Exhibit 11 — In re Carvana Securities

Record facts

U.S. District Court for the District of Arizona · No. 2:22-cv-02126-MTL · Doc. 364-11 · 2026-04-27 · Docket on CourtListener

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EXHIBIT 11
[Redacted]
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4897-2448-6564.v1 
Chicago 
Melville 
Nashville 
San Diego  
Wilmington 
Boca Raton 
Manhattan 
Philadelphia 
San Francisco 
Washington, D.C. 
655 West Broadway, Suite 1900    San Diego, CA  92101    Tel 619-231-1058    Fax 619-231-7423    rgrdlaw.com  
Rachel A. Cocalis 
rcocalis@rgrdlaw.com 
April 22, 2026 
VIA EMAIL 
Christian Word 
LATHAM & WATKINS LLP 
555 Eleventh Street, N.W., Suite 1000 
Washington, D.C.  20004 
christian.word@lw.com 
 
Re: 
In re Carvana Co. Securities Litigation, 
No. CV-22-2126-PHX-MTL (D. Ariz.) 
Dear Christian: 
I write with regard to the Carvana Defendants’ ninth in-house counsel privilege log produced 
on April 9, 2026 (“Privilege Log” or “Log”), the parties’ prior correspondence concerning the 
Carvana Defendants’ privilege claims, and the parties April 22, 2026 correspondence with the Mr. 
Sommers.1  As detailed below, the Privilege Log remains facially deficient and substantively 
unsupported, and it fails to satisfy Federal Rule of Civil Procedure 26(b)(5)(A) or governing Ninth 
Circuit authority.  Given that you have failed, after nine separate attempts, to provide a defensible 
log, Plaintiffs must seek immediate relief from the Court.  Consistent with the Court’s directive, 
please let us know when you are available tomorrow to meet and confer regarding the process. 
As an initial matter, the Carvana Defendants’ assertion – 
 
 
C. Word 03-31-26 Letter at 1) – is 
nonsensical and irreconcilable with the facts.2  The Carvana Defendants waited to produce a (partial) 
log concerning in-house counsel until more than ten months after serving their responses and 
objections to Plaintiffs’ document requests and more than two months after the Carvana Defendants’ 
substantial completion date for the first 18 custodians.  Worse yet, the Carvana Defendants did not 
produce that log until three months after their counsel represented to Judge Boyle that they had been 
“working . . . since March” of 2025 collecting and reviewing documents for the first 18 custodians, 
                                               
1  The “Carvana Defendants” are Carvana Co., Ernest Garcia III, Mark Jenkins, Stephen Palmer, 
Michael Maroone, Neha Parikh, Ira Platt, and Greg Sullivan.  Unless otherwise noted, all emphasis 
is added and citations are omitted. 
2  The Carvana Defendants’ contradictory assertion that 
 
 (id.) is plainly false.  See, e.g., S. Fallon 01-28-26 Email. 
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Christian Word 
April 22, 2026 
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with “over 70 contract reviewers” assisting “them in a privileged review.”  ECF 215 at 42:3-4, 44:10-
12.3  As such, when Plaintiffs demanded that the Carvana Defendants promptly produce a privilege 
log, they were seeking that to which they were entitled long ago.  See, e.g., Bullion Monarch Mining, 
Inc. v. Newmont USA Ltd., 271 F.R.D. 643, 652 (D. Nev. 2010) (emphasis in original) (finding it 
“disturbing” that defense counsel “told the court at the October 5, 2009 hearing that as many as six 
lawyers had spent the summer reviewing the many thousands of documents for relevance and 
privilege” and yet the log was not reviewed for another three months).  Moreover, the countless errors 
in the Carvana Defendants’ logs are, at best, a product of cutting corners.  For example, the Carvana 
Defendants not only relied on a vendor to conduct their privilege review, but also provided that vendor 
with inaccurate information multiple times.  See M. Andrews 03-18-26 Ltr. at 1-2. 
Moreover, your claim that the Carvana Defendants’ de-designations and numerous amended 
logs demonstrates their 
 is equally nonsensical.  C. 
Word 03-31-26 Letter at 2 (citing S.G.D. Eng’g, Ltd. v. Lockheed Martin Corp., 2013 WL 2297175, 
at *8 (D. Ariz. 2013)).  In S.G.D. Eng’g, unlike here, the defendant de-designated 266 documents 
because its “privilege claims ha[d] evolved” as it “evaluated” them over a nine month 
meet-and-confer process.  2013 WL 2297175, at *8.  By contrast, here the Carvana Defendants 
produced nine different logs and de-designated more than 8,090 documents in eight weeks because 
they knew (and always knew) that they could not justify their inclusion on the log.  For example, the 
Carvana Defendants removed plainly non-privileged communications from third-party data websites, 
such as 
that never should have been withheld as privileged.  See M. Andrews 03-18-26 
Ltr. at 2.  The Carvana Defendants also removed communications with third parties from the Log 
because of a vendor issue.  Id. at 1-2.  Further, the Carvana Defendants produced multiple logs 
because the produced logs were riddled with errors, such as stating that a document was redacted 
when it was really withheld.  And the logs lacked fundamental, required information, such as the 
author or attorney involved in the communication.  See M. Andrews 02-21-26 Letter at 3-4.4 
                                               
3 
As previously stated, Plaintiffs reserve all rights to argue waiver and seek a modification of the 
parties’ schedule based on Defendants’ unjustified delay.  See S. Fallon 01-28-26 Email; see also M. 
Andrews 02-21-26 Letter at 3 n.1; RG Abrams Ins. v. L. Offs. of C.R. Abrams, 2022 WL 422824, at 
*16 (C.D. Cal. 2022) (finding defendants had waived privilege where they “still had not complied 
with the obligation to provide information supporting the privilege as of . . . three and a half months 
after [they] served their responses”); Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of 
Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (emphasis in original) (affirming district court’s ruling 
that defendants had waived privilege where they provided their privilege log “five months” after their 
discovery responses). 
4 
In fact, the Carvana Defendants’ privilege logs were so error-prone that they routinely had to 
produce amended versions of the logs within hours or days of a log’s production.  For example, on 
March 17, 2026, the Carvana Defendants produced an amended consolidated log less than four hours 
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Christian Word 
April 22, 2026 
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At bottom, the Carvana Defendants’ removal of the more than 8,090 documents – absent a 
meaningful change in the Carvana Defendants’ view of privilege – demonstrates that they have not 
adequately complied with their discovery obligations. 
I. 
The Carvana Defendants’ Privilege Log Remains Insufficient and 
Unsupportable 
As discussed below, the Carvana Defendants’ April 9 Privilege Log – its ninth log in eight 
weeks – suffers from the same core issues that Plaintiffs have been identifying, and the parties have 
been meeting-and-conferring over, for months.  Accordingly, these issues are ripe for resolution. 
First, as explained ad naseum, the Carvana Defendants’ categorical Privilege Log is woefully 
insufficient because “[b]lanket assertions of the attorney-client privilege are ‘extremely disfavored’ 
in the Ninth Circuit.”  RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 494 (C.D. Cal. 
2022) (quoting Clarke v. Am. Com. Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992)); see also M. 
Andrews 02-21-26 Letter at 4-5 (citing authority).  Thus, the Carvana Defendants lumping of 
approximately 48,000 documents into a few categories with grossly overbroad categorical 
descriptions is irreconcilable with binding law.  In practical terms, Defendants ask Plaintiffs to accept 
tens of thousands of privilege determinations on faith, without the information required to test even a 
single one.  Such ipse dixit assertions do not satisfy Defendants’ burden and prevent Plaintiffs from testing 
the validity of any individual claim of privilege. 
Second, even if categorical logging were permissible in the Ninth Circuit (it’s not), the Log’s 
categorical descriptions are particularly impermissible here because the Log primarily concerns 
communications with in-house counsel, which are subject to “heightened scrutiny.”  Oracle Am., Inc. 
v. Google, Inc., 2011 WL 3794892, at *4 (N.D. Cal. 2011).  Indeed, because the Ninth Circuit applies 
the “primary purpose” test and because “[i]n-house counsel may act as integral players in a company’s 
business decisions or activities,” the Carvana Defendants “‘must make a “clear showing” that the 
“speaker” made the communication[] for the purpose of obtaining or providing legal advice.’”  Id. 
(second alteration in original) (emphasis in original).  In your March 16, 2026 letter, you attempted 
to justify the Carvana Defendants’ vague, categorical assertions by pointing to outlier log entries.  For 
example, you cited a log entry concerning an email to 
 with 
the subject line 
  M. Peters 03-16-26 Letter at 5.  But a 
cursory review of the Log, reveals that an overwhelming majority of entries neither include external 
counsel nor have a subject line and/or attachment title that contain any indicia of privilege.  Third, 
despite again stating that you would re-review documents with third parties, such as the withheld 
communications with 
, the Carvana Defendants continue to withhold these 
                                               
after producing their first consolidated log.  Similarly, the April 9, 2026 Log was produced just one 
day after the Carvana Defendants had produced a prior version. 
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communications on the Log.  Plaintiffs identified these communications in February and have less 
than four months left to complete fact discovery, including taking 29 depositions.  See M. Andrews 
02-21-26 Ltr. at 7.  The Carvana Defendants cannot continue to deprive Plaintiffs of critical 
documents for their depositions in violation of the discovery rules.  Aecon Bldgs., Inc. v. Zurich N. 
Am., 253 F.R.D. 655, 659 (W.D. Wash. 2008) (finding defendants’ “failure to produce, until the 
eleventh hour, a privilege log documenting those portions of the claim file attributable to [a deponent] 
that it withheld on the basis of privilege, [to be a] clear violation[] of the discovery rules”).  This issue 
must be resolved by the Court immediately. 
Fourth, the Carvana Defendants continue to improperly withhold entire email chains and 
attachments rather than producing non-privileged portions of those emails and attachments.  See M. 
Andrews 02-21-26 Letter at 7-8 (citing authority).  Recognizing that this is improper, the Carvana 
Defendants have claimed “that every time someone is emailing an attachment to in-house counsel, 
they’re asking in the body of the email for legal advice about the attachment,” and therefore 
“[p]roducing such attachments . . . would reveal that the document was communicated to an attorney 
and disclose the topic on which legal advice was sought.”  M. Andrews 03-20-26 Letter at 1-2; M. 
Peters 03-16-26 Letter at 9.  But that assertion is belied by the Carvana Defendants’ Log.  In truth, 
the Carvana Defendants appear to be indiscriminately designating entire email threads and 
attachments simply because the withheld communication went to in-house counsel.5  Moreover, the 
Carvana Defendants’ position is inconsistent with the case law.  See M. Andrews 02-21-26 at 7-8 
(citing authority). 
In sum, because Defendants’ ninth Log continues to suffer from the above deficiencies, 
Plaintiffs intend to file a 17-page motion to compel and request the appointment of a special discovery 
master. 
II. 
The Carvana Defendants Are Improperly Withholding Communications 
 
 
On March 20, 2026, Plaintiffs identified log entries on the March 17, 2026 Privilege Log 
concerning 
, including a 
.  
See M. Andrews 03-20-26 Letter at 2.  During a meet and confer that same day, you stated that 
Defendants’ counsel is unaware of any such 
 because Latham & Watkins 
                                               
5 
We understand from your March 31, 2026 letter that Defendants are purportedly 
 
, and that the re-review will be complete in the 
”  C. Word 03-31-26 
Letter at 7.  Again, for the reasons explained supra, Plaintiffs cannot wait for the Carvana Defendants 
to do what they should have done long ago.  Moreover, given the Carvana Defendants’ grossly 
overbroad views of privilege in this case, it is highly probable that the Carvana Defendants will 
wrongly determine that the Board documents were properly designated at that 
time.  Id. 
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Christian Word 
April 22, 2026 
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LLP (“Latham”) does not handle 
, but 
 
.  Id. 
Thereafter, in your March 31, 2026 letter, you provided no additional information regarding 
 – that is plainly relevant and responsive to Plaintiffs’ document requests – and 
stated that you were 
 and would 
  C. Word 03-31-
26 Letter at 7.  More than three weeks have passed,
  
 
  Plaintiffs cannot continue to be prejudiced by Defendants’ delay in the production of 
relevant documents given that the close of fact discovery is in less than four months. 
In addition, Plaintiffs are extremely troubled by the Carvana Defendants’ withholding and 
 in a privilege log with more than 63,500 
entries.  This is because the Carvana Defendants previously represented to Plaintiffs and Judge Boyle 
that there was only a “June 2025 SEC Subpoena” concerning Carvana’s disclosures and “a SEC 
Information Request” concerning Carvana’s “2019 SEC reporting” in connection with Plaintiffs’ 
motion to compel.  ECF 224 at 3-4 (emphasis in original).  Accordingly, Plaintiffs intend to raise this 
issue in their motion, and thus, require more than 42 lines to brief the issue. 
III. 
The Parties Should Brief This Issue Immediately 
As demonstrated above, Defendants’ April 9 log suffers from the same problems that 
Plaintiffs have repeatedly raised to the Carvana Defendants in telephonic meet-and-confers and in 
written correspondence.  As you conceded to Mr. Sommers, the parties have, in fact, met and 
conferred extensively over the past two months, including four telephonic conferences and six 
detailed letters, yet those efforts have failed to resolve multiple core disputes.  Thus, the above issues 
are ripe for resolution.  Indeed, as a practical matter, because Defendants belatedly dumped a log 
riddled with errors on Plaintiffs nearly a year into discovery, there is not time for Defendants to 
materially amend their log, produce the countless non-privileged documents currently on it, and allow 
Plaintiffs to raise any disputes related thereto before the conclusion of fact discovery. 
Plaintiffs have less than four months to complete fact discovery, including taking 29 
depositions.   As reflected in the chart below, the Log includes thousands of documents associated 
with key deponents, further underscoring the urgency of judicial intervention: 
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Christian Word 
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Thus, absent immediate intervention, Plaintiffs’ ability to assess and test asserted privileges in 
deposition will be materially impaired and has already been prejudiced.  Aecon Bldgs., Inc. v. Zurich 
N. Am., 253 F.R.D. 655, 659 (W.D. Wash. 2008) (defendants’ “failure to produce, until the eleventh 
hour, a privilege log documenting those portions of the claim file attributable to [a deponent] that it 
withheld on the basis of privilege, [to be a] clear violation[] of the discovery rules”).  In fact, the 
Carvana Defendants’ continuous production of new, equally deficient logs every few days has already 
effectively prevented Plaintiffs from identifying a stable set of privilege assertions and seeking timely 
judicial relief, compounding that prejudice.   
Consistent with the Court’s directive, Plaintiffs will promptly confer with Defendants to 
provide a concise joint synopsis of the disputes and a proposed briefing schedule.  However, given 
the scope of the deficiencies and the impending discovery deadline, these issues require prompt, full 
briefing rather than the truncated procedure set forth in the Scheduling Order. 
Custodian
Log Entries
Defendant Garcia Jr.
1,747
Christopher Olson
28,132
Mark Murphy
20,546
Wilson Munsil
19,060
Paul Breaux
17,049
Steve Keim
8,402
Jonathan Greer
7,549
Defendant Mark Jen
6,736
Steve Palmer
6,243
Josh Johnson
3,592
Margarite Halaris
2,871
Ben Huston
2,663
Mike Levin
2,316
Brian Boyd
2,038
Christina Keiser
1,543
Cristina Bruns
752
Tom Taira
463
Michael Grantham
259
Michael Maroone
100
Kevin Fitzgerald
75
Ira Platt
75
Greg Sullivan
57
Neha Parikh
38
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Christian Word 
April 22, 2026 
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IV. 
Conclusion 
In sum, Plaintiffs intend to move to compel and seek appropriate relief, including waiver, the 
appointment of a special master, and other available remedies. 
Given the limited time remaining in fact discovery and the centrality of these issues to 
Plaintiffs’ depositions, Plaintiffs’ position is that briefing should proceed under Local Rule 7.2 or, 
alternatively, on an expedited schedule that permits meaningful judicial review.  Plaintiffs are 
prepared to file promptly. 
That said, if Defendants prefer, given the pending fact deadline, Plaintiffs would agree to an 
expedited briefing schedule (e.g., Defendants’ opposition is due eight days after Plaintiffs’ motion 
and Plaintiffs’ reply is due four days later). 
Please provide your availability to meet and confer on April 23, 2026 so that the parties may 
comply with the Court’s directive. 
Best Regards, 
 
RACHEL A. COCALIS 
 
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