XIAOCHAO ZHU VS. RECOLOGY, INC., ET AL

“When the employee of a defendant corporation is also a defendant in his own right (or is a person who may be charged with liability), his statement regarding the facts with which he or

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ his employer may be charged, obtained by a representative of the employer and delivered to an attorney who represents (or will represent) either or both of them, is entitled to the attorney-client privilege on the same basis as it would be entitled thereto if the employer-employee relationship did not exist.” (D.I. Chadbourne, supra, at pp. 736-738) “Where the employee’s connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation’s business, the employee is no longer an independent witness, and his statement or report is that of the employer.” (Ibid.) “If, in the case of the employee last mentioned, the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer’s purpose in requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged.” (Ibid.) “If otherwise privileged under the rules stated above, a communication does not lose its privilege merely because it was obtained, with the knowledge and consent of the employer, by an agent of the employer acting under such agency.” (Ibid.)

C. The Motion to Compel Further Responses to RFPs Nos. 5 & 12, and to Compel Production of the Incident Report is Denied

There is no dispute that defendant McAlavey was employed by defendant Recology, Inc. at the time of the collision. There also appears to be no dispute that at the time, McAlavey was driving his employer’s vehicle, and was in the course and scope of his employment, thus potentially giving rise to respondeat superior liability on the part of McAlavey’s employer, Recology. Both McAlavey and Recology are represented by the same counsel.

The evidence indicates that on the day of the collision, as part of company procedure, two company employees (Jarick Pink and Vanisha Narayan) interviewed McAlavey for the purpose of gathering information for later transmission to the company’s and the employee’s counsel, in the event of litigation. By any objective measure, given the facts of the case, litigation was already foreseeable at that point.

Plaintiff’s RFPs Nos. 5 and 12 seek production of all incident reports pertaining to the collision. Defendant McAlavey responded to the RFPs, by stating, in part:

An internal company incident report exists and is in the possession of Mr. McAlavey’s counsel, but will be withheld under a claim of privilege, as the incident report was created in anticipation of litigation. The privileges applicable include but are not limited to attorney-client privilege (Evid. Code § 917; See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729) and work product privilege (See Coito v. Superior Court (2012) 54 Cal.4th 480, 485). The incident report was prepared by Jarick Pink and Vanisha Narayan, Recology Employees, on July 5, 2023, for the primary purpose of preparing for litigation.

(Plaintiff’s Feb. 6, 2026 Separate Statement at 1-2.)

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ On May 7, 2026, plaintiff deposed Vanisha (Narayan) Singh, Recology’s Person Most Knowledgeable (PMK). Singh testified that incident reports such as the report at issue are created in anticipation of litigation, that the primary purpose of creating such reports is to prepare for litigation, and that the incident report of defendant McAlavey’s collision has been shared only with those handling and involved in defending this lawsuit. (June 16, 2026 Schunk Decl., exh.. D [Singh Tr.] at p. 83.)

Viewed in its totality, the evidence indicates that the incident report is protected from discovery by the attorney-client privilege. Although no lawsuit existed at the time of its creation (the report was created on the day of the collision), the evidence shows that Recology had a policy of creating such incident reports for later transmission to, and use by, the company’s defense counsel, which is exactly what happened here. Consistent with company policy, two employees created the report for the sole purpose, or at least, the primary purpose, of later transmission to defense counsel.

Recology’s PMK also testified that the incident report has, in fact, only been shared with the defendants (that ius the company’s and McAlavey’s) litigation defense team. This evidence establishes a prima facie showing that the incident report is protected from disclosure by the attorney-client privilege, which, standing alone, justifies withholding it from production.

The same evidence also suggests that qualified work product protection may apply, although defendants’ argument on this point appears weaker. (Code Civ. Proc., § 2018.030, subd. (b).) California distinguishes between absolute work product and qualified work product, and since the incident report here was not generated by counsel, it cannot be viewed as absolute work product. (Coito v. Superior Court (2012) 54 Cal.4th 480 (Coito).) However, courts have recognized that documents prepared by company employees at the direction of counsel, or for transmission to counsel in anticipation of litigation, may be subject to qualified work product protection. (Ibid.)

Section 2018.030, subdivision (b) states that qualified work product may be discoverable if the court “determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” Plaintiff has not shown any “unfair prejudice” here. The collision was apparently captured on video. (See Plaintiff’s Mot., at p. 3 [“[t]he collision was captured entirely on video.”].) Plaintiff has made no showing that denying him access to an internal report created by Recology for the benefit of its defense counsel would cause plaintiff “unfair prejudice.” Nor has plaintiff argued that McAlavey is no longer available for deposition.

The strongest argument against recognizing qualified work product protection here is the lack of evidence that an attorney directed the interview that led to the report’s creation. (See Coito, supra, 54 Cal.4th at pp. 494-497 [“witness statements obtained as a result of interviews conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work product protected .... a witness statement obtained through an attorney-directed interview is, as a matter of law, entitled to at least qualified work product protection.”].) Here, when the report was created, no litigation had been filed, and no attorney had been appointed, which weighs against the qualified work product claim. But those facts are not necessarily dispositive.

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ Defendants’ evidence suggests that where, as here, litigation was immediately anticipated by the company, and where the company created the report solely (or predominately) for use in future litigation, and the report was thereafter used solely for defense of the lawsuit, qualified work product protection could potentially apply.

The court need not resolve this question of whether qualified work product protection applies, however, because, as explained above, the attorney-client privilege applies. The evidence sufficiently indicates that the company’s primary purpose in creating the report was for future use in litigation by the company’s and McAlavey’s defense counsel. And it appears the report was thereafter used solely for litigation defense. It appears more accurate to characterize the incident report as a product of the company’s litigation-preparation procedures than as an ordinary business record. Accordingly, the motion to compel its production is denied.

D. The Alternative Request for an In-Camera Review is Denied

The court does not order in-camera review merely because parties dispute a privilege claim. Rather, the court generally requires some factual basis for believing that the claimed privilege(s) do not apply, or have been waived, or that the subject document is not what the responding party claims it to be, or that the withholding party has engaged in some type of misconduct that places the claimed privilege into question. None of these circumstances exist here. Plaintiff argues that the incident report was not created by an attorney, and is not a direct communication with an attorney, and therefore, is not privileged.

But as explained above, the attorney-client privilege and work product doctrine are broader than plaintiff appears to suggest. The court finds that plaintiff has not presented evidence creating a sufficient fact dispute about the applicability of the claimed privilege(s) to warrant an in-camera review. The court declines to conduct an in-camera review merely to test a facially-supported privilege claim.

E. The Motion to Compel McAlavey to Produce a Privilege Log is Denied

Plaintiff also seeks an order that would compel McAlavey to serve a privilege log pursuant to Code of Civil Procedure. Section 2031.240, subdivision (c)(1), which states:

(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

Based on McAlavey’s responses to RFPs Nos. 5 & 12, producing a privilege log would be redundant and unnecessary. The RFP responses already confirm the incident report’s existence, when it was prepared, who prepared it, and what privileges are claimed. The Responses also state that the report was prepared in anticipation of litigation, for the primary purpose of preparing for litigation. Given these facts, a privilege log to be unnecessary.

In light of the foregoing, plaintiff’s request for monetary sanctions against McAlavey and/or his counsel is DENIED. (Code Civ. Proc. §§ 2031.310, subd. (h) and 2023.030.)