Kandypens Inc v. Puff Corp. Case No. CV 20-0358-GW-KS United States District Court, C.D. California Filed December 07, 2020 Counsel Sean J. O'Hara, Pro Hac Vice, Kercsmar and Feltus PLLC, Scottsdale, AZ, Eric Blair Hull, Kercsmar and Feltus PLLC, Santa Monica, CA, for Kandypens Inc. Colin D. Dailey, Bryan Cave Leighton Paisner LLP, Santa Monica, CA, Daniel A. Crowe, Pro Hac Vice, Bryan Cave Leighton Paisner LLP, St Louis, MO, for Puff Corp. Stevenson, Karen L., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER GRANTING DEFENDANT'S MOTION TO COMPEL (Dkt. No. 67) *1 On January 13, 2020, Plaintiff Kandypens, Inc., which designs and markets vaporizers, filed a Complaint (the “Complaint”) alleging that a patent obtained by Defendant, Puffco Inc., U.S. Patent No. 10,517,334 (the “ ‘334 Patent”) for a “Portable Electronic Vaporizing Device,” is invalid. (Dkt. No. 1.) On February 5, 2020, Defendant filed an Answer to the Complaint, which, inter alia, asserts a Counterclaim against Plaintiff for patent infringement of the ‘334 Patent. (Dkt. No. 14.) On October 28, 2020, Defendant filed a Motion to Compel Plaintiff Kandypens to produce seven unredacted emails withheld from production on the basis of privilege. (Dkt. No. 67 (the “Motion”).) Defendant attached to the Motion a Declaration from Defendant's counsel of record, Colin D. Dailey. (Dkt. No. 67-2 (the “Daily Decl.”).) On November 4, 2020, Plaintiff filed an Opposition to the Motion (the “Opposition) (Dkt. No. 72) with Declarations from Graham Gibson, the CEO of Kandypens (Dkt. No. 72-1 (the “Gibson Decl.”)), and Sean J. O'Hara (the “O'Hara Decl.”)) and related exhibits, including the redacted emails themselves (Dkt. No. 72-7 (“O'Hara Decl., Ex. D.”)). On November 10, 2020, Defendant filed a Reply (the “Reply”) in support of the Motion. (Dkt. No. 75.) On November 17, 2020, the Court vacated the hearing on the Motion and took the matter under submission. (Dkt. No. 79.) I. Standard of Review Under Rule 26 of the Federal Rules of Civil Procedure, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and proportionate to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in December 2015, Rule 26(b)(1)identifies the following factors to be considered when determining if the proportionality requirement has been met: the importance of the issues at stake in the action; the amount in controversy; the parties' relative access to the relevant information; the parties' resources; the importance of the discovery in resolving the issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit. (Id.) Relevant information need not be admissible to be discoverable. FED. R. CIV. P. 26(b)(1). “A request for discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action.” Grande v. U.S. Bank Nat'l Ass'n, No. C19-333 MJP, 2020 WL 832307, at *2 (W.D. Wash. Feb. 20, 2020) (quoting Ragge v. MCA/Universal Studios, Inc., 165 F.R.D. 601, 604 (C.D. Cal. 1995)). “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A). II. Background *2 On February 27, 2020, Defendant Puffco served its first set of written discovery to Plaintiff Kandypens. (Motion at 7) (citing Daily Decl., ¶ 2). Request for Production (“RFP”) No. 15 requested all communications between Plaintiff and its manufacturers wherein Plaintiff or the manufacturer discussed Defendant's product, the Peak. (Motion at 7-8) (Daily Decl., ¶ 3). Plaintiff initially refused to comply, but, following the Court's May 19, 2020 Order directing Plaintiff “to produce the non-privileged responsive documents in its possession, custody, or control for the period June 1, 2017 to the present,” Plaintiff produced the requested documents but withheld seven (7) emails between Plaintiff and a Sales Agent for a manufacturer on the grounds of attorney-client privilege, work-product privilege, and/or the common interest doctrine. (Motion at 8) (quoting Dkt. No. 36). These emails are identified in the chart on the following page and contained in redacted form in Exhibit D to the O'Hara Declaration (Dkt. No. 72-7). [1] On August 7, 2020, the parties met and conferred, and, on August 12, 2020, Plaintiff provided an amended privilege log but refused to produce the seven emails identified above (the “Emails”) in unredacted form. (Motion at 9.) On August 20, 2020, counsel for the parties held a second meet and confer. (Motion at 9.) On September 3, 2020, the Court held an informal pre-motion discovery conference and authorized Defendant to file the Motion. (Motion at 9) (citing Dkt. No. 61). The parties held an additional pre-motion meet and confer videoconference on October 21, 2020 but still could not resolve their dispute. (Motion at 10.) III. Discussion A. Factual Background According to Plaintiff, shortly after Defendant unveiled the Peak, the product at issue, Plaintiff began planning to release a competing device called the Oura. (Opposition at 2.) Plaintiff identified a manufacturer (“the Manufacturer”), and Plaintiff and the Manufacturer identified a common interest in avoiding claims by Defendant. (Opposition at 2.) Plaintiff was concerned from the outset of the Oura's development about “exposing itself to intellectual property claims from [Defendant]” and “consulted with counsel to avoid or minimize exposure.” (Opposition at 2; Gibson Decl., at ¶ 4.) Before beginning to work on the Oura, Plaintiff and the Manufacturer, who had worked together before, “confirmed [their] agreement to maintain confidentiality of the project ... and to assist each other in reducing exposure to claims of third parties,” as they had done with prior projects. (Gibson Decl., at ¶ 2.) Gibson exchanged the emails identified as KAN000118 “in furtherance of” their common interest in avoiding or minimizing exposure to intellectual property claims from Defendant. (Gibson Decl., ¶¶ 4-5.) On July 10, 2019, Plaintiff received a letter from Defendant threatening a claim for trade dress infringement (Gibson Decl., Ex. A) and demanding that Plaintiff cease and desist further manufacture of the Oura and, inter alia, identify the manufacturer of, or factory manufacturing, the Oura. (Dkt. No. 72-2.) Upon receipt of this letter, Gibson, Plaintiff's CEO, “again consulted with counsel and the manufacturer” and exchanged the emails identified as KAN000430-33 “in furtherance of that consultation and our mutual desire to avoid liability for trade dress infringement.” (Gibson Decl., ¶¶ 6-7.) *3 According to Plaintiff, in the Emails at issue, Plaintiff shared “the legal advice and mental impressions of its attorneys with Manufacturer related to the common interest.” (Opposition at 2.) “Mr. Gibson was ‘relaying confidential information to the other on behalf of an attorney,’ ” his communications “involved a matter of common interest—the legal manufacturing and marketing of the Oura,” and his communications were “designed to further that effort.” (Opposition at 6.) B. The Court's Analysis The crux of Plaintiff's argument in support of its assertions of privilege is that its communications with the Manufacturer are privileged by operation of the common interest doctrine. However, the common interest privilege is not technically a privilege in and of itself, “rather, it is a doctrine that prevents waiver of a pre-existing privilege if the privileged information is shared only with those with a common legal interest.” Shopify Inc. v. Express Mobile, Inc., No. 20-MC-80091-JSC, 2020 WL 4732334, at *8 (N.D. Cal. Aug. 14, 2020); see also Regents of Univ. of California v. Affymetrix, Inc., 326 F.R.D. 275, 279 (S.D. Cal. 2018) (the “common interest” doctrine is an exception to the general rule that disclosure of protected material to third parties constitutes a waiver). Therefore, where, as here, a party has asserted that material is protected under the common interest doctrine, the court must determine (1) whether, absent any waiver, the material is privileged and (2) if so, whether the common interest doctrine applies to protect the privilege from waiver. C. Attorney-Client Privilege Plaintiff asserts that all of the emails are protected under the attorney client privilege, an assertion that Defendant challenges. (See Motion at 10-12.) The attorney-client privilege applies when the following elements are met: (1) “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 insistence, permanently protected (7) from disclosure by the client or by the legal adviser (8) unless the protection be waived.” United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2001); see also Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1492 (9th Cir. 1989) (attorney-client privilege applies when (1) legal advice is sought (2) from a professional legal advisor in his capacity as such, and (3) the communications relate to that purpose (4) and were made in confidence (5) by or to the client). “A party asserting the attorney-client privilege has the burden of establishing the existence of an attorney-client relationship and the privileged nature of the communication.” United States v. Graf, 610 F.3d 1148, 1156 (9th Cir 2010) (quotations and internal alterations omitted). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” Id. Attorney-client privilege “extends only to communications and not to facts.” Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981) (citation omitted); see also id. (“The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.”). 1. Absent Waiver, Does the Attorney-Client Privilege Apply? Defendant argues that the subject emails are not communications between an attorney and client but, rather, are emails between two non-lawyers from two different companies: Plaintiff and the Manufacturer. (Motion at 11.) Defendant further argues that Plaintiff has provided no evidence that the Emails were sent for the purpose of seeking legal advice from a professional legal advisor, and, therefore, the policy behind the attorney-client privilege—namely, to ensure that a client can make full and frank disclosures to an attorney in order to obtain informed legal advice—is not implicated. (Motion at 11.) *4 In the Opposition, Plaintiff responds that all of Defendant's arguments fail pursuant to the common-interest doctrine. (Opposition at 10.) First, Plaintiff asserts that it has provided redacted copies of the Emails, which show that the Emails reference “legal advice and mental impressions from its attorneys.” (Opposition at 10.) Plaintiff quotes sentences in the redacted emails that start with “My law firm is asking for...” and “My law firm has told ....” (Opposition at 10.) a. Was Legal Advice Sought from a Professional Legal Advisor? Defendant's first contention is that Plaintiff has provided no evidence that the Emails were sent for the purpose of seeking legal advice from a professional legal advisor, and, therefore, Plaintiff has failed to satisfy the first two prerequisites for invoking the attorney-client privilege. (See Motion at 11); see also Martin, 278 F.3d at 999-1000; Admiral Ins. Co., 881 F.2d at 1492. Plaintiff responds by quoting sentences in two of the redacted emails that start with “My law firm is asking for...” and “My law firm has told ....” (Opposition at 10; see also O'Hara Decl., Ex. D) The exhibits attached to the Opposition state that Plaintiff was concerned from the outset of the Oura's development about “exposing itself to intellectual property claims from [Defendant]” and “consulted with counsel to avoid or minimize exposure.” (Opposition at 2; Gibson Decl., at ¶ 4.) Gibson exchanged the emails identified as KAN000118 “in furtherance of” their common interest in avoiding or minimizing exposure to intellectual property claims from Defendant. (Gibson Decl., ¶¶ 4-5.) On July 10, 2019, Plaintiff received a letter from Defendant threatening a claim for trade dress infringement (Gibson Decl., Ex. A) and demanding that Plaintiff cease and desist further manufacture of the Oura and, inter alia, identify the manufacturer of, or factory manufacturing, the Oura. (Dkt. No. 72-2.) Upon receipt of this letter, Gibson, Plaintiff's CEO, “again consulted with counsel and the manufacturer” and exchanged the emails identified as KAN000430-33 “in furtherance of that consultation and our mutual desire to avoid liability for trade dress infringement.” (Gibson Decl., ¶¶ 6-7.) The lines in two of the redacted emails “my law firm is asking” and “my law firm has said” coupled with the statements in the Gibson Declaration establishing that Plaintiff repeatedly consulted with counsel, and then with the Manufacturer, during the development of the Oura and following receipt of the cease and desist letter from Defendant establish that legal advice was sought from a professional legal advisor. b. Did the Communications Relate to the Purpose of Seeking Legal Advice? However, according to the information provided to the Court, only two of the Emails contain an express reference to legal advice. In his Declaration, Gibson states that the initial exchange of emails (KAN000118-19) were “in furtherance” of Plaintiff's consultations with counsel about how to “avoid or minimize exposure” to intellectual property claims by Defendant. (Opposition at 2; Gibson Decl., ¶¶ 4-5.) He states that the subsequent exchange of emails (KAN000430-33) were similarly “in furtherance” of Plaintiff's consultations with counsel following its receipt of Defendant's cease and desist letter as well as “our mutual desire to avoid liability for trade dress infringement.” (Gibson Decl., ¶¶ 6-7.) Defendant states that “[Plaintiff] appears to claim the entire email chains are privileged because in certain sections of certain of the emails [Plaintiff's] CEO references a discussion with a lawyer,” but Plaintiff provided no evidence showing that the discussion at issue concerned legal, as opposed to business, advice protected by the attorney-client privilege. (Motion at 11-12.) *5 Plaintiff's self-serving statements, without any other evidentiary support, are insufficient to support the extent of Plaintiff's redactions. The Court is willing to accept Gibson's signed statements in the Declaration that some portions of the Emails were made in confidence and for the purpose of seeking legal advice. However, because the attorney-client privilege is strictly construed, Graf, 610 F.3d at 1156, the Court is not willing to accept, based on the scant evidence presented, that all of Emails, which presumably contain subject lines, signatures, and other mundanities, relate to the purpose of Plaintiff seeking legal advice. Because the Court declines to infer that every iota of the communications at issue were made for the purpose of seeking legal advice based on 11 words of unredacted text in seven emails, the Court finds that, at this juncture, Plaintiff has not established that all of the information redacted is protected by the attorney client privilege. c. Were The Communications Made in Confidence by the Client? Before beginning to work on the Oura, Plaintiff and the Manufacturer, who had worked together before, “confirmed [their] agreement to maintain confidentiality of the project ... and to assist each other in reducing exposure to claims of third parties,” as they had done with prior projects. (Gibson Decl., at ¶ 2.) Accordingly, Plaintiff has established that the Emails were sent in confidence. Defendant points out, however, that the emails are not communications between an attorney and a client but, rather communications between two non-lawyers from different companies. (Motion at 11.) Indeed, only three of the Emails were sent by Plaintiff. The other four, including the first email sent in this chain (Bates stamp KAN000118), were written by the Sales Agent with the Manufacturer and directed to Plaintiff. In the Opposition, Plaintiff effectively insists that the common-interest doctrine renders it irrelevant whether the communications were made by the client or not. (See Opposition at 10.) Plaintiff is incorrect. As stated above, the common-interest doctrine applies only to prevent waiver of a pre-existing privilege when the privileged information is shared with a third party. See Regents of Univ. of California, 326 F.R.D. at 279; Shopify Inc., 2020 WL 4732334, at *8. Accordingly, Plaintiff must first establish that the material is privileged before the Court can consider whether the common interest doctrine protects the privilege from waiver. Moreover, Plaintiff cites no case law for the principle that communications from a third party to the client constitute communications from the client and therefore are entitled to attorney client privilege. The Court also is aware of no case law that would support this proposition. Accordingly, the Emails that were sent by the Sales Agent with the Manufacturer, which are Bates stamped KAN000118, KAN000430, and KAN000432, are not entitled to attorney client privilege. 2. Did Waiver Occur, and, if so, Does the Common Interest Doctrine Apply? a. Waiver Occurred At this point in the analysis, Plaintiff has established that some portions of only three of the Emails (KAN000118-119, KAN000430, and KAN000432-433) may be entitled to attorney client privilege. The remaining question is, by virtue of sending any privileged information in these emails to the Sales Agent for the Manufacturer, did Plaintiff waive the attorney client privilege—and, if so, is the material nevertheless privileged under the common interest doctrine. The parties effectively agree that privilege was waived (see Motion at 12, Opposition at 10, Reply at 9) but disagree as to whether the common interest doctrine applied to preclude that waiver. The Court agrees with the parties that, in sharing the apparent advice of Plaintiff's counsel with the Manufacturer, Plaintiff waived attorney client privilege. “[T]o the extent that [the plaintiff] asserts attorney-client privilege over communications with business partners, this is an improper assertion of the privilege even if the communication includes advice from counsel. The attorney-client privilege protects open and frank discussions with counsel ... but does not protect disclosure of such advice to third parties.” Eagle Harbor Holdings, LLC v. Ford Motor Co., No. C11-5503 BHS, 2015 WL 196713, at *2 (W.D. Wash. Jan. 14, 2015). In Eagle Harbor Holdings, the plaintiff, like Plaintiff in this case, asserted that attorney-client privilege protected an email from the plaintiff's CEO to a business associate that contained “advice of counsel regarding infringement of patent.” Id. The Western District of Washington stated “While [the plaintiff's] initial conversation with his attorney may be privileged, divulging or paraphrasing such advice to a third person waives the privilege.” Id. b. The Common Interest Applies to Preclude Waiver *6 The question of whether the common interest doctrine applied to preclude this waiver is much closer—and the crux of the dispute between the parties. The common interest doctrine is designed to allow “different clients pursuing a common legal strategy to communicate with each other.” In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012). Although the exception is available regardless of whether litigation has actually commenced, Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964), there must be “an on-going and joint effort to set up a common defense strategy” for the common interest exception to apply. U.S. ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 685 (S.D. Cal. 1996); see also United States v. BDO Seidman, LLP, 492 F.3d 806, 815–16 (7th Cir. 2007) (“the common interest doctrine only will apply where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise”). The common interest exception applies when: “(1) the communication is made by separate parties in the course of a matter of common interest; (2) the communication is designed to further that effort; and (3) the privilege has not been waived.” Regents of Univ. of California, 326 F.R.D. at 279 (quoting U.S. v. Bergonzi, 216 F.R.D. 487, 495 (N.D. Cal. 2003)). Notably, “a shared desire to see the same outcome in a legal matter is insufficient to bring a communication between two parties within this exception.” In re Pac. Pictures Corp., 679 F.3d at 1129. “Instead, the parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement,” id., which need not be written and “may be implied from conduct and situation.” United States v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012) (quoting Continental Oil Co., 330 F.2d at 350). In the attorney-client privilege context, such an agreement must be founded on “a common legal, as opposed to commercial, interest.” Nidec Corp., 249 F.R.D. at 579 (internal quotation marks and citation omitted). Additionally, the communications at issue must be “designed to further that legal effort.” Id. The circuits have split as to whether the communications must be made in anticipation of litigation. Compare, e.g., BDO Seidman, 492 F.3d at 816 (“communications need not be made in anticipation of litigation to fall within the common interest doctrine”) with In re Santa Fe Int'l Corp., 272 F.3d 705, 711 (5th Cir. 2001) (“there must be a palpable threat of litigation at the time of the communication, rather than a mere awareness that one's questionable conduct might some day result in litigation, before communications between one possible future co-defendant and another ... could qualify for protection”); see also William T. Barker, The Attorney-Client Privilege, Common-Interest Arrangements, and Networks of Parties with Preexisting Obligations, 53 TORT TRIAL & INS. PRAC. L.J. 1, 29 (2017) (“Most federal courts agree that common interests can exist for nonlitigated matters ... But the Fifth Circuit disagrees.”). However, the Court is persuaded that the common interest doctrine applies to the full range of communications protected by the attorney-client privilege because this application encourages parties with a shared legal interest to seek out assistance in complying with the law and, in doing so, potentially avert litigation. BDO Seidman, 492 F.3d at 816. Plaintiff has provided ample evidence that the Emails at issue were (1) communications made “in pursuit of a joint strategy in accordance with some form of agreement” that, in turn, was founded on a common legal interest and (2) communications designed to “further that legal effort.” See In re Pac. Pictures Corp., 679 F.3d at 1129; Nidec Corp., 249 F.R.D. at 579. Plaintiff and the Manufacturer plainly entered into their partnership with a shared concern about potential legal exposure, a concern that was validated by Defendant's cease and desist letter, which both threatened litigation and demanded that Plaintiff identify the Manufacturer. Moreover, at least some portions of the Emails were communications made in the course of, and to further, this shared legal interest in avoiding exposure, and formulating a defense, to intellectual property litigation. Cf. Regents of Univ. of California, 326 F.R.D. at 279; Nidec Corp., 249 F.R.D. at 579. In effect, Plaintiff and the Manufacturer were “joint venturers ... planning their activities based on sound legal advice predicated upon open communication.” See BDO Seidman, LLP, 492 F.3d at 816. Accordingly, the Court concludes Plaintiff's waiver of its attorney-client privilege with respect to the privileged portions of the emails Bates stamped KAN000118-119, KAN000430, and KAN000432-433 was precluded by virtue of the common interest doctrine. 3. The Court May Perform In Camera Review *7 The Court has determined that emails from the Sales Agent for the Manufacturer contained in KAN0001118, KAN000430, and KAN000432 are not entitled to attorney client privilege but that some or all of the information in the emails Bates stamped KAN000118-119, KAN000430, and KAN000432-433 may be privileged by operation of the attorney-client privilege and the common interest doctrine. Defendant states that “if the question is at all unclear ... it would be proper and efficient for the Court to review the emails in camera.” (Motion at 16) (citing In re Horn, 976 F.2d 1314, 1318 (9th Cir. 1992)). Plaintiff responds that “privileges operate against not just other parties, but also the Court, so in camera review is disfavored unless the party seeking the review makes a factual showing sufficient to support a reasonable good faith belief that the review will reveal evidence that is not privileged.” (Opposition at 10-11) (internal quotation marks omitted) (citing Newport Pac. Inc. v. County of San Diego, 200 F.R.D. 628, 633 (S.D. Cal. 2001) and K.C.R. v. County of Los Angeles, No. CV 13201-3806 PSG (SSx), 2014 WL 12725470, at *9 (C.D. Cal. Aug. 6, 2014)). The Court finds that the sheer extent of the redactions, which encompass the name and email address of the sender, the subject line of the email, and any signature line, are excessive and support a reasonable good faith belief that the review will reveal some information in the Emails that is not privileged. Accordingly, even by Plaintiff's own standards, in camera review of the three Emails sent by Gibson and Bates stamped KAN000118-119, KAN000430, and KAN000432-433 is warranted. Therefore, IT IS ORDERED that Plaintiff shall provide unredacted copies of these three emails under seal to the Court for review within seven (7) days of this Order. D. Work-Product Privilege Plaintiff asserted that the following five emails are also privileged as attorney work product. Three of these emails—namely, the emails from the Sales Agent for the Manufacturer Bates stamped KAN000430 and KAN000432—the Court determined are not entitled to attorney-client privilege and therefore should be produced in unredacted form unless Plaintiff establishes that they are privileged as attorney work product. The Court determined that the remaining two emails at issue, i.e., the emails sent by Gibson and Bates stamped KAN000430 and KAN000432-433, may be entitled to attorney-client privilege at least in part and must be produced for in camera review. 1. Applicable Law First recognized in Hickman v. Taylor, 329 U.S. 495 (1947), and now codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, the work product privilege protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative,” and, if a court orders discovery of these materials,[2] it must protect against disclosure of “the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” FED. R. CIV. P. 26(b)(3)(A)-(B). Shielding from discovery materials that are prepared “with an eye toward the anticipated litigation” protects the integrity of adversarial proceedings by allowing attorneys to prepare their thoughts and impressions about a case without reservation, Hickman, 329 U.S. at 498, 510-11, and ensures that litigants cannot proceed “on wits borrowed from the adversary,” id. at 516. Am. Civil Liberties Union of N. California v. United States Dep't of Justice, 880 F.3d 473, 484 (9th Cir. 2018). *8 As the parties pointed out, “[t]o qualify for work-product protection, documents must: (1) be ‘prepared in anticipation of litigation or for trial’ and (2) be prepared ‘by or for another party or by or for that other party's representative.’ ” Id. at 484 (quoting United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011)). In determining whether documents were prepared in anticipation of litigation, courts should consider whether such documents “would not have been generated but for the pendency or imminence of litigation.” Griffith v. Davis, 161 F.R.D. 687, 698-99 (C.D. Cal. 1995) (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987)); see also U.S. ex rel. Bagley v. TRW, Inc., 212 F.R.D. 554, 560 (C.D. Cal. 2003) (applying the “but for” test). 2. Positions of the Parties In the Motion, Defendant argues that Plaintiff has provided no evidence that the emails at issue were “prepared in anticipation of litigation” or “to prepare for trial.” (Motion at 13.) Defendant emphasizes that these emails were not prepared by an attorney or an attorney's investigator, expert, or other agent, Plaintiff provided no evidence that the emails concerned the preparation for anticipated litigation—as opposed to the manufacturing of the Oura, and, according to the dates on the emails, the emails were written long before Plaintiff initiated this action (January 13, 2020). (Motion at 13.) Finally, Defendant asserts that, even if the emails are protected under the work-product doctrine, Plaintiff waived the privilege by transmitting the work product to the Manufacturer. (Motion at 13.) In the Opposition, Plaintiff responds that the work product doctrine “shelters the mental processes of the attorney” and “protects both material prepared by agents for the attorney as well as those prepared by the attorney himself.” (Motion at 9) (citing United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020)). According to Plaintiff, the unredacted excerpts from two of the emails from Gibson, which state “My law firm is asking for...” are sufficient to establish that Plaintiff's counsel was soliciting information from the Manufacturer to ward off anticipated litigation. (Opposition at 9.) Plaintiff adds that this interpretation is supported by Gibson's statement in a separate email that “My law firm has told ...” (Opposition at 9.) Plaintiff adds that Gibson was seeking the materials after Defendant threatened litigation, undermining Defendant's argument that the emails were not written “in anticipation of litigation.” (Opposition at 9-10.) Finally, Plaintiff asserts that no waiver of the privilege occurred by virtue of the common interest doctrine. (See Opposition at 9-10, 4-9.) 3. Discussion a. Were the Emails Sent in Anticipation of Litigation? All of the emails that Plaintiff asserts are protected under the attorney work product privilege were written after Plaintiff's receipt of Defendant's cease and desist letter in July 2019, and less than six months before Plaintiff filed the Complaint. Gibson's Declaration states that the emails were “in furtherance” of Plaintiff's consultations with counsel following its receipt of Defendant's cease and desist letter. (Gibson Decl., ¶¶ 6-7.) Further, the Court is persuaded that the unredacted excerpts from two of the emails from Gibson, which state “My law firm is asking for...” are strong evidence that Plaintiff's counsel was soliciting information from the Manufacturer to ward off anticipated litigation. (Opposition at 9.) In light of the foregoing, the Court finds that the emails were generated because of the expectation of imminent litigation. b. Were the Emails Prepared “By or For” Plaintiff or Plaintiff's Counsel? *9 In contrast, Plaintiff has not established that the entirety of the emails at issue were prepared “by or for” Plaintiff or Plaintiff's counsel and reflect “the mental impressions, conclusions, opinions, or legal theories” of Plaintiff's attorney. As stated above, Plaintiff has effectively redacted entire emails, from the sender's identity to the subject and signature lines. Not all of this information can plausibly be characterized as attorney work product—i.e., material prepared by or for Plaintiff or Plaintiff's counsel that, if disclosed, would give Defendant an unfair advantage. The Court is particularly concerned by Plaintiff's redaction of the entire email from the Sales Agent for the Manufacturer that is Bates stamped KAN000430. This email does not appear to be in response to a question or request from Plaintiff's counsel, and Plaintiff has provided no other evidence regarding the contents of this email. Instead, Plaintiff effectively asks the Court to assume that, because Gibson states in a later email that his law firm is “asking for” something, this initial email from the Sales Agent must constitute attorney work product. Plaintiff's argument falls flat, and the Court finds that Plaintiff has failed to show that the email from the Sales Agent for the Manufacturer that is Bates stamped KAN000430 is protected attorney work product. Therefore, IT IS ORDERED that, subject to the terms of the protective order, this email (the email from the Sales Agent for the Manufacturer that is Bates stamped KAN000430) must be produced in its unredacted form to Defendant within seven (7) days of the date of this Order. As to the remaining emails at issue—the two emails from Gibson that are Bates stamped KAN000430 and KAN000432-KAN000433 and the two emails from the Sales Agent that are Bates stamped KAN000432—the Court is persuaded that, if these emails are entitled to work product privilege, any waiver would be justified under the common interest doctrine for the reasons stated infra. However, as stated above, Plaintiff's redactions are excessive and support a reasonable good faith belief that in camera review will reveal some information that is not privileged. Accordingly, IT IS ORDERED that Plaintiff shall provide unredacted copies of the two emails from Gibson that are Bates stamped KAN000430 and KAN000432-KAN000433 and the two emails from the Sales Agent that are Bates stamped KAN000432 under seal to the Court for review within seven (7) days of this Order. IV. Conclusion and Order In light of the foregoing, IT IS ORDERED that the Motion is GRANTED as follows: (1) within seven (7) days of the date of this Order, Plaintiff shall produce in unredacted form for in camera review the emails sent by Gibson and Bates stamped KAN000118-119, KAN000430, and KAN000432-433 and the two emails from the Sales Agent that are Bates stamped KAN000432; and (2) within seven (7) days of the date of this Order, Plaintiff shall produce, subject to the terms of the protective order, the emails from the Sales Agent for the Manufacturer that are Bates stamped KAN000118 and KAN000430 in their unredacted form to Defendant. A chart illustrating the Court's Order is appended as page 17 of this Order for reference. IT IS SO ORDERED. Footnotes [1] There are two different emails from the Sales Agent to Gibson Bates stamped KAN000432. Similarly, there are two emails (one from the Sales Agent to Gibson and one from Gibson to the Sales Agent) Bates stamped KAN000430. [2] These documents or materials may be discovered only if: (1) they are otherwise discoverable under Rule 26(b)(1) and (2) the party shows that it has a 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).