FEDERAL INSURANCE COMPANY, Plaintiff, v. TUNGSTEN HEAVY POWDER & PARTS, INC. AND TUNGSTEN PARTS WYOMING, INC., Defendants Case No.: 21cv1197-W-MDD United States District Court, S.D. California Filed August 16, 2022 Counsel Christy Gargalis, Jean Marie Daly, WFBM, LLP, Los Angeles, CA, James Edwin Gibbons, London Fischer LLP, Irvine, CA, Helen M. Luetto, WFBM, LLP, Irvine, CA, for Plaintiff. Marc D. Halpern, Dean Shaffer, Douglas J. Brown, Halpern May Ybarra Gelberg LLP, San Diego, CA, Grant Gelberg, Ryan White, Halpern May Ybarra Gelberg LLP, Los Angeles, CA, Heather Lynn Mayer, Nolan Heimann LLP, Encino, CA, for Defendant Tungsten Heavy Powder & Parts, Inc. Marc D. Halpern, Dean Shaffer, Douglas J. Brown, Halpern May Ybarra Gelberg LLP, San Diego, CA, Grant Gelberg, Ryan White, Halpern May Ybarra Gelberg LLP, Los Angeles, CA, for Defendant Tungsten Parts Wyoming, Inc. Dembin, Mitchell D., United States Magistrate Judge ORDER FOR PLAINTIFF TO PRODUCE CLAIM FILE ATTACHMENTS BACKGROUND *1 This is an insurance coverage dispute. The parties jointly seek the Court's direction regarding a discovery issue that involves Plaintiff's assertion of the attorney-client privilege with respect to numerous documents that Plaintiff attached to its insurance claim file notes. (ECF No. 51). Plaintiff Federal Insurance Company (“FIC”) produced the claim file and claim file notes to Defendants, but FIC withheld the attachments to the claim file notes and now asserts a privilege over those materials. (Id. at 11). The claim file is more than 30,000 pages, and the claim file notes comprise 2,262 supplemental Bates-stamped pages. FIC disclosed its claim file and claim file notes to Defendants (collectively referred to here as “Tungsten”) on June 9, 2022, after inadvertently giving unredacted copies of the claim file notes to FIC's testifying expert witness in order prepare her report. (ECF No. 51-2 at 3-4 [Daly Decl.]). Defendants now seek the attachments to the claim file notes because the notes specifically refer to the disputed attachments on 118 pages that are cited throughout the 2,262 supplemental pages. There are more than 118 pages in the attachments, but the precise number of pages is unstated. Defendants argue that Plaintiff waived any privilege it may have had over the attachments because (1) Plaintiff's expert had the attachments, which is disputed, or (2) the attachments are part of the same “document family” as the disclosed claim file notes. (ECF No. 51 at 8-9). Plaintiff opposes disclosure of the attachments, arguing those materials contain privileged communications that FIC never gave to its expert, and that the “document family” principle does not apply.[1] (ECF Nos. 51 at 10-11, 51-2 at 2 [Daly Decl. ¶ 2]). Plaintiff also argues that Tungsten's motion is untimely. (ECF No. 51 at 11-12). Discovery closed more than 60 days ago on May 16, 2022, but the parties have litigated aspects of this privilege issue since March 2022. (See ECF No. 20-23). The deadline for dispositive motions was June 16, 2022, and both sides filed a motion for summary judgment. To determine whether FIC must disclose the attachments to the claim file notes, the Court first evaluates a 5,000-page, unresolved document discrepancy, in part because it illustrates FIC's sloppy document production. The Court's second task is to decide whether Plaintiff, as the party invoking the attorney-client privilege over the attachments, has met its burden to establish a prima facie showing of its applicability. The Court finds that FIC has failed to show that a privilege applies to the attachment documents, and concludes that FIC must disclose the attachments to Tungsten. LEGAL STANDARD Discovery is broad. Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 528 (D. Nev. 1997). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). The party asserting an attorney-client privilege has the burden of making a prima facie showing that the privilege protects the information that the party intends to withhold.” Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 698 (D. Nev. 1994) (citation omitted). This burden can be satisfied by submitting a privilege log stating (a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated, as well as provide information of the subject matter of each document. See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992); Fed. R. Civ. P. 26(b)(5). Courts “narrowly and strictly construe” the privilege. Kilroy v. L.A. Unified Sch. Dist. Bd. of Educ., No. CV1609068DMGJDE, 2018 WL 6071079, at *4 (C.D. Cal. May 29, 2018) (citation omitted). *2 Not every case requires strict adherence to the list of items above. Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 637 (D. Nev. 2013). But, simply mentioning a general category of privilege, without any further elaboration or specific linkage with particular documents does not satisfy the burden. See de Melendres v. Maricopa, Cnty. of, No. CV-07-02513-PHX-GMS, 2014 WL 12675249, at *1 (D. Ariz. Nov. 4, 2014) (involving assertion of a litigation privilege in an administrative investigation and public access to documents). Blanket assertions of privilege are “extremely disfavored.” Clarke v. American Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (referring to the attorney client privilege) (citation omitted). “In considering whether a proponent of the privilege is entitled to protection, the Court must place the burden of proof squarely upon the party asserting privilege. Accordingly, the proponent must provide the court with enough information to enable the court to determine privilege, and the proponent must show by affidavit that precise facts exist to support the claim of privilege.” Estate of Antonio Thomas, et al., v. County of Sacramento, et al., No. 2:20-CV-0903 KJM DB, 2021 WL 4992923, at *1 (E.D. Cal. Oct. 27, 2021) (citation omitted); see also Dickson v. Century Park East Homeowners Ass'n, Case No. 2:20-cv-5152 JWH MAAx, 2021 WL 3148878, at *8 (C.D. Cal. Mar. 9, 2021) (“when a party withholds otherwise discoverable information by claiming that the information is privileged, the party must describe the nature of the communications or documents in a way that will enable other parties to assess the claim”); Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 651 (E.D. Cal. 2010) (“plaintiff's privilege logs are deficient because they do not permit defendant or the court to adequately assess the claim of privilege”); Diamond State Ins. Co., 157 F.R.D. at 698 (finding log that “fails to meet the established requirements” also “failed to establish an attorney-client privilege with regard to the requested documents”). DISCUSSION I. FIC Fails to Explain a 5,000-Page Document Discrepancy FIC argues that the attachments to the claim file notes are privileged, and that no waiver has occurred, without first addressing a significant page discrepancy that exists between the Bates-stamped documents that FIC sent to Tungsten, and non-Bates-stamped documents that FIC gave its claims handling and bad faith expert, Ms. Lola Hogan. The page discrepancy issue is worthy of discussion, but not dispositive here because the Court concludes infra that FIC has otherwise failed to establish a privilege over the attachments. Tungsten identified the page-discrepancy after a convoluted period of discovery. In January 2022, FIC sent initial disclosures to Defendants and its expert, Ms. Hogan. (ECF No. 51-2 at 2 [Daly Decl. ¶ 3]). Later that month, still unaware of the page discrepancy, defense counsel alerted Plaintiff to the potential disclosure of FIC's privileged materials among those initial disclosures. (Id. ¶ 5). In early February 2022, FIC then also inadvertently produced unredacted claim file notes to Defendants and to FIC's expert, labeled supplemental Bates-stamped pages 1 through 2,262. (Id. ¶ 4). On February 25, 2022, FIC notified Defendants of its intent to “claw-back” privileged documents and reasserted its privilege over those supplemental 2,262 pages. (Id. ¶ 5). FIC sent 2,262 redacted claim file note pages to Ms. Hogan to review, and FIC requested that she destroy the prior unredacted version of the claim file notes. (Id. ¶ 6). *3 FIC's expert next mistakenly reviewed and summarized the unredacted claim file notes in a 14-page chronology, which revealed the subject matter of certain privileged communications. (Id. [Daly Decl. ¶ 8], Ex. A). FIC produced that chronology to Defendants on April 14, 2022. (Id.). The expert's chronology included Bates-stamped numbers 3 through 32,967, as well as Adobe numbers, but it did not include any reference to supplemental Bates-stamped pages. FIC has provided no correlation between the expert's April chronology and the supplemental 2,262 Bates-stamped pages. Tungsten summarized the attachments at issue in a report that it entitled “Attachment Description.” (ECF No. 51-1, Ex. G [Attachment Description]). Tungsten's attachment description is an eight-page summary of the 118 citations to the attachments as they appeared in the supplemental Bates-stamped pages. (Id.). The 118 citations to the undisclosed attachments range from specific labels, such as, “LITIGATION ZIP 1.ZIP” and “60424 20210526 DECISION LTR.DOCX,” to vague and unclear titles, such as, “MEMO STYLE.PDF” and “DEPOSITION TRANSCRIPT” of numerous individuals. (ECF No. 51-1 at 90-97). Overall, the attachment descriptions (recorded by Tungsten, but created by FIC) are non-descriptive and generic. (Id.). FIC suggests that confusion about the attachments first arose because “the claim notes contain certain emails which were copied and pasted into the claim notes but did not include attachments.” (ECF No. 51-2 at 2 [Daly Decl. ¶ 2]). FIC argues the attachments are privileged because the unredacted claim file notes that FIC gave Ms. Hogan did “not contain native e-mail files,” but instead “only the text of e-mails that were copied into the claim file.” (ECF No. 51 at 3). FIC readily admits that it “agreed to voluntarily produce and waive attorney-client privilege with respect to” the otherwise-privileged 2,262 supplemental Bates-stamped pages, i.e., the claim file notes, that it provided to Ms. Hogan, but FIC maintains through its attorney's sworn statements that it did not give the expert the attachments to the claim file notes. (ECF No. 51-2 at 2 [Daly Decl. ¶ 2]). FIC argues that “Tungsten asks this Court to order production of privileged documents NOT given to the expert.” (ECF No. 51 at 11). A different, but related complication arose when Tungsten realized that Ms. Hogan's copy of the claim file and claim file notes contained nearly 5,000 additional pages than the copy of the same documents that FIC produced to Defendants. (ECF No. 51 at 6-7). Tungsten argues that those additional pages that Ms. Hogan reviewed could have been the attachments to the claim file, but that Tungsten “is unable to determine what those attachments are or whether they were produced elsewhere, whether in redacted or unredacted form.” (ECF No. 51 at 6-7). FIC argues that Tungsten's speculation about whether Plaintiff's expert had the attachments at issue is merely hypothetical, and that FIC has disproved that premise with the offer of proof from its attorney. (ECF No. 51 at 13). The expert's March 8, 2022 disclosures confirm that Ms. Hogan reviewed a copy of the claim file that was 39,315 non-Bates-stamped pages. (See ECF No. 52-1 at 8 [Expert's Report listing “Material Reviewed”]). On May 12, 2022, FIC produced to Tungsten a revised expert report that disclosed the claim file as Bates-stamped documents CF000001 through 33,479 and Supp. CF 000001 through 2,262, which cumulatively amounts to 35,741 pages. (ECF No. 51-1 at 76). A third citation to the claim file records 31,385 pages. (ECF No. 52-1 at 8-9). Tungsten argues that FIC's confusing disclosures leave unaccounted nearly 5,000 pages that Ms. Hogan reviewed. (ECF No. 51 at 7). The Court agrees with Tungsten. *4 Defendants deposed FIC's expert and asked her about the page discrepancy. Ms. Hogan testified that she had “no idea” why her copy of the claim file was much larger than the Bates-stamped copy that FIC later disclosed to Tungsten. (ECF No. 51-1 at 82). She described the larger set of 39,315 pages as follows: That's a file that I received to sort out the parts of the claim file on the other Bates-stamped areas that were illegible, and then I went back, and the timeline now reflects the Bates-stamped pages. (ECF No. 51-1 at 81). That description does more to confuse than elucidate the issue. Rather than address or explain the 5,000-page discrepancy, FIC relies upon its counsel's sworn declaration that Plaintiff did not provide the disputed claim note attachments to its expert. (ECF No. 51-2 at 1-5). The Court gives due credit to Plaintiff's counsel's veracity as an officer of the Court. Notwithstanding, it remains unclear exactly what documents FIC gave its testifying expert because Plaintiff provided thousands of non-Bates-stamped pages to Ms. Hogan that it did not provide to Tungsten. If Ms. Hogan had the claim file note attachments, any privilege that FIC could assert over the attachments would certainly be waived. See, e.g., DR Sys., Inc. v. Fujifilm Med. Sys. USA, Inc., 06cv417-B(NLS), 2007 WL 9776651, at *4 (S.D. Cal. Feb. 22, 2007) (“Case law confirms that the rule of disclosure applies whether or not the expert actually relies on the information in formulating an opinion.”). Despite the uncertainty about the missing 5,000 pages, the Court will assume with some trepidation that Ms. Hogan did not have the attachments at issue. The Court will instead consider whether FIC has established that an attorney-client privilege applies to the claim file note attachments. II. FIC Fails to Establish a Privilege Over the Attachments “The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). The privilege applies where legal advice of any kind is sought from a professional legal advisor in her capacity as such, and the communication relates to that purpose, and is made in confidence by or for the client. Upjohn Co., v. United States, 449 U.S. 383, 389 (1981). To support its requisite prima facie showing of privilege over the attachments to the claim file notes, FIC produced its seventh iteration of a privilege log to Tungsten on May 3, 2022.[2] (ECF No. 51-1 at 3 [White Decl. ¶ 7]). That document is 19-pages. (ECF No. 52-2 at 2-20). Noticeably, and surprisingly absent from the privilege log are the attachments. FIC was obliged by federal law to establish the privileged nature of communications in the attachments and, “if necessary, to segregate the privileged information from the non-privileged information.” In re Hotels Nevada, LLC, 458 B.R. 560, 578 (Bankr. D. Nev. 2011) (citing United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009) (additional citations omitted). *5 The Court does not view the enumerated factors required for an adequate privilege log in a vacuum or approach the analysis with rigidity. Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 637 (D. Nev. 2013). The Court has carefully examined the privilege log. It bears no reference or connection to the attachment descriptions. FIC was required to provide sufficient information to enable Defendants to evaluate the applicability of the claimed privilege protection. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005) (“Still, the ‘party must ... provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.’ ”). The Court has also combed through the attachment descriptions. A handful of attachments are labeled in a manner that could arguably be a “communication,” i.e., “EMAIL_CLAIM_DOCSPDF” AND “HALPERN-POD,EUO LTR.DOCX.” (ECF No. 51-1 at 90-91). A vast majority of the attachment labels, however, include generic references or items seemingly not confidential at all, such as “ARCHIVE.ZIP,” or “DUTY & FREIGHT BILLS FOR POWER IMPORTS” and “FLUIDTHERM CONTROL CABINET PICTURES.” (Id. at 90-97). In fact, the only relationship between the attachment descriptions and FIC's 19-page privilege log is the overlap of seven Bates-stamped pages that happen to appear on both lists. That means 111 attachment descriptions are cited on Bates-stamped pages that do not appear on FIC's privilege log. Even the overlap of seven pages is meaningless, however, because a privilege claimed for a Bates-stamped page does not establish that a document cited therein is also subject to a privilege. See Clarke, 974 F.2d at 129 (explaining that the privilege must “ordinarily be raised as to each record sought to allow the court to rule with specificity.”). The Court read the seven overlapping pages, striving to identify some connection between FIC's asserted privilege over the attachments and the privilege log. There is none. One example speaks volumes: Supplemental Bates-stamped page number 000242 appears on FIC's privilege log as an October 25, 2021 redacted communication from Gene Weisberg to Michael S. Markey, SIU Property Investigator concerning “coverage advice and/or opinion between retained counsel, Weisberg, and FIC/Chubb.” (ECF No. 52-2 at 12). The attachment description referenced on the same Bates-stamped page is simply cited as “ARCHIVE.ZIP.” (ECF No. 51-1 at 91). The exact same attachment description, i.e., “ARCHIVE.ZIP,” is also cited on five other supplemental Bates-stamped pages, none of which are included on FIC's privilege log. (Id. at 90-91, 96). Other than that general descriptor of “ARCHIVE.ZIP,” FIC provides no author, recipient, date, or subject matter of the referenced attachment, nor of any attachments. If FIC wanted to assert a privilege over the attachments described in the supplemental Bates-stamped pages, it should have included the attachments in its privilege log, or otherwise described how each attachment comprised a particular confidential communication. See United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir. 1974) (noting that an attorney must raise attorney-client privilege as to each record sought and each question asked); United States v. El Paso Co., 682 F.2d 530, 541–42 (5th Cir. 1982) (attempt to invoke privilege rejected, due in part to the failure to “particularize its assertion of the privilege” with respect to each specific document). *6 FIC bore the burden of providing the requisite information under pain of losing the privilege. How is Tungsten supposed to determine whether FIC rightly asserts a privilege over attachments to the claim file notes that are merely cited with generic and confusing titles? FIC either expects Tungsten to take its word that the attachments are privileged or dig through the 19-page privilege log to try and determine how the 118 cited attachments might be found within it. But to quote the Rolling Stones, Tungsten will never be FIC's “beast of burden,” because this burden falls squarely upon FIC. See ROLLING STONES, Beast of Burden, on SOME GIRLS (Rolling Stones Records 1978). And, FIC failed to meet its burden. Given another opportunity to support its contention that the 118 cited attachments are privileged in the parties' joint motion, FIC instead asserted that because it did not give the attachments to Ms. Hogan, Plaintiff was not required to produce them to Tungsten. (ECF No. 51 at 10-11). Rather than describe the “privileged” attachments, or cross-reference Tungsten's attachment descriptions to its privilege log, FIC referred the Court to all the pages listed in its privilege log, adding that “no additional documents have been withheld and/or redacted to due privilege.” (ECF No. 51 at 17). FIC's failure to establish the elements of a privilege over the attachment documents is fatal to its assertion of a privilege. See In re Hotels Nevada, LLC, 458 B.R. 560, 577 (Bankr. D. Nev. 2011) (“The proponent of the privilege carries the burden of establishing all elements of the privilege, including confidentiality which is not presumed ....”) (citations omitted). The Court finds that Plaintiff has failed to properly assert a privilege over the 118 attachments cited throughout its supplemental Bates-stamped pages. FIC must disclose those attachments to Defendants. The Court need not address whether a waiver of a privilege has occurred under Tungsten's “document family” theory because FIC has failed to establish that a privilege applies at all. In its discretion, the Court will deny Tungsten's footnote request for an award of costs and fees against FIC. (ECF No. 51 at 5 n.1); see United States v. Valencia, 656 F.2d 412, 415 (9th Cir. 1981) (“The appropriate sanction for a failure to comply with a discovery rule should rest in the district judge's sound discretion.”). CONCLUSION Plaintiff shall produce an unredacted version of all attachments referenced in its supplemental Bates-stamped pages 1 through 2,262, specifically including and Bates-stamping the contents of the 118 attachments referenced therein, and it shall do so no later than August 26, 2022. IT IS SO ORDERED. Footnotes [1] Plaintiff makes no distinction between assertion of the attorney-client privilege and work product protection in this case, although FIC's privilege log references both. [2] As the party moving to compel document production, Tungsten bears the initial burden of informing the Court why FIC's privilege-based objections are not justified. See Lemons v. Camarillo, No. 14-CV-2814-DMS (DHB), 2017 WL 4700074, at *1 (S.D. Cal. Oct. 19, 2017). As such, it must inform the Court which discovery requests are the subject of the motion, and, for each disputed response, inform the Court why the information sought is relevant and why Plaintiff's objections are not justified. Id.; see also Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Tungsten has satisfied that burden.