1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANE LABBE, et al., No. 2:20-CV-1975-DAD-DMC 12 Plaintiffs, 13 v. ORDER 14 DOMETIC CORPORATION, 15 Defendant. 16 17 Plaintiffs, who are proceeding with retained counsel, bring this products liability 18 action against Dometic Corporation. Pending before the Court is a motion for reconsideration of 19 the prior discovery order. ECF No. 101. Defendant filed an opposition, and Plaintiffs filed a 20 reply and declaration in support of their motion. ECF Nos. 102, 104, 105. The parties gave oral 21 argument at a hearing on the matter. ECF No. 107. 22 This Court previously held that the sought material, Dr. Buc’s testing and the 23 NHTSA drafts, were protected by attorney-client privilege and the work product doctrine. ECF 24 No. 92. Plaintiffs now request the Court perform an in camera review of the material to 25 determine whether it is appropriately shielded from discovery. ECF No. 101 at 2. Plaintiffs also 26 contend that even if the work-product doctrine applies to the testing, the material should be 27 produced because Plaintiffs have substantial need for the material and cannot, without undue 28 hardship, obtain substantially equivalent information by other means. Id. at 7. Finally, Plaintiffs 1 argue that Defendant waived attorney-client and work product protections by disclosing material 2 to NHTSA. Id. at 5. 3 For the reasons discussed below, the Court maintains that the sought material is 4 generally shielded from discovery by attorney-client privilege and the work product doctrine. 5 However, Dometic waived protections to any material it disclosed to NHTSA. Finally, Plaintiffs 6 have not justified the arduous process of an in camera review of the material. 7 I. BACKGROUND 8 A. Plaintiffs’ Claims 9 This action proceeds on Plaintiffs’ first amended complaint. See ECF No. 40. 10 Plaintiffs’ factual allegations have been summarized in prior orders and will not be repeated here. 11 Plaintiffs assert the following theories of liability: 12 Count I Strict Products Liability Based on Design Defect. 13 Count II Strict Products Liability Based on Failure to Warn. 14 Count III Negligence Based on Design Defect. 15 Count IV Negligence Based on Failure to Warn. 16 Count V Negligence Per Se. 17 Count VI Negligence Based on Failure to Conduct Adequate Recall. 18 Count VII Fraud by Concealment. 19 See id. at ¶¶ 66-106. 20 B. Procedural History 21 Following a hearing before the undersigned on July 20, 2022, on Plaintiffs’ prior 22 motion to compel related to the discovery again at issue now, the matter was submitted. On July 29, 23 2022, the Court issued an order granting Plaintiffs’ motion in part, denying the motion in part, and 24 deferring ruling in part subject to supplemental briefing by the parties. See ECF No. 55. Specifically, 25 the Court ordered follows:

26 a. Defendant’s Objection No. 9 is overruled.

27 b. Defendant’s general objection to definitions is overruled without prejudice to such objections being raised in the context of specific 28 discovery requests. 1 c. Defendant’s general objection to discovery requests seeking the identities of witnesses, particularly corporate directors, officers, and 2 shareholders is sustained subject to Plaintiffs propounding more tailored requests and further meet-and-confer efforts. 3 d. Defendant’s general objection to discovery requests seeking 4 information regarding similar incidents is sustained subject to further meet-and-confer efforts discussing more narrowly tailored requests as to 5 time and description.

6 e. Defendant’s general objection regarding proportionality is overruled subject to further good faith meet-and-confer efforts relating to 7 more narrowly tailored discovery requests. f. The Court defers ruling on Defendant’s objections 8 concerning Dr. Buc’s testing materials subject to supplemental briefing.

9 g. Plaintiffs’ general objection regarding possession, custody, and control is overruled. 10 h. Plaintiffs’ general objection regarding possession, custody, 11 and control is overruled. Plaintiffs’ general objection to reference to documents to respond to interrogatories is overruled subject to the parties’ 12 obligation to strictly comply with Federal Rule of Civil Procedure 33(d)(1) when referencing documents to answer an interrogatory. 13 i. Defendant’s general objection to the use of the word “all” in 14 Plaintiff’s various requests for production is overruled subject to further meet-and-confer efforts and additional tailoring of Plaintiff’s discovery 15 requests.

16 j. Defendant’s objection to the number of interrogatories already served is overruled as waived. Plaintiffs may not, however, propound any 17 new interrogatories absent stipulation or leave of Court.

18 k. Plaintiffs’ motion to compel is granted as to Dometic’s Rule 30(b)(6) witness. 19 l. The Court defers ruling on Defendant’s objections concerning 20 National Highway Traffic Association (NHTSA) drafts subject to supplemental briefing on the related issue of Dr. Buc’s testing materials, 21 which were provided to the NHTSA.

22 See id. at 20-21. 23 The July 29, 2022, order directed the parties to meet and confer on or before August 24 19, 2022, regarding the specific discovery at issue in light of the Court’s general rulings, outlined 25 above. See id. at 21. As to items (f) and (l), the Court directed the parties to submit supplemental 26 briefing. See id. Consistent with the briefing schedule established in the July 29, 2022, order, 27 Plaintiffs filed their supplemental brief on August 3, 2022, see ECF No. 56, Defendant filed its 28 supplemental brief on August 18, 2022, see ECF No. 65, and Plaintiffs filed a reply brief on August 1 24, 2022, see ECF No. 68. 2 On August 12, 2022, Defendant filed a motion for clarification and/or reconsideration 3 of portions of the Court’s July 29, 2022, order. See ECF No. 62. On August 17, 2022, Defendant 4 filed a memorandum in support of its motion for reconsideration. See ECF No. 65. On August 26, 5 2022, Plaintiffs filed their opposition to Defendant’s motion for reconsideration. See ECF No. 71. 6 On September 15, 2022, the Court issued an order vacating the hearing set for September 21, 2022, on 7 Defendant’s motion for clarification and/or reconsideration and that matter was submitted for decision 8 with Plaintiffs’ related motion to compel and in light of supplemental briefing relating to items (f) and 9 (l) outlined in the July 29, 2022, order. See ECF No. 72. 10 On March 31, 2023, the undersigned issued an order addressing these pending 11 motions. See ECF No. 82. The undersigned also ordered certain documents relating to the pending 12 discovery motions to be filed under seal. See ECF No. 83. Relevant here, the undersigned ordered 13 that Defendant’s objections based on the attorney-client and work product privileges had been waived 14 by failure to submit a privilege log. See ECF No. 82. The undersigned set a deadline for Defendant to 15 produce discovery responses. See id. 16 Thereafter, Defendant sought reconsideration of the undersigned’s March 31, 2023, 17 order by the District Judge. See ECF No. 84. On June 14, following briefing and submission without 18 oral argument, the District Judge issued an order resolving Defendant’s motion for reconsideration. 19 See ECF No. 91. The District Judge vacated the deadline set for Defendant to produce discovery 20 responses pursuant to the March 31, 2023, order, and referred the matter back to the undersigned for 21 further consideration of the merits of Defendant’s privileges objections. See id. 22 Upon consideration of the merits of Defendant’s privileges objections, the Court 23 found that the material was shielded from discovery. ECF No. 92. Plaintiffs then filed the current 24 motion for reconsideration. ECF No. 101. 25 / / / 26 / / / 27 / / / 28 / / / 1 II. DISCUSSION

2 A. Dr. Buc’s testing and the NHTSA drafts are relevant for purposes of discovery 3 4 Parties may obtain discovery regarding any nonprivileged matter that is relevant 5 to any party's claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). 6 "Relevance for purposes of discovery is defined very broadly." Garneau v. City of Seattle, 147 7 F.3d 802, 812 (9th Cir. 1998). Determinations of relevance for discovery purposes depend on the 8 unique facts of each case. Liew v. Breen, 640 F.2d 1046, 1049 (9th Cir. 1981). 9 At oral argument Dometic protested that Dr. Buc’s testing and the NHTSA drafts 10 are not relevant because they do not prove or disprove a disputed fact. The testing and drafts 11 establish that the Plaintiffs’ refrigerator was at risk of starting a fire, which is a fact that Dometic 12 readily concedes. Dometic contends that because it is not planning to argue that the refrigerator 13 was not at risk of starting a fire, the documents are not relevant. Dometic maintains it will not use 14 the material at trial. 15 The subject information – Dr. Buc’s testing and the NHTSA drafts – lies at the 16 heart of Plaintiffs’ case. Plaintiffs must show that Dometic’s refrigerator could catch fire to prove 17 their case, and the sought information proves exactly that. Dometic cannot shield the documents 18 from discovery by conceding the issue, as discovery may be sought for all information relevant to 19 a party’s claim – discovery is not restricted to facts in dispute. See Fed. R. Civ. P. 26(b)(1). 20 Because the material is at the heart of Plaintiff’s case, they are relevant even if Dometic is willing 21 to concede that its refrigerators could catch fire.

22 B. Attorney-client privilege applies to the sought material because the material is communications made for the purpose of giving legal advice between 23 Dometic, its counsel, and its counsel’s agent 24 Attorney-client privilege protects confidential communications between attorneys 25 and clients that are made for the purpose of giving legal advice. See United States v. Sanmina 26 Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). “[A]ttorney-client privilege may extend to 27 communications with third parties who have been engaged to assist the attorney in providing 28 legal advice.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). Underlying facts in a 1 communication are not normally covered by the attorney-client privilege. See Upjohn Co. v. United 2 States, 449 U.S. 383, 396 (1981). The holding in Upjohn affirms that fact-finding which pertains 3 to legal advice is protected. Id. at 390-91; United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 4 1996). 5 When Dometic hired Barnes & Thornburg LLP as counsel for the purpose of 6 receiving legal advice about product liability issues with their refrigerators, they established an 7 attorney-client relationship. Their communications then became subject to attorney-client 8 privilege. When Barnes & Thornburg LLP engaged Dr. Buc to test the refrigerators, Dr. Buc’s 9 testing was designed to discover facts that would inform Barnes & Thornburg LLP on what legal 10 advice to give to their client. Dr. Buc became a third party engaged to assist in providing legal 11 advice. Dr. Buc’s communications with Barnes & Thornburg LLP and Dometic were then also 12 subject to attorney-client privilege. Dr. Buc’s communications contained underlying facts, the 13 testing, but the testing is plainly fact-finding which pertains to legal advice and so is protected by 14 attorney-client privilege. The NHTSA drafts were legal advice on how to deal with an 15 administrative agency between Dometic and its counsel, and so it too is protected by attorney- 16 client privilege. 17 At oral argument, Dometic clarified that it does not claim that all its 18 communications surrounding Dr. Buc’s testing are subject to attorney-client privilege. Dometic 19 argues that to the extent some of the communications are not protected by attorney-client 20 privilege, they are nonetheless protected by the work product doctrine.

21 C. The work product doctrine protects Dr. Buc’s testing because the testing was done in anticipation of litigation; the work product doctrine does not protect 22 the NHTSA drafts 23 The work product doctrine protects documents when it can be fairly said that the 24 documents were created because of anticipated litigation and the documents would not have been 25 created in substantially similar form but for the prospect of litigation. See In re Grand Jury, 23 26 F.4th 1088, 1092 (9th Cir. 2021). The primary concern is to “preserve a zone of privacy in which 27 a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from 28 unnecessary intrusion by his adversaries.” Id. at 1093 (quoting United States v. Adlman, 134 F.3d 1 1194, 1197 (2d Cir. 1998)). Work product doctrine shields mental impressions, conclusions, 2 opinions, and legal theories. See Am. C.L. Union of N. California v. United States Dep't of Just., 880 3 F.3d 473, 483 (9th Cir. 2018) (citing Fed. R. Civ. P. 26(b)(3)). The doctrine’s protections extend to 4 material prepared by agents for counsel. United States v. Torf (In re Grand Jury Subpoena), 357 5 F.3d 900, 906 (9th Cir. 2004). Ultimately, the purpose of the privilege is “to encourage effective 6 legal representation within the framework of the adversary system by removing counsel’s fears that 7 his thoughts and information will be invaded by his adversary.” Id. at 486 (quoting Jordan v. U.S. 8 Dep't of Just., 591 F.2d 753, 775 (D.C. Cir. 1978)). Work product is protected even if it was created 9 for a dual purpose, so long as the “litigation purpose so permeates any non-litigation purpose that the 10 two purposes cannot be discretely separated from the factual nexus as a whole.” Torf (In re Grand 11 Jury Subpoena), 357 F.3d 900 at 910. 12 The purpose of Dr. Buc’s testing was for Dometic to be able to better understand 13 its potential liability in future litigation. See ECF No. 49 at 46. Dr. Buc was engaged by 14 Dometic’s counsel instead of Dometic itself, which demonstrates its tie to litigation. See ECF 15 102 at 5. To allow Plaintiffs access to the testing would violate Dometic’s zone of privacy which 16 allows it to develop legal theories and strategy with an eye toward litigation. To the extent the testing 17 was also performed to meet Dometic’s obligations to NHTSA, the purposes of preparing for NHTSA 18 and preparing for litigation are virtually identical. The preparation for NHTSA and the preparation 19 for litigation both result from the same factual nexus, the defective refrigerators. Because Dr. Buc’s 20 testing was performed so that Dometic could prepare for future litigation, it is protected under the 21 work product doctrine. 22 The NHTSA drafts, however, do not serve Defendants in litigation and are 23 distinguishable from Dr. Buc’s testing with respect to the work product doctrine. While the 24 testing shed light on product defects, the drafts have no apparent purpose in preparing for 25 litigation. Defendant admits it “has no intention of relying on the NHTSA [d]rafts as a part of its 26 defense, and it has never disclosed these documents to its experts in this or any other case.” ECF 27 No. 49, pg. 77. Because the documents were not created in anticipation of litigation, they are not 28 protected by the work product doctrine. 1 D. Plaintiffs have not justified piercing the work product doctrine’s protections 2 The work product doctrine does not provide absolute protection – it may be 3 pierced through a showing of unique necessity. See United States v. Sanmina Corp., 968 F.3d 4 1107, 1125 (9th Cir. 2020). The doctrine contains two types of work product with different levels 5 of protection: non-opinion work product and opinion work product. See id. Discovery of non- 6 opinion work product requires a showing of substantial need and inability to obtain the equivalent 7 without undue hardship. Id. Receiving even greater protection, opinion work product is only 8 discoverable when mental impressions are at issue in a case and the need for the material is 9 compelling. Id. Material can contain both non-opinion work product and opinion work product. 10 See id. 11 The testing contains data (non-opinion work product), and interpretations and 12 conclusions based on that data (opinion work product). To obtain the data, Plaintiffs must show 13 that they have a substantial need and are unable to obtain the equivalent without undue hardship. 14 Sanmina Corp., 968 F.3d at 1125. In Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252 15 (3rd Cir. 1993), the Third Circuit examined a situation that mirrors the present issue. OSHA 16 sought discovery of testing on a defective product that was protected by work-product protection. 17 Id. at 1262-63. OSHA sought to pierce work product protections by claiming it would be an 18 undue hardship for OSHA to perform the testing itself. Id. The Third Circuit held that OSHA did 19 not demonstrate undue hardship merely because a new independent testing would be costly and 20 time-consuming. Id. OSHA would have needed to show more than simply it would take 21 significant resources to demonstrate an undue hardship. See id. 22 Here too, Plaintiffs have offered no substantial reason as to why they cannot 23 perform their own testing of the defective product. Although it may be costly, there has been no 24 showing beyond that it would take significant resources for Plaintiffs do their own testing. 25 Because Plaintiffs can obtain the equivalent to Dr. Buc’s testing without undue hardship, the 26 work product doctrine’s protections cannot be pierced. 27 / / / 28 / / / 1 Plaintiffs similarly do not meet the even higher bar for obtaining Dometic’s 2 opinion work product. Plaintiffs bring a products liability case, where Dometic’s mental 3 impressions are not essential for proving the case; although they may be tangentially related to 4 issues such as punitive damages, such tangential uses alone to not justify piercing the work 5 product doctrine for opinion work product. See Holmgren v. State Farm Mut. Auto. Ins. Co., 976 6 F.2d 573, 577 (9th Cir. 1992). Otherwise, opinion work product would be discoverable in nearly 7 every case.

8 E. Dometic waived protections to any material it disclosed to NHTSA, but further disclosure is not warranted under Federal Rule of Evidence 502(a) 9 i. Dometic waived attorney-client privilege over any material disclosed to 10 NHTSA. 11 Attorney-client privilege is expressly waived when a party discloses privileged 12 information to a third party who is not bound by the privilege, or otherwise shows disregard for 13 the privilege by making the information public. Bittaker v. Woodford, 331 F.3d 715, 719 (9th 14 Cir. 2003). Any material sent to NHTSA by Dometic was expressly waived, as NHTSA was not 15 bound by attorney-client privilege— in contrast, NHTSA was an administrative agency that was 16 enforcing a recall against Dometic.

17 ii. Dometic waived work product doctrine protections over any material disclosed to NHTSA. 18 19 Work product doctrine protections, like other qualified privileges, may be waived. 20 United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020). However, the work 21 product doctrine is not as easily waived as is attorney-client privilege. Id. at 1120. Attorney- 22 client privilege is designed to protect confidentiality, so any disclosure is inconsistent with the 23 privilege; the work product doctrine is designed to protect against adversaries, so only disclosure 24 to an adversary is inconsistent with the protection. Id. (citing United States v. Mass. Inst. of 25 Tech., 129 F.3d 681, 687 (1st Cir. 1997)). Disclosing work product to a third party waives work 26 product protection only where the disclosure is made to an adversary in litigation or substantially 27 increased the opportunities for potential adversaries to obtain the information. Id. The key 28 question is whether the disclosure “is inconsistent with the maintenance of secrecy from the 1 disclosing party's adversary.” Id. at 1121 (citing Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235 2 F.3d 598, 605 (D.C. Cir. 2001)). Whether secrecy was maintained is a fact-intensive analysis that 3 requires “a consideration of the totality of the circumstances and is ultimately guided by the same 4 principle of fundamental fairness that underlies much of our common law doctrine on waiver by 5 implication.” Id. at 122-23. 6 Dometic conceded at oral argument that there was no expectation of 7 confidentiality for the material sent to NHTSA. As the regulatory agency that would oversee the 8 recall of the defective product, NHTSA was a potential (if not actual) adversary to Dometic. 9 Because there was disclosure to an entity where there was no expectation of privacy, Dometic 10 acted inconsistent with the work product doctrine, and so waived its protections to the extent it 11 disclosed information to NHTSA. Such disclosed information is discoverable. 12 iii. Further disclosure is not justified under Federal Rule of Evidence 502(a). 13 When a disclosure is made that waives the attorney-client privilege or work 14 product protections in a federal proceeding or to a federal office or agency, the waiver extends to 15 an undisclosed communication or information if (1) the waiver is intentional, (2) the disclosed 16 and undisclosed communications or information concern the same subject matter, and (3) they 17 ought in fairness be considered together. A subject-matter waiver is appropriate only in “those 18 unusual situations in which fairness requires a further disclosure of related, protected information, 19 in order to prevent a selective and misleading presentation of evidence to the disadvantage of the 20 adversary.” Fed. R. Evid. 502 Advisory Committee Note. 21 Plaintiffs suggest that because Dometic previously disclosed limited information to 22 NHTSA, a federal agency, Dometic is now obligated to provide all its information. ECF No. 101 23 at 5-6. But a subject matter waiver is appropriate only where fairness requires it to prevent a 24 selective and misleading presentation of evidence. Dometic has pledged that it will not use any of 25 Dr. Buc’s testing or the NHSTA drafts at trial in this case. Because there is no threat of 26 misleading evidence due to partial disclosure, Rule 502 does not justify further disclosure. 27 / / / 28 / / / 1 F. Plaintiffs’ request for an in camera review of the withheld discovery is not justified because there is no factual basis to suggest the protected material is 2 discoverable 3 Upon receiving a request to perform an in camera review, the Court must consider 4 (1) whether the moving party has met its threshold burden, and (2) whether the Zolin factors 5 (enumerated below) support such a review. United States v. Zolin, 491 U.S. 554, 572 (1989). 6 Ultimately, whether to engage in in camera review rests in the sound discretion of the Court. Id. 7 To justify an in camera review, the moving party must meet its threshold burden 8 of showing “a factual basis adequate to support a good faith belief by a reasonable person” that 9 the reviewed material would be discoverable. See id. The standard is not a stringent one— a 10 lesser evidentiary showing is needed to trigger in camera review than is required ultimately to 11 overcome a privilege. Id. The standard strikes a balance between the intrusion imposed and the 12 likelihood that in camera review may reveal discoverable evidence. In re Grand Jury 13 Investigation, 974 F.2d 1068, 1072-73 (9th Cir. 1992). 14 If the threshold burden is met, the Court must then exercise its discretion in light 15 of the Zolin factors. Zolin, 491 U.S. at 572; id. The Zolin factors provide that before engaging in 16 an in camera review, the Court must consider: (1) the volume of materials the Court has been 17 asked to review, (2) the relative importance to the case of the alleged privileged information, and 18 (3) the likelihood that the evidence produced through an in camera review, together with other 19 available evidence then before the court, will establish that the evidence is discoverable. Zolin, 20 491 U.S. at 572. 21 Plaintiffs’ request for an in camera review arises in conjunction with the remand 22 of the Court’s previous order that the sought material be disclosed for failure to provide a 23 privilege log, and because Dometic claims that only some of its material is protected under the 24 attorney-client privilege, while concurrently claiming all of its material is protected under the 25 work product doctrine. ECF No. 101 at 6. Neither reason is sufficient. To reach their threshold 26 burden, Plaintiffs must show “a factual basis adequate to support a good faith belief by a 27 reasonable person” that the reviewed material would be discoverable. Zolin, 491 U.S. at 572. 28 Plaintiffs have offered no factual basis whatsoever. ] The Court’s previous order based on waiver for failure to provide a privilege log 2 || has no bearing on whether the material is discoverable based on its content. Similarly, that 3 || Dometic is claiming different protections to different extents does not provide a factual basis that 4 || supports the material itself is discoverable. The Court does not need to pour over the fourteen 5 || thousand pages of documents sought merely because different protections are being claimed over 6 || different parts of the documents. Because Plaintiffs have offered no factual basis that the 7 || documents should not be shielded from discovery, let alone a factual basis adequate to support a 8 | good faith belief by a reasonable person, an in camera review is not justified. 9 Il. CONCLUSION 10 Accordingly, IT IS HEREBY ORDERED as follows: 1] 1. Plaintiffs’ motion for reconsideration, ECF No. 101, is GRANTED in part. 12 2. The Court’s prior discovery order 1s modified to reflect that any material 13 || Dometic shared with NHTSA is discoverable, but otherwise the Dr. Buc’s testing and the 14 | NHTSA drafts are shielded from discovery. 15 3. Plaintiffs’ request for an in camera review is denied. 16 17 | Dated: January 29, 2024 Co 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12