Order on Confidential Witnesses — In re Carvana Securities

Record facts

U.S. District Court for the District of Arizona · No. 2:22-cv-02126-MTL · Doc. 192 · 2025-08-13 · Docket on CourtListener

Summary

An order on the parties' joint discovery motion concerning the twelve confidential witnesses cited in the Amended Consolidated Complaint in United Association National Pension Fund, et al. v. Carvana Company, et al., No. CV-22-02126-PHX-MTL, in the U.S. District Court for the District of Arizona, filed August 13, 2025 as Document 192. The order grants the motion in part and denies it in part, holding that the identities of the confidential witnesses are facts rather than attorney work product. It directs the plaintiffs to answer the Carvana defendants' Interrogatory 4 and to comply with Garcia Sr.'s RFP 8 so far as it seeks documents the witnesses gave to counsel, while documents generated by counsel in anticipation of litigation remain protected. It also adopts limits on contacting the witnesses, including notice before informal interviews and a bar on naming them in public filings.

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
United Association National Pension Fund, 
et al., 
 
Plaintiffs, 
 
v.  
 
Carvana Company, et al., 
 
Defendants. 
No. CV-22-02126-PHX-MTL 
 
ORDER  
 
 
 
 
Pending before the Court is the Parties’ “Joint Discovery Motion” regarding the 
twelve confidential witnesses (“CWs”) cited in the Amended Consolidated Complaint 
(“ACC”) for Violations of the Federal Securities Laws. (Doc. 171 at 2.) For the reasons 
explained below, the motion is granted in part and denied in part. 
I. 
Background. 
In support of the allegations in the ACC, Plaintiffs cite the statements of “[s]everal 
former [Carvana] employees [(confidential witnesses or CWs)] [who] provided 
information demonstrating that Defendants’ Class Period statements were false and 
misleading, that Defendants knew or recklessly disregarded the falsity or misleading 
nature of their statements, and that Defendants engaged in a scheme to defraud 
investors.” (Doc. 71 at 19.) In Plaintiffs’ words, “The information provided by the CWs 
supports a strong inference that the Exchange Act Defendants acted with scienter.” (Id.)1 
Defendants seek the CWs’ identities and factual statements made “regarding 
 
1 The “Exchange Act Defendants” are Carvana, Garcia, Jr., Garcia, Sr., and Jenkins. 
(Doc. 71 at 13-14.) 
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Plaintiffs’ claims.” (Doc. 171 at 2.) They seek an order compelling Plaintiffs “to answer 
Carvana Defendants’ Interrogatory No. 4 and produce documents in response to Mr. 
Garcia Sr.’s RFP 8.” (Id.)2 Plaintiffs characterize this inquiry as an invasion into “core 
attorney work product.” (Id. at 3.) 
a. The Parties’ Arguments. 
i. 
Defendants. 
Defendants argue the information sought is “necessary to verify CWs’ 
allegations,” and that courts, including those in the Ninth Circuit, have “consistently 
rejected” such claims of work product. (Doc. 171 at 2.) Defendants characterize CW 
identities, statements, and documents as facts. (Id. at 2-3.) They note that Plaintiffs’ 
insistence now that no CW evidence will be relied upon at class certification or trial is a 
“convenient about-face [that] only highlights the need to test the veracity of the 
Complaint’s CW allegations.” (Id. at 3.) Defendants further argue that Plaintiffs waived 
any claim of work product by relying on “the CWs to make out their claims, and 
Defendants’ need outweighs any minimal work product protection[.]” (Id.) (citations 
omitted). 
ii. 
Plaintiffs. 
Plaintiffs argue that “[t]he identities of those with whom counsel elected to speak 
as part of their investigation,” including counsels’ notes, memoranda, and 
communications regarding those conversations “lie at the very heart of the work product 
doctrine . . . as such materials reveal counsel’s mental impressions, legal theories, and 
strategic decisions about which facts and witnesses are most important.” (Doc. 171 at 3-
4.) They allege Defendants intend to conduct an “improper post hoc investigation into the 
sourcing of a complaint’s allegations.” (Doc. 171 at 3.) Plaintiffs argue further they did 
not waive work product protections by relying upon CW evidence “because the [Private 
 
2 The Carvana Defendants’ Interrogatory 4 states as follows: “Identify the name and, if 
known, contact information for each Confidential Witness, including specifying which 
number You assigned to each CW.” (Doc. 171-1 at 10.) Garcia Sr.’s RFP 8 requests “[a]ll 
DOCUMENTS and COMMUNICATIONS reflecting any statements made by, or 
information provided by, any Confidential Witness pertaining in any way to GARCIA 
SENIOR.” (Doc. 171-3 at 10.) 
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Securities Litigation Reform Act (“PSLRA”)] compels plaintiffs to disclose the factual 
basis for their allegations,” and Plaintiffs do not intend to rely on CW evidence at class 
certification or trial. (Id. at 4.) Plaintiffs assert that Defendants’ inquiries amount to “a 
Fed. R. Civ. P. 11 fishing expedition.” (Id. at 5.)  
II. 
Discussion. 
“The work-product rule is not a privilege but a qualified immunity protecting from 
discovery documents and tangible things prepared by a party or his representative in 
anticipation of litigation.” Admiral Ins. Co. v. U.S. Dist. Ct. for Dist. of Arizona, 881 F.2d 
1486, 1494 (9th Cir. 1989) (citations omitted). To qualify for work-product protection, 
documents must: (1) be “prepared in anticipation of litigation or for trial” and (2) be 
prepared “by or for another party or by or for that other party’s representative.” In re 
Grand Jury Subpoena, Mark Torf/Torf Envtl. Mgmt., 357 F.3d 900, 907 (2003); Fed. R. 
Civ. P. 26(b)(3). For a document serving purposes separate or independent from the 
litigation, i.e., a “dual purpose” document, 
[A] document should be deemed prepared “in anticipation of 
litigation” and thus eligible for work product protection under 
Rule 26(b)(3) if in light of the nature of the document and the 
factual situation in the particular case, the document can be 
fairly said to have been prepared or obtained because of the 
prospect of litigation. 
In re Grand Jury Subpoena, 357 F.3d at 907 (cleaned up). 
 
This standard “considers the totality of the circumstances and affords protection 
when it can fairly be said that the document was created because of anticipated litigation, 
and would not have been created in substantially similar form but for the prospect of that 
litigation.” Id. (emphasis added). The party asserting the protection of the work-product 
doctrine has the burden of demonstrating that the at-issue documents are work-product. 
Hernandez v. Tanninen, 604 F.3d 1095, 1102 (9th Cir. 2010) (recognizing burden is on 
party invoking work-product doctrine). 
 
This Court agrees with Defendants that CW identities are not work product—they 
are facts. (Doc. 171 at 2.) CWs are witnesses whose information Plaintiffs relied upon to 
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plead their claims. (Doc. 71 at 19-41.) They have information relevant to Defendants’ 
scienter, or lack thereof. (See id.) Defendants are entitled to relevant, non-privileged 
information. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any 
nonprivileged matter that is relevant to any party’s claim or defense and proportional to 
the needs of the case . . . .”); see Fed. R. Evid. 401. 
 
Relying upon Grae v. Corr. Corp. of Am., Plaintiffs contend that CW identities 
“lie at the very heart of the work product doctrine.” (Doc. 171 at 3-4, citing 326 F.R.D. 
482, 487-88 (M.D. Tenn. 2018)). Indeed, the Middle District of Tennessee concluded in 
Grae that a CW’s identity is protected work product. 326 F.R.D. at 487. The Court 
reasoned that, because “[Plaintiff] assembled a wide array of information about 
[Defendant’s] internal practices, [ ]business model, and [ ]public statements” in drafting 
the complaint, and that Plaintiff’s counsel “presumably made innumerable decisions 
about what information to include and how to convey that information” in meeting the 
heightened pleading standards of the [PSLRA], that revealing the CW’s identity would 
necessarily open “some window into the decision-making process of [Plaintiff’s] counsel 
in drafting the [ ]Complaint.” Id. at 488. The Court rejected Defendant’s argument the 
CW’s identity “would not reveal anything meaningful about [Plaintiff’s] litigation 
strategy[,] . . . [because] [b]y [Defendant’s] own admission, [the pertinent interrogatory] 
[wa]s not focused on identifying the universe of witnesses that might have relevant 
information, but [r]equir[ed] [Plaintiff] to identify the name[ ] of an individual whose 
statements it found important.” (Id.) (emphasis in original, quotations omitted). 
 
The Court finds Grae to be distinguishable on the grounds that the discovery 
requests at issue here seek relevant facts, not counsels’ assessment of their importance to 
the case. Also noteworthy is the diminished relevance of the CW in Grae as “merely 
[]bolster[ing] one particular supportive detail[.]” Id. at 487. The Court in Grae described 
the information the CW provided as “entirely mundane,” comprised of “contextual 
details,” and merely “add[ing] some meat to the bones of [Plaintiff’s] claims.” Id. at 486-
87. The Court allowed a different conclusion might be warranted where Plaintiff “built its 
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complaint on a foundation of statements from the confidential witness.” Id. at 487 
(cleaned up). “In such a case,” the Court reasoned, “responding to the allegations and 
responding to the confidential informant might be, essentially, one and the same, and the 
confidential informant’s identity might indeed be relevant.” Id. 
 
The Court does not find Plaintiffs necessarily “built the complaint” on “a 
foundation of statements from confidential witnesses,” but the 12 CWs in this case 
certainly played a much larger role than the lone CW in Grae. CW allegations—hundreds 
of them—permeate the ACC. 
 
Noting that “[a]t its core, the work-product doctrine shelters the mental processes 
of the attorney[,]” Nobles, 422 U.S. at 238, this Court finds that “[t]he core of the 
information sought – the identities of the Confidential Witnesses – does not go to the 
mental thoughts and impressions of any attorney.” Shenwick v. Twitter, Inc., No. 16-CV-
05314-JST (SK), 2018 WL 8244911, at *2 (N.D. Cal. Nov. 27, 2018). “The Court 
therefore concurs with those district courts that have held that the identities of 
confidential witnesses specifically referenced in a securities class action complaint do not 
constitute work product.” In re Cooper Companies Inc. Sec. Litig., No. 
SACV060169CJCRNBX, 2008 WL 11339612, at *2 (C.D. Cal. Oct. 1, 2008) (collecting 
cases), aff’d, No. SACV0600169CJCRNBX, 2008 WL 11588995 (C.D. Cal. Nov. 4, 
2008); Shenwick, 2018 WL 8244911, at *1 (“[N]umerous district courts have determined 
that the attorney work-product doctrine does not protect the identity of Confidential 
Witnesses, whom a complaint cites or quotes.”). The Court will order Plaintiffs to comply 
with the Carvana Defendants’ Interrogatory 4, subject to certain qualifications Plaintiff 
requested and the Court approved at the hearing. (Doc. 171-1 at 10.) 
Garcia Sr.’s RFP 8 presents a slightly different inquiry: It requests “[a]ll 
DOCUMENTS and COMMUNICATIONS reflecting any statements made by, or 
information provided by, any Confidential Witness pertaining in any way to GARCIA 
SENIOR.” (Doc. 171-3 at 10.) Any “documents and tangible things prepared by a party 
or his representative[s] in anticipation of litigation[]” are still protected as work product. 
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Admiral Ins. Co., 881 F.2d at 1494 (emphasis added); see Phoenix Techs. Ltd. v. 
VMware, Inc., 195 F. Supp. 3d 1096, 1101 (N.D. Cal. 2016) (“[T]he degree to which 
counsel is involved in creating a document bears directly on whether the document was 
prepared in anticipation of litigation[.]”). As are any documents that, under the totality of 
the circumstances, were “created because of anticipated litigation, and would not have 
been created in substantially similar form but for the prospect of that litigation.” In re 
Grand Jury Subpoena, 357 F.3d at 907 (emphasis added). 
The Court will order Plaintiffs to comply with Garcia Sr.’s RFP 8 to the extent that 
it requests documents provided to counsel or their agents by CWs regarding Garcia Sr. 
(Doc. 171-3 at 10). Any documents generated by counsel in anticipation of or because of 
the litigation remain protected. Moreover, communications between CWs and counsel or 
their agents are also protected to the extent they reflect or contain counsels’ thoughts, 
impressions, opinions, ideas, or anything that could be said to convey any aspect of 
counsel’s litigation strategy. 
Accordingly, 
IT IS ORDERED the Joint Discovery Motion (doc. 171) is GRANTED, in part, 
and DENIED, in part, as set forth in this Order. 
IT IS FURTHER ORDERED Plaintiffs shall comply with the Carvana 
Defendants’ Interrogatory 4, subject to the limitations as set forth in this Order. 
IT IS FURTHER ORDERED Plaintiffs shall comply with Garcia Sr.’s RFP 8, 
subject to the limitations as set forth in this Order. 
IT IS FURTHER ORDERED that the Court adopts certain limitations to 
Defendants’ inquiries into CW information as stated in In re Bofi Holding, Inc. Sec. 
Litig., No. 15-CV-2324-GPC-KSC, 2021 WL 3700749, at *8-9 (S.D. Cal. July 27, 2021). 
These limitations are set forth below: 
IT IS ORDERED that any party may informally interview any confidential 
witness. Any party who contacts a confidential witness for an informal interview shall 
inquire at the outset whether the witness is represented by counsel. If the answer is yes, 
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all future communications with the confidential witness must proceed exclusively 
through counsel. If the answer is no, before proceeding further, the interviewer must 
advise the witness which party the interviewer represents and inform the confidential 
witness of his or her right to decline to be interviewed, and to have counsel for the 
opposing party present for the interview. Further, the interviewer shall ask if the witness 
is willing to be interviewed, and shall obtain an affirmative answer, before proceeding 
with the interview. 
IT IS FURTHER ORDERED Defendants shall not question any confidential 
witness, whether at deposition or otherwise, about his or her participation in Plaintiffs’ 
prefiling investigation, including the manner, date, frequency or substance of the 
witnesses’ contacts with Plaintiffs’ counsel or anyone working at Plaintiffs’ counsels’ 
direction. 
IT IS FURTHER ORDERED that any confidential witness who has been 
deposed in this Action shall not be required to sit for further deposition without leave of 
this Court. If applicable, a confidential witness who has not been deposed in the Action 
shall be advised in a nonthreatening manner of the possibility that he or she will be 
subpoenaed for deposition, and of his or her right to object to the subpoena and to be 
represented by counsel at the deposition. 
IT IS FURTHER ORDERED that no party shall identify any confidential 
witness in publicly filed documents in this Action or related litigation. 
IT IS FURTHER ORDERED that any declaration of any confidential witness 
purporting to change, clarify or recant information in the Complaint shall be 
accompanied by a declaration from counsel (and, if necessary, counsel’s agents) 
confirming their compliance with this Order. 
// 
// 
// 
// 
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IT IS FURTHER ORDERED that the terms of this Order apply to the parties, 
their counsel, and any other persons working under the parties’ or counsel’s direction. 
The Court may impose sanctions on any party or counsel who fails to comply with this 
Order. 
Dated this 13th day of August, 2025. 
 
 
 
 
Honorable John Z. Boyle 
United States Magistrate Judge 
Case 2:22-cv-02126-MTL     Document 192     Filed 08/13/25     Page 8 of 8

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