ORDER ADJUDICATING JOINT DISCOVERY LETTER BRIEF AND HOLDING CLAIM OF WORK-PRODUCT PROTECTION WAS WAIVED

Re: ECF No. 117

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Plaintiff Judy Codding filed this breach-of-contract claim against her former employer Pearson Education, Inc. in February 2018.

In the spring and summer of 2018, Dr. Codding sent various text messages and emails to another former Pearson Education employee, Lawrence Singer.1 Among other things, Dr. Codding forwarded to Mr. Singer communications that she had with her counsel and her husband about her case.2

On March 20, 2019, Pearson Education gave notice to Dr. Codding of its intent to issue a subpoena to Mr. Singer (and gave Dr. Codding a copy of its proposed subpoena).3 On March 26, 2019, pursuant to the subpoena, Mr. Singer produced to Pearson Education his text messages and emails with Dr. Codding (including Dr. Codding's forwarding to him of her communications with her counsel and her husband).4 On April 4, 2019, Pearson Education filed these text messages and emails as an attachment to its reply brief in support of its motion for leave to file an amended answer and counterclaims.5

On April 6, 2019, Dr. Codding requested copies of all documents Pearson Education received in response to any subpoenas.6 On April 9, 2019, Pearson Education produced Mr. Singer's document production (the same documents it had filed as an exhibit to its reply brief).7 That same day, Dr. Codding sent Pearson Education an email asserting a claim of work-product protection over Mr. Singer's document production and demanding that Pearson Education delete and destroy any copies thereof, pursuant to Paragraph 5.3 of the Protective Order in this case.8 Pearson Education maintains that Dr. Codding waived any claim of work-product protection by voluntarily disclosing information to Mr. Singer, which allowed Pearson Education to obtain that information from Mr. Singer.9

The court can decide this dispute without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court holds that Dr. Codding waived any claim of work-product protection she might have had over the text messages and emails she sent to Mr. Singer.

ANALYSIS

1. Governing Law

"The work-product doctrine protects `from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.'" United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989)). The party asserting work-product protection has the burden of establishing that the work-product doctrine applies to the document or tangible thing in question. Callwave Commc'ns, LLC v. Wavemarket, Inc., No. C 14-80112 JSW (LB), 2015 WL 831539, at *2 (N.D. Cal. Feb. 23, 2015) (citing Skynet Elec. Co. Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 WL 6623874, at *2 (N.D. Cal. Dec. 13, 2013)).

"For work product, `protection is waived where disclosure of the otherwise privileged documents is made to a third party, and that disclosure enables an adversary to gain access to the information.'" Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 580 (N.D. Cal. 2007) (quoting United States v. Bergonzi, 216 F.R.D. 487, 497 (N.D. Cal. 2003)). This may occur where "a party discloses protected information to a third party who is not bound to maintain its confidence, or otherwise shows disregard for the protection by making the information public." Great Am. Assur. Co. v. Liberty Surplus Ins. Co., 669 F.Supp.2d 1084, 1092 (N.D. Cal. 2009) (internal brackets omitted) (quoting Bittaker v. Woodford, 331 F.3d 715, 719, 720 n.4, 722 n.6 (9th Cir. 2003)).

2. Application

Dr. Codding sent text messages and emails to Mr. Singer, including messages that forwarded her communications with her counsel and her husband about her case. Dr. Codding made these disclosures voluntarily, and those disclosures enabled Pearson Education to obtain from Mr. Singer these communications. Additionally, Dr. Codding did not object or move to quash Pearson Education's subpoena of Mr. Singer, either when Pearson Education first notified her about the subpoena or at any point until five days after Pearson Education filed the communications as an attachment to its reply brief. The court holds that Dr. Codding has waived any claim of work-product protection that she might have had over these text messages and emails.

Dr. Codding argues that her text messages and emails contain privileged attorney-client communications.10 By sending these text messages and emails to Mr. Singer — a third party — Dr. Codding waived any attorney-client privilege she might have had over them. Pac. Pictures Corp. v. U.S. Dist. Ct. (In re Pac. Pictures Corp.), 679 F.3d 1121, 1126-27 (9th Cir. 2012) ("[V]oluntarily disclosing privileged documents to third parties will generally destroy the privilege. The reason behind this rule is that, `[i]f clients themselves divulge such information to third parties, chances are that they would also have divulged it to their attorneys, even without the protection of the privilege.' Under such circumstances, there simply is no justification to shut off judicial inquiry into these communications.") (citations omitted). The fact that Dr. Codding forwarded privileged attorney-client communications to Mr. Singer does not strengthen her claim of work product over these communications; to the contrary, it evidences her disregard for maintaining protection over them.11

Dr. Codding also argues that she has an absolute right to communicate with former Pearson Education employees to obtain relevant information about her case.12 This argument is beside the point. Whether she has the right to communicate with Pearson Education employees does not automatically entitle her to cloak those communications under a claim of work-product protection.

CONCLUSION

The court holds that Dr. Codding waived any claim of work-product protection she might have had over the text messages and emails she sent to Mr. Singer.13

IT IS SO ORDERED.