In re Carvana Co Securities Litigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United Association National
Pension Fund, et al.,
Plaintiffs,
v.
Carvana Company, et al.,
Defendants
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CASE NO. CV-22-02126-PHX-MTL
SPECIAL MASTER COHEN
RULING REGARDING TRANCHE
TWO OF CARVANA DOCUMENTS
This Honorable Court appointed the undersigned as Special Master to review in camera
documents withheld as privileged by Defendants. See docket no. 500 (“Appointment Order”).
Defendants have listed about 50,000 documents on their privilege logs. Id. at 2. The Special Master
directed Plaintiffs to pick a First Tranche of “bellwether documents,” with these characteristics:
(1) as best Plaintiffs could tell, the documents appeared to be among the most important to their
case; and (2) the parties could apply the Special Master’s rulings on these documents to other,
similar documents.
The Special Master issued his rulings on the First Tranche of documents in the “Tranche
One Ruling” (docket no. 552), as modified by the “Updated Ruling in Light of Carvana’s
Objection”” (docket no. 574) and “Response to Carvana’s Declaration” (docket no. 586).
Plaintiffs subsequently selected a Second Tranche of bellwether documents for in camera
review, consisting of 102 documents. 	Carvana responded by reviewing the documents and
dropping its privilege claims for 56 of those documents. In the attached chart, the Special Master
now provides rulings on Carvana’s privilege claims for the remaining 46 documents.
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Legal Standards
The Special Master set forth the applicable legal standards in his Tranche One Ruling, see
docket no. 552 at 2-9, and will continue to apply those standards in this and all future privilege
Rulings. The Special Master will also apply in this and all future Rulings the following additional
precepts.
Certain Tranche Two documents are comprised of a “parent” email and one or more
attached documents that, on their own, are clearly not privileged; a classic example is an attached
newspaper article. Carvana concedes this type of attached document is not privileged when
standing alone. But Carvana nonetheless asserts the attached document is privileged in context,
because the attachment was sent to counsel as a reference while asking for legal advice, or to assist
counsel in providing legal advice. Carvana asserts that, along with the clearly-privileged parent
email, the attachments are thus attorney-client privileged or covered by the attorney work product
doctrine. Plaintiffs respond simply that a non-privileged, pre-existing document does not and
cannot become privileged merely because a client sends it to a lawyer.
The best analysis of this circumstance was provided recently by the district court in United
States v. Novo Nordisk, Inc., 2025 WL 509524 (W.D. Wash. Feb. 14, 2025), a case cited by both
sides. The Novo Nordisk court concluded that producing documents “as compiled and forwarded
as attachments to an email seeking legal advice[] would breach the attorney client privilege and
perhaps the work product doctrine.” Id. at *1. The Special Master agrees that learning what an
attorney considered when providing or being asked to provide legal advice should be protected.
At the same time, however, the Novo Nordisk court was careful to note that the
“attachments have already been produced as stand-alone documents.” Id. The court observed that
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“producing these . . . documents again, as compiled and forwarded,” is what would breach the
privilege. Id.
The key, then, is separating the association of the privileged parent email from the non-
privileged attachments. Following this tack ensures that a clearly non-privileged document does
not become privileged merely because a client sends it to a lawyer (or vice versa), while still
protecting privileged communications and counsel’s mental impressions.1
Accordingly, in the attached chart, some rulings include this language: “sustained as an
attachment to a protected email so long as document has otherwise been produced.” This means
that, if Carvana has produced or promptly does produce the challenged document as a stand-alone
document, then the claim of privilege is sustained. If Carvana has not produced the challenged
document as a stand-alone document, or refuses to do so, then the claim of privilege is overruled.
Finally, on another note, in the attached chart some rulings include this language:
“Sustained in Part: AWP overruled. Not prepared in anticipation of litigation. ACP sustained.”
This means Carvana’s claim of attorney work product is overruled but its claim of attorney-client
privilege is sustained, and therefore Carvana does not need to produce the document or any
redactions.
RESPECTFULLY SUBMITTED,
/s/ David R. Cohen
David R. Cohen
Special Master
Dated: July 29, 2026
1 	It appears Carvana has, indeed, already produced at least some of the attachments at issue as stand-alone
documents. See Letter from Matt Peters to Special Master at 10 (July 10, 2026) (“These materials are not privileged
on their own—and to the extent these documents have been identified in a context unrelated to a request for legal
advice, they have been produced.”).
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