Defendants' arguments, California law regarding expert testimony and its disclosures and the resulting waiver of privilege, comports with the federal rule. Accordingly, Judge Rosenberg ordered Defendants to produce discovery requested by Plaintiff.
Finally, the court denied Defendants' request to claw back its “inadvertent” disclosure of privileged drafts of IIan Hofmann's disclosure. In particular, the Order found that Defendants' claimed “honest mistake of law” did not make the production of privileged materials inadvertent. The Order also noted that “Defendants are correct that the disclosure in this federal proceeding goes no further than the drafts themselves. There is not a showing that any waiver extends to any undisclosed communications or information.” (Id. at 9 (citing Fed. R. Evid. 502(a)).
Legal Standard
Under Federal Rule of Civil Procedure 72, when a magistrate judge issues a nondispositive order, a party may object to the order within fourteen days after being served with a copy. Fed. R. Civ. P. 72(a). If a party files such objections properly, the district judge in the case must consider such “timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.” Id.; see also Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002) (“A district judge may reconsider a magistrate's order in a pretrial matter if that order is “clearly erroneous or contrary to law.” (citing 28 U.S.C. § 636(b)(1)(A))).
Discussion
Defendants ask this Court to reverse Judge Rosenberg's Order compelling them to “produce documents and communications that non-retained expert IIan Hofmann generated, saw, read, reviewed, and/or reflected upon, and that relate to the subject matters of his proposed expert testimony in Exhibit 5, Dkt. No. 254-2, regardless of whether such documents or communications were generated during this litigation.” (Order at 10; Mot. at 6). Defendants claim that the Order is “clearly erroneous” because: 1) based on a “mistaken and novel view” that Rule 705 of the Federal Rules of Evidence “governs the waiver of privilege,” instead of Rule 26 of the Civil Rules of Federal Procedure, the Order declined to follow the “more applicable line of cases” that find no waiver where it is a party (or party employee) designated as the non-retained experts; 2) the Order failed to address California law regarding waiver of privilege; and 3) the Order improperly “allows” Plaintiff further briefing to address privilege log disputes while denying Defendants' request to re-designate Man Hofmann as a reporting expert. (Mot. at 7). Plaintiff maintains that the Order was correctly decided.
*4 Under Rule 72, a district court judge may set aside a magistrate judge's order if it is “clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1)(A) (district judge may reconsider magistrate judge's order where it is “clearly erroneous” or “contrary to law”); see also Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). “[T]he clearly erroneous standard applies to factual findings and discretionary decisions made in connection with non-dispositive pretrial discovery matters.” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 971 (C.D. Cal. 2010). In contrast to the “significantly deferential” clearly erroneous standard that applies to factual findings, Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993), the ‘contrary to law' standard permits independent review of purely legal determinations by the magistrate judge.” Green v. Baca, 219 F.R.D. 485, 489 (C.D. Cal. 2003) (quoting F.D.I.C. v. Fidelity & Deposit Company of Maryland, 196 F.R.D. 375, 378 (S.D. Cal. 2000)); see also Security Farms v. Int'l Brotherhood of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997) (discussing the “significantly deferential” clearly erroneous standard).
Here, Defendants primarily challenge the Order's conclusions of law that designating a non-reporting expert waives other applicable privileges[2] and that the scope of such waiver extends to “documents and communications” that the non-reporting expert “generated, saw, read, reviewed, and/or reflected upon, and that relate to the subject matter of [the] proposed expert testimony in [the Rule 26(a)(2)(C) disclosure], regardless of whether such documents or communications were generated during this litigation.” (Order at 8). This Court therefore considers whether these conclusions were contrary to law.
I. Waiver of Attorney Client Privilege and Work Product Protections
Defendants first contend that the Order is contrary to law because the Order incorrectly relied upon the Federal Rules of Evidence to find waiver instead of California law, despite this action's jurisdictional basis sounding in diversity. Plaintiff disputes that Judge Rosenberg's finding of waiver was incorrect and argues that Judge Rosenberg correctly determined that there is no material difference between federal privilege law and California privilege law. Plaintiff also contends that the applicable law for waiver of the work product doctrine is federal law.
B. Applicable Law
Under Federal Rule of Evidence 501, “federal common law generally governs claims of privilege, ‘but in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.’ ” Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014) (quoting Fed. R. Evid. 501) (cleaned up). By contrast, “the attorney work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), is procedural in nature, and federal law applies.” Depina v. FedEx Ground Package Sys., Inc., No. 23-CV-00156-TLT (SK), 2024 WL 1650847, at *2 (N.D. Cal. Apr. 16, 2024) (citing Great Am. Assur. Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1090 (N.D. Cal. 2009) (noting that “[u]nlike issues of attorney-client privilege, issues concerning the work-product doctrine are procedural and thus governed by Federal Rule of Civil Procedure 26(b)(3)”)). Where, however, the “third person to whom the disclosure was made,” was the adversary in litigation, the Ninth Circuit has noted that the distinction between attorney-client privilege and work product doctrine may be “unimportant.” Transamerica Computer Co. v. Int'l Bus. Machines Corp., 573 F.2d 646, 648 n.1 (9th Cir. 1978).
*5 Here, the disclosures at issue were made to Defendants' adversary and therefore the question of waiver of the work product doctrine is subsumed under the question of waiver of the attorney-client privilege. See id. And, because this action asserts purely state law claims and bases its jurisdiction in diversity, California privilege law therefore applies. See Fed. R. Evid. 501. Accordingly, the correct law to rely upon in answering the waiver question here is California law, rather than federal common law, and application of federal law in the Order was contrary to law.
C. Waiver Under California Law
As the Order discussed, Rule 26(b)(4)(C) protects most discovery of communications between reporting experts and counsel but does not apply to non-reporting experts. Notwithstanding that the rule “does not itself protect communications between counsel and ... Rule 26(a)(2)(C) [witnesses],” the rule “does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine.” Fed. R. Civ. P. 26, 2010 advisory committee's notes (emphasis added). The question here, therefore, is whether the already-existing privilege for Hofmann's communication with counsel—as Defendant in this case—has been waived.
In the original briefing before Judge Rosenberg, Plaintiff argued two bases for waiver. First, when Defendants designated IIan Hofmann as a non-reporting expert, Plaintiff argues that Defendants impliedly waived the attorney-client privilege over all documents Hofmann considered relating to the subjects of his disclosure. (ECF No. 255-2 at 11–16). Second, Plaintiff argued that when Defendants intentionally produced privileged drafts of IIan Hofmann's expert disclosure, they also voluntarily waived privilege over all materials considered on subject matters in the disclosure.
Upon reconsideration, California law should be applied to consider the following issues.
The California Supreme Court recognized the theory of implied waiver of the attorney client privilege in Mitchell v. Superior Court. See S. Cal. Gas Co. v. Pub. Utilities Com., 50 Cal. 3d 31, 40 (1990) (citing Mitchell v. Sup. Ct., 37 Cal. 3d 591 (1984)). Under this theory, “the person or entity seeking to discover privileged information can show waiver by demonstrating that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action.” Id. In California, similar to the federal cases cited in the Order,[3] parties who designate expert witnesses are subject to certain disclosures which may impliedly waive the witness's claim to the attorney-client privilege. Shooker v. Superior Ct., 111 Cal. App. 4th 923, 928 (2003). Though this Court is not aware of any authority from the California Supreme Court directly on point with the facts in this case, several California appellate courts have held that the designation of a witness as an expert can, to varying degrees, waive attorney-client privilege.
For example, in National Steel Prod. Co. v. Superior Ct., 164 Cal. App. 3d 476, 484–85 (1985), the court held that a party waived its attorney-client privilege when designating a witness to testify as an expert. That court found expert designation analogous to when “a client calls his attorney as a witness to testify to matters that the attorney could only have learned through the attorney-client relationship,” which “waives the privilege.” Id. at 484. The court explained the expert witness, as an “agent of the attorney,” only learns the basis for his testimony through a privileged relationship and, by testifying, necessarily reveals information learned from the attorney-client relationship. Id.; see also Sanders v. Superior Ct., 34 Cal. App. 3d 270, 278–79 (1973); DeLuca v. State Fish Co., 217 Cal. App. 4th 671, 689 (2013) (“Once a testifying expert is designated as a witness, the attorney-client privilege no longer applies, ‘because the decision to use the expert as a witness manifests the client's consent to disclosure of the information.’ ” (citation omitted)). California “[c]ase authority has drawn a bright line at the point where it becomes reasonably certain that the expert will testify—holding that the attorney-client privilege and work product protection apply prior to the point, but not subsequent to it.” DeLuca, 217 Cal. App. 4th at 690 (citing People v. Milner, 45 Cal. 3d 227, 241 (1988); Williamson v. Superior Court, 21 Cal. 3d at 834–35; Sanders, 34 Cal. App.3d at 278–79).
*6 Most of the California appellate court decisions involved designation of a consulting expert—already retained and advising on the case—to testify at trial. Here, by contrast, Defendants have designated IIan Hofmann—a party who would have testified as a fact witness, irrespective of the expert designation—to testify as an expert. As such, the analogy in National Steel and Sanders, that the information testified to at trial can only be material learned through an attorney-client relationship is not as applicable to the present case.
But the California Court of Appeals has also considered circumstances where, like here, a party designated himself as an expert during the pendency of the case. In Shooker, the plaintiff designated six expert trial witnesses, including himself, after the parties had already conducted substantial discovery. Shooker, 111 Cal. App. 4th at 926. When at Shooker's deposition his adversaries began to inquire about conversations between Shooker and his attorney, his attorneys objected and disagreed with the claim that, “by designating himself as an expert, Shooker had waived the attorney-client privilege and work product.” Id. While Shooker was unsuccessful at acquiring a protective order in the trial court, even after he withdrew his self-designation as expert,[4] the California Court of Appeals found that he had not waived the attorney-client privilege or work product doctrine simply by designating himself as an expert. The court reasoned that Shooker had not yet disclosed any privileged content—nor testified to his opinions—and thus had preserved the attorney-client privilege. The Shooker court set out a rule pertinent to the designation of IIan Hofmann as an expert:
The designation of a party as an expert trial witness is not in itself an implied waiver of the party's attorney-client privilege because his initial status is that of a possible expert witness. If the designation is withdrawn before the party discloses a significant part of a privileged communication (as in this case), or before it is known with reasonable certainty that the party will actually testify as an expert, the privilege is secure; if the party provides privileged documents or testifies as an expert (such as by stating his opinion in a declaration or at a deposition) the privilege is waived.
Id. (emphasis added). At bottom, the California Court of Appeals in Shooker found the act of designating an expert witness—and the accompanying waiver of privilege—to be “conditional, not absolute.” Id. at 928.
The Order, by contrast, treated the designation of IIan Hofmann as in itself sufficient to waive Hofmann's claims to attorney-client privilege, notwithstanding his role as a Defendant in this case. Upon reconsideration, Judge Rosenberg should discuss the Shooker “rule deduce[d] from the [California] cases,” and whether or how the testimony provided by IIan Hofmann in his deposition impacts the waiver analysis. Shooker, 111 Cal. App. 4th at 930 (citing cases) (“[l]f the party provides privileged documents or testifies as an expert (such as by stating his opinion in a declaration or at a deposition) the privilege is waived.”). Judge Rosenbergshould also consider the California rule on implied waiver that requires a showing that “the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action.” S. Cal. Gas Co, 50 Cal. 3d at 40.[5]
*7 Defendants also asked to claw back a production of privileged documents relating to IIan Hofmann's designation, stating that the disclosure was an “honest mistake of law.” (Order at 8). Specifically, Defendants produced to Plaintiff draft expert disclosures for IIan Hofmann and “communications specific to that disclosure, in compliance with Rule 26” that Defendants acknowledged were “attorney-client privileged and work product documents as appropriate.” (Id. at 9). The Order found that Defendants failed to show that production of the draft reports was inadvertent and denied Defendants' claw back request.[6] The Order also found, in summary fashion, that Defendants' disclosure of the privileged documents did not involve a “waiver extend[ing] to any undisclosed communications or information.” (Id.).
Like its conclusions concerning implied waiver, the Order did not support this express waiver finding based on California law. Upon reconsideration, the Judge Rosenberg should apply California privilege and waiver law to Defendants' disclosure of privileged documents—produced according to Defendants due to “an honest mistake of law”—and Defendant IIan Hofmann's subsequent deposition testimony that relates to that disclosure. See (Order at 9); see also Garcia v. Progressive Choice Ins. Co., No. 11-CV-466-BEN NLS, 2012 WL 3113172, at *3 (S.D. Cal. July 30, 2012) (“[A]n implied waiver can be found when a party states that it relied upon the advice of counsel, therefore putting attorney-client communication directly at issue.” (citing Transamerica Title Ins. Co. v. Superior Ct., 188 Cal. App. 3d 1047, 1053 (1987))).[7] As discussed more below, the scope of any waiver under California law should also be considered.
The Order held that Defendants' waiver of privilege required Defendants to “produce documents and communications that non-retained expert IIan Hofmann generated, saw, read, reviewed, and/or reflected upon, and that relate to the subject matters of his proposed expert testimony in Exhibit 5, Dkt. No. 254-2, regardless of whether such documents or communications were generated during this litigation.” (Order at 10). Defendants argue that the Order is contrary to law because the broad waiver is inconsistent with California law. Though Plaintiff in its Opposition claimed that federal and California law are not materially different concerning the scope of waiver, at the hearing on this Motion, Plaintiff acknowledged that there may be a difference between California and federal law because the apparent California rule that the expert must disclose “matters relied on or considered in the formation” of the expert's opinion is broader than the Order's ruling.
The Court agrees with Defendants that the Order's scope of waiver holding is contrary to law. As an initial matter, the Order's language of “generated, saw, read, reviewed, and/or reflected upon,” does not appear to be grounded in any particular federal rule of procedure or evidence, and instead, comes from Sierra Pacific, which took the language from two out-ofcircuit district courts.[8] Contra, Mushroom Assocs. v. Monterey Mushrooms, Inc., No. C-91-1092 BAC (PJH), 1992 WL 442898, at *5 (N.D. Cal. Aug. 21, 1992) (“[T]he naming of an employee as an expert does not result in a blanket waiver of all privilege with respect to every document that the employee has had access to during the course of his employment. The waiver only applies to those documents which the employee considered when formulating his expert testimony.”). But, more to the point, the Order did not address whether California law mandates that a court draw a more narrow scope of Defendants' waiver.
*8 It is a “basic tenet of California law to construe a waiver of the attorney-client privilege narrowly.” Fid. Nat. Fin., Inc. v. Nat'l Union Fire Ins. Co., No. 09-CV-140-GPC-KSC, 2014 WL 1393743, at *9 (S.D. Cal. Apr. 9, 2014) (citing Transamerica, 188 Cal. App. 3d at 1052). Under California privilege law, the “scope of the waiver ‘is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver.’ ” Ross v. Superior Ct. of Riverside Cnty., 77 Cal. App. 5th 667, 683 (2022) (quoting Transamerica, 188 Cal. App. 3d at 1052). California cases that have considered waiver of privilege concerning expert and attorney communications have held that “neither the attorney-client privilege nor the work-product doctrine applies to matters relied on or considered in the formation of [the expert's] opinion.” People v. Ledesma, 39 Cal. 4th 641, 695 (2006) (citing People v. Milner, 45 Cal.3d 227, 241 (1988)); see also People v. Nieves, 11 Cal. 5th 404, 448 (2021) (same). California also differentiates waiver based on whether the expert is a consulting expert or a testifying expert: “an expert's opinion regarding the subject matter about which the expert is a prospective testifying expert is discoverable, but the expert's advice rendered to the attorney in an advisory capacity is still subject to conditional work product protection.” DeLuca, 217 Cal. App. 4th at 690. And, as the DeLuca court observed, “a trial court is often required to conduct an in camera review” of the expert's opinion to “separate out the information provided as a consultant from the information provided as a testifying expert,” with the “latter information [being] discoverable; the former [being] discoverable only upon a showing of good cause.” Id.
By applying an apparent federal rule to determine the scope of a privilege waiver, the Order's holding on scope is contrary to law. On reconsideration, the Judge Rosenberg should apply California law, taking into careful consideration of California's rules requiring that the “scope of [a] waiver ‘[be] narrowly defined and [that] the information required to be disclosed [ ] fit strictly within the confines of the waiver.’ ” Ross, 77 Cal. App. 5th at 683.
II. Defendants' Remaining Objections
Defendants claim that the Order gives Plaintiff a “redo” for their purported failure to meet its burden to establish which communications should be waived. Defendants mischaracterize the Order: Judge Rosenberg offered both parties the opportunity to seek a ruling on individual entries of the privilege log. This objection is also now moot, for the reasons stated above.
Defendants also object that the Order “dismisses out of hand” that Defendants should be allowed to redesignate Hofmann as a reporting expert. According to Defendants, “[c]ourts have recognized that redesignating a non-reporting expert is an appropriate alternative to avoid the privilege issues raised in these briefs.” (Mot. at 26). Defendants again mischaracterize the issue. Neither case cited by Defendants supports their position that they should be permitted to, voluntarily, redesignate IIan Hofmann as a reporting expert after the relevant deadline and expert discovery have closed.[9] If Defendants' were to redesignate IIan Hofmann as a reporting expert, it would necessarily require the reopening of expert discovery and an extension of all expert disclosure deadlines.[10] And pretrial scheduling orders may only be modified for “good cause.” Fed. R. Civ. P. 16(b)(4).[11] See also (ECF No. 247). Defendants have never sought such relief nor made such a showing. The Court overrules this objection.
Conclusion
*9 For the foregoing reasons, Defendants' Motion is GRANTED. The Order is set aside for the reasons set forth in this opinion and the matters addressed in the Order are to be reconsidered in light of this opinion.
IT IS SO ORDERED.

Footnotes

On October 26, 2023, the Court vacated the scheduling order, except as to the expert discovery deadline, and continued the hearing for Defendants' motion for summary judgment until December 20, 2023. (ECF No. 204).
The Court discerns no challenge to the Order's assumption that the requested documents and communications were privileged.
See (Order at 4–7); e.g., PacificCorp v. Northwest Pipeline GP, 879 F. Supp. 2d 1171 (D. Or. 2012); United States v. Sierra Pac. Indus., No. CIV S-09-2445 KJM EF, 2011 WL 2119078, at *10 (E.D. Cal. May 26, 2011).
The trial court judge had “concluded the motion should be denied because Shooker had ‘waived the attorney-client privilege because [his] testimony will necessarily disclose a significant part of the privileged communication with respect to all communications relating to the subject of his expert testimony,” ’ because “the designation itself constituted an implied waiver and disclosure [of privileged information] was irrelevant.” Id. at 926 (emphasis in original). After Shooker withdrew his designation, the judge “rejected Shooker's contention that the withdrawal preserved the privilege and concluded again that the designation itself constituted an implied waiver, notwithstanding the fact that no privileged information had been disclosed before the withdrawal.” Id. at 927.
Even assuming for implied waivers for experts there is no material difference between California and federal common law (which, for this order's purpose, is exemplified by Sierra Pacific), Sierra Pacific, itself, expressly “decline[d] to hold that designating an individual as a non-reporting expert witness waives otherwise applicable privileges and protections in all cases, or even for all cases involving non-reporting employee expert witnesses.” Sierra Pac., 2011 WL 2119078, at *10.
Judge Rosenberg also expressed her concern that Defendants should not be able to both benefit from the disclosures and also claw them back, noting “Hofmann has already testified that counsel provided the initial draft,” and that Defense counsel “has at times referenced the communications in arguing that Hofmann, as distinguished from counsel, was the source of the substantive content of the expert disclosures.” (Id.).
See Wells Fargo Bank v. Superior Ct., 22 Cal. 4th 201, 211, 990 P.2d 591 (2000) (noting that an “honest mistake” of law “militates against” against a finding of waiver of the attorney-client privilege, particularly where the “law is unsettled and debatable”).
The Order also based the scope of Defendants' waiver on the obligations of expert testimony under Rule 702, 703, and 705 of the Federal Rules of Evidence, but did not locate the particular language in any of those rules. And though Rule 502 of the Federal Rules of Evidence provides a federal evidentiary rule concerning the scope of a waiver, the Order did not address Rule 502 either. See Fed. R. Evid. 502(a) (“When the disclosure is made in a federal proceeding ... and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.”).
In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819–20 (9th Cir. 2011), the Ninth Circuit held that “when a treating physician morphs into a witness hired to render expert opinions that go beyond the usual scope of a treating doctor's testimony, the proponent of the testimony must comply with Rule 26(a)(2).” The Ninth Circuit further noted that “because the law regarding these hybrid experts was not settled, and because treating physicians are usually exempt from Rule 26(a)(2)'s requirements, we exercise our discretion to apply this clarification prospectively.” Id. Defendants have not explained how its request to redesignate IIan Hofmann as a reporting expert is at all similar, and have made no effort to argue that Hofmann has morphed into a reporting expert.
The Court assumes Plaintiff would similarly request—and would likely be entitled to—a rebuttal report to any potential Hofmann expert report.
When determining good cause, “the Ninth Circuit has instructed that the primary focus should be on whether the party seeking to reopen discovery has acted diligently.” De Paz v. Wells Fargo Bank, N.A., No. 18-CV-09779-PSG (PJWx), 2020 WL 2404897, at *2 (C.D. Cal. Feb. 18, 2020) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “[T]he existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion ....” Johnson, 975 F.2d at 609.