United States District Court, D. Colorado
JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANEHARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, and SARAH CAROLINE AZUELA RASCON, Plaintiffs,
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and GOAUPAIR OPERATIONS, LLC, Defendants.
ORDER REVERSING IN PART UNITED STATES MAGISTRATE
JUDGE'S ORDER ON PLAINTIFFS' MOTION TO COMPEL AND FOR
CHRISTINE M. ARGUELLO United States District Judge.
matter is before the Court on Plaintiffs' Objections
(Doc. # 771) to an Order issued by United States Magistrate
Judge Kathleen M. Tafoya on December 4, 2017 (the
"Magistrate Judge's Order") (Doc. # 763),
wherein the Magistrate Judge denied Plaintiffs' Motion to
Compel and for Relief. In Plaintiffs' Motion to Compel
and for Relief, Plaintiffs moved the Court to compel the
Alliance for International Exchange (the
"Alliance") to produce seventy-seven pages of the
Alliance's communications without redactions. (Doc. # 710
at 1-2.) Plaintiffs also asked the Court to impose monetary
sanctions on Defendants and to order Defendants to pay
Plaintiffs' reasonable expenses incurred in regards to
their Motion to Compel. (Id. at 15.)
following reasons, the Court affirms Plaintiffs'
Objections (Doc. # 771) and reverses in part the Magistrate
Judge's Order (Doc. # 763).
factual and procedural background of this case has been
extensively detailed in the Court's previous orders and
the Magistrate Judge's recommendations. See,
e.g., (Doc. ## 240, 569, 828.) The matter now before the
Court concerns a discovery dispute. Additional factual and
procedural background is detailed here to the extent
necessary to address Plaintiffs' Objections.
Alliance is a trade association of ninety non-governmental
organizations "comprising the international education
and cultural exchange community in the United States."
(Doc. # 717 at 7) (internal quotation omitted). It predates
this action and continues to conduct its business as this
action is litigated. (Doc. # 763 at 2-3.) Thirteen au
pair sponsor organizations, including most Defendants,
form an Au Pair Program sub-group within the
Alliance. (Id. at 3) (internal citation
omitted). Officers of three Defendants serve on the
Alliance's Board of Directors as Chairperson, Treasurer,
and general board member. (Id. at 3.) After service of
the instant suit, the Alliance's Au Pair Program
sub-group hosted discussions among its members to address
this litigation and potential responses to it. (Doc. # 717 at
2.) Hand-written notes taken by and a draft letter composed
by Alliance staff members at these discussions are the
subject of Plaintiffs' Objections. (Doc. # 771.)
served an initial subpoena on the Alliance on or about
January 30, 2017 (Doc. # 709-2), and an amended subpoena on
May 25, 2017 (Doc. # 709-3), pursuant to Federal Rule of
Civil Procedure 45. (Doc. # 763 at 3.) Defendants objected to
the subpoena on June 6, 2017. (Doc. # 709-4.) Plaintiffs and
Defendants conferred on several occasions about the subpoena
and specifically about potential privileges throughout June
2017. See (Doc. ## 709-5-709-7.)
Alliance produced a seventy-seven page, partially-redacted
document of its communications to Plaintiffs on August 23,
2017. (Doc. ## 709-9-709-16.) In its cover letter to
Plaintiffs, the Alliance stated that additional,
potentially-responsive documents were still being reviewed.
(Doc. # 709-8.) The Alliance proposed a claw-back agreement,
"such that [the Alliance] could produce additional
documents now while preserving [its] rights to clawback any
documents which are determined to be privileged or otherwise
confidential." (Id.) Plaintiffs promptly agreed
to a claw-back arrangement (Doc. # 709-17) in an email to
which the Alliance did not reply. The Alliance has not
produced any documents since this correspondence.
September 13, 2017, one day before the Chairperson of the
Alliance's Board of Directors was to be deposed,
Defendants sent a letter to Plaintiffs "assert[ing] that
certain portions of the documents produced by the Alliance
[on August 23, 2017, ] are protected by the work product
privilege, the common interest and joint defense doctrines,
and possible the attorney client privilege." (Doc. #
709-22.) Defendants requested that Plaintiffs
"immediately destroy or return to counsel for the
Alliance the documents" in the August 23, 2017
production. (Id.) The parties conferred on September
15, 2017, but failed to reach agreement on the Alliance's
production. (Doc. # 717 at 5.) Shortly thereafter, Defendants
produced a redacted version of the Alliance's production
and a privilege log. (Doc. # 709-1; Doc. # 717-5.) The
privilege log contains ten entries and states that the bases
for withholding information are "work product, [and]
common interest" for all ten entries and also
"attorney-client privilege reflecting legal advice of
Jeffrey Allen, Esq. of Lawson & Weitzen, LLC" for
five entries (entries 2-6). (Doc. # 717-5.) Mr. Allen
previously served as counsel for Defendant Cultural Care,
September 27, 2017, Plaintiffs filed their Motion to Compel
and for Relief Under Federal Rules of Civil Procedure 26, 37,
and 45, asserting that Defendants could not assert privileges
over documents the Alliance produced on August 23, 2017.
(Doc. # 710.) Plaintiffs asked the Court to compel production
of unredacted versions of the documents and suggested that
the Court sanction Defendants for their conduct.
(Id.) Plaintiffs also requested that the Court
impose monetary sanctions on Defendants and award Plaintiffs
attorneys' fees and costs. (Id.) Defendants
responded in opposition on October 6, 2017. (Doc. # 717.)
Plaintiffs replied in support of their Motion to Compel and
for Relief on October 11, 2017. (Doc. #721.) This Court
referred Plaintiffs' Motion to Magistrate Judge Tafoya
pursuant to 28 U.S.C. § 636(b)(1)(A). (Doc. #712.) The
Magistrate Judge heard argument on November 15, 2017,
see (Doc. # 757), and subsequently conducted an
in camera review of the unredacted version of the
Alliance's documents, see (Doc. # 763.)
Magistrate Judge denied Plaintiffs' Motion to Compel and
for Relief in her Order on December 4, 2017, concluding that
"the common interest doctrine . . . protect[s] . . .
privileged portions of the communications from
disclosure." (Doc. # 763 at 13.) Plaintiffs objected to
the Magistrate Judge's Order pursuant to Rule 72(a) on
December 18, 2017. (Doc. # 771.) Defendants responded in
opposition to Plaintiffs' Objections on January 10, 2017.
(Doc. # 802.)
STANDARD OF REVIEW
magistrate judge issues an order on a non-dispositive,
pretrial order, "[a] party may serve and file objections
to the order to the district court within 14 days after being
served with a copy." Fed. R. Civ. Pro. 72(a). The
district court must modify or set aside any part of the order
that "is clearly erroneous or is contrary to law."
Fed. R. Civ. Pro. 72(a); 28 U.S.C. § 636(b)(a)(A);
First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995
(10th Cir. 2000).
regard to legal matters, the district court conducts an
independent, plenary review of the magistrate judge's
order. In re Motor Fuel Temperature Sales Practice
Litigation, 707 F.Supp.2d 1145, 1148 (D. Kan. 2010); see
also 12 Charles Alan Wright, etal., Federal
Practices Procedure § 3069 (2d ed. 2017). Under the
'contrary to law' standard, the reviewing court
"set[s] aside the magistrate order only if it applied an
incorrect standard, " Dias v. City & Cty. of
Denver, No. 07-cv-00722-WDM-MJW, 2007 WL 4373229, *2 (D.
Colo. Dec. 7, 2007) (internal quotations omitted), or applied
the appropriate legal standard incorrectly, Kissing
Camels Surgery Ctr, LLC v. Centura Health Corp., No.
12-cv-3012-WJM-BNB, 2014 WL 5599127, *1 (D. Colo. Nov. 4,
factual findings by the magistrate judge, the 'clearly
erroneous' standard "requires that the reviewing
court affirm unless it 'on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.'" Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting
United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)). This is a deferential standard. In re
Motor Fuel Temperature Sales Practice Litigation, 707
F.Supp.2d at 1147.
Rule of Civil Procedure 26(b)(1) requires production of
"any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case." (Emphasis added.) The Alliance's
documents satisfy the broad relevancy standard of Rule 26.
The question for the Court is whether Plaintiffs'
discovery request for the Alliance's unredacted documents
covers privileged information. Privileges "further the
administration of justice and should not be set aside
lightly." Plaza Ins. Co. v. Lester, No.
14-cv-01162-LTB-CBS, 2015 WL 3528336, M (D. Colo. June 4,
2015) (internal quotation omitted). However, federal courts
"narrowly construe all privileges." Everitt v.
Brezzel, 750 F.Supp. 1063, 1066 (D. Colo. 1990).
"Whatever their origins, these exceptions to the demand
for every man's evidence are not lightly created nor
expansively construed, for they are in derogation of the
search for the truth." United States v. Nixon,
418 U.S. 683, 710 (1074); see also Herbert v. Lando,
441 U.S. 153, 175 (1979) ("Evidentiary privileges in
litigation are not favored."). The party resisting
discovery and asserting privilege bears the burden of
establishing that the privilege applies. Peat, Marwick,
Mitchell &Co. v. West, 748 F.2d 540, 542 (10th Cir.
1984); Fed.R.Civ.P. 26(b)(5).
assert two privileges: (1) work product privilege, and (2)
attorney-client privilege. See (Doc. # 717-5.) Work
product privilege is governed by the "uniform federal
standard embodied in [Rule] 26(b)(3, )." Frontier
Ref., Inc. v. Gorman-Rupp, Co., Inc., 136 F.3d 695, 703
n.10 (10th Cir. 1998) (quoting United Coal Co. v. Powell
Constr. Co., 839 F.2d 958, 966 (3d Cir. 1988)). The
privilege protects from discovery "documents and
tangible things that are prepared in anticipation of
litigation or for trial by or for [a] party or its
representative." Fed.R.Civ.P. 26(b)(3)(A) (emphasis
added). However, such materials may be discovered if the
party requesting production shows that it has
"substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their substantial
equivalent by other means." Fed.R.Civ.P.
26(b)(3)(A)(ii); see also Martin v. Monfort, Inc.,
150 F.R.D. 172, 172-73 (D. Colo. 1993) (describing the
sequential approach to resolving work product privilege
claims). Work product privilege exists because "[p]roper
preparation of a client's case demands that [counsel for
a party] assemble information, sift what he considers to be
the relevant from the irrelevant facts, prepare his legal
theories and plan his strategy without undue and needless
interference." Hickman v. Taylor, 329 U.S. 495
(1947). Accordingly, "work product protection only
applies to attorneys' or legal representatives'
mental impressions, conclusions, opinions, or legal theories
authored in anticipation of litigation." Grace
United Methodist Church v. City of Cheyenne, 451 F.3d
643, 668 (10th Cir. 2006).
attorney-client privilege protects "confidential
communications by a client to an attorney made in order to
obtain legal assistance." Matter of Grand Jury Subpoena
Duces Tecum Issued on June 9, 1982, to Custodian of
Records, 697 F.2d 277, 278 (10 Cir. 1983) (emphasis
added) (quoting Fisher v. United States, 425 U.S.
391, 403 (1976)). The "mere fact that an attorney was
involved in a communication does not automatically render the
communication subject to the attorney-client privilege,
" Motley v. Marathon Oil Co., 71 F.3d 1547,
1550-51 (10th Cir. 1995); rather, the "communication
between a lawyer and client must relate to legal advice or
strategy sought by the client, " United States v.
Johnston, 146 F.3d 785, 794 (10th Cir. 1998). Another
critical component of the privilege is "whether the
communication between the client and the attorney is made in
confidence of the relationship and under circumstances from
which it may reasonably be assumed that the communication
will remain in confidence." In re Qwest Commc'n
Intern. Inc., 450 F.3d 1179, 1185 (10th Cir. 2006)
(quoting United States v. Lopez, 777 F.2d 543, 552
(10th Cir. 1985)). The purpose of attorney-client privilege
is "to encourage full and frank communication between
attorneys and their clients and thereby promote broader
public interests in the observance of law and administration
of justice." Upjohn Co. v. United States, 449
U.S. 383, 389(1981).
well-settled that when privileged communications are
voluntarily disclosed to a third-party, the privilege is
waived. The Tenth Circuit explained, "the
confidentiality of communications covered by [a] privilege
must be jealously guarded by the holder of the privilege lest
is be waived. The courts will grant no greater protection to
those who assert the privilege than their own precautions
warrant." United States v. Ryans, 902 F.2d73l,
741 n.13 (10th Cir. 1990) (internal quotation omitted). The
proponent of the privilege bears the burden of establishing
non-waiver. L-3 Commc'ns Corp. v. Jaxon Eng'g
& Maint, Inc., No. 10-cv-02868-MSK-KMT, 2014 WL
3732943, *5 (D. Colo. July 29, 2014). Because work product
privilege and attorney-client privilege are "two
distinct concepts, " different standards for waiver
apply and "waiver of one does not necessarily waive the
other." Id., see also United States v. Nobles,
422 U.S. 225, 238 n.11 (1975) ("the work-product
doctrine is distinct from and broader than the
attorney-client privilege."). Work product privilege is
waived "when protected materials are disclosed in a
manner which 'substantially increases the opportunity for
potential adversaries to obtain the information.'"
Martin, 150 F.R.D. at 174 (quoting Niagara
Mohawk Power Corp. v. Stone & Webster Eng'g
Corp., 125 F.R.D. 578, 590 (N.D.N.Y. 1989)). In
contrast, attorney-client privilege is waived by any
voluntary disclosure. United States v. Bernard, 877
F.2d 1463, 1465 (10th Cir. 1989); Ryans, 903 F.2d at
741 n.13 ("The attorney-client privilege is lost if the
client discloses the substance of any otherwise privileged
communication to a third party.").
common interest doctrine, also known as the joint defense
doctrine, is an exception to the general rule that a
privilege is waived when the communication at issue is
disclosed to a third party.Roe v. Catholic Health
Initiatives Colo.,281 F.R.D. 632, 638 (D. Colo. 2012)
(citing In re Qwest Commc'n Intern. Inc., 450
F.3d at 1195). The doctrine operates "as a shield to
preclude waiver of [a privilege] when a disclosure of
confidential information is made to a third party who shares
a community of interest with the represented party."
Frontier Ref., Inc., 136 F.3d at 705 (emphasis
added). A "community of interest" exists
"where different persons or entities have an identical
legal interest with respect to the subject matter of a
communication between an attorney and a client concerning
legal advice . . . The key consideration is that the nature
of the interest be identical, not similar." Id.
(emphases added) (quoting NL Indus., inc. v. Commercial
Union Ins. Co.,144 F.R.D. 225, 230-31 (D.N.J. 1992));
see Gebremedhin v. Am. Family Mut. Ins. Co., No.
13-cv-02814-CMA-NYW, 2015 WL 4272716, *6 (D. Colo. July 15,
2015), objections overruled, 2015 WL 12967849 (D.
Colo. Aug. 18, 2015). In short, the common interest doctrine
is designed "to protect communications between
co-defendants or co-litigants." Roe, 281 F.R.D. at 638
(citing Westinghouse Elec. Corp. v. Republic of
Philippines,951 F.2d 1414, 1424 (3rd Cir. 1991)
("[c]ourts have also held that the client may disclose
communications to co-defendants or co-litigants without
waiving the privilege"); In re Grand Jury
Proceedings,156 F.3d 1038, 1042-43 (10th Cir. 1998)
("to establish a joint-defense privilege, [the party is]
required to demonstrate (1) the documents were made in the
course of a joint- ...