Symettrica Entertainment LTD. v. UMG Recording, Inc Case No. 19-cv-01192-CJC (KSx) United States District Court, C.D. California Filed April 30, 2020 Counsel Michael Alan Trauben, Thomas K. Richards, Singh Singh and Trauben LLP, Beverly Hills, CA, for Symettrica Entertainment, Ltd. Mary Balzer, Benjamin S. Akley, Michael J. Niborski, Pryor Cashman LLP, Los Angeles, CA, Donald S. Zakarin, Pro Hac Vice, Pryor Cashman LLP, New York, NY, for UMG Recordings, Inc. Stevenson, Karen L., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER RE: DEFENDANT'S MOTION TO COMPEL [DKT. NO. 45] INTRODUCTION *1 Before the Court for decision is Defendant and Counterclaimant UMG Recordings, Inc.'s (“Defendant's”) Motion to Compel filed on March 4, 2020 in the joint stipulation format pursuant to Local Rule 37-2 (the “Motion” or “Joint Stip.”). (Dkt. No. 45.) Defendant requests an order compelling Plaintiff and Counter-defendant Symettrica Entertainment, LTD. (“Plaintiff”) to “respond in full” and produce documents responsive to Defendant's Requests for Production (“RFPs”) No. 13, 21, and 22. (Joint Stip. at 1.) Defendants seek “all documents” concerning a purportedly privileged July l2, 2018 fair use opinion letter (the “Fair Use Opinion Letter') provided to Symettrica by its clearance counsel Donaldson + Califf (“D+C”), including D+C's “fair use analysis” of Plaintiff's documentary film at issue in this lawsuit and any communications between Plaintiff and D+C “that would otherwise be privileged.” (Id.) Defendant contends that Plaintiff has waived its attorney client privilege with respect to the fair use analysis and its communications with D+C concerning the fair use analysis because Plaintiff produced the Opinion letter in discovery and put “D+C's analysis of the Infringing Film directly ‘at issue’ in this litigation in its Complaint.” (Id.) On March 11, 2020, the parties each filed a Supplemental Memorandum pursuant to Local Rule 37-2.3 (Dkt. Nos. 46, 47.) On March 19, 2020, the Court, finding the matter suitable for decision without oral argument, vacated the hearing on the Motion and took the matter under submission. (Dkt. No. 52.) For the reasons outlined below, the Motion is GRANTED in part and DENIED in part. RELEVANT BACKGROUND I. The Allegations in the Complaint Plaintiff commenced this action on February 15, 2019. (Dkt. No. 1.) The Complaint alleges that Defendant has sought to censor free speech “through the intentional misuse of copyright law.” (Complaint ¶ 1.) Plaintiff produced and owns the rights to a documentary film, Drake: Rewriting the Rules (the “Documentary”), about the life of international music icon Aubrey Drake Graham, p/k/a “Drake.” (Id. at ¶ 2.) Plaintiff alleges that “Defendant has attempted to suppress the Documentary by serving bad faith and misleading takedown notices to Netflix®, iTunes®, and Amazon Prime Video®, unlawfully demanding that those platforms cease exhibiting the Documentary.” (Id. at ¶ 3.) According to Plaintiff, these platforms, in response to Defendant's coercion, removed the Documentary from their platforms “as a matter of course.” (Id. at 4.) The Complaint further alleges that Defendant “served these baseless takedown notices under the guise of alleged copyright infringement because the Documentary uses short clips of Drake's music and videos.” (Id. at ¶ 5.) Plaintiff alleges that Defendant is “well aware" that Plaintiff's use of brief excerpts of Drake's music and videos to illustrate points and commentary in the Documentary clearly falls within the parameters of the fair use laws and constituted fair use.” (Id. at ¶ 6.) According to Plaintiff, Defendant used spurious claims of copyright infringement “to silence and suppress viewpoints and speech in the Documentary with which [Defendant] and/or Drake apparently disagree.” (Id. at ¶ 7.) Plaintiff alleges that Defendant did not conduct the requisite fair use analysis before issuing the takedown notices and the “takedown notices were served in bad faith and solely to cause Netflix®, iTunes®, and Amazon Prime Video® to remove the Documentary from public exhibition for purposes of suppressing Plaintiff's free speech.” (Id. at ¶¶ 8-9.) *2 The Complaint alleges that Plaintiff developed and produced the Documentary in or around 2018. (Id. at ¶ 20.) Plaintiff further alleges that “[p]rior to allowing the Documentary to be released to the public, Plaintiff retained the services of one of the most prominent, reputable and experienced clearance and copyright law firms in the United States to provide a fair use analysis.” (Id. at ¶ 23.) The Complaint goes on to describe the work done by clearance counsel as follows: That law firm performed a comprehensive fair use analysis of the Documentary, including reviewing the Documentary itself, the time coded video file of the Documentary, and a fair use log that systematically catalogued all uses of any third-party music, video or other creative or expressive works contained in the Documentary. After conducting this rigorous and through [sic] analysis, the law firm memorialized the results of its analysis in an opinion letter, which set forth well sourced and cited legal analysis opining that Plaintiff's use of short music video clips, song clips, and stills from Drake's oeuvre to illustrate points and commentary in the Documentary fell within the parameters of the fair use laws and constituted fair use (the ‘Fair Use Opinion Letter’). (Id. at ¶¶ 24-25.) The Complaint describes the conclusions reached in the Fair Use Opinion Letter and states that based on the Fair Use Opinion Letter, “Plaintiff caused the Documentary to be distributed and ultimately exhibited and/or offered for sale or license on the Netflix®, iTunes®, and Amazon Prime Video® platforms.” (Id. at ¶¶ 26-28.) Defendant allegedly “contacted the attorneys who issued the Fair Use Opinion Letter a single time” around the time that Defendant issued Takedown Notices, but Defendant “never spoke or coordinated with the attorney that issued the Fair Use Opinion Letter, never requested a copy of the Fair Use Opinion Letter, and did not review the Fair Use Opinion Letter before serving the Takedown Requests.” (Id. at ¶¶ 41-42.) Plaintiff asserts causes of action against Defendant for declaratory relief (Count I) (id. at ¶¶ 56-63); misrepresentation under 17 U.S.C. § 512(f) (Count II) (id. at ¶¶ 64-72); and intentional interference with contractual relations (Count III) (id. at ¶¶ 73-79.) In addition, Plaintiff seeks damages according to proof and reasonable costs and attorneys' fees pursuant to 17 U.S.C. § 512(f). II. The Disputed Discovery Requests The RFPs in dispute and Plaintiff's responses and objections are as follows: REQUEST FOR PRODUCTION NO. 13: All documents concerning or constituting the Fair Use Opinion Letter. RESPONSE TO REQUEST FOR PRODUCTION NO. 13: Plaintiff incorporates its General Objections as if set forth fully herein. Plaintiff further objects to his Request to the extent that it: (i) seeks documents from persons, companies, or entities other than Plaintiff, or otherwise not within Plaintiff's possession, custody or contro; (ii) seeks documents that are publicly or equally available to Defendant; (iii) seeks proprietary business information, trade secrets, or other confidential information; and (iv) seeks documents that are protected by the attorney-client and work product privileges. In addition, Plaintiff objects to this request on the grounds that it is vague, ambiguous, overly broad and unduly burdensome, in that it fails to specify the categories of documents sought with reasonable particularity or within the time period relevant to the claims or defenses in this action, and to the extent it seeks ‘All documents concerning [the Fair Use Opinion Letter]’, covering an expansive range of documents and information not reasonably calculated to lead to the discovery of admissible evidence and disproportionate to the needs of this case. Plaintiff objects on the ground that it is not able to determine what documents to search for and produce because of the ambiguity and overbreadth of the request. *3 Plaintiff further objects to this request to the extent that it seeks electronically stored information that is inaccessible due to undue burden or cost. Plaintiff further objects to the request to the extent that it calls for the production of confidential, commercially sensitive, proprietary or trade secret information and/or other information protected from discovery by the right of privacy. Subject to, and without waiver of, the foregoing general and specific objections, Plaintiff will produce the non-privileged documents it is able to locate after a diligent search that are responsive to this request once a protective order is so ordered by the Court providing for the confidentiality of the documents and information produce in this action. Plaintiff is further agreeable to meet and confer in order to ensure that the scope of the documents that are sought in this request are proportional to the needs of the case. REQUEST FOR PRODUCTION NO. 21: All documents concerning or constituting any agreement between you and D+C concerning the Documentary, including any licensing or distribution contract. RESPONSE TO REQUEST FOR PRODUCTION NO. 21: Plaintiff incorporates its General Objections as if set forth fully herein. Plaintiff further objects to his Request to the extent that it: (i) seeks documents from persons, companies, or entities other than Plaintiff, or otherwise not within Plaintiff's possession, custody or contro; (ii) seeks documents that are publicly or equally available to Defendant; (iii) seeks proprietary business information, trade secrets, or other confidential information; and (iv) seeks documents that are protected by the attorney-client and work product privileges. In addition, Plaintiff objects to this request on the grounds that it is vague, ambiguous, overly broad and unduly burdensome, in that it fails to specify the categories of documents sought with reasonable particularity or within the time period relevant to the claims or defenses in this action, and to the extent it seeks ‘All documents concerning [the Fair Use Opinion Letter]’, covering an expansive range of documents and information not reasonably calculated to lead to the discovery of admissible evidence and disproportionate to the needs of this case. Plaintiff objects on the ground that it is not able to determine what documents to search for and produce because of the ambiguity and overbreadth of the request. Plaintiff further objects to this request to the extent that it seeks electronically stored information that is inaccessible due to undue burden or cost. Plaintiff further objects to the request to the extent that it calls for the production of confidential, commercially sensitive, proprietary or trade secret information and/or other information protected from discovery by the right of privacy and the attorney-client and work product privileges. REQUEST FOR PRODUCTION NO. 22: All documents concerning or constituting any communications or correspondence between you and D+C concerning the Documentary. RESPONSE TO REQUEST FOR PRODUCTION NO. 22: Plaintiff incorporates its General Objections as if set forth fully herein. Plaintiff further objects to his Request to the extent that it: (i) seeks documents from persons, companies, or entities other than Plaintiff, or otherwise not within Plaintiff's possession, custody or contro; (ii) seeks documents that are publicly or equally available to Defendant; (iii) seeks proprietary business information, trade secrets, or other confidential information; and (iv) seeks documents that are protected by the attorney-client and work product privileges. *4 In addition, Plaintiff objects to this request on the grounds that it is vague, ambiguous, overly broad and unduly burdensome, in that it fails to specify the categories of documents sought with reasonable particularity or within the time period relevant to the claims or defenses in this action, and to the extent it seeks ‘All documents concerning [the Fair Use Opinion Letter]’, covering an expansive range of documents and information not reasonably calculated to lead to the discovery of admissible evidence and disproportionate to the needs of this case. Plaintiff objects on the ground that it is not able to determine what documents to search for and produce because of the ambiguity and overbreadth of the request. Plaintiff further objects to this request to the extent that it seeks electronically stored information that is inaccessible due to undue burden or cost. Plaintiff further objects to the request to the extent that it calls for the production of confidential, commercially sensitive, proprietary or trade secret information and/or other information protected from discovery by the right of privacy and the attorney-client and work product privileges. Subject to, and without waiver of, the foregoing general and specific objections, Plaintiff will produce the non-privileged documents it is able to locate after a diligent search that are responsive to this request once a protective order is so ordered by the Court providing for the confidentiality of the documents and information produce in this action. Plaintiff is further agreeable to meet and confer in order to ensure that the scope of the documents that are sought in this request are proportional to the needs of the case. (Joint Stip. at 4-7.) THE MOTION A. Defendant's Positions Defendant seeks an order compelling Plaintiff to “respond in full” to Request Nos. 13, 21 and 22 of Defendant's First Set of RFPs served on August 12, 2019. (Joint Stip. at 1.) Specifically, in response to RFP Nos. 13, 21, and 22, Defendant seeks all documents and communications concerning the Fair Use Opinion Letter prepared by Plaintiff's clearance counsel, along with D+C's fair use analysis of the Documentary. (Id.) Defendant argues that Defendant “voluntarily disclosed the content of privileged information and communications with D+C and expressly relied upon the D+C Fair Use Opinion Letter “as the foundation of its claims against [Defendant] placing otherwise privileged information and communications directly ‘at issue’ in this case.” (Id. at 8-9.) Defendant urges that because Plaintiff produced the Fair Use Opinion Letter in discovery, Plaintiff has waived any attorney client privilege that might otherwise attached to the Fair Use Opinion Letter. (Id. at 8.) Defendant maintains that by putting the Fair Use Opinion Letter at issue in the Complaint, Plaintiff has waived any attorney-client privilege regarding communications between Plaintiff and its counsel and with respect to the D+C analysis that underlies the legal conclusions expressed in the Fair Use Opinion Letter. (Id. at 9.) Defendant emphasizes that the allegations in the Complaint put the contents of the D+C fair use analysis directly at issue by: (1) discussing the details of “the fair use analysis of the Documentary”; (2) admitting that the D+C memorialized the results of its analysis in the Fair Use Opinion Letter after “conducting this rigorous and through [sic] analysis”; (3) summarizing the contents and conclusions of the Fair Use Opinion Letter; and (4) alleging that only “ ‘[u]pon receipt of the Fair Use Opinion Letter and other efforts to ensure that the Documentary did not infringe any third-party rights, Plaintiff caused the Documentary to be distributed and ultimately exhibited and/or offered for sale or license.’ ” (Id.) *5 As further evidence that the Fair Use Opinion Letter was a privileged document, Defendant points to the first sentence to the Fair Use Opinion Letter, which states that the letter “memorialize[s] ... discussions and correspondence regarding fair use and other legal issues[.]” (Id. at 1.) Defendant insists this is “the very sort of information sought by [Defendant] in its discovery requests and precisely the information that [Plaintiff] has refused to produce.” (Id.) In addition, Defendant argues that Plaintiff further disclosed its privileged communications in its expert disclosure by identifying Michael Donaldson, principle partner at D+C, as an “expert.” (Id. at 13.) Defendant maintains that the Donaldson Report, reveals attorney-client information and put those privileged communications at issue for the purpose of supporting Plaintiff's claims and defenses in this lawsuit, “including the amount of the premium and deductible for [Plaintiff's] errors and omissions insurance policy for the [Documentary].” (Id.) According to Defendant, Plaintiff's “additional disclosure of privileged information in the Donaldson Report further confirms its express and implied waiver of the attorney-client privilege for documents and communications concerning the D+C Letter and D+C's fair use analysis of the Infringing Film.” (Id.) B. Plaintiff's Positions In opposition to the Motion, Plaintiff refutes Defendant's contentions that Plaintiff expressly and/or impliedly waived its attorney client privilege by producing the Fair Use Opinion Letter in discovery. First, Plaintiff argues that the Fair Use Opinion Letter was never privileged “because it was intended to be and in fact was shared with third parties and was never treated as a confidential or privileged document.” (Joint Stip. at 2.) Plaintiff emphasizes that it is standard industry practice that “[i]n connection with the distribution of any film, including the Documentary, potential distributors, buyers and licensees of a film routinely require that they be provided ‘chain of title’ documents establishing the ownership of the rights in a film.” (Joint Stip. at 15 (citing Declaration of Elio España (“España Decl.”) ¶ 7).) Plaintiff further explains: When a documentary film incorporates materials without a direct license pursuant to fair use, no express written license can be provided as part of the chain of title to support the inclusion of fair use materials. [ ] As such to satisfy distributors or licensees who, as a matter of course, seek to confirm chain of title, a documentary film producer must present a document to demonstrate the integrity of the chain of title in connection with such third-party material. [ ] In the case of fair use, this can only be accomplished with a document that demonstrates that a legal clearance process was conducted by competent counsel and that, following this legal clearance process, the competent counsel concluded that the inclusion of any unlicensed material in the film was fair use. (Id. at 16 (citing Espana Decl. at ¶¶ 8-12).) To satisfy these chain of title requirements, Plaintiff retained D+C “to conduct a fair use analysis and to thereafter set forth its legal conclusion in a fair use opinion as to whether the material contained in the film was used according to and within the case law defining boundaries.” (Id.) Plaintiff argues that D+C “performed a comprehensive fair use analysis of the Documentary.” (Id.) According to Plaintiff, the review and analysis “at all times occurred in the course of [Plaintiff's] professional retention of [D+C] as [Plaintiff's] counsel,” and “representatives of [Plaintiff] communicated with [D+C] in confidence for the purpose of securing legal advice. All such communications were intended and understood to be confidential.” (Id.) D+C stated its conclusions in the Fair Use Opinion Letter, which “was prepared with the express and intended purpose of sharing and disclosing the final legal conclusion, to among others, prospective insurance companies, prospective distributors, prospective film buyers and prospective film licensees.” (Id. at 17.) Plaintiff maintains that “the D+C Fair Use Opinion Letter was intended to be disclosed to others and in fact was shared with [Plaintiff's] insurance company, as was contemplated by the distribution agreement for the Documentary, was also shared with the distributor of the Documentary.” (Id.) Plaintiff further states that the Fair Use Opinion Letter “was not drafted for the purpose of confidentially conveying legal advice to [Plaintiff] and nor was it sent to [Plaintiff] in confidence.” (Id.) *6 Second, because the Fair Use Opinion Letter was never a privileged document or treated as such, producing the letter in discovery did not waive any privilege with respect to Plaintiff's communications with D+C about the Fair Use Opinion Letter or as to contents of the underlying analysis conducted by D+C in preparing the Fair Use Opinion Letter. (Id.) Plaintiff insists that were the Court to adopt Defendant's position, it would not only upend well-settled principles regarding the attorney-client privilege but would also “create a new legal doctrine of automatic waiver of the attorney client privilege where final opinion letters are provided to third parties ... and would irreparably harm the documentary motion picture industry specifically, and the practice of law in general.” (Id. at 3.) Third, Plaintiff argues that any waiver of the attorney-client privilege cannot be premised on an “advice of counsel” defense, because Plaintiff has not asserted an advice of counsel defense. (Joint Stip. at 46.) LEGAL STANDARD Under Federal Rule of Civil Procedure 26, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in December 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Relevant information need not be admissible to be discoverable. Id. Federal Rule of Civil Procedure 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” FED. R. CIV. P. 37(a)(3). The party seeking to compel production of documents under Rule 34 has the “burden of informing the court why the opposing party's objections are not justified or why the opposing party's responses are deficient.” Best Lockers, LLC v. Am. Locker Grp., Inc., Case. No. SACV 12-403-CJC (ANx), 2013 WL 12131586, at *4 (C.D. Cal. Mar. 27, 2013). District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751). In resolving discovery disputes, the court may exercise its discretion in “determining the relevance of discovery requests, assessing oppressiveness, and weighing those facts in deciding whether discovery should be compelled.” Unilin Beheer B.V. v. NSL Trading Corp, Case No. CV 14-2210-BRO (SSx), 2015 WL 12698382, at *4 (C.D. Cal. Feb. 27, 2015) (citing Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (internal quotation marks omitted)). DISCUSSION A. The Attorney-Client Privilege When resolving privilege issues in a case that involves in a federal question and pendant state law claims, federal privilege law applies. Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005); see also FED. R. EVID. 501. “The attorney client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney's advice in response to such disclosures.” United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (quoting United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996) (emphasis and internal quotation marks omitted)). The purpose of the privilege is to encourage clients to make full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403 (1976.) *7 Courts in this Circuit “[t]ypically” use the following eight-part test to determine whether information is covered by the attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “[A] party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communications. Id. (emphasis in original) (citing Bauer, 132 F.3d at 507). The same principle applies to all of the elements of the privilege, including demonstrating non-waiver, if an issue of waiver is raised. Weil v. Inv./Indicators, Research & Mgmt., 647 F.2d 18, 25 (9th Cir. 1981) (“One of the elements that the asserting party must prove is that it has not waived the privileged.”) Only the holder of the attorney-client privilege may waive it. Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340-41 (9th Cir. 1996). Because the attorney-client privilege inherently impedes the full and free discovery of the truth, the attorney-client privilege is narrowly and strictly construed and applied only where necessary to achieve its purpose. Weil, 647 F.2d at 24; see also Fisher, 425 U.S. at 403 (“[S]ince the privilege has the effect or withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose”). B. The Discovery Sought is Relevant and Proportionate to the Needs of the Case Only discovery that is relevant and proportionate to the needs of the case is permitted. FED. R. CIV. P. 26(b)(1). Here, the parties do not dispute the potential relevance or proportionality of the information sought in Defendant's RFP Nos. 13, 21, and 22. Rather, the sole issue in dispute is whether Plaintiff has waived the attorney client privilege as to the documents and information sought in the RFPs. Nevertheless, as an initial matter, the Court finds that the because issues concerning Plaintiff's fair use (or lack thereof) of portions of Defendant's allegedly copyrighted material is at the heart of this litigation, discovery concerning the nature and scope of any fair use analysis for the Documentary makes any non-privileged information pertaining to the Fair Use Opinion Letter and analysis highly relevant. In addition, discovery of non-privileged information relating to the specific fair use analysis conducted by Plaintiff's clearance counsel with respect to the disputed elements incorporated in the Documentary is proportionate to the needs of the case in light of the importance of the issues in resolving the case and Plaintiff's total access to the information sought. C. The Fair Use Opinion Letter is Not Privileged Although Defendant repeats throughout the Motion in near talismanic fashion that the Fair Use Opinion Letter was privileged, the record does not support that conclusory assertion. After a thorough review of the parties' briefing, the Fair Use Opinion Letter, relevant case law, and the Court's independent research on documentary film industry practices, for the reasons outlined below, the Court concludes that the Fair Use Opinion Letter is not privileged. *8 The record here establishes that the Fair Use Opinion Letter was not intended to be nor was it treated as confidential. (Joint Stip. at 17.) It was prepared for and provided to third-parties to establish chain of title for the Documentary, including insurer Tokio Marine, “prospective distributors, prospective film buyers and prospective film licensees.” (Id. at 18-19.) Indeed, as Plaintiff points out, the letter states on its face that the “primary purpose of this opinion letter is so that you may obtain fair use coverage under your E&O policy.” (See id. at 17.) Further, the fact that the letter is addressed to Plaintiff and not to an insurance broker, or potential licensee, does not change the conclusion. As Plaintiff notes, the letter needed to be provided to various third parties to establish chain of title sufficient to permit Plaintiff to obtain not only E&O coverage, but distribution and licensing agreements as well. (Id. at 19.) To the extent Defendant argues that the common interest doctrine might apply to nonetheless make the Fair Use Opinion Letter a confidential and privileged document despite the disclosure to insurance carriers, this argument too is unpersuasive. As Plaintiff emphasizes, Plaintiff had no common interest with any insurance carrier. (Joint Stip. at 47-48.) Defendant's reliance on the unpublished decision in Hoist Fitness Sys., Inc. v. TuffStuff Fitness Int'l, Inc., Case No. EDCV 17-1388-AB (KKx), 2018 WL 8193374 (C.D. Cal. May 14, 2018), to assert that the Fair Use Opinion Letter was confidential and privileged is unavailing. As Plaintiff correctly points out, in Hoist, the drafter of the opinion letter asserted the privilege and the insurer and defendant had formed a common interest privilege such that the attorney-client privilege was not waived by the disclosure, in strict confidence, of that opinion letter to the insurer. Here, by contrast, there is nothing in the record before the Court to indicate that a common interest was ever formed between Plaintiff and its E&O insurer. Moreover, the Fair Use Opinion Letter was never treated as confidential, indeed exactly the opposite appears to be the case. The Record supports Plaintiff's position that it “request[ed] an opinion letter for the express purpose of not treating it confidentially and instead freely disclosing it to necessary third parties such as insurers and film distributors.” (Joint Stip. at 48.) . Plaintiff's contention that the Fair Use Opinion Letter is a document necessarily prepared for third parties, including insurers, is also well supported by academic and industry authorities on documentary film best practices. A leading insurance journal notes that since February 2007, “the four major E&O insurers who serve documentarians have publicly embraced fair use, two of them offering affirmative endorsement.” Thomas Plotkin & Tarae Howell, Fair is Foul and Foul is Fair: Have Insurers Loosened the Chokepoint of Copyright and Permitted Fair Use's Breathing Space in Documentary Films, 15 CONN INS. L.J. 407, 409 (2008). Plotkin and Howell emphasize that “no film can be exhibited and distributed to any venue ... unless the film-maker has an E&O policy. Id. at 455. In analyzing the evolution of insurance coverage practices for documentary films, the authors note that when weighing coverage decisions for documentary films, at least one of the major insurance carrier that provides coverage in the documentary field always “urge[s] the filmmaker to work closely with an attorney for clearance issues at the outset” and “looks to the quality and strength of the opinion letter” provided by clearance counsel. Id. at 458. In addition, at least one industry association, the International Documentary Association, has advised that for E&O insurance and potential distributors, “a filmmaker must obtain a fair use opinion letter from an experienced clearance attorney.” See Winnie Wong, Errors & Omissions & Rights, Oh My! A Guide to Protecting Your Film, International Documentary Association, Apr. 6, 2012, available at https://www.documentary.org/feature/errors-omissions-rights-oh-my-guide-protecting-your-film (last visited Apr. 30, 2020). While not binding authorities, the Court finds these resources persuasive in supporting Plaintiff's argument that the D+C Fair Use Opinion Letter was always intended to be provided to third parties, including E&O carriers, potential distributors and licensees and, thus, was neither intended to be, nor treated, as a privileged communication. *9 Accordingly, because the Fair Use Opinion Letter was never a privileged document, the fact that Plaintiff produced the letter in discovery neither expressly nor impliedly waived Plaintiff's attorney client privilege with its clearance counsel D+C. This conclusion as to the Fair Use Opinion Letter, however, does not end the inquiry—while the Fair Use Opinion Letter itself may be not be protected by attorney client privilege, other communications concerning the letter and D+C's fair use analysis are indisputably privileged. Therefore, at issue is possible waiver by Plaintiff based on other conduct concerning those privileged communications. Consequently, the Court must further examine Plaintiff's conduct because “the party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communication.” Bauer, 132 F.3d at 507 (emphasis in original). D. Plaintiff Has Put Elements Of the Underlying D+C Fair Use Analysis at Issue Defendant also argues that by putting the contents of the D+C fair use analysis at issue in the Complaint and in the disclosure of the Donaldson Report, Plaintiff waived the attorney client privilege “for documents and communications concerning the D+C Letter and D+C's fair use analysis of the [Documentary].” (Joint Stip. at 13.) Defendant argues that this conduct constitutes an express and implied waiver of the attorney-client privilege. (Id.) Plaintiff, on the other hand, argues that while the legal conclusion in the Fair Use Opinion Letter was never intended to be privileged, Plaintiff's “private, confidential attorney-client communications with the law firm of [D+C] made for the purpose of seeking or delivering legal advice re presentation in connection with [Plaintiff's] production of the Documentary, which include communications seeking and obtaining legal advice and representation ... were categorically intended to remain confidential and privileged and have, in fact, been kept confidential and privileged[.]” (Joint Stip. at 18.) i. Waiver Standard The Ninth Circuit has held that "[t]he doctrine of waiver of the attorney-client privilege is rooted in notions of fundamental fairness. Its principal purpose is to protect against the unfairness that would result from a privilege holder selectively disclosing privileged communications to an adversary, revealing those that support the cause while claiming the shelter of the privilege to avoid disclosing those that are less favorable. Tannenbaum, 77 F.3d at 340-41. The analysis turns on the privilege holder's actual disclosure of information outside the attorney-client relationship that matters, “not the holder's intent not waive the privilege.” Id. “Where a party raises a claim which in fairness requires disclosure of the protected communication, the privilege may be implicitly waived.” Chevron Corp v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Thus, a party cannot use the attorney-client privilege as both a sword and a shield. That said, even when a waiver is found to have occurred, it is not presumptively a wholesale waiver of the holder's privilege but rather, the scope of the waiver is limited by the nature and scope of the disclosure. The Ninth Circuit has emphasized that where a party makes a disclosure of privileged information, that disclosure waives the attorney-client privilege “only as to communications about the matter actually disclosed.” Hernandez v. Tannin, 604 F.3d 1095, 1100 (9th Cir. 2010) (internal citation and quotation marks omitted); and see United States v. Mendelsohn, 896 F.2d 1183, 1189 (9th Cir. 1990) (confining testimony about privileged communications to the subject of the limited waiver). ii. Plaintiff's Disclosures Regarding the D+C Fair Use Analysis As noted, the Complaint contains specific and extensive allegations about the nature and content of the D+C fair use analysis, including *10 [D+C] performed a comprehensive fair use analysis of the Documentary, including reviewing the Documentary itself, the time coded video file of the Documentary, and a fair use log that systematically catalogued all uses of any third-party music, video or other creative or expressive works contained in the Documentary. After conducting this rigorous and through [sic] analysis, the law firm memorialized the results of its analysis in an opinion letter, which set forth well sourced and cited legal analysis opining that Plaintiff's use of short music video clips, song clips, and stills from Drake's oeuvre to illustrate points and commentary in the Documentary fell within the parameters of the fair use laws and constituted fair use (the ‘Fair Use Opinion Letter’). (Complaint at ¶¶ 24-25.) The Complaint describes the conclusions reached in the Fair Use Opinion Letter and states that based on the Fair Use Opinion Letter, “Plaintiff caused the Documentary to be distributed and ultimately exhibited and/or offered for sale or license on the Netflix®, iTunes®, and Amazon Prime Video® platforms.” (Id. at ¶¶ 26-28.) Furthermore, the Complaint indicates that Plaintiff fully expected that Defendant would and should have contacted D+C to discuss the fair use analysis, by alleging that Defendant “contacted the attorneys who issued the Fair Use Opinion Letter a single time” around the time that Defendant issued Takedown Notices, but Defendant “never spoke or coordinated with the attorney that issued the Fair Use Opinion Letter, never requested a copy of the Fair Use Opinion Letter, and did not review the Fair Use Opinion Letter before serving the Takedown Requests.” (Id. at ¶¶ 41-42.) Given these allegations, the Court finds that Plaintiff explicitly put at issue the factual underpinnings and scope of the fair use analysis performed by its counsel. Having made the thoroughness and comprehensive nature of the fair use analysis the central thesis of its claims in this case, these allegations in fairness require disclosure of some of the otherwise privileged communications that support them. See Chevron, 974 F.2d at 1162. Consequently, the Court finds that Plaintiff's allegations constitute an implicit waiver of the attorney-client privilege with respect to the factual and legal basis supporting the fair use analysis. The allegations in the Complaint do not, however, comprise waiver, either express or implied, of the entirety of Plaintiff's attorney-client privilege with respect to its communications with D+C, including the terms of its retention agreement. Finally, Plaintiff cannot withhold the information concerning the fair use analysis based on an assertion of attorney-work product doctrine because the information was not produced in anticipation of litigation. See United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011). Indeed, the fair use analysis was undertaken, and the Fair Use Opinion Letter issued before the Documentary was released and long before this lawsuit commenced in 2019. Accordingly, based on the finding of a limited implicit waiver, the Court will grant the Motion with respect to RFP No. 13 which seeks “All documents concerning or constituting the Fair Use Opinion Letter” with the limitation that the documents to be produced are those that reflect the factual and/or legal underpinning of the fair use analysis that is the basis for the Fair Use Opinion Letter and that support Plaintiffs' allegation that the Fair Use Opinion Letter was “well sourced and cited legal analysis.” (See Complaint at ¶ 25.) *11 Having found a limited waiver of the attorney-client privilege only as to the nature and scope of the fair use analysis conducted by D+C (because Plaintiff squarely put this in issue in the Complaint), the Court declines to compel any further response by Plaintiff to both RFP No. 21 which seeks “All documents concerning or constituting any agreement between you and D+C concerning the Documentary,” and RFP No. 22, which seeks “All documents concerning or constituting any communications or correspondence between you and D+C concerning the Documentary.” There is nothing in the record before the Court to support a finding of a broader waiver of the attorney-client privilege as to any communications between Plaintiff and its clearance counsel. CONCLUSION For the foregoing reasons, the Motion is GRANTED in part and DENIED in part as follows: (1) The Motion is GRANTED solely with respect to RFP No. 13. Within fourteen (14) days of the date of this Order: (2) Plaintiff is directed to produce documents sufficient to reflect the factual and legal underpinnings of the D+C fair use analysis that supports the Fair Use Opinion Letter, including the fair use log; (3) Any information produced in discovery in compliance with this Order may be produced subject to the Stipulated Protective Order entered in this case (Dkt. No. 39). Beyond the limited information to be produced pursuant to this Order, the Motion is DENIED with respect to RFP Nos. 21, and 22 and no further response will be required. Further, the Court expressly declines to find a wholesale waiver of the attorney client privilege with respect to all communications between Plaintiff and its clearance counsel. IT IS SO ORDERED.