THOMAS W. MCNAMARA, as the Court-Appointed Receiver for Triangle Media Corporation, Apex Capital Group, LLC; and their successors, assigns, affiliates, and subsidiaries, Plaintiff, v. WELLS FARGO & COMPANY, a corporation, WELLS FARGO BANK, N.A., a national banking association, Defendants Case No.: 21-cv-1245-TWR-DDL [Consolidated with Case No. 21-cv-1246-TWR-DDL] United States District Court, S.D. California Filed April 24, 2024 Leshner, David D., United States Magistrate Judge ORDER DENYING DEFENDANTS' MOTION TO COMPEL PURSUANT TO FEDERAL RULE OF EVIDENCE 612(c) *1 Before the Court is Defendants Wells Fargo & Company and Wells Fargo Bank, N.A.'s (“Defendants”) Motion to Compel Pursuant to Federal Rule of Evidence 612(c) (“Motion to Compel”). Dkt. No. 268. Defendants move to compel production of two sets of documents which Plaintiff Sharon Stiansen (“Stiansen”) referred to during a deposition. Plaintiffs have already produced one document in redacted form, but Defendants contend Rule 612 requires disclosure of both sets of documents in their entirety.[1] Plaintiffs oppose the Motion to Compel. Dkt. No. 278. During a hearing on March 28, 2024, the Court heard oral argument from both parties on the Motion to Compel. Having considered the record before it, the Court DENIES the Motion to Compel because Defendants have failed to show that the redacted or withheld portions of the documents refreshed Stiansen's memory as required under Rule 612(a). Moreover, the attorney-client privilege and work product doctrine protect each set of documents from disclosure and the record before the Court does not reflect that Stiansen waived these protections as to either set of documents. I. BACKGROUND On January 18, 2024, Defendants took the deposition of Stiansen by videoconference. Decl. of Molly M. White, Dkt. No. 268-1 at ¶ 5. Early in the deposition, counsel for Defendants initiated a line of questioning regarding what Stiansen did to prepare for the deposition. Dkt. No. 268-1 at 54:23-25. Stiansen responded that she met with her attorneys and reviewed documents which had been produced in this litigation. Id. at 54:15-17, 55:11-23. When asked further about whether the documents refreshed her recollection as to the facts of the case, and which facts those were, Stiansen asked if she could “grab the book” (hereinafter, the “Book”), and stated, “I don't have it in front of me.” Id. at 56:5-6. When asked further about the facts of the case as to which Stiansen's recollection was refreshed, Stiansen responded that the documents refreshed her recollection of “[t]he nature of the case,” and explained: Wells Fargo aided and abetted Triangle, Apex and Tarr by letting them continue their free trial schemes by opening up business accounts who they know — they knew they were using straw owners for that and, therefore, these enterprises continued to accept credit cards online and continuing to defraud customers. Id. at 56:15 – 57:5. Thereafter, when defense counsel asked Stiansen if she was “reading from something right now,” Stiansen responded, “I have notes. I'm not directly reading” (hereinafter, the “Notes”). Id. at 57:6-9. Plaintiffs subsequently produced the portion of the Notes Stiansen referenced during the deposition, redacting the other portions of the Notes and withholding the documents in the Book. See Decl. of Sharon Stiansen (“Stiansen Decl.”), Dkt. No. 278-1 at ¶ 4. Defendants now move to compel production of the remainder of the Notes and all documents contained in the Book. *2 In her declaration in support of Plaintiffs' Opposition to the Motion to Compel, Stiansen explains that she met with her attorneys as part of her preparation for the deposition, and that she “took handwritten notes during and as a result of our discussions.” Id. In a further declaration in support of Plaintiffs' Opposition, Plaintiffs' counsel Melissa Wright states that in preparation for Stiansen's January 18 deposition, she “hand-selected from ... many thousands of documents seven documents, which I then compiled and provided to Ms. Stiansen in a binder for her review.” Decl. of Melissa Wright (“Wright Decl.”), Dkt. No. 278-2 at ¶ 4. II. LEGAL STANDARD The Federal Rules of Civil Procedure permit a broad scope of discovery: “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). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Additionally, Federal Rule of Civil Procedure 26(b)(3) provides that “[o]rdinarily, 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.” Fed. R. Civ. P. 26(b)(3)(A). However, such materials may be discovered if “they are otherwise discoverable under [Federal Rule of Civil Procedure] 26(b)(1); and the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(i) and (ii). III. DISCUSSION A. Applicable Rules 1. Federal Rule of Evidence 612 Rule 612 provides that “when a witness uses a writing to refresh memory,” “an adverse party is entitled to have the writing produced ..., to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.” Fed. R. Evid. 612(a) – (b). Specifically, the adverse party is entitled to have a writing produced for inspection or cross-examination when a witness uses a writing to refresh their memory “while testifying” or “before testifying, if the court decides that justice requires” the writing to be produced. Fed. R. Evid. 612(a)(1) – (2). When a party seeks disclosure based on the assertion that a witness's recollection was refreshed before testifying, courts have held that justice requires disclosure when there is “ ‘some evidence that a witness actually relied upon documents in giving his testimony or that those documents somehow influenced his testimony.’ ” Vuz v. DCSS III, Inc., No. 20-cv-0246-GPC-AGS, 2022 WL 542883, at *1 (S.D. Cal. Feb. 23, 2022) (quoting T & S Enter., LLC v. Sumitomo Corp. of Am., No. 11cv1318–GPC (MDD), 2012 WL 4845544, at *1 (S.D. Cal. Oct. 10, 2012)). “The burden is on the party requesting production to show that the document actually influenced the witness's testimony.” Sleep Number Corp. v. Young, No. 20-cv-1507 (NEB/ECW), 2022 WL 903138, at *2 (D. Minn. Mar. 28, 2022) (citation and quotation marks omitted). These principles apply with equal force to trials and depositions because Rule 612 is made applicable to depositions by Federal Rule of Civil Procedure 30(c). Vuz, 2022 WL 542883, at *1 (citing T & S Enter., LLC, 2012 WL 4845544, at *1). 2. Attorney-Client Privilege and Work Product Doctrine In a case involving solely state law claims, questions of attorney-client privilege are governed by state law. See Noble v. Wells Fargo Bank, N.A., No. 1:14-cv-01963-DAD-EPG, 2017 WL 5953164, at *2 (E.D. Cal. Jan. 18, 2017) (“Because this case is proceeding on Plaintiff's state law claims, the issue of privilege in this litigation is a question of the state law of California.”); see also Fed. R. Evid. 501 (“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). Here, because Plaintiffs assert claims solely under California law, California privilege law also governs the assertion of attorney-client privilege. See Dkt. No. 221. *3 “The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.’ ” Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 732 (2009) (quoting Mitchell v. Superior Court, 37 Cal. 3d 591, 599 (1984)); Cal. Evid. Code § 954. “The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” Costco, 47 Cal. 4th at 734. A “confidential communication between client and lawyer” is defined under California law as: [I]nformation transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which ... discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and advice given by the lawyer in the course of that relationship. Cal. Evid. Code § 952. The party asserting the privilege bears the burden of “establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” Costco, 47 Cal. 4th at 733. Upon making a prima facie showing that the privilege applies, “the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” Id.; see Cal. Evid. Code § 917. “Unlike issues of attorney-client privilege, issues concerning the work product doctrine are procedural and thus governed by Federal Rule of Civil Procedure 26(b)(3).” Bofi Federal Bank v. Erhart, No. 15cv2353 BAS (NLS), 2016 WL 1644726, at *4 (S.D. Cal. Apr. 26, 2016). Federal law applies to issues of attorney work product “because the work product doctrine creates a qualified immunity instead of a privilege.” Local 703, I.B. of T. Grocery and Food Employees Welfare Fund v. Regions Fin. Corp., No. 12cv1561 H (NLS), 2012 WL 13027572, at *2 (S.D. Cal. Sept. 11, 2012). The work product doctrine protects from discovery “material obtained and prepared by an attorney or an attorney's agent ‘in anticipation of litigation.’ ” Bofi Fed. Bank, 2016 WL 1644726, at *3 (citing Hickman v. Taylor, 329 U.S. 495 (1947)); Fed. R. Civ. P. 26(b)(3). B. The Parties' Arguments Defendants contend that Plaintiffs should be compelled to produce the entirety of the Notes and the Book “because Ms. Stiansen testified those Notes and Book were used to refresh her recollection as to the facts of the case.” Dkt. No. 268 at 4. Defendants further assert, “[t]he Court should compel production of the Book because justice so requires because Ms. Stiansen testified in reliance upon the Notes and did not have an independent memory of the facts of the case.” Id. Moreover, Defendants assert Plaintiffs impliedly waived the attorney-client privilege because “[t]he alleged privileged material in the Notes and Book has been put at issue by Plaintiffs in this litigation, both by virtue of their claim for [Federal Rule of Civil Procedure] 23 class certification and their affirmative efforts to advance those claims in depositions,” and “[t]he knowledge drawn from those materials ... is directly relevant to the aiding and abetting claims that Ms. Stiansen has asserted and to her basis for seeking class certification.” Id. at 10-11. *4 Plaintiffs counter that Stiansen only referenced the Notes to answer one question and that “Defendants never elicited any testimony from Ms. Stiansen indicating that she relied on the Notes once put away.” Dkt. No. 278 at 4. Plaintiffs further contend that no waiver of the attorney-client privilege has been effectuated as to the unproduced portions of the Notes because Stiansen “did not use the substance of the Notes to affirmatively advance her claims, nor can they be said to have influenced her testimony when they were set aside and not referenced for the remainder of her deposition.” Id. at 9. With respect to the Book, Plaintiffs assert that “Defendants never even inquired as to the contents of the Book, the Book was not in front of Ms. Stiansen at any point throughout her deposition, and the contents of the Book were never linked to any portion of Ms. Stiansen's testimony other than the rather broad statement that the materials therein (necessarily) related to the nature of the case.” Id. Moreover, Plaintiffs assert the work product doctrine applies to the Book because the selection of documents, as a group, “would reveal counsel's mental impressions and case strategy.” Id. at 10. C. The Notes 1. Rule 612 As described above, defense counsel asked Stiansen whether documents she reviewed to prepare for the deposition refreshed her recollection of the facts of the case and, if so, which facts those were. Stiansen answered affirmatively and recited the facts as to which her recollection was refreshed by reading verbatim from the Notes. Stiansen's act of referring directly to the Notes and even reading a portion of them into the record indicates that that portion of the Notes refreshed Stiansen's recollection while she was testifying. Fed. R. Evid. 612(a)(1). Accordingly, Rule 612(a)(1) applies to the portion of the Notes Stiansen read aloud during her deposition. Plaintiffs contend the redacted portions of the Notes which Stiansen did not read during the deposition are protected from disclosure by the attorney-client privilege. Dkt. No. 278 at 8. Critically, as Congress acknowledged in the Advisory Committee Notes to Rule 612, “[t]he Committee intends that nothing in the Rule be construed as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory.” Fed. R. Evid. 612 advisory committee's note to 1974 enactment. Therefore, regardless of whether Rule 612 applies, the Court must consider whether the writing is protected from disclosure by the attorney-client privilege or work product doctrine. See Vuz, 2022 WL 542883, at *2 (quoting Suss v. MSX Int'l Eng'g Serv., Inc., 212 F.R.D. 159, 164 (S.D.N.Y. 2002)) (“Thus, ‘the relevant inquiry is not simply whether the documents were used to refresh the witness's recollection, but rather whether the documents were used in a manner which waived the ... privilege.’ ”). As set forth below, the attorney-client privilege provides an independent basis for withholding production of the redacted portions of the Notes, and the Court need not address whether Rule 612 applies to those portions. 2. Attorney-Client Privilege The Court now turns to whether the redacted portions of the Notes are protected from disclosure by the attorney-client privilege and whether Plaintiffs waived the privilege as to those portions. In Stiansen's declaration in support of Plaintiffs' Opposition to the Motion to Compel, Stiansen states that “[i]n preparation for the Deposition, I met with my attorneys, Jonathan Rotter and Melissa Wright, and took handwritten notes during and as a result of our discussions ....” Stiansen Decl., Dkt. No. 278-1 at ¶ 4 (emphasis added). Under California law, the Notes reflect confidential communications between client and lawyer because the Notes were taken in the course of confidential meetings between Stiansen and her attorneys for the purpose of obtaining advice in preparation for the January 18 deposition. See Cal. Evid. Code § 952. The redacted portions of the Notes are therefore subject to the attorney-client privilege. Defendants argue that Plaintiffs impliedly waived the privilege with respect to the Notes by placing the material in the Notes at issue. As the court explained in Ritchie v. Sempra Energy, No. 10cv1513-CAB(KSC), 2015 WL 12912030 (S.D. Cal. June 11, 2015): *5 Under California law, there is an implied waiver of the attorney-client privilege if the client deliberately injects the advice of counsel into a case and specifically puts into issue the decisions, conclusions, and mental state of the attorney who will be called as a witness to provide such matters. Waiver is established based on proof that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action. Ritchie, 2015 WL 12912030, at *15 (citations and quotation marks omitted). The principles governing implied waiver under California law are similar to those governing implied waiver under Ninth Circuit law. As recognized by this Court: 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. 3D Systems, Inc. v. Wynne, No. 21-cv-1141-AGS-DDL, 2024 WL 940318, at *5 (S.D. Cal. Feb 21, 2024). With respect to the redacted portions of the Notes, Stiansen did not place an “otherwise privileged communication directly at issue” such that “disclosure is essential for a fair adjudication of the action.” Ritchie, 2015 WL 12912030, at *15. In other words, Stiansen's assertion of privilege is not the result of “some affirmative act” that placed the privileged contents of the Notes at issue such that those contents are “relevant to the case.” 3D Systems, Inc., 2024 WL 940318, at *5. Thus, Defendants' implied waiver argument fails. At the March 28 hearing on the Motion to Compel, Defendants cited Ludlow v. Flowers Foods, Inc., No. 18-cv-01190-JLS-JLB, 2019 WL 6252926 (S.D. Cal. Nov. 22, 2019) in support of their implied waiver argument. In Ludlow, the court addressed implied waiver in the context of a federal Fair Labor Standards Act case in which the defendants asserted “good faith” as an affirmative defense to the plaintiffs' punitive damages claim. Ludlow, 2019 WL 6252926, at *15. The plaintiffs argued that the assertion of “good faith” as an affirmative defense was an affirmative act that placed the mental state of the defendants' senior executives at issue, thereby requiring disclosure of communications so the plaintiffs could discover what the executives actually knew. Id. The Ludlow court ultimately held there was no implied waiver in relevant part because the defendants did not put the content of their privileged attorney-client communications at issue. Id. at *16-17. Moreover, the court reasoned that, although communications showing the defendants' subjective state of mind are relevant to the plaintiffs' rebuttal of the good faith affirmative defense, the plaintiffs failed to articulate how the communications are vital to their rebuttal. Id. at *17. As in Ludlow, Stiansen did not place the privileged communications reflected in the Notes at issue by invoking “the decisions, conclusions, and mental state” of her attorneys in her testimony. Ritchie, 2015 WL 12912030, at *15. Stiansen simply asserted what she generally understood to be the facts of the case in response to Defendants' questions. Furthermore, as in Ludlow, while Defendants argue that the Notes are relevant to their defense, they have not established that the communications are vital to their defense. See Dkt. No. 268 at 11 (“The knowledge drawn from these materials—which Ms. Stiansen concedes she used to refresh her recollection—is directly relevant to the aiding and abetting claims that Ms. Stiansen has asserted and to her basis for seeking class certification.”) (emphasis added). *6 Additionally, Stiansen's counsel raised privilege objections before and after the disclosure, and Stiansen put the Notes away for the remainder of the deposition after the disclosure. These actions of Stiansen and her counsel indicate that Plaintiffs attempted to shield the unproduced portions of the Notes from disclosure. See Vuz, 2022 WL 542883, at *4 (finding plaintiff did not impliedly waive the attorney-client privilege where plaintiff “answered some of the defense's questions about her notes, while her attorney raised privilege objections to the line of examination,” and plaintiff “consistently tried to shield her notes from disclosure—and never attempted to use them as a ‘sword’ ”). Thus, regardless of whether Rule 612 applies to the redacted portions of the Notes, those portions are protected from disclosure by the attorney-client privilege. D. The Book 1. Rule 612 When asked about which facts Stiansen used documents to refresh her recollection of, Stiansen replied, “Can I grab the book? I don't have it in front of me,” at which point Stiansen's counsel objected and stated that she could “answer the question.” Dkt. No. 268-1 at 55:24 – 56:14. According to Plaintiffs' Opposition, “the Book was not in front of Ms. Stiansen.” Dkt. No. 278 at 6. Therefore, because Stiansen did not rely on the Book to refresh her recollection while she was testifying, Rule 612(a)(1) does not apply. Moreover, even assuming Stiansen reviewed the documents and refreshed her recollection before testifying, Rule 612(a)(2) does not require disclosure because Defendants have not presented evidence that Stiansen “ ‘actually relied upon documents [in the Book] in giving [her] testimony’ ” or that the documents in the Book “ ‘somehow influenced [her] testimony.’ ” Vuz, 2022 WL 542883, at *1. 2. Work Product Doctrine Even if Rule 612 did apply to the Book, the documents therein would be shielded from production under the work product doctrine. See Wright Decl., Dkt. 278-2 at ¶ 4 (describing process whereby counsel “hand-selected from ... many thousands of documents seven documents, which I then compiled and provided to Ms. Stiansen in a binder for her review .... The selected documents represented, as a group, my legal analysis concerning the evidence relevant to the claims and defenses in the case”). As the Court in San Diego Unified Port Dist. v. Monsanto Co., 15-cv-0578-WQH-AGS, 2018 WL 3656298 (S.D. Cal. Aug, 2, 2018) held: The selection process of defense counsel in grouping certain documents together out of the thousands produced in [the] litigation is work product entitled to protection under [Federal Rule of Civil Procedure] 26(b)(3) ... [b]ecause identification of the documents as a group will reveal defense counsel's selection process, and thus his mental impressions[.] ... Preparing a client for a deposition with a selection of documents falls squarely within this principle. San Diego Unified Port Dist., 2018 WL 3656298, at *3 (citations and quotation marks omitted). Because the selection and organization of documents for the Book by counsel constitutes work product that reveals counsel's mental impressions, the documents would have been shielded from disclosure regardless of whether Rule 612 applied. IV. CONCLUSION For the foregoing reasons, Defendants' Motion to Compel [Dkt. No. 268] is DENIED in its entirety. IT IS SO ORDERED. Footnotes [1] Except as otherwise stated, all further references herein to “Rule[s]” shall mean the Federal Rules of Evidence.