NANCY J. KOPPE, Magistrate Judge.
Pending before the Court is Defendants' motion to compel. Docket No. 70. Plaintiff filed a response in opposition. Docket No. 75. Defendants filed a reply. Docket No. 79.
Wells Fargo engaged Bryan Cave in December 2011 to provide legal services in connection with the loan at issue in this case. Docket No. 48 at ¶ 3. "In addition to other roles, Bryan Cave's representation of Wells Fargo included providing advice concerning the possible enforcement of Wells Fargo's rights and remedies under the various loan documents evidencing and reflecting the Loan." Id. at ¶ 5. As part of that representation and in anticipation of litigation, Bryan Cave hired Gordon Garff to conduct an appraisal of the property for which the loan was obtained. See id. at ¶¶ 6, 7. Production of the Garff appraisal itself was subject to motion practice in this case. The Court concluded that Plaintiff had shown that the appraisal generally fell within the protection afforded by Rule 26(b)(4)(D) for non-testifying expert materials prepared in anticipation of litigation, but that exceptional circumstances existed such that its production was still required. See Wells Fargo Bank, N.A. v. ANC Vista I, LLC, 2015 WL 557069, *4, *6 (D. Nev. Feb. 11, 2015).
Shortly after the Garff appraisal was conducted, Plaintiff's counsel sought a review of the Garff appraisal from Plaintiff's in-house appraisal personnel. Docket No. 112 at ¶¶ 10, 12. In response to that request, Casey Merrill at Wells Fargo drafted a "RETECHS Standard Appraisal Review" concerning the Garff appraisal. See Docket No. 75-1 at 65 (redacted "Appraisal Review"); see also Docket No. 97 (Appraisal Review submitted for Court's in camera review).
Because the Court sits in diversity in this case, it turns to state law to determine the existence of any privilege. See Fed. R. Evid. 501.
"Attorney-client privilege applies to communications between lawyers and their clients when the lawyers act in a counseling and planning role, as well as when lawyers represent their clients in litigation." Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 607 (D. Nev. 2005). When an attorney is employed for his legal knowledge and discretion in the law, a "matter committed to [that] professional legal advisor is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter." United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996) (emphasis in original). "Communications between a client and its outside counsel are presumed to be made for the purpose of obtaining legal advice." Phillips, 290 F.R.D. at 634 (concluding that Nevada law would incorporate this presumption). This presumption can be rebutted upon a showing that the communication was not made in furtherance of the rendition of legal advice. See id. at 643; see also Chen, 99 F.3d at 1502 (such communication is privileged "unless it clearly appears to be lacking in aspects requiring legal advice").
As noted above, Bryan Cave was retained as Plaintiff's outside counsel in late 2011 regarding the loan at issue in this case. Docket No. 48 at ¶ 3. The Appraisal Review was a communication between Wells Fargo and its outside counsel. Docket No. 75-1 at 65. As such, there is a rebuttable presumption that the communication was made for the purpose of rendering legal advice and is privileged.
Defendants attempt to rebut this presumption by arguing that Mr. Merrill conducted a standard review for FIRREA compliance that is done as a regular part of loan administration. See Docket No. 79 at 5-6 (discussing deposition testimony). Defendants assert that as an ordinary business document on its face, the Appraisal Review does not merit protection under the attorney-client privilege even though it was communicated to counsel. See id.
Plaintiff disputes Defendants' characterization of the document. In particular, Plaintiff argued at the hearing that the Appraisal Review goes beyond opining on whether the Garff appraisal was FIRREA compliant and "it provides actual feedback to a business lawyer on whether that appraisal was viewed to be a quality appraisal or not." Hearing Rec. (9/17/2015) at 3:16-3:17 p.m.; see also id. at 3:17 p.m. (business lawyer needs to know whether the appraisal was "shabby").
The Court agrees with Plaintiff that the applicable presumption has not been rebutted. Having reviewed the Appraisal Review, the record, and the arguments presented, the Court finds that the communication at issue was made in furtherance of the rendition of legal advice. Accordingly, the Appraisal Review falls within the attorney-client privilege.
For the reasons discussed more fully above, the Court finds that the disputed Appraisal Review is protected by the attorney-client privilege. Accordingly, the motion to compel its production is
IT IS SO ORDERED.