The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 FIRDOS S. SHEIKH, M.D., No. 2:23-cv-01582-TLN-SCR
12 Plaintiff,
13 v. ORDER
14 SPINNAKER INSURANCE COMPANY,
15 Defendant.
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17 Defendant Spinnaker Insurance Company has asserted an advice of counsel defense. The
18 parties agree that this constitutes a waiver of attorney-client privilege as to that advice. But the
19 parties dispute whether the waiver also extends to related communications, a dispute brought
20 before the undersigned through letter briefing and an informal telephonic discovery conference
21 (“IDC”). ECF No. 99. After the IDC, the Court ordered the parties submit supplemental briefs
22 “as to whether and how fairness principles, as discussed in Handgards, Inc. v. Johnson &
23 Johnson, 413 F.Supp. 926, 929 (N.D.Cal.1976) and Fed. R. Evid. 502(a), apply in this case[.]”
24 ECF No. 100. The parties filed their supplemental briefs on February 2, 2026. ECF Nos. 103,
25 104. Defendant also voluntarily submitted for in camera review an unredacted version of the
26 letter originally filed in ECF No. 99-1 at 12-19.
27 This dispute concerns two sets of documents: (1) two opinion letters from Clinton &
28 Clinton, a law firm, relating to the second fire at Plaintiff’s property (ECF No. 99-1 at 2-19), and
1 (2) emails exchanged between lawyers and the representatives from Hippo (who apparently also
2 represented Defendant) to whom the earlier opinion letters had been addressed (ECF No. 99 at
3 20-40). Plaintiff seeks disclosure of unredacted versions of these documents. Defendant objects
4 to in camera review and asserts that any waiver of privilege must be “narrowly defined.” ECF
5 No. 103 at 2-3 (quoting Transamerica Title Ins. Co. v. Superior Court, 188 Cal.App.3d 1047,
6 1052-53 (1987)).
7 The Court is exercising diversity jurisdiction over the state law claims in this case.
8 California law applies regarding the existence and scope of attorney-client privilege. See In re
9 California Pub. Utilities Comm’n, 892 F.2d 778, 781 (9th Cir. 1989) (“In diversity actions,
10 questions of privilege are controlled by state law.”); Fed. R. Evid. 501 (establishing that in civil
11 cases, “state law governs privilege regarding a claim or defense for which state law supplies the
12 rule of decision”). Defendant contends that because “California state law governs a claim of
13 privilege,” including “the scope of an evidentiary privilege,” state law also governs the scope of
14 any waiver of such privilege. ECF No. 103 at 2 (quoting Iroquois Master Fund, Ltd. v. Global
15 ePoint, Inc., No. CV 08-7761 UA (SSx), 2018 U.S. Dist. LEXIS 227171, at *12 (C.D. Cal. Jan. 9,
16 2018)). While that might be the more coherent and desirable approach, it is not the one dictated
17 by Federal Rule of Evidence (“FRE”) 502.
18 FRE 502 was enacted in part to effectively eliminate subject matter waivers of attorney-
19 client privilege and work product protection.1 FRE 502(a) provides:
20 Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of
a Waiver. When the disclosure is made in a federal proceeding or to a federal office or
21 agency and waives the attorney-client privilege or work-product protection, the waiver
extends to an undisclosed communication or information in a federal or state proceeding
22 only if:
23 (1) the waiver is intentional;
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1 Prior to the enactment of FRE 502 in 2008, the predominant rule in several federal circuits,
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including within the Ninth Circuit, had been that “voluntary disclosure of the content of a
26 privileged attorney communication constitutes waiver of the privilege as to all other such
communications on the same subject.” Weil v. Investment/Indicators, Research & Mgmt., Inc.,
27 647 F.2d 18, 24 (9th Cir. 1981). The rule from Weil “was modified when Rule 502(a) was
adopted in 2008.” Gateway Deliveries, LLC v. Mattress Liquidators, Inc., No. 2:14-cv-02033
28 JWS, 2016 WL 232427, at *2 (D. Ariz. Jan. 20, 2016).
1 (2) the disclosed and undisclosed communications or information concern the
same subject matter; and
2 (3) they ought in fairness to be considered together.
3 Under FRE 502, “subject matter waiver is limited to situations in which a party intentionally puts
4 protected information into the litigation in a selective, misleading and unfair manner.” FRE
5 502(a), Advisory Committee Notes. “The idea is to limit subject matter waiver to situations in
6 which the privilege holder seeks to use the disclosed material for advantage in the litigation but to
7 invoke the privilege to deny its adversary access to additional materials that could provide an
8 important context for proper understanding of the privileged materials.” 8 Charles Alan Wright,
9 et al., Federal Practice and Procedure § 2016.2 (3d ed., 2010 update). As long as the party
10 asserting the privilege “is not selectively and misleadingly presenting the disclosed materials as
11 evidence[,]” FRE 502 protects against a subject matter waiver. Gateway, 2016 WL 232427, at
12 *3.
13 FRE 502(f) further clarifies, “notwithstanding Rule 501, this rule applies even if state law
14 provides the rule of decision.” Federal courts have unwaveringly applied Rule 502 to determine
15 the scope of a waiver in diversity jurisdiction cases like this one. See Attia v. Oura Ring, Inc.,
16 No. 23-cv-03433-HSG (LJC), 2025 WL 2962866, at *4 n.3 (N.D. Cal. Oct. 21, 2025) (“[I]f the
17 Court determines that there has been a waiver, it would consider federal law to determine the
18 scope of the waiver.”); Century Aluminum Co. v. AGCS Marine Ins. Co., 285 F.R.D. 468, 471 n.2
19 (N.D. Cal. 2012) (“The Federal Rules of Evidence govern the scope of waiver even if state law
20 provides the rule of decision.”). Defendant does not cite a case to the contrary. If there has been
21 an “intentional” waiver, the Court must determine whether “the disclosed and undisclosed
22 communications or information concern the same subject matter” and “whether they ought in
23 fairness to be considered together.” FRE 502(a).
24 This brings the Court to Defendant’s more substantial contention: that FRE 502 “governs
25 only certain waivers by disclosure,” and does not apply to “common law waiver doctrines relating
26 to waiver of attorney/client privilege, including assertion of advice of counsel.” ECF No. 103 at 3
27 (emphasis in original). Defendant does not cite any case law on whether an advice of counsel
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1 defense is a “disclosure” within the scope of FRE 502, but cites the Advisory Committee Notes,
2 which include the following:
3 The rule governs only certain waivers by disclosure. Other common-law waiver doctrines
may result in a finding of waiver even where there is no disclosure of privileged
4 information or work product. See, e.g., Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir.
1999) (reliance on an advice of counsel defense waives the privilege with respect to
5 attorney-client communications pertinent to that defense) … . The rule is not intended to
displace or modify federal common law concerning waiver of privilege or work product
6 where no disclosure has been made.
7 By distinguishing “waivers by disclosure” from “[o]ther common-law waiver doctrines” like the
8 advice of counsel doctrine, the Advisory Committee suggests that the latter is not subject to FRE
9 502(a).
10 Plaintiff does not squarely address whether assertion of an advice of counsel defense is a
11 “disclosure” within the scope of FRE 502(a). However, as Plaintiff points out, Mungia-Brown v.
12 Equity Residential, 337 F.R.D. 509 (N.D. Cal. 2021), involved what was in substance an advice
13 of counsel defense. The court in that case applied FRE 502(a)(3) to require “in fairness” the
14 disclosure of additional materials related to that advice, beyond the “selective disclosures”
15 initially made by the defendant. Mungia-Brown, 337 F.R.D. at 513, 517. Mungia-Brown thus
16 suggests that an advice of counsel defense is a disclosure covered by FRE 502(a). Moreover, the
17 Statement of Congressional Intent indicates Congress’ understanding that FRE 502(a) would
18 cover invocations of an advice-of-counsel defense:
19 This subdivision [(a)(1)] does not alter the substantive law regarding when a party’s
strategic use in litigation of otherwise privileged information obliges that party to waive
20 the privilege regarding other information concerning the same subject matter, so that the
information being used can be fairly considered in context. One situation in which this
21 issue arises, the assertion as a defense in patent-infringement litigation that a party was
relying on advice of counsel, is discussed elsewhere in this Note. In this and similar
22 situations, under subdivision (a)(1) the party using an attorney-client communication to its
advantage in the litigation has, in so doing, intentionally waived the privilege as to other
23 communications concerning the same subject matter, regardless of the circumstances in
which the communication being so used was initially disclosed.
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25 In short, court practice and Congressional intent demonstrate that the waiver at issue here may
26 properly be evaluated under FRE 502(a).
27 The undersigned concludes that assertion of an advice of counsel defense should be
28 treated as a “disclosure” subject to FRE 502(a). Any other conclusion would lead to the bizarre
1 and mind-numbing result that FRE 502(a) would apply to determine the scope of a waiver
2 concerning an intentional disclosure of an opinion letter containing advice of counsel, while state
3 law would otherwise apply to determine the scope of a waiver concerning an advice of counsel
4 defense. In any event, the purported distinction between a “disclosure” and the assertion of a
5 common-law defense in the abstract is academic under the circumstances of this dispute.
6 Defendant has already disclosed advice of counsel letters, albeit with redactions. The Court will
7 apply FRE 502(a) to determine whether redacted content from the contested documents “concern
8 the same subject matter” and “whether they ought in fairness to be considered together” such that
9 they must be disclosed to Plaintiff.
10 Defendant objects that California law prohibits the Court “from engaging in in camera
11 review of communication claimed to be privileged to allow a ruling on the claim of privilege.”
12 ECF No. 3. But Defendant’s authority for this point, Costco Wholesale Corp. v. Superior Court,
13 expressly states, “after the court has determined the privilege is waived or an exception applies
14 generally, the court to protect the claimant’s privacy may conduct or order an in camera review
15 of the communication at issue to determine if some protection is warranted notwithstanding the
16 waiver[.]” 47 Cal. 4th 725, 740 (2009) (emphasis added).2 State law poses no obstacle to in
17 camera review for the purposes here.
18 Finally, Defendant objects that the contested communications also involve attorney-client
19 privilege held by non-party Topa Insurance Company (“Topa”). ECF No. 104 at 3. However, the
20 only listed recipients of the opinion letters from John McDevitt are Amy Spencer, Property &
21 Liability Adjuster for Hippo Insurance Services, and Emily Hvizdos, Senior Manager for Claims
22 Litigation. ECF No. 99-1 at 5, 19. By their content, the letters purport to advise only Hippo. Id.
23 at 5. Similarly, the emails are among Hvizdos, Spencer, McDevitt, and Todd Austin, an attorney
24 who conducted Plaintiff’s examination under oath. Topa cannot claim attorney-client privilege
25 2 Eugenio v. Sempra Energy, No. 10-cv-1513-CAB (KSC), 2015 U.S. Dist. LEXIS 184474, at
26 *47 (S.D. Cal. June 10, 2015), is not on point. In that case, the court found that there was
“insufficient evidence” that “defendant has deliberately injected an advice of counsel defense into
27 this case.” Id. Absent an implied waiver of attorney-client privilege, court could not conclude
that “in camera review of defendant’s privileged documents would be appropriate under
28 California law.” Id. Here the parties agree there has been such a waiver.
1 | over a communication to which it was not a party. Moreover, the unredacted opinion letter
2 || submitted voluntarily by Defendant for in camera review did not include any secondary
3 || privileged communication between Topa and counsel—.e., it did not include any embedded
4 || earlier advice that McDevitt might have provided Topa. For these reasons, the undersigned has
5 || no concern that in camera review of the contested materials would impermissibly invade Topa’s
6 || privilege.
7 Accordingly, the Court ORDERS Defendant to submit for in camera review unredacted
8 | versions of the documents at ECF No. 99-1 at 4-11 and 21-40 so that the Court may determine
9 || whether they should be disclosed to Plaintiff pursuant to the criteria at FRE 502(a). Defendant
10 | need not resubmit an unredacted version of the opinion letter at ECF No 99-1 at 12-19.
11 | Defendant shall make such submission within 14 days of the date of this order by email to
12 | scrorder@caed.uscourts.gov.
13 SO ORDERED.
14 | DATED: March 4, 2026
16
SEAN C. RIORDAN
17 UNITED STATES MAGISTRATE JUDGE
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