VALLEY FORGE INSURANCE COMPANY, et al., Plaintiffs, v. WASHINGTON SQUARE HOTEL HOLDINGS LLC, et al., Defendants CASE NO. C21-0847JLR United States District Court, W.D. Washington Signed December 15, 2022 Counsel Herbert Matthew Munson, Lawrence Gottlieb, Betts Patterson & Mines, Seattle, WA, Anthony Todaro, Austin M. Rainwater, Joseph Daniel Davison, DLA Piper US LLP, Seattle, WA, Karen Ventrell, Pro Hac Vice, Cna Converage Litigation Group, Washington, DC, for Plaintiffs. Elliot C. Copenhaver, Jason M. Kettrick, Jeffrey David Laveson, Linda Blohm Clapham, Carney Badley Spellman PS, Seattle, WA, for Defendants. Robart, James L., United States District Judge ORDER I. INTRODUCTION *1 Before the court are nine email exchanges that Defendant Washington Square Hotel Holdings LLC (“WSHH”) redacted, claiming they are subject to work-product protection. After briefing by the parties on Plaintiff Valley Forge Insurance Company's (“Valley Forge”) motion to compel, the court ordered WSHH to provide the disputed email exchanges to the court for in camera review to determine whether WSHH should produce them. (See Mot. (Dkt. # 53); Resp. (Dkt. # 55); Reply (Dkt. # 59); 12/1/22 Order (Dkt. # 65) at 6-7.) The court now addresses which, if any, of WSHH's redacted emails should be produced to Valley Forge and whether either party is entitled to reasonable attorney's fees incurred in bringing or defending the motion to compel. The court has reviewed the emails at issue and, based on its in camera review, the parties’ prior submissions, and the relevant law, the court ORDERS WSHH to produce the email exchanges identified below and in the manner described in this order. The court has also considered the parties’ requests for attorneys’ fees (see Mot. at 13; Resp. at 12) and DENIES both requests. II. ANALYSIS The court first reviews the work-product doctrine before turning to the redacted emails at issue here. The court then discusses its decision with respect to the parties’ requests for attorneys’ fees. A. The Work-Product Doctrine The “work-product doctrine ‘protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.’ ” United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989)). The work-product doctrine, however, “is intended only to guard against the divulging of [an] attorney's strategies and legal impressions,” and therefore “does not protect facts ... contained within the work product.” Cal. Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 644 (E.D. Cal. 2014) (internal quotation marks omitted) (quoting Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D. Cal. 2003)). A party may nevertheless discover documents subject to work-product protection by demonstrating a “substantial need” to obtain them or inability to obtain the equivalent without undue hardship. Admiral Ins., 881 F.2d at 1494 (citing Upjohn v. United States, 449 U.S. 383, 400-01 (1981)); see also Fed. R. Civ. P. 26(b)(3). B. WSHH's Redacted Emails The email exchanges at issue here are between counsel for WSHH and Rick Wetmore, who acted as counsel for the receiver for WSHH's former general contractor. (See 12/1/22 Order at 2.) The unredacted portions of the emails show discussions between counsel for WSHH and Mr. Wetmore regarding alleged defense costs that WSHH seeks to recover from Valley Forge. (See, e.g., 1st Rainwater Decl. (Dkt. # 54) ¶ 2, Ex. 2 at 6-7.[1]) WSHH redacted emails solely on the basis that the work-product doctrine protects their contents from disclosure. (See Resp. at 9-10.) Valley Forge argued that the redacted emails are not subject to work-product protection because they contain “purely factual” discovery, or in the alternative, WSHH waived the protection but using them “both as a sword and as a shield.” (See 12/1/22 Order at 4-5); see Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (citing United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)). *2 As an initial matter, the court determines that WSHH did not waive work-product protection by asserting a claim for defense costs. Contrary to Valley Forge's arguments that WSHH uses the emails as both a sword and a shield (see Mot. at 2), WSHH does not depend on the contents of its redacted emails to substantiate its claim for defense costs (see Resp. at 10-11 (explaining that redacted emails contain requests for information from Mr. Wetmore regarding defense costs—not defense costs or calculations themselves)). Accordingly, to the extent the disputed emails contain attorney mental impressions and litigation strategy, WSHH is entitled to assert work-product privilege, and the burden falls to Valley Forge to demonstrate a substantial need and inability to obtain them otherwise. See Upjohn, 449 U.S. at 400-01. Many of the documents contain descriptions of attorney strategies and mental impressions and WSHH therefore properly redacted them under the work-product doctrine. The court finds that Valley Forge has not demonstrated a substantial need to obtain the redacted emails. The court is not persuaded that Valley Forge cannot defend itself against WSHH's claim for defense costs without knowing the particular words WSHH used to request the information from Mr. Wetmore. Accordingly, WSHH need not alter the redactions in the documents subject to work-product protection. Specifically, the court finds that the following documents were properly redacted pursuant to the work-product doctrine: WSHH194969-71; WSHH194979-81; WSHH195019-47.[2] The court concludes, however, that WSHH redacted several emails that do not contain any material protected by the work-product doctrine. Based on the foregoing legal standards, the parties’ submissions, and the court's in camera review, the court ORDERS WSHH to produce to Valley Forge the following documents in the manner indicated no later than December 22, 2022: Document ID Alteration(s) WSHH194972-75 Remove redactions in WSHH194972 and WSHH194975 WSHH194982-83 Remove redactions in WSHH194982 WSHH194984-90 Remove redactions in WSHH194984 and WSHH194989-90 WSHH194997-5001 Remove redactions in WSHH195000-01 WSHH195002-09 Remove redactions in WSHH195002-03 and WSHH195008-09 WSHH195011-18 Remove redactions in WSHH195017-18 C. Attorneys’ Fees Both parties seek reasonable fees incurred in bringing and defending the motion to compel. (Mot. at 13; Resp. at 12.) Federal Rule of Civil Procedure 37(a)(5) provides that a party who successfully moves to compel discovery or who successfully opposes such a motion should receive reasonable costs and attorneys’ fees incurred in making the motion. See Fed. R. Civ. P. 37(a)(5). An award of fees to a prevailing party is mandatory unless: (1) the moving party filed the motion before attempting in good faith to resolve the matter; (2) the opposing party's non-disclosure was substantially justified; or (3) other circumstances make an award of expenses unjust. See id. Where the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). Having granted Valley Forge's motion to compel in part and reviewed the merits of the underlying motion, the court concludes that an award of expenses would be unjust under these circumstances. See Fed. R. Civ. P. 37(a)(5). Accordingly, no apportionment of fees is warranted here. See Fed. R. Civ. P. 37(a)(5)(C). The court DENIES both parties’ requests for attorneys’ fees associated with bringing or opposing Valley Forge's motion and encourages the parties to resolve disputes that do not merit court intervention before filing motions going forward. III. CONCLUSION *3 For the forgoing reasons, the court GRANTS IN PART Valley Forge's motion to compel discovery and for reasonable attorneys’ fees (Dkt. # 53). The court ORDERS WSHH to produce the documents listed above with the alterations specified no later than December 22, 2022. Additionally, the court DENIES both parties’ requests for payment of expenses associated with bringing and opposing the motion to compel. Footnotes [1] The court uses the page numbers in the CM/ECF header unless otherwise indicated. [2] Accordingly, no alterations are necessary and WSHH need not produce these documents again.