Plaintiffs Aqua Metals, Inc., and Aqua Metals Reno, Inc., filed the original complaint in this action on October 21, 2021; their first amended complaint was filed on February 3, 2023. Essentially, Plaintiffs allege that their facility at the Tahoe Reno Industrial Center was destroyed in a fire that occurred on November 29, 2019. They further allege that during the fire, their fire protection system maintained and serviced by Defendant Johnson Controls Fire Protection, LP, failed to deploy because of Defendant's failure to properly inspect, test, maintain, and service that system. Plaintiffs seek compensatory and punitive damages. Defendant denies any liability to Plaintiff and on July 10, 2023, Defendant filed a third-party complaint against Third-Party Defendant Industrial Logistics Services, Inc., based upon contribution and common-law indemnification.

This case was exempted from the Court Annexed Arbitration Program on October 5, 2022. Counsel for Plaintiffs and Defendant participated in an early case conference on September 22, 2022, and the parties filed a joint case conference report on October 21, 2022. The parties are scheduled to commence trial on October 7, 2024.

On December 2, 2019, two of Defendant's employees downloaded data from the fire alarm control panel that was part of Plaintiffs' fire protection system. On December 10, 2019, Defendant received a notice of loss informing it that a "preliminary investigation suggests that fire suppression system did not activate at the time of the fire." Defendant states that it then retained counsel to provide it with legal advice, and that the law firm hired Jensen Hughes, a professional engineering and consulting services company, to assist in that regard.

Plaintiffs assert that only Defendant's employees were present for the information download on December 2, 2019. Subsequently, Plaintiffs' counsel requested that Defendant provide a copy of the downloaded data in the same format as originally acquired by Defendant. Defendant provided Plaintiffs' counsel with the data in a PDF file, but did not provide the data in its native format.

During discovery proceedings in this action, Plaintiffs have continued to seek information and documents regarding the operational status of the fire protection system at the time of the fire. Among the requests addressed to that issue are Category Nos. 10, 16(B), 17, 18, and 19 of Plaintiffs' first request for production, and Interrogatory No. 12 of their first set of interrogatories. Defendant responded to these individual requests, but Plaintiffs perceived those responses to be deficient. Counsel for each side conferred about this dispute, but were unable to resolve their disagreements concerning certain requests.

On June 9, 2023, Plaintiffs filed Plaintiffs' Motion to Compel Production of Documents. Plaintiffs seek an order compelling Defendant to produce specified documents that fall within the individual requests identified above. Defendant Johnson Controls Fire Protection f/k/a SimplexGrinnell LP, or Tyco Simplex Grinnell LLP's Opposition to Plaintiffs' Motion to Compel was filed by Defendant on June 23, 2023. Plaintiffs' Reply Memorandum in Further Support of Their Motion to Compel Production of Documents was filed by Plaintiffs on June 30, 2023. Plaintiffs' reply brief was submitted on August 14, 2023, and the motion was submitted on September 5, 2023. This matter was referred to the Discovery Commissioner in an order entered on October 11, 2023.

A. Defendant's Communications Relating to Routine Investigation

Plaintiffs acknowledge that Defendant provided a privilege log identifying responsive documents that it has withheld or redacted, and that the log identifies numerous documents that were created in the immediate aftermath of the fire. But they assert that the log provides only a generic description of the basis for withholding or redacting the identified documents, and they contend that those descriptions are insufficient to show that the communications involve legal advice and are subject to the attorney-client privilege. In that regard, they note that some entries in the log do not identify an attorney. In any event, they emphasize that merely injecting an attorney into the investigative process does not shield documents from disclosure. They therefore request that the Court review the emails identified in Defendant's privilege log to determine whether they are protected from disclosure, or whether they were created in the course of a routine investigation into the events giving rise to this lawsuit.

Defendant emphasizes that the communications at issue were created after it had received a notice of loss and retained counsel for this matter. It observes that each entry makes clear that the content of the communication is "forwarding and commenting" on legal advice provided by an attorney. Defendant disputes the suggestion that its counsel was injected into the investigation process; rather, the communications discuss the attorney's legal advice and work product. Defendant maintains that courts routinely allow protection for these kinds of communications.

While this Court recognizes that parties too often provide privilege logs with descriptions of subject matter that are improperly brief, Plaintiffs have not identified additional information to which they believe they are entitled. Moreover, a request for legal advice sent by Defendant to its attorney about the fire or the ensuing investigation would presumptively be entitled to protection under Nevada's attorney-client privilege. See Roberts v. Legacy Meridian Park Hosp., Inc., 97 F. Supp. 3d 1245, 1252 (D. Or. 2015) ("[b]ecause Defendants have presented no evidence that Dr. Roberts's actual communications to his attorney were not intended to be kept confidential," those communications were presumptively privileged); cf. Kobluk v. Univ. of Minn., 574 N.W.2d 436, 444 (Minn. 1998) (when circumstances show rendition of professional legal services, "a presumption of confidentiality arises as to that draft, evaporating only if the client does not appear to have been desirous of secrecy"). The Court appreciates that "injecting an attorney into the investigative process" does not create a privilege for documents that otherwise would lack such protection. But no evidence has been presented to show or suggest that Defendant's counsel was handling claims-adjusting activities or performing other functions that normally would be performed by a nonattorney in the ordinary course of an insurance investigation. Absent such evidence, communications seeking or providing legal advice in connection with a fire allegedly caused by the negligence of the client or the ensuing investigation regarding that incident would be presumptively privileged.

Although Plaintiffs observe that some of the communications are between nonattorneys, Defendant asserts that the privilege can apply to documents that were not shared directly with an attorney if the content was previously or subsequently shared with an attorney. Indeed, "[t]he disclosure of privileged communications among employees of a corporate client does not waive the privilege, provided that each employee recipient needed to know the content of the privileged communication 'to perform her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication."' lntex Recreation Corp. v. Bestway (USA), Inc., No. CV 19-8596-JAK(Ex), 2023 WL 6193018, at *2 (C.D. Cal. Sept. 8, 2023); see also Wardleigh v. Dist. Court, 111 Nev. 345, 352, 891 P.2d 1180, 1184 (1995) ("relevant facts known by a corporate employee of any status in the corporation would be discoverable even if such facts were related to the corporate attorney as part of the employee's communication with counsel," but "[t]he communication itself ... would remain privileged"). Plaintiffs do not assert that communications to or from any specific individual identified in Defendant's privilege log fall outside the protection of the attorney-client privilege (e.g., individual was not part of the company's control group, had no information of assistance to counsel, or had no need to know attorney's communications). Therefore, on the record presented here, Plaintiffs have not presented facts sufficient to warrant the in camera inspection they seek.

B. Investigation-Related Documents Involving Defendant's Consultants

Plaintiffs observe that Defendant's privilege log identifies several communications with Jensen Hughes, and they seek production of all communications involving that firm.[1] Defendant maintains that Plaintiffs are seeking documents that are protected from disclosure by the work-product doctrine:

It was Williams & Connolly, outside counsel that retained Jensen Hughes-and only after receiving a notice of loss about the November 2019 fire. [Defendant] JCFP would not have retained outside counsel for this matter had it not anticipated litigation related to this accident, and outside counsel's discussions with Jensen Hughes-and any documents from Jensen Hughes-are privileged ... Jensen Hughes would not have even been retained, let alone communicated with outside counsel, but for the anticipation of litigation.

Defendant also emphasizes that under NRCP 26(b)(4), Plaintiff is not entitled to discovery regarding a nontestifying consultant.

Defendant is relying upon NRCP 26(b)(4)(D),[2] which provides, in part, as follows: Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.

Although this provision refers to interrogatories and depositions, the protection afforded by this rule applies to requests for production of documents as well. See Plymovent Corp. v. Air Tech. Sols., Inc., 243 F.R.D. 139, 143-44 (D.N.J. 2007) (protection for facts and opinions of nontestifying, consulting experts is not limited to interrogatories or deposition, but also extends to document requests). But the critical inquiry here is whether Jensen Hughes was retained or specially employed by Defendant "in anticipation of litigation."

Defendant asserts that the communications involving Jensen Hughes were made in anticipation of litigation because Defendant received a notice of loss in connection with a potential subrogation claim. The notice of loss noted that "Johnson Control/Tyco SimplexGrinnell installed, inspects and maintains the fire suppression system at the facility," and it included the statement that "[o]ur preliminary investigation suggests that fire suppression system did not activate at the time of the fire." Defendant's receipt of this notice on December 10, 2019, is the basis for its assertion that it anticipated litigation when its counsel (i.e., the law firm of Williams & Connolly) and Jensen Hughes were retained. Yet one entry in the privilege log identifies an email sent by Stephen Hill of Jensen Hughes to Gregory Reynolds (an employee of Defendant) on December 5, 2019. This email is significant because it demonstrates that Defendant had communication with Jensen Hughes before it received the notice of loss and retained counsel. Under Defendant's argument, that email was not made in anticipation of litigation, because litigation was not anticipated until five days later.[3] 

The other six emails involving Jensen Hughes were either to or from Defendant's counsel. ln that regard, communications between a client's attorney and the client's representative are protected from disclosure under Nevada's attorney-client privilege, NRS 49.095(1) (2023), and an independent contractor can be a "representative of the client" for that purpose. In In re Bieter Co., 16 F.3d 929 (8th Cir. 1994), the Eighth Circuit Court of Appeals addressed the issue of whether an independent contractor can be a "representative of the client" for purposes of applying the attorney-client privilege. It reasoned that a narrow definition of "representative of the client" will preclude attorneys from communicating confidentially with "nonemployees who, due to their relationship with the client, possess the very sort of information that the privilege envisions flowing most freely." See id. at 937-38. Just as the privilege's subject-matter test would extend its protection to certain middle- and lower-level employees, it would encompass nonemployees who possess a significant relationship to the client and the client's involvement in the transaction that is the subject of legal services.[4] See id. at 938; see also Residential Constructors, LLC v. Ace Prop. & Gas. Ins. Co., No. 2:05-cv-01318-BES-GWF, 2006 WL 3149362, at *15 (D. Nev. Nov. 1, 2006) ("confidential communications between Defendant's coverage counsel and Defendant's adjuster ... for purposes of providing legal advice or to obtain information in order to render legal advice to the Defendant, are entitled to protection under the attorney-client privilege"). In the circumstances presented here, Jensen Hughes would be Defendant's independent contractor that possessed information needed by Defendant's counsel to provide legal advice to Defendant concerning the fire and the investigation. The Court finds that these other six emails are presumptively protected from disclosure by the attorney-client privilege. Further, Plaintiffs have not presented evidence sufficient to support a finding that the privilege does not apply to one or more of those communications. Therefore, Plaintiffs are not entitled to discover those six emails.

C. Documents and Communications Involving Sedgwick

In their motion, Plaintiffs note that Defendant's privilege log identifies six emails involving its third-party claims administrator, Sedgwick, and they argue that Defendant must produce those emails. They also state that Defendant has agreed to produce those emails, but had not yet done so. In its opposition, Defendant states that it has now produced those emails, and Plaintiffs acknowledge in their reply brief that Defendant produced those emails on June 16, 2023. The dispute over discovery of those emails is therefore moot.

But in their motion, Plaintiffs also argued that Defendant "should be directed to advise the Court whether additional documents and materials involving Sedgwick exist, including documents and communications pertaining to any investigation or inquiry performed by Sedgwick into the incident, and should be ordered to produce any such documents that exist." ln their reply brief, they note that the disclosed emails show that (a) on December 4, 2019, Sedgwick was advised of "Aqua Metals 301940360970 New Claim"; (b) on December 11, 2019, Sedgwick's adjuster acknowledged the claim and sought additional information; and (c) on December 12, 2019, Defendant informed Sedgwick about the notice of loss, stated that it was retaining counsel, stated that the local office was gathering documents, and scheduled telephone conferences for the following day and for December 16, 2019. Plaintiffs maintain that "[i]t is difficult to fathom that the claim was simply dropped following an initial teleconference, and that there was no investigation into the matter, and no follow up communications, including between Sedgwick and Williams & Connolly."

Plaintiffs previously requested that Defendant produce all documents and communications (except communications between Defendant and its attorneys) discussing or referring to any investigation or inquiry conducted by Defendant or its agents-which would include Sedgwick-regarding the fire, including its cause and the operational status of the fire protection system before and at the time of the fire. Although Defendant asserted objections to that request, it has not attempted to explain or support those objections in its opposition to this motion to compel. Therefore, those objections are deemed waived, and the Court will confirm that Defendant is obligated to produce the Sedgwick documents sought by Plaintiffs.

However, the Court will not presently direct Defendant to state whether additional responsive documents and materials involving Sedgwick exist. Defendant previously stated that all responsive documents were identified in its privilege log. A party who responds to a request for production is not required by any rule to also confirm that it has produced or identified all responsive documents. Rather, the Court will presume that the response is true and accurate and that it accounts for all responsive documents. Therefore, notwithstanding Plaintiffs' skepticism about whether the privilege log truly identifies all responsive documents within Defendant's possession, custody, or control, the Court will presume that Defendant's privilege log identifies all responsive documents. Nothing in this decision precludes Plaintiffs from exploring this issue further during a deposition or through other appropriate discovery.

D. Documents Relating to the Control Panel Data

As noted previously, Plaintiffs assert that the only witnesses to the information download on December 2, 2019, are the two employees of Defendant who performed that action. Subsequently, Plaintiffs' counsel requested that Defendant provide a copy of the downloaded data in the same format as originally acquired by Defendant. Defendant provided Plaintiffs' counsel with the data in a PDF file, but did not provide the data in its native format. Plaintiffs maintain that Defendant knew or should have known that it had a duty to preserve the native data downloaded from the fire control panel, and that its failure to preserve the native data constitutes spoliation. Plaintiffs therefore seek an order requiring Defendant to produce communications between Defendant, its counsel, and any third-parties, as well as any documents generated by or on behalf of Defendant, relating to the download of the data, Defendant's use or analysis of the data, and the results of the data. In that regard, Plaintiffs contend that the requested information and documents are not protected by the work-product doctrine or the attorney-client privilege.

In its opposition, Defendant emphasizes that the PDF file previously provided to Plaintiffs is the only file from the December 2, 2019, panel download. Defendant states that it did not destroy any data related to the panel download, and that it is not withholding any versions of the panel download. Defendant adds that it has produced custodial data for the day of the download from the two individuals in attendance. In addition, it has produced monitoring-company data received from a third-party, which reflects the entries from the fire alarm panel data produced by Defendant, but also goes back further in time and provides hundreds of pages of data related to Plaintiffs' fire alarm panel. Defendant therefore maintains that "there is nothing further to 'compel' related to the fire alarm panel data," and that Plaintiffs' request is moot.

In their reply brief, Plaintiffs assert that if Defendant acquired only a PDF file of the control panel date, then "it clearly failed to use the proper forensic tool and to follow generally accepted digital forensic practices for preservation and production of ESI." In that regard, they submit evidence from a forensic expert on electronically stored information, who explains that converting native data to a PDF file results in a significant loss of potentially relevant information and does not constitute a complete record of the information stored on the system. Therefore, Plaintiffs contend that spoliation has occurred. But in any event, Plaintiffs emphasize that their present request is for more than the native data; it extends to communications and documents relating to the download and the data. Plaintiffs dispute that the custodial data for the two employees present for the download was helpful. In fact, they assert that Defendant was unable to locate any custodial files for one employee, and the files from the second employee provide no insight whatsoever into the data download. Plaintiffs acknowledge receipt of a "Detailed Activity Report" from a monitoring company, but state that they have no reason to believe that the report contains all data that was available for download from the fire control panel.

Plaintiffs' request is problematic. The gist of Defendant's response to their requests for these communications and documents is that Defendant provided to Plaintiffs the same PDF file downloaded from the fire control panel that Defendant obtained on December 2, 2019. If true, the Court sees no reason why Plaintiffs should be able to obtain documents containing the mental impressions, conclusions, opinions, or legal theories of Defendant's attorney or other representative concerning the data contained in the PDF file. However, to the extent that Defendant was using or analyzing the data, or results of the data, in the ordinary course of business (e.g., determining the cause of the fire, and whether the fire protection system operated as intended), documents generated in that context would presumptively be discoverable. See Wynn Resorts. Ltd. v. Dist. Court, 133 Nev. 369, 384, 399 P.3d 334, 348 (2017) (quoting United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (work-product doctrine "withholds protection from documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation"). The same analysis would apply to communications that mention the data, the results of the data, or Defendant's use or analysis of that information.

The Court observes that in Category No. 19 of Plaintiffs' request for production, they asked Defendant to produce "[a]II documents (including communications) discussing or referring to the data downloaded by Johnson Controls and/or its agents from the Fire Protection System on or about December 2, 2019." In its response, Defendant asserted various objections, but it has failed to explain or support those objections in its opposition to Plaintiffs' motion. Therefore, except for the objections based upon the attorney-client privilege and the work-product doctrine, those objections are deemed waived. In addition, in the substantive portion of its response, Defendant stated that it "will conduct a reasonably diligent search for and will produce non-privileged documents responsive to this Request, and will log any responsive, privileged communications located during a reasonable search." Under these circumstances, the Court will require Defendant to serve an amended response to Category No. 19, in which it identifies every responsive document that it has produced to Plaintiffs (e.g., by Bates numbers). The amended response must also identify the specific log entries from its privilege log that are responsive to this request.[5] To the extent Plaintiffs believe that one or more documents are not protected from disclosure, Plaintiffs may seek appropriate relief after reviewing the amended response.[6] 

ACCORDINGLY, Plaintiffs' Motion to Compel Production of Documents should be GRANTED in part, and DENIED in part.

IT SHOULD, THEREFORE, BE ORDERED that Defendant produce to Plaintiffs, no later than December 18, 2023, the email from Stephen Hill to Gregory Reynolds dated December 5, 2019, identified on Defendant's privilege log as Log Entry No. 52.

IT SHOULD FURTHER BE ORDERED that Defendant serve upon Plaintiffs, no later than December 18, 2023, an amended response to Category No. 19 of Plaintiffs' request for production, in which it identifies (a) every responsive document that it has produced to Plaintiffs (e.g., by Bates numbers), and (b) the specific entries from its privilege log that are responsive to this request.