Plaintiff Laura Otis’ Motion to Compel Nonparty Nicole Miller to Comply with the Deposition Subpoena is GRANTED.

Defendants have already produced and listed the documents from the investigation, and contends that it “waive[s] the privilege to the extent of producing to plaintiff all of the [nonprivilege] investigation documents.” (Decl. of Exton, at paragraph 8.) Thus, the court therefore orders the disclosure of the nonprivileged factual investigation (but not communications that are privileged) and a privilege log within 14 days.

Moving party is to give notice.

CCP Section 2025.480(b) provides that a motion to compel the production of documents as specified in a deposition subpoena must be accompanied by a “meet and confer” declaration. Here, the Declaration of James Guziak sufficiently establishes that he has attempted to “meet and confer” with Defendants’ counsel on several occasions. (Decl. of Guziak, at paragraphs 6-14; Exhibits A-C.)

Here, MP is seeking to compel compliance under CCP Section 2025.480.

The subject request that Plaintiff seeks to compel responses on are as follows:

Cat. No. 1: All writings preserved and/or maintained by or for T. Davis & Associates, Inc. that are listed in the attached March 5, 2013 letter of James J. Guziak sent to the attention of Nichole Miller;
Cat. No. 3: All draft reports of investigative work performed by or for T. Davis & Associates, Inc. incident to said investigation;
Cat. No. 4: All writings of interviews performed by or for T. Davis & Associates, Inc. incident to said investigation;
Cat. No. 5: All e-mails (including attachments thereto) generated or received by T. Davis & Associates, Inc. pertaining to said investigation;
Cat. No. 7: All time records for work performed by or for T. Davis & Associates, Inc. incident to said investigation.

In the opposition papers, Defendants contend that they have produced all non-privilege documents. (Decl. of Nichole Miller, at paragraphs 17-22; Decl. of Kristine Exton, at paragraphs 8-10.) Defendants submit declarations stating that Plaintiff has the only version of the two reports, Plaintiff has all of the documents, including emails, that were relied upon in preparing the reports, and that no other email or correspondence exists. (Id.) Defendants contend that they have not waived their attorney-client privilege and/or attorney work-product objections. In response Plaintiff contends that Defendants have clearly not produced all responsive documents, and that Defendants have refused to produce a privilege log although one has been requested.

Generally, the privilege applies to a lawyer’s pre-litigation investigation for a client, provided the dominant purpose of the lawyer’s participation in the investigation is to give legal advice regarding the subject matter of the investigation, rather than routine fact-finding. (Wellpoint Health Networks, Inc. v. Sup.Ct. (McCombs) (1997) 59 Cal.App.4th 110, 122–124. An employer may waive the attorney-client privilege regarding the contents of an attorney’s investigation by raising the fact of the investigation as a defense.

However, if the employer does not rely on the adequacy of the investigation, but instead relies on the reasonableness of its actions in response to an alleged complaint of unlawful employment practices (including initiating an investigation and taking appropriate remedial steps), the employer may avoid waiver of the attorney-client privilege. (Oliver v. Microsoft Corp. (ND CA 2013) 2013 WL 1397394, *1–2 [(applying California law) Plaintiff entitled to obtain disclosure of factual section of defendant’s investigation report, but not section containing privileged legal advice; also Kaiser Found. Hosps. v. Sup.Ct. (Smee) (1998) 66 CA4th 1217, 1227 [“Where a defendant has produced its files and disclosed the substance of its internal investigation conducted by non-lawyer employees, and only seeks to protect specified discrete communications which those employees had with their attorneys, disclosure of such privileged communications is simply not essential for a thorough examination of the adequacy of the investigation or a fair adjudication of the action”]

At this time, it is unclear how the employer is intending to rely (if at all) on the investigative report during litigation. It is unclear whether the employer intends to raise the investigation as a defense, or is planning to assert the reasonableness of its remedial measures. Notwithstanding, it appears that Defendants have already produced and listed the documents from the investigation, and contends that it “waive[s] the privilege to the extent of producing to plaintiff all of the [non-privilege] investigation documents.” (Decl. of Exton, at paragraph 8.) Thus, the court orders the disclosure of the factual investigation (but not communications that are privileged) and a privilege log within 14 days.” (Oliver v. Microsoft Corp. (N.D. Cal., Apr. 5, 2013, C 12-00943 RS LB) 2013 WL 1397394 at *2.)