In re Carvana Co Securities Litigation

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United Association National 	)
Pension Fund, et al., 	) 	CASE NO. CV-22-02126-PHX-MTL
)
Plaintiffs, 	) 	SPECIAL MASTER COHEN
)
v. 	) 	UPDATED RULING IN LIGHT OF
) 	CARVANA’S OBJECTION TO
Carvana Company, et al., 	) 	PRIOR TRANCHE ONE DOCUMENT
) 	RULINGS
Defendants. 	)
On June 26, 2026, the undersigned filed a “Ruling Regarding Tranche One of Carvana
Documents” (“Tranche One Ruling”) (docket no. 552). In that Ruling, the Special Master assessed
Carvana’s privilege claims over 84 “parent documents” and sustained fully or in part the privilege
claim for 40 of them. Carvana then filed an objection to the Special Master’s rulings on eight of
those 40. See docket no. 562. To at least some extent, the objection contained information about
the eight documents, as well as some general background discussion, that had not been submitted
to the Special Master. (The Special Master was aware of some of this contextual material by virtue
of having read the complaint and numerous other docket entries, but the new information in the
objection was more thorough, concise, and focused.)
The Court responded by directing the undersigned “to Review Defendants’ Objection (doc.
562) and exhibits attached thereto” and “file an updated ruling.” Docket no. 567 at 1 (“Re-Review
Order”). The Court reiterated that “any and all materials related to the Special Master’s review of
Defendants’ privilege log should—if not already—be timely provided to the Special Master.” Id.;
see also Order Appointing Special Master at 3 (“The parties shall not include—and the Court will
not consider—any evidence or argument that was not presented to the Special Master.”). The
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 1 of 10

2
Special Master understands the Court’s Re-Review Order to require the undersigned to re-examine
the eight documents listed in Carvana’s objection in light of the additional information and
argument provided, and also understands that the Court will only rarely allow for or request such
re-review of documents following provision of additional information.
The Special Master’s updated conclusions regarding Carvana’s privilege claims over the
eight documents are set out below. For the reasons stated, the Special Master re-affirms the original
rulings for seven of the challenged documents and changes the original ruling for one document.
To facilitate any additional review by the Court, the Special Master provides more detailed and
thorough explanations than would normally appear in an original Ruling. Unless otherwise
directed, going forward the Special Master does not intend to provide the parties with meticulous
discussions for each of the tens of thousands of documents Carvana has listed on its privilege log.
Finally, before turning to the analysis of each of the eight documents, the Special Master
highlights an issue discussed in footnotes 2 and 3 below—that is, changes to redactions by Carvana
within a given document. As noted in the Tranche One Ruling, Plaintiffs originally identified 364
documents for review in Tranche One; Carvana responded by dropping its privilege claims for all
but 157 of those documents; and the Special Master upheld about half of Carvana’s privilege
claims. Given this roughly 20% Tranche One “success rate,” the Special Master “strongly
suggest[ed] Carvana should undertake an additional, careful assessment of all of the documents
listed in its privilege log and remove those where the privilege claim is not appropriate.” Tranche
One Ruling at 9. As of this writing, Carvana has stated it is undertaking this re-assessment, but it
has not produced to Plaintiffs a modified privilege log nor any documents removed from the log.
As explained in footnotes 2 & 3 below, the Special Master has some concern that, during
re-assessment, Carvana is not just “remov[ing] those [documents or redactions from the log] where
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 2 of 10

3
the privilege claim is not appropriate,” it may also be adding redactions. The Court may want to
inquire about this issue.
The Special Master’s additional analysis and re-review of the eight documents listed in
Carvana’s objection follows.
* 	* 	* 	*
PLOG00070245 (“Exhibit 1”). Exhibit 1 is an email chain that begins with an
unprivileged email announcing a change to one of Carvana’s title and registration (“T&R”)
business practices. There follows a redacted exchange between two non-lawyers regarding
implementation of that change. During the redacted exchange between “Jessica Brand, the non-
lawyer who sent the initial [non-privileged] email” and “Jefferson Davis, a Carvana employee
located in Utah,” Brand copies members of Carvana’s Regulatory Operations Support (“ROS”)
team, and one of the ROS team members subsequently weighs in to clarify the announced change.
Objection at 10.
Carvana asserts the widely-shared redacted exchange between Brand, Davis, and the ROS
team constitutes the provision of “legal advice on a specific practice under specific state laws,”
and “[t]hat advice, based on legal analysis and in response to a specific legal issue, serves a
primarily legal purpose.” Id. at 10–11. For the reasons stated below, the Special Master disagrees
and declines to reverse the original ruling on Exhibit 1.
Carvana asserts its ROS team “transmits legal advice addressing specific T&R issues from
Carvana’s counsel to the employees implementing that advice.” Id. at 10, n.2 (emphasis added).
Carvana also acknowledges, however, that, when there are “communications among non-attorney
employees that merely implement legal advice; those communications are not privileged.” Peters
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 3 of 10

4
7/10/26 Ltr. Br. at 7 (citing Hudock v. LG Elecs. U.S.A., Inc., 2019 WL 5692290, at *3 (D. Minn.
Nov. 4, 2019) (emphasis added)). That is precisely what is going on here. Carvana announced a
change to its T&R business practices. The change was understandably vetted by Carvana’s legal
department. It was then conveyed to Carvana’s front-line employees for implementation. That
there was a concern from one of those front-line employees about how to implement the announced
change does not constitute a request for or the provision of legal advice, even if the employee’s
concern was addressed by the ROS team. The primary purpose of the email change is provision of
advice on how Carvana should implement the new T&R business practice; this is not privileged.
PLOG00074294, PLOG00074288, and PLOG00074278 (“Exhibits 2, 3, & 4”). These
documents are three versions of an email chain between two Carvana in-house lawyers. Carvana
quotes the Special Master’s original ruling—“Primary purpose is business, not legal. Does not
reflect a request for or provision of legal advice.”—and asserts the ruling “did not explain how a
lawyer’s question to another lawyer about [the redacted subject matter] was ‘not legal’ advice.”
Objection at 7.
Carvana is correct that the email in question touches upon legal advice. However, the
essence of the original ruling was that the primary purpose of the colloquy between attorneys was
to carry out a business function, with legal questions appearing as a secondary issue and not the
thrust or animating reason behind the communications. The Special Master reaffirms his prior
rulings on Exhibits 2–4, because the subject matter about which the lawyers were conferring was
fundamentally to determine an effective means to solve a business problem.
PLOG00028996 (“Exhibit 5”). Exhibit 5 is an email exchange between in-house counsel
conveying facts and data trends regarding temporary permit issuances in certain States. Carvana
asserts this factual information was “crucial to these lawyers’ ability to advise Carvana on”
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 4 of 10

5
compliance with Title and Registration laws “on the heels of the Michigan Department of State
Placing Carvana’s Novi, MI dealership on probation due to alleged title and registration
violations.” Id. at 13-14.
The Special Master understood this context in the original ruling and concluded the
predominant purpose of the communication was the dispensing of business advice, not legal
advice. For the reasons explained below, the Special Master declines to reverse the original ruling.
In a heavily regulated industry, a business must necessarily navigate the regulatory
framework to carry out its normal business functions. When lawyers advise on compliance with
regulations, or communicate data to inform such advice, the communications commonly involve
a request for mixed business and legal advice. However, an “attorney’s advice does not constitute
legal advice simply because it relates to regulatory activity.” In re Cal. Bail Bond Antitrust Litig.,
778 F. Supp. 3d 1051, 1060 (N.D. Cal. 2025). Here, Carvana’s submissions do not indicate the
presence of any pending or threatened litigation or regulatory action in the States in question.
Instead, Carvana points to a regulatory action taken in Michigan to support a claim of privilege
over communications relating to regulatory compliance in other States. And Carvana does not
disclose any information linking the Michigan action to any regulatory action taken in those other
States. This latter point bears repeating: Carvana’s submissions provide no connection between
the discussion between in-house counsel regarding everyday business functions in Exhibit 5 and
the Michigan probation.
As stated in the original ruling, two of the legal touchstones the Special Master must apply
are: (1) attorney-client privilege should be narrowly and strictly construed, and (2) the party
asserting the privilege bears the burden of establishing each of its elements. The Special Master
reaffirms the prior ruling that Carvana has not carried its burden of demonstrating that the primary
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 5 of 10

6
purpose of the email was to provide legal advice. Carvana did not do so with its original submission
and did not do so with the additional information provided with its objection.
PLOG00050078 (“Exhibit 6”). Exhibit 6 is an email from General Counsel Paul Breaux
to Carvana CEO Ernest Garcia III. In its objection, Carvana notes that lawyers for a public
company “are often involved when making public statements to ensure that information cannot be
misconstrued and spark litigation—especially when the public statements are about stock sales.”
Objection at 14. Carvana also notes (for the first time, in its objection) that it has “already produced
the final email Breaux shared with the Wall Street Journal reporter, withholding only internal
emails reflecting the legal advice that informed that third-party communication.” Id.
Having re-reviewed Exhibit 6, the Special Master reverses the original ruling and sustains
Carvana’s assertion of attorney-client privilege.1 A full explanation for this change is not provided
here because doing so would require disclosing privileged matters. It suffices to say that the
additional contextual material and document-specific discussion provided by Carvana change the
Special Master’s conclusion regarding whether Carvana carried its burden of proof.
1 	Carvana further faults the Special Master’s original rulings on Exhibits 5 and 6 because the original analysis
did not consider whether the documents were entitled to attorney work product protection. Carvana states it “argued
before the Special Master that Exhibits 5 and 6 were privileged and work product because they reflected “attorneys’
mental thoughts, impressions, and opinions” on “anticipated or pending litigation.” Id. at 14-15 (emphasis added). In
fact, Carvana did not designate these two documents as attorney work product. The Excel spreadsheet Carvana
submitted to explain and support its privilege designations included a field (Column T) titled “Privilege Type,” in
which Carvana could indicate “ACP” (for attorney-client privilege), “AWP” (for Attorney Work Product), or both.
Only one of the eight documents that are subject to this Objection (indeed only one of the 157 documents in Tranche
One) included the notation AWP, and that is Exhibit 8, which is discussed below. Accordingly, the Special Master
declines to reconsider this aspect of his rulings on Exhibits 5 and 6.
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 6 of 10

7
PLOG00043555 (“Exhibit 7”). Exhibit 7 is a 225-page Board-of-Directors presentation.
Carvana seeks to redact two slides titled “Compliance Updates” and “Regulatory & Litigation
Trends/Update.”2
The district court’s analysis in United States v. Rite Aid Corp., 2021 WL 1196250 (E.D.
Cal. Mar. 30, 2021), is helpful to explain the Special Master’s evaluation of the redacted slides. In
Rite Aid, the court examined Board presentation materials and upheld Rite Aid’s privilege claims,
stating:
Review of the documents confirms Rite Aid’s representations that these documents
consist of legal updates and strategies for addressing various legal issues. These
regulatory risks assessments highlight various regulatory issues known to Rite Aid;
the level of concern (or priority status) for each issue; and, in some instances, the
legal consequence that could potentially result from the issue and/or
recommendations to address the problem area. They also reflect information about
specific legal matters—including ongoing litigation, governmental investigations,
2 	Carvana’s Exhibit 7 contains multiple additional highlighted slides—indicating proposed redactions—that
were not proposed to be redacted in the in camera documents submitted to the Special Master. See Decl. of Matthew
Peters at 2 (“The highlighted portions of Exhibit 7 (pages 130-31, 213-14, 220, 222) represent material Carvana has
redacted for privilege.” In the document provided to the Special Master, consisting of bates nos.
CVNA_CA_00005838–6062, only two slides were shown as redacted, not six slides. See CVNA_CA_00006049–
6050 (corresponding to Ex. 7 pp. 213–214).
The origin of this discrepancy is unclear. Carvana does not acknowledge these new redactions in any of its
briefing. In its Objection, for example, Carvana only discusses Exhibits 7–8 in broad, generalized terms and does not
discuss any specific redaction with particularity. See Objection at 8 (“The redacted material—which was prepared and
presented by Carvana’s in-house lawyers—discussed updates on [three broad categories of information Carvana
asserts reflect legal analysis].”).
Had the Special Master sustained Carvana’s redactions at the outset, there would have been nothing about
which Carvana could object, and the document would have been (and should already have been) produced without
the additional proposed redactions Carvana now seeks. Further, because Exhibit 7 was specifically identified by
Plaintiffs and reviewed and produced by Carvana for in camera examination, there can be no argument that Carvana’s
initial omission of the proposed new redactions was inadvertent.
While the Court’s Order directing the undersigned to re-review the new information contained in Carvana’s
Objection expressly contemplates review of materials presented for the first time in the Objection—noting
“[m]aterials SHOULD NOT be provided, for the first time, in a party’s objection”—the Court’s Order cannot be read
to permit Carvana to add new redactions that were not asserted previously. See docket no. 567 at 1. Thus, Carvana’s
privilege assertions over the proposed new redactions on pages 130–31, 220, and 222 of Exhibit 7 are waived.
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 7 of 10

8
and consent decrees—and Rite Aid and its counsel’s strategies and efforts to
address these matters.
Id., at *10 (emphasis added).
Comparing the Rite Aid court’s findings to the redacted information in Exhibit 7, there are
some similarities but also notable differences. For instance, while Carvana’s presentation does
consist of “legal updates” on compliance, regulatory, and litigation trends, it does not contain any
“strategies for addressing [those] legal issues.” Id. Similarly, Carvana’s presentation does
“highlight various regulatory issues known to [Carvana],” however, it does not: (1) offer any “risk
assessments;” (2) express a “level of concern (or priority status) for [any] issue;” (3) identify “the
legal consequence that could potentially result from the issue;” or (4) provide “recommendations
to address [any] problem area.” Id. Finally, while Carvana’s presentation does reflect “[factual]
information about specific legal matters—including ongoing litigation [and] governmental
investigations,” it does not reflect Carvana’s or “its counsel’s strategies and efforts to address these
matters.” Id.
In sum, as in Rite Aid, Carvana’s presentation in Exhibit 7 does present underlying facts
about legal matters. Unlike in Rite Aid, however, Carvana’s Board presentation does not present
any legal analysis, risk assessment, strategy, recommendation, potential consequence, or level
of concern about those facts. “The privilege only protects disclosure of communications; it does
not protect disclosure of the underlying facts.” Upjohn Co. v. United States, 449 U.S. 383, 395
(1981).
Having re-reviewed the document, the Special Master again concludes the primary purpose
of the redacted slides was to provide Carvana’s Board with compliance, regulatory, and litigation
status updates and information for a business purpose; the primary purpose was not provision of
legal advice. Accordingly, the Special Master reaffirms the original ruling on Exhibit 7.
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 8 of 10

9
PLOG00049576 (“Exhibit 8”). Exhibit 8 is also a Board presentation and, like Exhibit 7,
Carvana asserted its privilege claim in the form of specific redactions rather than withholding the
entire document.3 Exhibit 8 is unique however, in that, of the 157 documents the Special Master
reviewed in Tranche One, it was the only one over which Carvana also asserted work product
protection.
Regarding attorney client privilege, the analysis of Exhibit 8 is the same as for Exhibit 7.
The slides present unprivileged facts divorced from any meaningful legal analysis and thus are
primarily for a business purpose and not protected by the privilege. Accordingly, the Special
Master reaffirms that aspect of the original ruling on Exhibit 8.
Carvana’s assertion of work product protection over this document does not change the
Special Master’s conclusion. As described in the Special Master’s first ruling, to qualify for work
product protection, the party seeking the protection has the burden to show the document was: “(1)
3 	Also, like Exhibit 7, Carvana seeks to redact from Exhibit 8 more information in its Objection than it sought
to redact before the Special Master in the first instance. Compare Decl. of Matthew Peters at 2 (noting redactions at
“pages 121, 123-26, 129, and 146-50”); with CVNA_CA_00006738–6891 (only containing redactions at
corresponding pages 121, 123–24, 129, 146, and 149). [Note: For the avoidance of ambiguity, the actual page
numbers in the Special Master’s redacted copy were all lower by one, because of the addition of a cover page on
Exhibit 8. In other words, the redactions in the Special Master’s original redacted copy, because it does not have a
cover sheet, are at 120, 122–23, 128, 145, and 148. In this footnote 3, except for this Note, all page numbers
correspond to those in Exhibit 8 and not the Special Master’s redacted copy.]
Further, the Special Master notes that, in addition to the three newly redacted slides in Exhibit 8, Carvana
also broadened its redactions on two slides. Specifically, on page 121, Carvana originally redacted only bullets 1 and
4, but changed its submission to the Court to redact the entire slide; and on page 146, Carvana expanded from initially
redacting only bullets 1, 2, and 3 (excluding sub-bullets) to again redacting the entire slide.
The Special Master is very concerned that, if the Court had simply reviewed Carvana’s Objection without
referring the matter back to the undersigned, the Court could not have known it was being asked to review different
redactions than what had been originally presented to the Special Master. The expanded redactions on pages 121 and
146 are especially problematic because Carvana reviewed those slides, made affirmative redaction decisions before
submitting them to the undersigned, and then altered those redaction decisions when objecting to the Special Master’s
Ruling—with no acknowledgement of the change. This was not simple inadvertence and is troubling. It is also
confusing, because the Special Master understands Carvana already produced to Plaintiffs the original, less-redacted
version of this document.
Returning to the merits, for the same reasons set forth in footnote 2, above, the Special Master finds Carvana’s
privilege assertions over the proposed new redactions on pages 121, 125–26, 146–148, and 150 of Exhibit 8 are
waived.
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 9 of 10

10
[] ‘prepared in anticipation of litigation or for trial’ and (2) [] prepared ‘by or for a party or that
party’s representative.’” Docket no. 192 at 3 (quoting In re Grand Jury Subpoena (Torf), 357 F.3d
900, 907 (9th Cir. 2003)); Hernandez v. Tanninen, 604 F.3d 1095, 1102 (9th Cir. 2010)
(recognizing the burden is on the party invoking work-product doctrine).
Beyond asserting, generally, that it was subject to various investigations, Carvana does not
attempt to describe how this document or any redaction in it was created in response to any of
those investigations or in anticipation of any legal action that might be taken against Carvana. The
slides’ purpose is plainly and only to report to the Board the status of the company’s legal postures
and to inform the Board regarding the day-to-day business operations of the company.
There is simply no basis to conclude these slides would not have been created but for the
prospect of litigation. See In re Grand Jury Subpoena (Torf), 357 F.3d at 908 (work product
protection afforded if a “document was created because of anticipated litigation, and would not
have been created in substantially similar form but for the prospect of that litigation[.]”) (quoting
United States v. Adlman, 134 F.3d 1194, 1195 (2nd Cir.1998)). Accordingly, the Special Master
fully reaffirms the original ruling on Exhibit 8.
RESPECTFULLY SUBMITTED,
/s/ David R. Cohen
David R. Cohen
Special Master
Dated: July 20, 2026
Case 2:22-cv-02126-MTL Document 574 Filed 07/20/26 Page 10 of 10