3D SYSTEMS, INC., Plaintiff, v. BEN WYNNE, et al., Defendants Case No.: 21-cv-1141-AGS-DDL United States District Court, S.D. California Filed February 21, 2024 Counsel David Andrew Quigley, Emily Burkhardt Vicente, Roland M. Juarez, Hunton Andrews Kurth LLP, Los Angeles, CA, Osvaldo Alejandro Farres, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Joseph Edward Pelochino, Atkinson, Andelson, Loya, Ruud & Romo, La Jolla, CA, for Plaintiff. Anne Potiker, Michael Patrick McCloskey, Wilson Elser Moskowitz Edelman & Dicker LLP, San Diego, CA, Jason P. Stearns, Pro Hac Vice, Smith Gambrell & Russell, LLP, Tampa, FL, Jeffrey John Catalano, Pro Hac Vice, Joseph Lewis Fogel, Pro Hac Vice, Smith Gambrell & Russell, LLP, Chicago, IL, Sean Michael Monks, Wilson Elser Moskowitz Edelman & Dicker LLP, Alpine, CA, for Defendant Ben Wynne. Anne Potiker, Michael Patrick McCloskey, Wilson Elser Moskowitz Edelman & Dicker LLP, San Diego, CA, Jeffrey John Catalano, Pro Hac Vice, Joseph Lewis Fogel, Pro Hac Vice, Smith Gambrell & Russell, LLP, Chicago, IL, Sean Michael Monks, Wilson Elser Moskowitz Edelman & Dicker LLP, Alpine, CA, for Defendants Chris Tanner, Jamie Etcheson, Robert Mueller, Ivan Chousal, Intrepid Automation. Leshner, David D., United States Magistrate Judge ORDER GRANTING IN PART DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS I. INTRODUCTION *1 Following Defendants' termination from Plaintiff's employment, Plaintiff conducted an investigation into their departure. Defendants move to compel the production of documents pertaining to that investigation. Plaintiff asserts the documents are protected from disclosure by the attorney-client privilege and work product doctrine. As explained below, the Court concludes that Plaintiff has not met its burden to establish that certain documents pertaining to the investigation are privileged and that, even if privileged, there has been an implied waiver as to these and other investigation-related documents that are vital to Defendants' statute of limitations defense. Accordingly, the Court GRANTS IN PART the motion to compel. II. FACTS AND PROCEDURAL HISTORY A. 3D Systems Investigates Defendants In 2017 In 2016, plaintiff 3D Systems, Inc. (“3D Systems” or “Plaintiff”) hired the five individual defendants (collectively “Defendants”) to “advance [3D Systems's] Figure 4 print engine technology.” Declaration of Andrew Johnson (Dkt. No. 396-7) at ¶ 3.[1] Defendants simultaneously resigned their employment in August 2017, and “3D Systems” initiated an internal investigation into their departure. Id. at ¶ 4.[2] The investigation included “collecting certain data related to the Figure 4 project that was available on the [Defendants'] company computers” as well as data from their “company email accounts, their company-issued cell phones, their company-issued PC hard drives, certain HR files, [their] employment contracts, company-issued credit card usage and their travel history.” Id. The investigators “review[ed] the data collected to determine whether the [Defendants] had engaged in misconduct when they left 3DS, or whether it was possible to tell from the data what the [Defendants] planned to do after they left 3DS.” Id. at ¶ 5. The issues under investigation included, but were not limited to, “whether [the defendants] had improperly retained and/or taken any 3DS confidential or trade secret information when they left 3DS.” Id. 3D Systems personnel conducting the internal investigation kept Andrew Johnson, the company's Chief Legal Counsel, “apprised periodically of the collection of data and the progress of the investigation as it was ongoing.” Id. at ¶ 4. According to Johnson, the investigation revealed that four of the Defendants had “wiped all data from their company-issued computers before turning them in” and “had taken steps to prevent 3D Systems from accessing any information on their company-issued cellular telephones.” Id. at ¶ 6. *2 Thereafter, Johnson “retained an outside law firm to conduct a further review of [Defendants'] emails and to determine if any data could be recovered from [their] wiped company computers and from their company-issued cellular telephones.” Id. The law firm retained a forensic examiner, but “no additional information could be recovered from [Defendants'] wiped laptops, or their company cell phones and [Defendants'] company emails did not reveal any different information than the internal audit group had already uncovered.” Id. According to Johnson, “[b]ased on the information I knew at the time, I did not believe there were sufficient facts to conclude the [Defendants] had actually taken or were using 3DS confidential information or trade secrets ... At the time of the investigation in 2017, any allegations that [Defendants] took or were using 3D System's [sic] trade secrets would have been speculative based on the limited information we had.” Id. at ¶ 7. Rather, Johnson asserts he “did not become aware that Intrepid [Automation] and the [Defendants] actually took and were using 3DS's confidential and trade secret information until early 2021,” when 3D Systems “identified information in Intrepid Automation's published patents that was derived from 3D Systems' trade secrets and confidential information.” Id. at ¶ 9. B. 3D Systems Files Suit In 2021 3D Systems filed this lawsuit on May 19, 2021. Dkt. No. 1. The operative First Amended Complaint alleges multiple causes of action, including violations of the federal Defend Trade Secrets Act and the California Uniform Trade Secrets Act. Dkt. No. 6. Both statutes contain a three-year statute of limitations for trade secret misappropriation claims. See 18 U.S.C. § 1836(d) (“A civil action ... may not be commenced later than 3 years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered.”); Cal. Civ. Code § 3426.6 (same). The parties dispute when the statute of limitations accrued for 3D Systems's trade secret misappropriation claims and whether the claims are time-barred. Defendants have moved for summary judgment on the trade secret misappropriation claims, contending the statute of limitations began running in 2017 based on information learned by 3D Systems during its investigation of Defendants. See Dkt. No. 345. On the other hand, 3D Systems argues the claims did not accrue until 2021, when it reviewed patents submitted by Defendants' company, Intrepid Automation. See Dkt. No. 363. Plaintiff's summary judgment opposition relies, in part, on Johnson's declaration describing 3D Systems's 2017 investigation generally and offering his conclusion noted above that, based on the facts uncovered during the 2017 investigation, he “did not believe there were sufficient facts to conclude the [Defendants] had actually taken or were using 3DS confidential information or trade secrets ....” Dkt. Nos. 363-27 at ¶ 7, 396-7 at ¶ 7. C. Defendants' Motion to Compel 3D Systems produced in discovery certain documents relating to its 2017 internal investigation, but it asserts the attorney-client privilege and attorney work product doctrine protect other investigation-related documents from disclosure, including communications between the internal investigation team and Johnson and all communications with outside counsel. In total, 3D Systems has declined to produce documents identified in three privilege logs. Dkt. Nos. 390-2, 390-3 and 390-4. The logs include 54 entries pertaining to documents from 2017. Those 54 entries include Nos. 1-37, 52-57, 73 and 98-107. Entry number 1 has been produced to Defendants and is not at issue. *3 Defendants move to compel production of all documents identified in the privilege logs, contending that 3D Systems has impliedly waived the attorney-client privilege with respect to these documents. Dkt. No. 390. 3D Systems opposes the motion. Dkt. No. 396. The Court has reviewed the disputed documents in camera and held a motion hearing on January 11, 2024. Dkt. No. 431. III. DISCUSSION “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). Documents pertaining to 3D Systems's 2017 investigation are relevant to determining when its claims accrued, which, in turn, is relevant to Defendants' statute of limitations defense. See 18 U.S.C. § 1836(d); Gregg v. Haw., Dep't of Pub. Safety, 870 F.3d 883, 885 (9th Cir. 2017) (“Under federal law, a claim accrues when a plaintiff knows or has reason to know of the injury that is the basis of the action and the cause of that injury.”). On the facts presented here, 3D Systems has impliedly waived the attorney-client privilege with respect to facts uncovered during its 2017 investigation and described in Johnson's declaration submitted in opposition to Defendants' motion for summary judgment. As such, 3D Systems must produce documents and communications pertaining to the 2017 investigation; however, Defendants are not entitled to discover communications with Johnson or outside counsel that contain counsel's mental impressions or legal advice provided by counsel. A. Attorney-Client Privilege 1. General Principles Federal law applies to assertions of privilege for claims arising under federal law. United States v. Zolin, 491 U.S. 554, 562 (1989). Similarly, federal law applies where, as here, the “evidence relates to both federal and state law claims.” Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). “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). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. “However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose” and “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). The privilege “protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021). The elements of the privilege are: (1) When legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are, at the client's instance, permanently protected (7) from disclosure by the client or by the legal adviser (8) unless the protection be waived. *4 Martin, 278 F.3d at 999. “The burden is on the party asserting the privilege to establish all the elements of the privilege.” Id. at 999-1000. This includes that there was no waiver. See Weil v. Investment/Indicators, Research and Management, Inc., 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 privilege.”). The attorney-client privilege “exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn, 449 U.S. at 390. In the corporate context, the privilege “applies to communications between corporate employees and counsel, made at the direction of corporate superiors in order to secure legal advice.” United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996). Moreover, “fact-finding which pertains to legal advice counts as professional legal services.” United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996) (citation omitted) (where law firm partner tasked associates with investigating another firm attorney regarding handling of client funds, attorney-client privilege applied to communications between partner and investigating associates).[3] 2. Communications Prior To Outside Counsel's Retention 3D Systems's investigation into Defendants' departure was comprised of an initial internal investigation (referred to by Johnson as an “internal audit”) followed by an investigation led by an outside law firm, Nexsen Pruet, LLC. Johnson Dec. at ¶¶ 4-6. Although Johnson's declaration does not state exactly when 3D Systems retained Nexsen Pruet, the date of the first communication involving Nexsen Pruet documented on the privilege logs is September 19, 2017. Dkt. No. 390-3 at 2 (entry no. 20). Privilege log entries 2, 3, 4, 5, 13, 14, 15, 16 and 17 all appear to predate Nexsen Pruet's involvement, and none of the communications for those entries involve Nexsen Pruet. This timing matters because “unlike communications with outside counsel, which are presumed to be made for the purpose of seeking legal advice, there is no presumption that communications with in-house counsel are protected by attorney-client privilege.” Dolby Lab'ys Licensing Corp. v. Adobe Inc., 402 F. Supp. 3d 855, 866 (N.D. Cal. 2019); see also United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002) (“Because in-house counsel may operate in a purely or primarily business capacity in connection with many corporate endeavors, the presumption that attaches to communications with outside counsel does not extend to communications with in-house counsel.”). It is 3D Systems's burden to establish that each of the communications was “made for the purpose of giving legal advice.” In re Grand Jury, 23 F.4th at 1091. However, Johnson's declaration is insufficient to meet this burden. He does not assert that he directed the internal investigation or that 3D Systems personnel conducting the internal investigation reported to him for the purpose of seeking legal advice. Rather, Johson states, in relevant part: *5 Soon after [Defendants] submitted their resignations I am aware that 3D Systems' IT department began collecting certain data related to the Figure 4 project that was available on the [Defendants'] company computers to ensure 3D Systems could continue the development of the Figure 4 technology after the [Defendants] left and maintain its commitments to customers interested in the Figure 4 technology. After the [Defendants'] exit interviews, I am aware that 3DS's IT department collected additional company data related to the [Defendants]. The data collected included emails from the [Defendants'] company email accounts, their company-issued cell phones, their company-issued PC hard drives, certain HR files, the [Defendants'] employment contracts, company-issued credit card usage, and their travel history. I have personal knowledge of the facts related to this data collection and review of the data because I was kept apprised periodically of the collection of data and the progress of the investigation as it was ongoing. Johnson Dec. at ¶ 4 (emphasis added). As the party asserting the privilege, 3D Systems bears the burden to “establish all the elements of the privilege.” Martin, 278 F.3d at 1000. The foregoing evidence is insufficient to establish that 3D Systems employees conducting the “internal audit” were doing so at Johnson's direction to assist him in providing legal advice. Fisher, 425 U.S. at 403 (attorney-client privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege”). Moreover, the assertion that employees kept Johnson “apprised periodically” of the investigation does not indicate that any legal advice was sought or received in connection with these communications. Martin, 278 F.3d at 1000 (privileged communication “must be between the client and lawyer for the purpose of obtaining legal advice”); see also Rowe, 96 F.3d at 1297 (“fact-finding which pertains to legal advice counts as ‘professional legal services’ ”). As such, 3D Systems has failed to establish that the attorney-client privilege applies to privilege log entries 2, 3, 4, 5, 13, 14, 15, 16 and 17. Even if the privilege did apply to these entries, it has been waived as discussed below. 3. Implied Waiver Following 3D Systems's “internal audit,” Johnson retained the Nexsen Pruet law firm “to conduct a further review of the [Defendants'] emails and to determine if any data could be recovered from [their] wiped company computers and from their company-issued cellular telephones.” Johnson Dec. at ¶ 6. Unlike communications between 3D Systems employees and Johnson, communications between 3D Systems and Nexsen Pruet are presumed to be made for the purpose of giving and receiving legal advice. Dolby Lab'ys Licensing Corp., 402 F. Supp. 3d at 866. The issue is whether 3D Systems has impliedly waived the attorney-client privilege with respect to any of those communications. “Where a party raises a claim which in fairness requires disclosure of the protected communication, the attorney-client privilege may be waived.” United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999) (citation omitted). Under Ninth Circuit law, finding an implied waiver requires that: (1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Rambus Inc. v. Samsung Elecs. Co., No. C-05-00334 RMW, 2007 WL 3444376, at *3 (N.D. Cal. Nov. 13, 2007) (citing Hearn v. Wray, 68 F.R.D. 574, 581 (E.D. Wash. 1975)). The implied waiver doctrine is rooted in concerns of fairness and “is often expressed in terms of preventing a party from using the privilege as both a shield and a sword.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003). As the Ninth Circuit explained: *6 The court imposing the waiver does not order disclosure of the materials categorically; rather, the court directs the party holding the privilege to produce the privileged materials if it wishes to go forward with its claims implicating them. The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it ... Essentially, the court is striking a bargain with the holder of the privilege by letting him know how much of the privilege he must waive in order to proceed with his claim. Id. at 720 (citations omitted). “[A]lleging a basis for avoiding a statute of limitations constitutes an affirmative act under the Hearn test.” Rambus Inc., 2007 WL 3444376, at *3. Here, 3D Systems filed suit against Defendants and submitted the Johnson Declaration in opposition to Defendants' motion for summary judgment on statute of limitations grounds. In doing so, Plaintiff “placed in issue [its] own knowledge, and that of [its] attorneys,’ ” such that “any privilege that attache[d] to the information contained” in the emails “is waived, at least in the limited scope of addressing the avoidance of the statute of limitations issue.” In re Imperial Corp. of Am., 179 F.R.D. 286, 289-90 (S.D. Cal. 1998) (finding waiver); see also Aloe Vera of Am., Inc. v. United States, No. CV 99-1794-PHX-JAT, 2003 WL 22429082, at *3 (D. Ariz. Sept. 23, 2003) (finding first prong of Hearn test satisfied where “Plaintiffs have asserted privilege as the result of an affirmative act – by filing a suit in which a statute of limitations defense is available”). And by relying on Johnson's declaration – which describes 3D Systems's 2017 investigation generally (Dkt. No. 363-27) – 3D Systems “put the protected information at issue by making it relevant to the case.” Rambus Inc., 2007 WL 3444376, at *3. The third factor “evaluates whether allowing the privilege would deny the opposing party access to information vital to its defense.” Amlani, 169 F.3d at 1195 (citation omitted). The statute of limitations on 3D Systems'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.” Gregg, 870 F.3d at 885. The facts uncovered by 3D Systems during its 2017 investigation go to the heart of whether it knew or had reason to know of Defendants' purported misappropriation and, as a result, when the limitations period accrued. Tattersalls Ltd. v. Wiener, No. 17CV1125-BTM(KSC), 2020 WL 620286, at *5 (S.D. Cal. Feb. 10, 2020) (where complaint “placed ‘at issue’ when plaintiff and/or its attorneys discovered material facts that would have put them on notice of any fraud claims against defendants,” defendants were “entitled to discover information relevant to when plaintiff and/or its attorneys discovered the material facts that serve as the basis for its causes of action against defendants in this action”). Johnson's declaration describes the 2017 investigation in broad terms (Dkt. No. 396-7 at¶ 6) and concludes that “[b]ased on the information I knew at the time, I did not believe there were sufficient facts to conclude the [Defendants] had actually taken or were using 3DS confidential information or trade secrets.” Id. at ¶ 7. He further avers that “[a]t the time of the investigation in 2017, any allegations that the [Defendants] took or were using 3D System's [sic] trade secrets would have been speculative based on the limited information we had.” Id. However, based on a review of the in camera documents, the Court concludes that paragraph six of Johnson's declaration and the excerpts of his deposition testimony (Dkt. No. 396-5) do not contain all the information that Johnson (and 3D Systems) “knew at the time” and, by extension, what they had reason to know, which is vital to Defendants' statute of limitations defense. See Gregg, 870 F.3d at 885. *7 Plaintiff faults Defendants for not deposing all members of the 3D Systems “internal audit” team. However, it is Plaintiff's burden to establish that it did not waive the privilege, Weil, 647 F.2d at 25, and Plaintiff does not establish that deposing each percipient witness regarding events occurring over six years ago would provide the level of detail regarding the investigation contained in the (assertedly privileged) contemporaneous emails. Moreover, there is no indication that “internal audit” team member depositions would provide information about the further investigation conducted by outside counsel, including the forensic examination of Defendants' devices beyond that testified to by Johnson. Dkt. No. 396-5. Plaintiff contends that “Defendants have been provided the facts and documents concerning the 2017 investigation” and “have the facts to argue whether Plaintiff's misappropriation claim is timely without delving into Plaintiff's counsels' thoughts or what advice counsel gave on specific legal questions.” Dkt. No. 396 at 17, 18. The Court agrees that Defendants should not be permitted to delve into counsel's mental impressions or legal advice. But Defendants are entitled to the facts known to 3D Systems in 2017 beyond Johnson's declaration and his deposition testimony describing the investigation and his conclusions. For all these reasons, the Court concludes that 3D Systems has waived the attorney-client privilege with respect to facts gathered during its 2017 investigation of Defendants. Finding an implied waiver gives rise to “three important implications.” Bittaker, 331 F.3d at 720. “The first is that the court must impose a waiver no broader than needed to ensure the fairness of the proceedings before it.” Id. Here, the Court has reviewed the disputed documents in camera. Amlani, 169 F.3d at 1196 (directing district court to conduct in camera review of privileged documents to determine appropriate scope of waiver). The record before the Court, including its in camera review, justifies a waiver only as to the documents pertaining to the 3D Systems investigation between August and October 2017 because 3D Systems's knowledge during this time period is vital to Defendants' statute of limitations defense. Documents generated in and after 2019, in contrast, are not vital to the statute of limitations analysis because Plaintiff's trade secret misappropriation claims would be timely regardless of whether it knew of the alleged misappropriation as early as 2019 or sometime later. As such, the implied waiver is limited to privilege log entries 2-37, 52-57, 73 and 107.[4] Further, 3D Systems need not produce any portions of those entries that contain counsel's mental impressions or legal advice. Rambus, 2007 WL 3444376, at *6. The second implication is that “the holder of the privilege may preserve the confidentiality of the privileged communications by choosing to abandon the claim that gives rise to the waiver condition.” Bittaker, 331 F.3d at 721. At the motion hearing on January 11, 2024, 3D Systems confirmed its intent to proceed with its trade secret misappropriation claims implicating the privilege even if the Court found an implied waiver. Dkt. No. 435 at 43. “Finally, if a party complies with the court's conditions and turns over privileged materials, it is entitled to rely on the contours of the waiver the court imposes, so that it will not be unfairly surprised in the future by learning that it actually waived more than it bargained for in pressing its claims.” Id. Here, the waiver is limited to those portions of privilege log entries 2-37, 52-57, 73 and 107 that do not contain counsel's mental impressions or legal advice. Moreover, the Court does not find that the waiver “exten[ds] to the full scope of the investigation” (Dkt. No. 390 at 26) as advocated by Defendants. The Court will consider a further request by Defendants to (1) re-open Johnson's deposition for the limited purpose of questioning him about the documents that will be produced pursuant to this Order and (2) depose Clark Walton, the forensic examiner. However, the Court denies Defendants' request to depose outside counsel. B. Attorney Work Product Doctrine *8 “The work-product doctrine is a qualified privilege that protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020). “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case, and protects both material prepared by agents for the attorney as well as those prepared by the attorney himself.” Id. The doctrine “upholds the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies – without their adversaries invoking the discovery process to pry into the litigators' minds and free-ride off them.” In re Grand Jury, 23 F.4th at 1093; see also Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ...”). “In circumstances where a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the ‘because of’ test is used.” United States v. Richey, 632 F.3d 559, 567-68 (9th Cir. 2011). “In applying the ‘because of’ standard, courts must consider the totality of the circumstances and determine whether the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.” Id. “The party asserting work product protection has the burden to demonstrate it applies to the information in question.” Greer v. Cnty. of San Diego, 634 F. Supp. 3d 911, 918 (S.D. Cal. 2022). Here, Johnson described the purpose of the “internal audit” was to determine whether 3D Systems “could continue the development of the Figure 4 technology” to avoid disappointing customers. Johnson Dec. at ¶ 4. The Court finds 3D Systems has not met its burden to show how privilege log entries 2-37, 52-57, 73 and 107 were prepared “in anticipation of litigation.” Sanmina Corp., 968 F.3d at 1119; Gawel, 2021 WL 3810545, at *5 (rejecting a defendant's work product claim where “there is no indication from Defendant that the documents withheld partly under the work-product doctrine were prepared in anticipation of litigation”). As such, the Court concludes that the work product doctrine does not protect these documents from disclosure. Because 3D Systems did not meet its burden of showing the work product doctrine protects these documents, the Court does not reach the issue of whether that protection was waived. See Greer, 634 F. Supp. 3d at 918 (citation omitted) (requiring party asserting waiver to establish “that a waiver of that protection has occurred” only if initial showing of work product protection is made). IV. CONCLUSION For the foregoing reasons, the Court ORDERS as follows: 1. Defendants' motion to compel is GRANTED IN PART. Plaintiff must produce to Defendants the documents referenced in privilege log entries 2-37, 52-57, 73 and 107, subject to any redactions authorized by the Court. 2. By not later than February 28, 2024, 3D Systems must identify any specific portions of privilege log entries 2-37, 52-57, 73 and 107 which it contends contain legal advice or mental impressions of counsel and should be redacted prior to disclosure to Defendants. The submission shall be publicly filed and shall refer to the documents by their corresponding privilege log numbers. 3D Systems shall separately lodge with the Court the referenced documents with highlights to the specific portions for which redaction is requested as reflecting counsel's legal advice or mental impressions. 3. Defendants' motion is DENIED as to the other requested relief. To the extent Defendants seek to reopen the deposition of Johnson or take the deposition of Clark Walton, Defendants may request that relief after reviewing the documents produced by Plaintiff pursuant to this Order. *9 IT IS SO ORDERED. Footnotes [1] The Court relies on the facts contained in the Declaration of Andrew Johnson (“Johnson Dec.”), submitted in opposition to Defendants' motion for summary judgment and in opposition to the instant motion. Dkt. Nos. 363-27, 396-7. Defendants' election to “generally cite to the pleadings” (Dkt. No. 390 at 3 n.2) rather than the evidence was not helpful to the Court for the same reasons articulated by Plaintiff. See Dkt. No. 396 at 10. [2] Throughout his declaration Johnson refers to “3D Systems” and “3DS,” which appears to include both 3DS, Inc. and its corporate parent, 3DS Corporation. The Court similarly will refer to both entities collectively as “3D Systems.” [3] Both parties cite to Gawel v. Radius Health, Inc., 2021 WL 3810545 (S.D. Cal. Aug. 26, 2021), but that case arose under diversity jurisdiction, and the court applied California law to the parties' privilege dispute. [4] Privilege log entries 98-106 are from August 2017, which is the relevant time period, but those documents do not appear to relate directly to 3D Systems's investigation of Defendants and thus are not vital to the statute of limitations defense.