Unreported / Non-Citable
Background
Riva on the River Homeowners Association is litigating against The Management Association, Inc., doing business as The Management Trust (TMT). On October 16, 2026, the court held its third informal discovery conference concerning Riva's communications with outside counsel and TMT's statute-of-limitations defense. TMT sought written and electronic communications and deposition testimony from Riva board members and outside counsel. Riva asserted attorney-client privilege but agreed to produce communications concerning TMT's potential receipt of bank payments that were made at least one year before the action was filed. The court therefore denied that portion of the request as moot and addressed communications involving other management companies.
The parties agreed that California attorney-client privilege law applied under Federal Rule of Evidence 501. Because Riva had made a prima facie showing that the communications were confidential attorney-client communications, TMT bore the burden of establishing waiver. The court considered both express waiver under California Evidence Code section 912(a) and implied, or at-issue, waiver. It also applied the ordinary Rule 26 standard permitting discovery of nonprivileged matter relevant to a claim or defense and proportional to the needs of the case, while recognizing the trial court's broad discretion over discovery.
The Court’s Holding
The court found express waiver concerning the Silvercreek Agreement because Riva admitted producing all communications relating to that agreement and its board members had been deposed about those communications. It also found express waiver concerning the Action Agreement based on Riva's production of a communication between its board president and outside counsel that included counsel's redline comments and negotiations with Silvercreek. Riva argued that the produced communication contained no privileged material, but the court rejected that position after TMT supplied a more detailed description and read portions during the conference. The court further found implied waiver because Riva's operative complaint affirmatively placed what it learned from counsel, and when it learned it, at issue. Those communications were directly relevant to TMT's limitations defense, and disclosure was essential to fair adjudication.
The court granted the request in part and denied it in part. By October 30, 2026, Riva must produce the agreed TMT-related communications and communications with outside counsel concerning Silvercreek or Action potentially receiving bank payments, limited to communications made at least one year before suit. For other management companies meeting those criteria, Riva must provide a privilege log so TMT can assess whether to seek further production. Reopening board-member depositions was denied as overly burdensome, but TMT may serve written Rule 31 questions about privilege-blocked limitations communications by October 30, with responses due within fourteen days. Olson's deposition may be reopened only if she was instructed not to answer limitations questions, and only as to Riva. Stein's deposition may proceed on the same limited subject. Questions about counsel's communications with other clients are not permitted, and the parties must promptly schedule the counsel depositions.
Key Takeaways
- Voluntary production of communications and related deposition testimony supported the court's finding of express waiver concerning the Silvercreek and Action agreements.
- Riva's allegations that it learned of the alleged misconduct through counsel placed those communications directly at issue for TMT's statute-of-limitations defense.
- The court required production concerning Silvercreek and Action but required a privilege log, rather than immediate production, for communications concerning other management companies.
- Written Rule 31 questions provided a less burdensome alternative to reopening Riva board members' oral depositions.
- Any renewed deposition of Olson and the anticipated deposition of Stein are confined to the limitations issue as it concerns Riva, not counsel's communications with other clients.
Why It Matters
This unpublished discovery order shows how a plaintiff's pleading and prior disclosures can affect attorney-client privilege when the timing and source of its knowledge are central to a limitations defense. The court did not simply order unrestricted access to counsel's files; it tied waiver and production to particular agreements, management companies, dates, and allegations.
The relief also demonstrates a staged approach to disputed discovery. The court combined targeted production, a privilege log for possible further disputes, written questions for board members, and narrowly defined counsel depositions. The order resolves ECF No. 89 and sets compliance deadlines, but it does not decide the underlying claims or the merits of TMT's limitations defense.