Mewawalla v. Middleman

Background

Rahul Mewawalla and Timothy Beard entered into a written “Common Interest Agreement.” The defendants—Stanley C. Middleman, Michael Middleman, Gregory Middleman, Freedom Mortgage Corporation, and Xpanse, LLC—sought production of the agreement. The court had directed Mewawalla to file it provisionally under seal for the court’s private review.

Mewawalla generally asserted that the agreement contained communications protected by the attorney-client privilege and the attorney work-product doctrine, but he did not identify which communications he believed were privileged. He argued that he had already disclosed the relevant facts—the identities of the agreement’s parties and its May 19, 2021 execution date.

Legal standard

The court explained that the Ninth Circuit recognizes the joint defense privilege, which can protect communications shared with other parties who have a common defense when the communications were otherwise privileged. But a joint defense or common-interest agreement is generally not itself privileged. Such an agreement usually only records the parties’ invocation of an existing privilege and cannot create protections broader than the underlying privilege. A general agreement may receive protection if it contains substantive legal advice or additional privileged information.

The party asserting attorney-client privilege bears the burden of establishing that the privilege applies.

Court’s analysis

After reviewing the agreement, the court found that it contained no substantive legal advice or other information that could be treated as privileged. The agreement only described the general purpose of recognizing that Mewawalla and Beard shared a legal interest, along with general terms concerning information sharing, conflicts, and the parties to the agreement.

The court rejected Mewawalla’s argument that his prior disclosure of the agreement’s basic facts relieved him of producing the document. Instead, the court stated that the prior disclosure strengthened the argument that the agreement’s contents should be produced. The court also found that Mewawalla had not met his burden of showing that the attorney-client privilege applied.

Disposition

The court granted the defendants’ request to obtain a copy of the Common Interest Agreement. It directed the clerk to unseal the copy filed provisionally under seal so that the document would be available to both parties. The order stated that it disposed of Docket No. 64.