Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975). “Privileged communications do not become discoverable simply because they are related to issues raised in the litigation, [but] where a party raises a claim which in fairness requires disclosure of the protected communication, the privilege may be implicitly waived.” Apple, 306 F.R.D. at 241 (cleaned up).

Defendants agree with Plaintiffs that Floyd's communications with his counsel are protected by the attorney-client privilege (Dkt. No. 192 at 23, 33), but contend that this privilege was waived by counsel's affirmative acts in filing the motion for leave to amend the complaint. The Court disagrees. While Floyd's privileged communications are relevant to issues raised in litigation, the Court does not find that any of Floyd's affirmative acts went so far as to raise a claim that “in fairness requires disclosure” of his protected communications to opposing counsel. Floyd's communications (and lack thereof) were referenced generally in the motion for leave to amend the complaint, to explain why the motion was filed, but those communications and that motion were not directly connected to any claim in the amended complaint or any defense thereto.

Without a connection to a claim or defense asserted in this case, the Court does not find that Floyd has taken an affirmative act that placed his communications “at issue” for purposes of the Hearn test. See, e.g., United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999) (where defendant appealed his criminal conviction based on a Sixth Amendment claim asserting that his attorney disparaged him, which led him to discharge that attorney and retain inexperienced counsel who provided inadequate representation: “[Defendant] cannot assert that certain factors caused him to discharge his attorney and then invoke the attorney-client privilege to prevent the government from examining the situation further.”); 3D Sys., Inc. v. Wynne, No.: 21-cv-1141-AGS-DDL, 2024 WL 940318, at *6 (S.D. Cal. Feb. 21, 2024) (finding that because the statute of limitations on plaintiff's trade secret misappropriation claims “began running when it knew or had reason to know of the injury that is the basis of the action and the cause of that injury,” the privileged information pertaining to plaintiff's internal investigation would “go to the heart of whether it knew or had reason to know” of defendants’ alleged misappropriation and it was therefore “at issue” (cleaned up)); Sorensen v. Black & Decker Corp., No. 06cv1572-BTM (CAB), 2007 WL 1976652, at *2 (S.D. Cal. Apr. 9, 2007) (“The privilege is waived only when a party chooses to utilize the [privileged] information to advance a claim or defense.”); Aloe Vera of Am., Inc. v. United States, No. CV 99-1794-PHX-JAT, 2003 WL 22429082, at *3 (D. Ariz. Sep. 23, 2003) (finding that privileged documents were “at issue” for purposes of proving defendant's statute of limitations defense).

Here, Floyd's privileged communications formed the factual backdrop for the motion for leave to amend (as well as the subsequent motion to withdraw as a class representative and counsel's motion to withdraw representation), but the content of the communications did not establish any element of a claim or defense raised in the litigation. Defendants suggest that if Floyd had instructed his counsel to dismiss his claims, this instruction would have (or should have) led to the dismissal of the action entirely, but this position is not supported by authority in and out of this circuit. See, e.g., Vue v. Pentagon Fed. Credit Union, No. 1:21-cv-01063-JLT-SAB, 2024 WL 4436814, at *3–7 (E.D. Cal. Oct. 4, 2024) (citing cases as support for granting a motion for leave to amend a complaint to substitute class representatives, over defendants’ objection that plaintiff did not authorize her attorneys to file the motion for leave to amend); see also Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) (“Strictly speaking, if no motion to certify has been filed … the case is not yet a class action and so a dismissal of the named plaintiffs’ claims should end the case. If the case is later restarted with a new plaintiff, it is a new commencement, a new suit. But the courts, both federal and Illinois, are not so strict. Unless jurisdiction never attached, or the attempt to substitute comes long after the claims of the named plaintiffs were dismissed, substitution for the named plaintiffs is allowed.” (cleaned up)).

That the privileged communications may reveal ethical lapses by Floyd's counsel is an insufficient basis on which to compel their production (see, e.g., Dkt. No. 192 at 22–29); this Court is not tasked with, as a general matter, policing attorney-client relationships nor monitoring counsel's compliance with the Rules of Professional Responsibility. Because the motion presently before the Court seeks production of Floyd's communications to Defendants, and the Court finds that the protection afforded those communications has not been waived here, the Court will deny the motion.

But even if the Court will not grant Defendants’ motion to compel production of Floyd's communications, the Court nonetheless finds it would be necessary to review Floyd's communications in camera for purposes of resolving two motions that have been terminated while the Court considered whether Floyd's communications should be produced to Defendants: Plaintiffs’ counsel's motion to withdraw representation and Defendants’ motion for discovery sanctions against Floyd. See Dkt. Nos. 140, 152. Given that Floyd himself has ceased participating in this litigation, the Court must turn to other sources for the information necessary to resolve these motions. The record currently before the Court is inadequate to determine whether Plaintiffs’ counsel's withdrawal of representation is appropriate with or without the conditions requested by Apple. See Dkt. No. 143. “The decision to grant or deny counsel's motion to withdraw is ultimately committed to the discretion of the trial court[,]” and the Court requires more information about Floyd's relationship with his counsel in order to exercise that discretion. Fujifilm Sonosite, Inc. v. Imaging Specialists Grp., LLC, No. C13-983 RSM, 2014 WL 1400992, at *1 (W.D. Wash. Apr. 10, 2014).

Likewise, the Court cannot resolve the motion for discovery sanctions against Floyd without understanding what he may have communicated to his counsel regarding his intentions with respect to discovery and/or pursuing his claims in this litigation. Federal Rule of Civil Procedure 37(b)(2)(A) empowers the Court to enter “just orders” to address a party's failure to obey a discovery order, and the Court cannot determine what is just in this scenario without more information that may be available upon review of Floyd's communications.

III. CONCLUSION

For these reasons, the Court DENIES Defendants’ motion to compel. Dkt. No. 172.

The parties are directed to consider, in light of this ruling, whether to reactivate Plaintiffs’ counsel's motion to withdraw as Floyd's counsel (Dkt. No. 140) and/or Defendants’ motion for discovery sanctions (Dkt. No. 152). Any party may file a notice of intent to reactivate no later than March 14, 2025. If either motion is reactivated, the Court will provide further instruction on the in camera production required for the Court to adjudicate the motion(s).

Dated this 7th day of March, 2025.