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Cejka v. Vectrus Systems Comporation

United States District Court, D. Colorado

July 27, 2017

VICTOR CEJKA, JAMES WALKER, STEVEN WASCHER, JAMIE LYTLE, and PAUL CROSS, Plaintiffs,
v.
VECTRUS SYSTEMS COMPORATION, f/k/a Exelis Systems Corporation, Defendant.

          ORDER RE: COMMON INTEREST DOCTRINE

          Michael E. Hegarty, United States Magistrate Judge.

         At the parties' request, the Court held a hearing on June 19-20, 2017 to permit Defendant Vectrus Systems Corporation (“Vectrus”) to “present evidence establishing the steps Vectrus has taken to preserve, collect, and produce documents as necessary to fulfill its discovery obligations” and to allow Plaintiffs to present contrary evidence in support of their request for an adverse inference or other sanction against Vectrus for a “discrete set of documents, ” which “existed at one point” but “no longer exist.” Tr. 287: 12-20. At the close of the hearing, Vectrus raised an objection to Plaintiffs' proposed Rule 30(b)(6) topic seeking testimony regarding communications between Vectrus and Fluor Corporation, and asserted such information was privileged by the “common interest doctrine.” See Tr. 361: 18-25, 362: 1-7; 371: 23-25, 372: 1-6. The Court ordered briefing by the parties on this single issue (Tr. 379: 1-9) and now finds that testimony sought by Plaintiffs' Rule 30(b)(6) Topic #1 concerning the July 2015 legal hold notice addressed by Vectrus to Fluor and any communications regarding the legal hold notice occurring from July 2015 to October 2015 are not discoverable pursuant to the work-product and common-interest doctrines.

         In an effort to show the Court the steps it has taken to respond to discovery, Vectrus argued at the hearing that it had placed several “legal holds” on information and documents it possessed concerning potential witnesses in this case:

(By Ms. Kotlarski) Mr. [Chris] Rather, what are the basic steps that you take with respect to legal holds? What's your role [as in-house counsel]?
Right, so it's really twofold. One piece is to send the legal hold to specific people in the IT department for the purpose of informing the IT department to preserve the identified individuals' mailboxes and computers. The second part is to send a legal hold to the specifically identified individuals. The legal hold itself is -- contains a very explicit description of what the individuals are directed to do in order to preserve and not delete any information relative to the subject matter. And we ask that the individual then sign an acknowledgment that they're going to comply with that directive and they send back a signed statement.

Tr. 88: 10-14. Vectrus asserts that it has withheld from production to Plaintiffs all “legal hold [notices] on the basis of privilege and work product as well.” Tr. 86: 11-13. At the hearing, Vectrus produced to the Court in camera copies of legal hold notices in “four folders” as follows: (1) those issued in February 2014 after receipt of a charge of discrimination filed by Robert Redd; (2) those issued in January 2015 after receipt of the Department of Defense IG inquiry; (3) those issued in June 2015 after receipt of the draft Complaint in this case; and (4) those issued after this action was filed. In addition, Vectrus produced for in camera review an email from Mr. Rather to a representative of the Fluor Corporation, for which Vectrus is a subcontractor, notifying Fluor of its request for a legal hold. See Tr. 345: 16-23.

         Near the end of the hearing, the parties stated their agreement that discovery was closed, except for one deposition of a Fluor corporate representative, noticed pursuant to Fed.R.Civ.P. 30(b)(6). Vectrus had no objections to Plaintiffs' proposed Deposition Topics ## 2, 3, and 4, but objected to the last clause in Topic #1:

Fluor's retention or destruction of information, emails or documents generated by Vectrus, relevant to the above-captioned case, and any request to retain the same by Vectrus or anyone on behalf of Vectrus.

Tr. 361: 10-23 (emphasis added). Vectrus contended that there were “communications” within and subsequent to its written request to Fluor for a legal hold “that may implicate or share views of the case, views of witnesses, ” which it argues are protected from disclosure by the common-interest doctrine. Id. at 371: 23-25, 372: 1-3; see also Declaration of Christopher S. Rather, June 26, 2017 (“Rather Decl.”), ¶¶ 4, 8. Plaintiffs objected to the application of the common-interest doctrine. Vectrus asked to brief the issue, and the Court set a briefing schedule. Id. at 375: 25, 376: 1-2; 379: 4-9. The matter is now ripe for consideration.

         First, Vectrus argues that the legal hold notice addressed to Fluor is protected from disclosure to Plaintiffs by the attorney work-product doctrine. Vectrus next contends that the common-interest doctrine precludes any waiver-by Vectrus' disclosure of the notice to Fluor- of the work-product doctrine. Plaintiffs counter that Vectrus cannot have it both ways-assert that it has a common interest with Fluor and claim that it has no control over documents in Fluor's possession, custody, or control. “Simply put, if the Court finds that the common interest doctrine applies to Vectrus and Fluor in the manner requested by Vectrus, then it necessarily should find that Vectrus's duty to preserve documents in its possession, custody, or control extended to materials maintained on Fluor-owned assets.” Resp. 6. Vectrus replies that Plaintiffs' argument is not proper for the single issue addressed in this briefing: whether the common-interest doctrine applies to preclude testimony on the last clause of the Rule 30(b)(6) Topic #1.

         “The work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed.R.Civ.P. 26(b)(3).” Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998) (internal quotation omitted). To be subject to the work-product doctrine the materials must have been “prepared in anticipation of litigation. It does not protect materials prepared in the ‘ordinary course of business.'” Weitzman v. Blazing Pedals, Inc., 151 F.R.D. 125, 126 (D. Colo. 1993) (citation omitted). Thus, to receive work product protection, the party resisting discovery must demonstrate that the information at issue “was prepared by the attorney in anticipation of litigation or for trial.” In re Grand Jury Proceedings, 616 F.3d 1172, 1184-85 (10th Cir. 2010); see also Pepsico, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002) (stating that “[i]n order to protect work product, the party seeking protection must show the materials were prepared in anticipation of litigation, i.e., because of the prospect of litigation”) (emphasis added).

         At the outset, the Court agrees that the only issue before it supported by the current briefing is whether Vectrus' challenge to Plaintiffs' Rule 30(b)(6) Deposition Topic #1, seeking to preclude testimony regarding communications between Vectrus and Fluor concerning Vectrus' request for a legal hold in July 2015, is proper.

         First, the Court finds the legal hold notice issued by Vectrus' in-house counsel to a Fluor attorney on July 20, 2015 is protected from disclosure by the work-product doctrine. Although this action was not filed until October 30, 2015, it is undisputed that Vectrus received a copy of the draft complaint from Plaintiffs' counsel in June 2015, and the Court finds the legal hold notice was prepared because of the prospect of litigation. In addition, the Court finds that the notice contains Vectrus' counsel's mental impressions, which are clearly protected by the work-product doctrine. See United States v. Nobles, 422 U.S. 225, 238 (1975) (“At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.”); see also Upjohn Co. v. United States, 449 U.S. 383, 400 (1981) (even when work-product materials are ordered to be produced, “. . . the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.”).

         Second, however, “[t]he protection provided by the work-product doctrine is not absolute, and it may be waived.” In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1186 (10th Cir. 2006) (citation omitted). That is, the work product qualified privilege “may be waived by the voluntary release of materials otherwise protected by it.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006) (quoting Simmons, Inc. v. Bomardier, Inc., 221 F.R.D. 4, 8 (D.D.C. 2004)). Certainly, it is not disputed that Vectrus disclosed to Fluor, an entity not a party to this case, the litigation hold notice, and the entities ...


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