I. Discovery Dispute Raised on January 23, 2023

*1 On January 23, 2023, Plaintiffs filed a Motion for Discovery Objection re Designation As Attorneys Eyes Only (“Plaintiff's Discovery Motion”). (ECF No. 88.) Plaintiff's Discovery Motion sought an order from the Court to remove an “Attorneys Eyes Only” designation placed on documents Bates stamped USD_004772-6231 produced by Defendant University of San Diego (“Defendant”) on December 23, 2022. Id. at 2.

Upon review of Plaintiffs' Discovery Motion, the Court determined Plaintiff's disagreement with Defendant's “Attorneys Eyes Only” designation constituted a discovery dispute. On January 25, 2023, the Court ordered the Parties to meet and confer in accordance with this District's Local Rule 26.1(a) and Judge Gallo's Civil Chamber Rules IV. (ECF No. 90.) The Court ordered Defendant to submit briefing no later than February 1, 2023. Id. The Court also set a Video Discovery Conference for February 2, 2023. Id.

On February 1, 2023, Plaintiffs filed a Motion Belaire-West Notice to Putative Class Members & Related Discovery Disclosure Procedures (“Belaire-West Motion”). (ECF No. 92.) That same day, Plaintiffs filed a Withdrawal of Plaintiffs' Motion Objecting to USD's Designation of Documents Produced on December 23, 202 as “Attorneys Eyes Only” (“Notice of Withdrawal”), which stated:

(ECF No. 93.)

On February 2, 2023, the Court convened a Video Discovery Conference to discuss Plaintiffs' Discovery Motion, the Belaire-West Motion, and Plaintiffs' Notice of Withdrawal. (ECF No. 95.) The Court addressed its concerns with the Parties' conditional resolution of the January 23, 2023 discovery dispute in light of the pending Belaire-West Motion. Defendant's counsel clarified Defendant would file a non-opposition to the pending Belaire-West Motion.

On February 3, 2023, Defendant filed its Notice of Non-Opposition to Plaintiffs' Motion for Belaire-West Notice of Putative Class Members. (ECF No. 96.) On February 6, 2023, the Court sent a draft order granting the Belaire-West Motion to counsel for each party in advanced of the February 8, 2023 Video Discovery Conference.

On February 8, 2023, the Court convened another Video Discovery Conference to discuss the pending Belaire-West Motion, the Court's draft order granting the Belaire-West Motion, and another discovery dispute raised on January 31, 2023. (ECF No. 101.) Counsel for each party stated there were no issues or proposed edits to the Court's draft order granting the Belaire-West Motion. That same day, the Court issued an Order Granting Plaintiffs' Belaire-West Motion Notice to Putative Class Members. (ECF No. 103.)

*2 As the Court addressed the conditional resolution to the January 23, 2023 discovery dispute, the discovery dispute raised on January 23, 2023 is MOOT.

II. Discovery Dispute Raised on January 31, 2023

On January 31, 2023, the Parties jointly contacted this Court's Chambers to raise a discovery dispute regarding a series of questions asked by Defendant during Plaintiff Matthew Sheridan's deposition. (ECF No. 91.) The line of question implicated a one-page document signed by Plaintiff Matthew Sheridan (“Mr. Sheridan”) and his counsel (“Agreement”), the objections raised by Mr. Sheridan's counsel, and Mr. Sheridan's counsel's instruction not to answer the questions. Id.

That same day, the Court ordered simultaneous briefing on the matter. Id. On February 3, 2023, Defendant and Plaintiffs timely filed their respective briefs. (ECF No. 97, 98.) Defendant, the party raising the dispute, seeks (1) an order compelling Mr. Sheridan's second deposition so Defendant may inquire into the scope of the Agreement between Mr. Sheridan and his counsel and (2) an order requiring Plaintiffs' counsel to produce the Agreement at the center of this dispute. (ECF No. 97 at 4.) Pursuant to the Court's January 31, 2023 Order, on February 3, 2023 Plaintiffs submitted a copy of the Agreement directly to this Court for in camera review.

On February 8, 2023, the Court convened a Video Discovery Conference to address this discovery dispute. (ECF No. 101.) As stated on the record during the February 8, 2023, Conference, the Court DENIES (1) Defendant's request to compel a second deposition of Mr. Sheridan and (2) Defendant's request to compel production of the Agreement at the center of this dispute. The Court elaborates below.

Mr. Sheridan is one of four class representative plaintiffs in this purported class action filed against Defendant. See ECF No. 30. On January 19, 2023, Mr. Sheridan was deposed. See ECF No. 96 and 97. During the deposition, Defendant's counsel asked Mr. Sheridan if he had signed any agreement between himself and the other plaintiffs. (Sheridan Dep. Trans. at 48:25-49:1.) Mr. Sheridan responded he had not but did sign an agreement with the Golan law firm and “signed something that had to do with the duty of the class.” Id. at 48:21-49:6. Defendant's counsel then asked Mr. Sheridan to explain the agreement about the duty to a class. Id. at 48:21-49:10. Upon this question, Mr. Sheridan's counsel objected to any questioning about the contents of Mr. Sheridan's attorney retainer agreement and instructed Mr. Sheridan not to answer. Id. at 49:8-17. Defendant's counsel then questioned Mr. Sheridan as to the title of the document Mr. Sheridan had referred to and whether it was separate from his retainer agreement with his counsel. Id. at 49:19-50:3. Mr. Sheridan testified the Agreement was different and separate from his retainer agreement with counsel. Id. at 49:22-24.

After moving onto questions about Mr. Sheridan's understanding about his duties as a class-representative and a break, Defendant's counsel once again raised questions about the Agreement. (Sheridan Dep. Trans. at 67:24-68:12.) Defendant's counsel asked Mr. Sheridan “Is there any way you can describe to me what that agreement is without triggering an objection for attorney-client privilege with your attorneys?” Id. at 68:10-12. Mr. Sheridan's counsel objected to the question, asserting that testimony about written communications between Mr. Sheridan and his counsel are privileged, and instructed Mr. Sheridan not to answer. Id. at 68:10-69:10. Defendant's counsel then asked three questions probing into whether the contents of the Agreement would (1) impact Mr. Sheridan's representation of the purported class, (2) restrict Mr. Sheridan's prosecution of this case on behalf of the purported class, and (3) affect Mr. Sheridan's compensation if this case were to resolve or a judgment was entered in his favor. Id. at 69:23-71:2. Mr. Sheridan's counsel objected to all three questions, asserting attorney-client privilege, and instructed Mr. Sheridan not to answer. Id. Mr. Sheridan followed his counsel's instructions. (Id. at 70:13-71:2.)

*3 Based upon the objections raised and instructions not to answer, Defendant argues it was prevented from asking questions about the Agreement and could not determine whether Mr. Sheridan's counsel's objections were warranted. (Def.'s Br., ECF No. 97 at 2:23-3:3.) Defendant relies upon Mier v. CVS Pharmacy, Inc., No. 82001979DOCADSX, 2021 WL 3468932, at *1 (C.D. Cal. Apr. 30, 2021) and Moore v. Zurich Am. Ins. Co., No. CV 16-2466-AB (PLA), 2017 WL 10605923, at *4 (C.D. Cal. Feb. 28, 2017) to support its contentions that Mr. Sheridan's counsel's objections were improper, and Defendant should have another opportunity to evaluate the applicability of the privilege asserted. Id. Defendant asserts its knowledge is limited to knowing the Agreement is not Mr. Sheridan's retainer agreement with his counsel. Id. at 2:23-24.

Plaintiffs oppose Defendant's position in its entirety. (Pl.'s Br., ECF No. 98.) Plaintiffs counter that the California attorney-client privilege governs as this case was brought under California law. Id. at 2:19-22. Plaintiffs argue the contents of the Agreement are “Mr. Sheridan's instructions to his counsel regarding conduct of the litigation”, thus subject to the California privilege of attorney-client communications. Id. at 2:22-24.

The Court takes the same view as Plaintiff. In a federal court action based on diversity of citizenship, state law governs questions of attorney-client privilege. Fed.R.Evid. 501. In California, the privilege is defined by statute. HLC Properties, Ltd. V. Superior Court, 35 Cal.4th 54, 59 (2005). In California “a client ... has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer[.]” Cal. Evid.Code § 954. The purpose is “to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.” Mitchell v. Superior Court, 37 Cal.3d 591, 599 (1985). California courts have repeatedly confirmed that the benefits derived from the ability to fully confer and confide in one's attorney outweigh the risk of an unjust decision. Stoba v. Saveology.com, LLC, No. 13CV2925 BAS (NLS), 2015 WL 10857528, at *3 (S.D. Cal. July 7, 2015) (citing to Mitchell, 37 Cal.3d at 600; Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725, 732 (2009).

Pursuant to the Court's January 31, 2023 Order, Plaintiffs lodged directly to this Court's chambers for in camera review: a copy of the Agreement at issue and a copy of Plaintiff Matthew Sheridan's retainer agreement with his counsel. (Pl.'s Br., ECF No. 98 at. 2:1-4.) Upon the Court's in camera review of the Agreement, the Court finds the Agreement is precisely the type of attorney-client communication that California's Evidence Code section 954 contemplates. The Agreement not only describes Plaintiff's duty to the class, but also are his instructions to his counsel regarding conduct of the litigation.

Even when a privilege is established, a party must nevertheless answer questions relevant to the existence, scope or waiver of the privilege. See AMCO Ins. Co. v. Madera Quality Nut LLC, 2006 WL 931437, at *10 (E.D.Cal. Apr. 11, 2006). For example, the date of communications between attorney and client, or the time at which a client first retained an attorney for legal consultation, are not protected by the attorney-client privilege. Coy v. Superior Court, 373 P.2d 457, 461–62 (Cal.1962); State Farm Fire & Casualty Co. v. Superior Court, 54 Cal.App.4th 625, 640 (1997). Courts further clarify that although the questions refer to the attorney-client relationship, such information is not privilege as the questions do not seek to elicit any matter “communicated” during the course of the relationship. Coy, 373 P.2d at 462.

*4 The Court finds Mr. Sheridan answered Defendant's questions pertaining to the existence and scope of the privilege. Mr. Sheridan answered Defendant's questions testifying the Agreement was separate and different from his retainer agreement with counsel, that the Agreement was a page long, that the Agreement was not his retainer agreement and “had to do with the duty of the class”, and that the Agreement was prepared by his counsel. (Sheridan Dep. Trans. at 49:22-24, 69:12-21.)

Defendant posits that the Agreement should be discoverable as the scope of the document is critical to Defendant's ability to uncover conflicts of interests between named class representatives and the class they seek to represent. Id. at 4:8-5:15. Defendant argues this information should be discoverable as the named representatives will soon move to certify the proposed class asserting that they are adequate representatives under Fed. R. Civ. P. 23(a)(4). Id. at 4:8-16. Plaintiffs countered a second deposition of Mr. Sheridan is not necessary as seven of the nine hours which Mr. Sheridan was deposed included Mr. Sheridan's answers to Defendant's deposition questions regarding his adequacy to represent the class. (Pl.'s Br., ECF No. 98 at 1:25-2:5.)

The Court finds a second deposition to assess the adequacy of Mr. Sheridan as a class representative is not appropriate. Mr. Sheridan's deposition transcript demonstrates Mr. Sheridan extensively answered questions related to what he understood to be his duty to the class, his adequacy as a class representative, and his compensation expectations as a class representative. (Sheridan Dep. Trans. at 54:11-60:25, 61:20-23.)

Finally, the Court is not persuaded by Defendant's argument that Plaintiffs' counsel took inconsistent positions regarding Defendant's ability to explore such agreements during other named representative depositions. The attorney-client privilege may be waived, but only by the holder of the privilege. McDermott Will & Emery LLP v. Superior Ct., 10 Cal. App. 5th 1083, 1101 (2017) (citing to DP Pham, LLC v. Cheadle, 246 Cal.App.4th 653, 668 (2016). A waiver results when the holder, without coercion, (1) has disclosed a significant part of the communication, or (2) has consented to the disclosure made by anyone else. McDermott, 10 Cal. App. 5th at 1101 (citing to Cal. Evid.Code, § 912, subd. (a); State Compensation Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644, 652 (1999).) Under the second method of waiver, “Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” Id.; Cal. Evid.Code, § 912, subd. (a). As Mr. Sheridan was the party who entered into the Agreement with his counsel, he is the ultimate holder of his attorney-client privilege, not the other named representatives. The Court does not find that the willingness of the other class plaintiffs, who are represented by other counsel, to answer similar questions waives Mr. Sheridan's attorney-client privilege with respect to the Agreement in dispute.

Accordingly, the Court DENIES (1) Defendant's request to compel a second deposition of Mr. Sheridan and (2) Defendant's request to compel production of the contractual agreement at the center of this dispute.

IT IS SO ORDERED.