CALIFORNIA STATE TEACHERS’ RETIREMENT SYSTEM, A PART OF CALIFORNIA’S GOVERNMENT OPERATIONS AGENCY vs DPR CONSTRUCTION, A GENERAL PARTNERSHIP, A CALIFORNIA GENERAL PARTNERSHIP, et al.

The Parties’ APPEARANCE IS REQUIRED to address the Court’s concerns below.

Background

24CV013090: CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM, A PART OF CALIFORNIA'S GOVERNMENT OPERATIONS AGENCY vs DPR CONSTRUCTION, A GENERAL PARTNERSHIP, A CALIFORNIA GENERAL PARTNERSHIP, et al. 03/27/2026 Hearing on Motion to Compel (DPR Construction) in Department 22

This consolidated action involves claims and disputes among CalSTRS; CalSTRS’s project manager Ridge Capital, Inc. (“Ridge”); CalSTRS’s construction contractor DPR Construction, a General Partnership (“DPR”); DPR’s affiliated entities (the “DPR Entities”), the Sureties, and DPR’s subcontractors arising out of the construction of CalSTRS’s headquarters expansion project.

Summary of Discovery Dispute

DPR’s motion to compel concerns a dispute over CalSTRS’s assertion of attorney-client privilege and work product protection over certain documents produced by Ridge. This dispute was the subject of extensive meet and confer efforts, as well as conferences with the Court, which are summarized below.

On October 17, 2025, the Court set an Informal Discovery Conference (“IDC”) for November 7, 2025, regarding discovery disputes, including the disputes related to CalSTRS’s assertion of attorney-client privilege and work product protection. (Merrell Decl., ¶ 2, Exh. 1; 10-17-25 Minute Order.)

On October 31, 2025, DPR, CalSTRS, and Ridge filed a Joint IDC letter. (Merrell Decl., ¶ 3, Exh. 2; 10-31-25 Joint IDC Letter.) The letter described both the general dispute over CalSTRS’s and Ridge’s assertions of privilege and work product protection, as well as the specific dispute regarding the Weaver 2024 audit report, which CalSTRS is withholding on attorney work product and attorney-client privilege grounds. (Ibid.)

Following the November 7, 2025 IDC, the Court memorialized the Parties’ discussions and agreements regarding the privilege dispute:

Informal Discovery Conference The parties agreed to the following during the conference:  Ridge indicated that it has withheld from production several emails that include CalSTRS’s counsel on the basis of attorney-client privilege/attorney work product. Ridge agreed to provide electronic copies of these emails to CalSTRS's counsel no later than November 12, 2025. CalSTRS will then review those emails and produce a privilege log to Defendant DPR no later than November 26, 2025.  CalSTRS will also produce a privilege log of documents withheld related to the 2024 Weaver Report no later than

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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November 26, 2025, along with a declaration that supports the basis of the asserted privilege. After this production, counsel will meet and confer regarding any perceived deficiencies.  The Court previously reserved January 30, 2026 for a possible motion to compel. The Court keeps that date on calendar. Counsel agreed to the following briefing schedule and agreed to toll the deadline to move to compel to the date the motion is due (note that January 19, 2026 is a court holiday): o Motion due 16 court days before the hearing o Opposition due 9 court days before the hearing o Reply due 5 court days before the hearing

Further Case Management The Court sets a further CMC/IDC for December 12, 2025 at 1:30 p.m. The parties shall file a Joint Case Management Statement and a Joint IDC Letter by 5:00 p.m. on December 8, 2025 and email a courtesy copy to Dept22@saccourt.ca.gov.

(11-7-2025 Minute Order.)

On November 26, 2025, CalSTRS provided its first privilege log (“1st Priv. Log”). (Merrell Decl., ¶ 6, Exh. 5.) The 1st Priv. Log contained 1,044 entries. (Ibid.) While the 1st Priv. Log included several columns that approximated the metadata fields of the automated privilege log option in the Parties’ Stipulated ESI Protocol and Order, the information was incomplete and apparently not derived from any metadata. (Ibid.)

The Parties provided an update in their December 8, 2025 Joint Case Management Statement, reporting that CalSTRS had provided a privilege log and the Parties were meeting and conferring. (12-8-2025 Joint CMC Stmt.) Ridge also reported that it was continuing to review documents it withheld from prior productions to DPR and provided them to CalSTRS to review and determine if an objection based on privilege was applicable. (Ibid.) DPR’s separate CMC statement provides additional details regarding the dispute, including by identifying specific deficiencies in the 1st Priv. Log. (12-9-2025 DPR’s Sep. CMC Stmt.) DPR’s separate statement also provided an update regarding the Weaver audit issue and Mr. Holtz’s declaration. (Ibid.)

These issues were addressed at the December 12, 2025 IDC/CMC. The Court summarized the discussion as follows:

4. DPR raised concerns regarding CalSTRS privilege log,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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particularly the entries for documents in the possession of Defendant Ridge Capital. CalSTRS reported that Ridge Capital sent its documents to CalSTRS in PDF format without the metadata, so the privilege log entries reflect only generic information. This information is not sufficient to allow DPR (or the Court) to evaluate the propriety of the privilege/work product designations. The Court orders Ridge to provide the native format of these documents to CalSTRS so that CalSTRS can include accurate information in the privilege log.

5. CalSTRS produced a declaration from one if its in-house attorneys, Alex Holtz, to support its assertion of privilege/work product protection for the Weaver audit report. DPR contends that this declaration is insufficient to support CalSTRS's position and is concerned that CalSTRS will later attempt to supplement this declaration in a way that will prejudice DPR. Therefore, DPR asked to depose both Mr. Holtz and a PMQ from Weaver. In lieu of proceeding with depositions at this time, CalSTRS stipulated to stand on the Holtz declaration it already produced in support of its position that the Weaver report is privileged and/or work product.

(12-12-2025 Amended Minute Order.) The Court set a further IDC for December 19, 2025 “to address the ongoing discovery dispute between CalSTRS, Ridge and DPR related to alleged privileged and work product documents.” (Ibid.)

On December 19, 2025, Counsel appeared on behalf of CalSTRS, DPR, and Ridge for the further IDC. (12-19-2025 Minute Order.) The Parties reached the following agreements: “1. No later than Monday, December 22, 2025, Ridge will provide the documents at issue in native format to CalSTRS. [¶] 2. Assuming Ridge meets this deadline, CalSTRS will produce an updated privilege log to DPR no later than Wednesday, December 24, 2025. [¶] 3. If these deadlines are met, the discovery motion hearing and related briefing deadlines can proceed as scheduled.” (Ibid.)

On December 24, 2025, CalSTRS provided its second privilege log (“2nd Priv. Log”). (Merrell Decl., ¶ 10, Exh. 9.) The 2nd Priv. Log contains 2,251 entries. (Ibid.) Like the 1st Priv. Log, the 2nd Priv. Log included several columns that approximated the metadata fields of the automated privilege log option in the Parties’ Stipulated ESI Protocol and Order. (Ibid.) The 2nd Priv. Log added columns for “From,” “To,” and “CC,” but removed columns for “Custodian,” “Attorney,” and “File Author.” (Ibid.) The first 1,044 entries on the 2nd Priv. Log are repeated from the 1st

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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Priv. Log. (Id., ¶¶ 6, 10, Exhs. 5 and 9.) Of the remaining 1,207 entries, DPR asserts that dozens include third parties other than Ridge, and many more list no attorney’s involvement in attorneyclient communications. (Id., ¶ 10, Exh. 9.)

On December 31, 2025, CalSTRS provided its third privilege log (“3rd Priv. Log”). (Merrell Decl., ¶ 13, Exh. 12.) The 3rd Priv. Log contains 902 entries. (Ibid.) The entry listing Control Number CalSTRS-0073415 on page 28 of the 2nd Priv. Log is the first entry not represented on the 3rd Priv. Log, all prior entries are included on the 3rd Priv. Log. (Id., ¶¶ 10, 13 Exhs. 9, 12.) The 3rd Priv. Log contains 10 columns, which generally conform to the standard privilege log option. (Id., ¶ 13, Exh. 12.) The information previously included in the “Privilege Reason” column of the prior privilege logs is included under “Privilege Type.” (Ibid.) The information in a new “Subject/Description” column appears to generally include a description of the title or subject line of the document but does not include a basis for the privilege assertion. (Ibid.)

On January 7, 2026, DPR filed the instant motion. On January 16, 2026, CalSTRS opposed. In support of CalSTRS’s opposition, CalSTRS provided a fourth privilege log (“4th Priv. Log”), purporting to correct certain alleged deficiencies. (Thiel Decl. ISO Opp., ¶ 10, Exh. H.) The 3rd Priv. Log is 69 pages, while the 4th Priv. Log is 74 pages. (Merrell Decl., ¶ 13, Exh. 12; Thiel Decl. ISO Opp., ¶ 10, Exh. H.) CalSTRS fails to identify, such as through highlighting or other notation, which entries changed. The entries are not numbered and the Court cannot ascertain how many documents are listed. While Mr. Thiel indicates that the revisions were to address alleged deficiencies regarding third parties, it appears that the entries from page 1 to the top of page 37 track the 3nd Priv. Log and the remaining entries are either new or pulled in from the 2nd Priv. Log.[1]

Following the Court’s initial hearing on this matter, CalSTRS provided a revised privilege log on February 13, 2026 (“Omnibus Priv. Log”). (Merrell Decl., ¶ 2.) DPR’s supplemental briefing concerns the Omnibus Priv. Log.

Legal Standard

Attorney-Client Privilege

Under California law, the attorney-client privilege protects from disclosure confidential communications “made during the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740 (Costco); see also Evid. Code, § 954.) For the purposes of the privilege, “client” means “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.” (Evid. Code, § 951.) A “confidential

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communication” means “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, 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.” (Evid. Code, § 952.) It also “includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” (Ibid.)

The attorney-client privilege is “the most sacred of all legally recognized privileges, and its preservation is essential to the just and orderly operation of our legal system.” (In re Grand Jury Proceedings Grand Jury No. 97-11-8 United States v. Doe (9th Cir. 1998) 162 F.3d 554, 556.) The privilege “exists to promote the attorney-client relationship by safeguarding the client’s confidential disclosures and the attorney’s advice. (Insurance Co. of North America v. Superior Court (1980) 108 Cal.App.4th 758, 765.)

It “enhance[s] the effectiveness of our adversarial legal system by encouraging the full and candid communication between lawyers and clients.” (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 912.) “[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Costco, supra, 47 Cal.4th at p. 732.) The privilege “applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.” (Roberts v.

City of Palmdale (1993) 5 Cal.4th 363, 371.)

The party claiming the privilege has 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. (D.I. Chadbourne, Inc. v. Superior Court of San Francisco (1964) 60 Cal.2d 723, 729 (D.I. Chadbourne); Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123 (Wellpoint).) Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden to prove the communication was not confidential or that the privilege does not for other reasons apply. (Evid. Code, § 917(a); Wellpoint, supra, 59 Cal.App.4th at pp. 123–124.)

It is settled law that a corporate client, like CalSTRS, can claim the privilege. (Evid. Code § 954; Costco, supra, 47 Cal.4th at p. 733.) However, the privilege analysis in a corporate setting “becomes complex because a corporation can speak only through an officer, employee, or some other natural person.” (D.I. Chadbourne, supra, 60 Cal.2d at p. 732.) In D.I. Chadbourne, the California Supreme Court grappled with “[w]hat principles determine whether the natural person who speaks is speaking from the status of a client (actual or prospective), or is merely a witness whose unprivileged communication someone else is seeking to suppress under a claim of privilege.” (Ibid.) The Court ultimately held that, “[w]here the employee’s connection with the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation’s business, the employee is no longer an independent witness, and his statement or report is that of the employer; [] If the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer’s purpose in requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged; [] When the corporate employer has more than one purpose in directing such an employee to make such report or statement, the dominant purpose will control.” (Id., at p. 737 [emphasis added].)

Essentially, if the “dominant purpose” for an employee’s report to in-house counsel is to further the attorney-client relationship “for the purpose of anticipated litigation” or seeking legal advice, the employee’s work is protected. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 174–75; Wellpoint, supra, 59 Cal.App.4th at p. 120.) The protected work includes “any reports of factual material even though the factual material might be discoverable by other means.” (Costco, supra, 47 Cal.4th at p. 740.)

In these circumstances, the employee stands “in the shoes” of the employer, and makes “a confidential communication to his attorney in the course of professional employment.” (Suezaki, supra, 58 Cal.2d at pp. 174–75.) If, on the other hand, the employee was collecting information in the regular course of business, the fact that a copy of his report was ultimately transmitted to the attorney could not have the effect of creating a privilege where none previously existed. (Ibid.)

In addition to the purpose of the employee’s communication, the Court must also consider the role of the attorney. This inquiry can be complicated in the context of in-house counsel representing a corporation, with in-house counsel often serving a variety of functions and providing both legal and non-legal advice. Generally, the attorney-client privilege is not applicable where the attorney merely acts as a negotiator or to provide business advice. (Aetna Cas. & Sur. Co. v. Sup. Ct. (1984) 153 Cal.App.3d 467, 475 [summarizing cases before concluding that, in Aetna, the attorney was retained to provide legal advice].)

Courts will look at whether the communication was made in furtherance of the attorney-client relationship, while taking into consideration that an attorney may be hired to address business affairs, but also give legal advice during the course of the representation, and that such advice should be protected notwithstanding the original purpose for which the attorney was employed. (Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217.)

In the context of a fact investigation, the threshold question is whether the communication was made pursuant to an “attorney-client relationship” where the attorney’s work amounts to providing “legal service or advice.” (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1032 (“City of Petaluma”); Cal. Evid. Code § 951.) The California Court of Appeal held

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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that a privileged relationship exists even where the attorney is providing a legal service through her investigative expertise without providing any legal advice. (City of Petaluma, supra, 248 Cal.App.4th at p. 1027.) That said, not all attorney-led investigative work amounts to the requisite legal service. The City of Petaluma court also recognized that a party may oppose a claim of privilege by presenting evidence that the attorney is engaged in “routine fact-finding on behalf of the company’s personnel department rather than legal work” and is thus not providing a legal service. (Ibid. [citing Wellpoint, supra, 59 Cal.App.4th at p. 123].) Moreover, “documents prepared independently by a party, including witness statements, do not become privileged communications or work product merely because they are turned over to counsel.” (Wellpoint, supra, 59 Cal.App.4th at p. 119.)

Attorney Work Product

Under California law, there are two categories of work product: absolute and qualified. (CCP, § 2018.030.) Absolute work product protects any writing that contains “an attorney’s impressions, conclusions, opinions, or legal research or theories,” and it is “not discoverable under any circumstances,” unless there is waiver. (Id., § 2018.030(a).) Even qualified work product, which is any attorney work product that does not contain attorney impressions, conclusions, opinions, or theories, is still strongly protected. It may be discovered only if denying the discovery would “unfairly prejudice the party seeking” it or would “result in an injustice.” (Ibid.)

The Discovery Act does not otherwise define “work product,” leaving it to courts to define on a case-by-case basis. Some courts evaluate whether the material at issue is “derivative” versus “nonderivative,” or “interpretative” versus “evidentiary.” (Coito v. Superior Court (Coito) (2012) 54 Cal.4th 480, 488-489 [citing cases].) Those courts have concluded that only “material created by or derived from an attorney’s work reflecting the attorney’s evaluation of the law or facts” constitutes work product. (Ibid. [citing cases].)

Examples might include “diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial.” (Ibid.) Conversely, “material that is only evidentiary in nature does not constitute work product,” such as “the identity and location of physical evidence or witnesses.” (Ibid.) Other courts look to the policies underlying the work product statute and its legislative history. (Ibid.) Fundamentally, the doctrine exists: (1) to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases”; and (2) to “[p]revent attorneys from taking undue advantage of their adversary's industry and efforts.” (Curtis v.

Superior Court (2021) 62 Cal.App.5th 453, 468 [citing § 2018.020, subds. (a) & (b)].) Based on these principles, the California Supreme Court concluded in Coito that “witness statements obtained as a result of interviews conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product

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protected by section 2018.030.” (Coito, supra, 54 Cal.4th at p. 489.)

Unlike federal law, which protects only documents prepared in anticipation of litigation or for trial (see Fed. Rules Civ. Proc, rule 26(b)(3)), California’s protection is broader. The work product protection is not limited to writings created by a lawyer in anticipation of a lawsuit – it also applies to writings prepared by an attorney while acting in a nonlitigation capacity. (State Comp. Ins. Fund v. Sup.Ct. (2001) 91 Cal.App.4th 1080, 1091; Laguna Beach County Water Dist. v. Sup.Ct. (2004) 124 Cal.App.4th 1453, 1461; County of Los Angeles v. Sup.Ct. (2000) 82 Cal.App.4th 819, 833.) However, the dominant-purpose test still applies. (See generally, Wellpoint, supra, 59 Cal.App.4th at pp. 119-124 [discussing test in context of both attorneyclient privilege and attorney work product doctrine].)

Neither the attorney-client privilege nor the work product doctrine protect facts from disclosure, even if those facts may be contained in a privileged communication. A party may not cast a cloak of privilege over facts merely by passing them along to its lawyers: “Knowledge that is not otherwise privileged does not become so merely by being communicated to an attorney Moreover, the forwarding to counsel of nonprivileged records, in the guise of reports, will not create a privilege with respect to such records and their contents where none existed before.” (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 210-211.)

Privilege Logs

CalSTRS unequivocally bears the burden of proving preliminary facts necessary to support the assertion of privilege and/or protection. (Costco, supra, 47 Cal.4th at p. 733; see also D. I. Chadbourne, supra, 60 Cal.2d at p. 729 [“The party claiming privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.”].) “The opponent of the claim of privilege [then] has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco, supra, 47 Cal.4th at p. 733; Evid. Code, § 917.)

“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (CCP, § 2031.240(c)(1).) The foundational facts upon which the attorney-client privilege depends – for example, the existence of an attorney-relationship or the fact the communications were made in the course of that relationship – are ordinarily not regarded as “confidential” and, hence, not privileged. (Coy v. Superior Court (1962) 58 Cal.2d 210, 219, 220; State Farm Fire & Cas. Co. v. Superior Court (1997) 54 Cal.App.4th 625, 638.)

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A privilege log should identify with particularity the document and set forth clearly the extent of, and the specific ground for, the objection and/or a particular privilege, sufficient to substantiate a claim of privilege and permit a judicial evaluation of said claim. (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189 [citing Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292]; Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1126, 1130 [Typically, a privilege log “should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.”].)

Discussion

The Court incorporates its January 30, 2026 Amended Minute Order. While CalSTRS takes issue with DPR’s categorical approach based on the privilege log, the Court notes that this is consistent with the Court’s instruction.

The Court now turns to the disputed categories.

1. 443 Documents Omitted from the Omnibus Priv. Log

DPR argues that the Court should order CalSTRS to produce the 443 documents listed on the 3rd Priv. Log that were omitted from the Omnibus Priv. Log. (DPR’s Supp. Brief, p. 2:22-23.) DPR contends that, given its arguments regarding waiver and the Court’s Orders requiring CalSTRS to produce a complete privilege log, that the omission of these documents “can only be deemed to be an intentional waiver of privilege and work product.” (Id., pp. 2:23-3:2.)

CalSTRS opposes, arguing that the failure to include a document on a privilege log does not constitute a waiver. (CalSTRS’s Supp. Opp., pp. 5:14-6:18.) CalSTRS contends that “[w]hile CalSTRS is currently unaware of any privileged or protected information not included in its Privilege Log, it has not waived the right to assert any such privilege or protection in the future” and that “[a]s document review progresses, entries may be removed from later iterations of the privilege log because prior privilege assessments were contextualized, identified as duplicates, intentionally waived, or reclassified after further review.” (Id., p. 5:21-28.)

As the Court previously explained, DPR offers no persuasive authority for its assertion that dropping documents off a privilege log constitutes a waiver. While Catalina Island Yacht Club identifies “failing to claim the privilege in a proceeding in which the holder has the legal standing and opportunity to do so” as a method for waiving privilege (Catalina Island Yacht Club, supra, 242 Cal.App.4th at p. 1126), it also clearly provides that “[f]ailing to serve a

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privilege log or serving an inadequate privilege log does not fall into any of these three methods.” (Ibid.)

However, the Court clearly required CalSTRS to provide a revised, omnibus privilege log, which the Court explained was a “controlling privilege log that identifies all documents CalSTRS has withheld to date on the basis of privilege.” (1-30-26 Amended Minute Order.) CalSTRS asserts that the Omnibus Priv. Log “superseded prior iterations provided by CalSTRS and, to the best of CalSTRS’s efforts, is accurate and complete as of the date of its submission.” (CalSTRS’s Supp. Opp., p. 5:19-21.) In a footnote in response to DPR’s request for an in-camera review, CalSTRS asserts that it “is not currently claiming any privilege or protection as to any of the 443 documents included in Exhibit 1 to Mr. Merrell’s Supplemental Declaration.” (Id., p. 8, fn 1.) However, it is not clear to the Court whether these documents have been produced.

CalSTRS shall be prepared to confirm whether these 443 documents have been produced. If they have not been produced, CalSTRS shall provide a timeline for the production.

It should go without saying that if CalSTRS is not claiming any privilege or protection as to these documents, they must be produced. That does not mean that failure to include documents on the privilege log constitutes a waiver, but CalSTRS cannot indefinitely withhold responsive documents without clearly asserting the privilege/protection.

2. 376 Documents Where No Attorney is Listed as an Author or Recipient

Next, DPR challenges 376 documents where no attorney is listed in the “From,” “To,” “CC,” or “BCC” fields. These documents are further broken out into two subcategories: (1) 11 documents where no attorney is even listed in the additional “Attorney” field, and (2) 365 documents where an attorney’s name has been added to the “Attorney” field, but there is no evidence that any attorney sent or received the original email.” (DPR’s Supp. Brief, pp. 2:1-11, 3:7-13; Merrell Decl., ¶¶ 3-4, Exhs. 2 [11 documents] and 3 [365 documents].)

As a threshold matter, document 1710 [“RCI_EMAILS_00187146.pdf”] is included in Exhibit 2, but the entry lists Alex Holtz, an attorney for CalSTRS, in the “Recipients/To” field. (Merrell Decl., ¶ 3, Exh. 2, p. 2.) Accordingly, DPR’s arguments are not applicable to this document.

CalSTRS contends that the absence of an attorney alone does not defeat its assertion of privilege or protection, and DPR fails to support its assertion that it does. (CalSTRS’s Supp. Opp., p. 6:19- 23.)

As a general matter, the Court agrees with CalSTRS. Within organizations, legal advice

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frequently flows through internal communications among employees responsible for implementing or conveying the attorney’s advice or gathering information at the attorney’s direction. (See D.I. Chadbourne, supra, 60 Cal.2d at p. 732 [“a corporation can speak only through an officer, employee, or some other natural person.”]; Southern California Edison Co. v. Superior Court (2024) 102 Cal.App.5th 573, 589-590 [concerning application of work product protection to attorney-led internal investigations].) And, at least when the Parties were negotiating the ESI Order, DPR acknowledged the possibility that an attorney may be involved despite not appearing in the metadata by including the “Attorney” field to capture attorneys and legal staff not included in the metadata. (See Stipulated ESI Order, ¶ 19(a).)

The absence of an attorney in the “From,” “To,” “CC,” or “BCC” fields is, therefore, not dispositive. And for the vast majority of the challenged entries, the privilege log indicates that the document was a “Request for information as directed by counsel.” (See Merrell Decl., ¶¶ 3-4, Exhs. 2 and 3.) The Court is persuaded that this description is sufficient to satisfy CalSTRS’s initial burden.

Having satisfied its initial burden, the burden shifts to DPR to demonstrate that the communication was not confidential or that the privilege does not apply for other reasons. (Evid. Code, § 917(a); Wellpoint, supra, 59 Cal.App.4th at pp. 123-124.) DPR makes no such showing and does not even address the description provided.

However, the Court notes that the following documents do not include an attorney and also do not indicate that the document is a “Request for information as directed by counsel.” - Exh. 2, document 903 [“22.06.28 IT Furniture bdg relcass calstrsapproved.pdf”], which is described as “PII data protected under GDPR [¶] Produced Redacted: CalSTRS- 0128810.” (Merrell Decl., ¶ 3, Exh. 2, p. 1.) This appears to be completely unrelated to the disputes briefed. The Parties shall be prepared to discuss the basis for redaction here and whether a true dispute exists. - Exh. 3, document 241 [“0375.pdf”], which is described as “re: HQE Budget Forecast Update.” (Merrell Decl., ¶ 4, Exh. 3, p. 5.)

As to this document, CalSTRS has not met its prima facie burden because CalSTRS has not explained how the listed attorney was involved in the withheld document. - Exh. 3, document 1046 [“2017-10-27 01-19-18PM – FW- CalSTRS Contract.pdf”], which is described as “FW: CalSTRS Contract.” (Merrell Decl., ¶ 4, Exh. 3, p. 17.) As to this document, CalSTRS has not met its prima facie burden because CalSTRS has not explained how the listed attorney was involved in the withheld document.

However, the descriptions of documents 241 and 1046 are similar to many of the documents for which CalSTRS provides sufficient explanation. The Court will entertain an explanation from

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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CalSTRS regarding these documents. If CalSTRS fails to explain why these documents are privileged/protected, the Court is inclined to conclude that they must be produced.

3. 253 Documents Related to the Executive Steering Committee Meetings

Finally, DPR asks the Court to order the production of 253 documents related to the Executive Steering Committee. (DPR’s Supp. Brief, p. 3:14-25.) Describing the document at issue in CalSTRS’s motion to disqualify DPR’s counsel, DPR expresses its concern that “CalSTRS is simply rehashing the same species of improper privilege assertion as to similar Executive Steering Committee meetings that have a predominant business purpose.” (Id., p. 3:22-24.)

For each of the 253 documents, CalSTRS identifies the involved attorney(s) or, where no attorneys are listed in the metadata, indicates that the document was a “Request for information as directed by counsel.” (See Merrell Decl., ¶ 5, Exh. 4, pp. 2, 6-9, 11-13, 16, 29-30, 64, 66, 83- 84.)

DPR offers little more than speculation based on the issues raised with regard to the disputed document at issue in CalSTRS’s motion to disqualify. While the Court was not persuaded that that particular document was privileged (and in any event, any privilege was waived), it does not follow that the 243 challenged documents here are not privileged. It is entirely conceivable that some minutes of the Executive Steering Committee meetings are privileged. And even if a particular set of meeting minutes are not privileged/protected, correspondence involving attorneys or conducted at an attorney’s direction could still be privileged/protected.

The Court is persuaded that CalSTRS has satisfied its initial burden. DPR has not met its burden to demonstrate that the privilege/protection does not apply.

4. In-Camera Review

DPR contends that the Court has the authority to conduct an in-camera review of all of the documents at issue in Exhibits 1 through 4. (DPR’s Supp. Brief, p. 4:1-8.)

CalSTRS opposes, arguing that DPR’s request is unwarranted and would “require the dedication of significant judicial resources.” (CalSTRS’s Supp. Opp., pp. 8:21-9:15.)

Because CalSTRS represents that it is not asserting privilege/protection as to the documents in Exhibit 1, the Court focuses its analysis on Exhibits 2 through 4.

The Court declines DPR’s request to conduct an in-camera review. First, most of the materials at

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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issue involve a claim of attorney-client privilege.[2] In Costco, the Supreme Court concluded that, while Evidence Code section 915(b) permits an in-camera review for documents claimed to be protected by the work product protection, “[n]o comparable provision permits in camera disclosure of information alleged to be protected by the attorney-client privilege.” (Costco, supra, 47 Cal.4th at p. 736.) There is simply no basis to compel the disclosure of privileged documents for in-camera review.

Moreover, a review of the 42 documents that were only withheld on the basis of work product protection would only be appropriate if the Court was “unable” to make a determination about the applicability of the protection “without requiring disclosure of the information.” (Evid. Code, § 915(b).) That is not the case here. As discussed above, the Court has rejected DPR’s arguments as it relates to Exhibit 3 (where the 42 documents appear). As to the two documents listed above where the Court agreed that CalSTRS had failed to meet their initial burden, those documents were only withheld on the basis of attorney-client privilege.

Finally, DPR’s argument is not supported by its citation to CCP section 2031.285(d) or Government Code section 11130(c). CCP section 2031.285 concerns inadvertent disclosure and, after notice and sequestration, subdivision (d) provides that “[i]f the receiving party contests the legitimacy of a claim of privilege or protection, he or she may seek a determination of the claim from the court by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal.” (CCP, § 2031.285(d)(1).) This provision does not create an unfettered right to request an in-camera review as to documents withheld on the basis of privilege and has no application here.

Government Code section 11130 is similarly inapplicable. Section 11130 concerns actions to stop or prevent violations of Article 9 of the Government Code. Subdivision (c) permits the discovery of audio recordings of closed sessions, which the Court has the discretion, upon a violation of Section 11126 (which concerns closed sessions on issues related to a public employee and the employee’s right to request a public hearing), to order pursuant to subdivision (b). Finaly, subdivision (c)(5) explicitly provides that “[n]othing in this section shall permit discovery of communications that are protected by the attorney-client privilege.” Nothing in this provision supports the requested in-camera review of documents and communications related to Executive Steering Committee sessions in the instant litigation.

Disposition

Subject to the Parties’ clarification at the hearing, DPR’s motion to compel is tentatively GRANTED IN PART and DENIED IN PART, as follows: - DPR’s motion to compel production of the documents identified in Exhibit 1 is

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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GRANTED insofar as CalSTRS must produce any documents that it does not contend are privileged or protected, but DENIED insofar as DPR seeks a finding of waiver. - DPR’s motion to compel production of documents 241 and 1046 in Exhibit 3 is TENTATIVELY GRANTED, pending CalSTRS’s clarification. - DPR’s motion to compel production of the documents identified in Exhibit 4 is DENIED. - DPR’s request for an in-camera review of all disputed documents is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (CCP § 1019.5; CRC Rule 3.1312.)

[1] Other than the two final entries (“CalSTRS Ridge Construction Audit Report” and “CalSTRS

DPR Construction Audit Report”), the documents listed on the 3rd Priv. Log have a four-digit numerical filing naming convention (i.e., “0001.pdf”). Many of the “new” documents listed in the 4th Priv. Log appear to be CalSTRS’s documents (as CalSTRS is identified as the “Custodian”) and include original file names, as opposed to Bates numbers or other production related file names. (See Thiel Decl. ISO Opp., ¶ 10, Exh. H [internal pages 37-47].) Others list Ridge as the “Custodian.” (Id., internal pages 47-74.) [2] Every document listed in Exhibit 2 involves a claim of attorney-client privilege. (Merrell

Decl., ¶ 3, Exh. 2.) In Exhibit 3, 42 documents are withheld only on the basis of work product protection. The remaining documents (323 documents) are withheld, at least in part, on the basis of attorney-client privilege. (Id., ¶ 4, Exh. 3.) In Exhibit 4, no documents are withheld only on the basis of work product protection. (Id., ¶ 5, Exh. 4.)

The Court has ordered the Parties’ appearance. The Parties are encouraged to appear via Zoom with the links below:

To join by Zoom link - https://saccourt-ca-gov.zoomgov.com/my/sscdept22 To join by phone dial (833) 568-8864 ID 16184738886

Parties requesting services of a court reporter may arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. The list of Court Approved Official Reporters Pro Tempore is available at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-13.Pdf.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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If you are not using a reporter from the Court’s Approved Official Reporter Pro Tempore list, a Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) must be signed by each party, the private court reporter, and the Judge. The signed form must be filed with the clerk prior to the hearing.

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211). The form must be filed with the clerk at least 10 days prior to the hearing or at the time the hearing is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

Please note that the Complex Civil Case Department now provides information to assist you in managing your complex case on the Court website at https://www.saccourt.ca.gov/civil/complex-civil-cases.aspx. The Court strongly encourages parties to review this website regularly to stay abreast of the most recent complex civil case procedures. Please refer to the website before directly contacting the Court Clerk for information.