United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiff's Objection to
Magistrate Judge's Order Denying Discovery Related to
Employer's Investigation [Docket No. 29].
On
February 26, 2018, plaintiff filed this lawsuit alleging that
defendant Alliance for Sustainable Energy, LLC
(“Alliance”) discriminated against him on the
basis of disability in violation of the Americans With
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., and the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq., when it terminated his
employment on November 17, 2016. Docket No. 1 at 14-15,
¶¶ 81-92. Plaintiff also asserts claims under
Colorado law for wrongful discharge and violation of Colo.
Rev. Stat. § 24-34-402.5 against Alliance and outrageous
conduct against defendant Joseph Thill. Id. at
16-19, ¶¶ 93-116.
Six
months after Alliance terminated plaintiff, plaintiff
received an email from Julie Pate of Employment Compliance
Solutions, LLC indicating that she was “conducting an
internal investigation” into complaints made by
“current and former security employees.”
See Docket No. 29-1. On August 3, 2018, plaintiff
served Request for Production No. 9, which requested
“[a]ll documents related to an investigation that was
being conducted by Julie Pate and ‘Employment
Compliance Solutions LLC' in and around May 2017,
regarding complaints made by ‘current and former
security employees,' which are believed to include
complaints and/or concerns regarding Defendant Joseph Thill,
including, but not limited to, any report(s) that were
produced, interview summaries and notes, emails, tape
recordings, and all documents related to the Pate
investigation.” Docket No. 29 at 3, ¶ 5. Alliance
objected to the request on the ground that “it [sought]
documents in the possession of a third party . . . that are
subject to the attorney-client privilege and/or the work
product doctrine.” Id., ¶ 6. On November
23, 2018, the parties filed a joint statement outlining their
respective positions on the requested discovery. Docket No.
25. Plaintiff argued that the documents related to the
internal investigation conducted by Ms. Pate are
“highly relevant to Plaintiff's allegations against
Defendant Thill” and would help plaintiff “to
identify other individuals who observed Mr. Thill's
inappropriate behavior in the workplace.” Id.
at 2. Plaintiff further asserted that the investigation
documents were not protected by attorney-client privilege or
the work product doctrine because (1) Ms. Pate was hired as
an investigator, not outside counsel, and (2) the materials
were not prepared in anticipation of plaintiff's
litigation. Id. at 3-4. Defendant responded that the
attorney-client privilege precluded disclosure of the
investigation materials because Ms. Pate was hired by
Alliance's in-house counsel “to gain information
through an investigation which was necessary for the in-house
attorney to render legal advice.” Id. at 4. In
addition, defendant contended that Ms. Pate's
investigation notes, summaries, and report constituted
protected work product because they were prepared in
anticipation of litigation and “intended to remain
confidential.” Id. at 5.
On
November 28, 2018, the magistrate judge held a hearing on the
discovery dispute during which he determined that the
information pertaining to the Pate investigation was
protected from disclosure by both attorney-client privilege
and the work product doctrine. Docket No. 27; Docket No. 34
at 23-27. The magistrate judge ordered Alliance to
“provide plaintiff with a list of the names of
individuals that were interviewed by Ms. Pate, ” but
declined to require production of the documents related to
the Pate investigation, including the “investigative
report, the witness summaries associated with that report,
e-mails between Pate and in-house counsel or any of the other
materials requested by Request for Production Number
9.” Docket No. 34 at 28. On December 12, 2018,
plaintiff filed an objection to the magistrate judge's
ruling, Docket No. 29, to which Alliance responded on
December 26, 2018. Docket No. 35.
Plaintiff's
objection pertains to a non-dispositive discovery matter.
When reviewing a party's objection to a magistrate
judge's order on a non-dispositive matter, the Court
“must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.” Fed.R.Civ.P. 72(a); Hutchinson v.
Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). 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
Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)).
Plaintiff
asserts that the magistrate judge's ruling precluding
disclosure of Ms. Pate's investigation notes and
interview summaries was clearly erroneous on the following
grounds: (1) there is insufficient evidence in the record
that Ms. Pate's “outside legal advice was the
primary purpose of the investigation, ” Docket No. 29
at 8 (internal quotation marks omitted); (2) there is
insufficient evidence that Alliance requested the
investigation in anticipation of litigation or that the
investigation documents “contain any mental processes
or analysis of the investigator or any Alliance attorney,
” id. at 9; (3) the magistrate judge based his
determination of plaintiff's “substantial
need” on a misinterpretation of plaintiff's
argument related to the work product doctrine, id.;
and (4) the magistrate judge erred in finding that plaintiff
could have obtained the same information by other means.
Id. at 10.[1]
Under
federal common law, the attorney-client privilege generally
applies to “communications made in confidence by a
client and a client's employees to an attorney, acting as
an attorney, for the purpose of obtaining legal
advice.” Sandra T.E. v. South Berwyn Sch. Dist.
100, 600 F.3d 612, 618 (7th Cir. 2010) (citing
Upjohn Co. v. United States, 449 U.S. 383, 394-99
(1981)); see also In re Qwest Commc'ns Int'l
Inc., 450 F.3d 1179, 1185 (10th Cir. 2006) (stating that
a “critical component of the [attorney- client]
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”
(internal quotation marks omitted)). “[T]he mere fact
that an attorney was involved in a communication does not
automatically render the communication subject to the
attorney-client privilege.” In re Grand Jury
Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010)
(internal quotation marks and bracket omitted). On the other
hand, courts have extended the privilege to communications
between a client and a third-party where the
“communication was made in confidence for the purpose
of obtaining legal advice from the lawyer.” Roe v.
Catholic Health Initiatives Colorado, 281 F.R.D. 632,
637 (D. Colo. 2012); see also United States v.
Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995) (recognizing
that the attorney-client privilege can extend to
communications with non-attorneys “when the purpose of
the communication is to assist the attorney in rendering
advice to the client”).
Plaintiff
argues that the attorney-client privilege does not attach to
the investigation documents because “Ms. Pate was not
acting as attorney for Alliance at the time of th[e]
interviews” and “there is no evidence that the
employees being interviewed were advised that her purpose was
to give legal advice to Alliance.” Docket No. 29 at 7.
As discussed above, however, the fact that Ms. Pate conducted
the interviews in her capacity as a third-party investigator
does not render the attorney-client privilege inapplicable so
long as the purpose of the interviews was to assist
Alliance's counsel in providing legal advice. Based on
his in camera review of the interview summaries and
final report, the magistrate judge found that Ms. Pate was
“hired by defendant [Alliance] to conduct an
investigation under the direction of the defendant's
legal counsel for the purpose of assisting legal counsel to
provide legal advice around anticipated litigation.”
Docket No. 34 at 23. The Court finds no clear error in this
ruling.[2] The investigation documents further
support a finding that the employees participated in the
interviews with the understanding that their communications
would be treated as confidential and used to facilitate the
provision of legal advice to Alliance. The fact that the
employees were not expressly advised of this purpose is not
dispositive. See Upjohn Co. v. United States, 449
U.S. 383, 394-95 (1981) (finding the employees
“sufficiently aware that they were being questioned in
order that the corporation could obtain legal advice”
where the questionnaire indicated that the information was
being gathered by the company's “General Counsel,
” the policy statement attached to the questionnaire
“clearly indicated the legal implications of the
investigation, ” and the communications were treated as
“highly confidential”).[3]
Even if
the Court were to conclude that the attorney-client privilege
does not apply to the investigation documents, the magistrate
judge did not clearly err in holding that the documents
constitute protected work product. The work product doctrine
is codified in Fed.R.Civ.P. 26(b)(3), which provides that
“a party may not discover documents and tangible things
that are prepared in anticipation of litigation or trial by
or for another party or its representative (including the
other party's attorney, consultant, surety, indemnitor,
insurer, or agent)” unless the documents “are
otherwise discoverable under Rule 26(b)(1)” and the
party seeking discovery “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). Applying the
analysis set forth in Martin v. Monfort, Inc., 150
F.R.D. 172 (D. Colo. 1993), [4] the magistrate judge found that
(1) the information from the Pate investigation was not
relevant “based largely on the representations by the
plaintiff . . . that the Pate investigation had nothing to do
with David Collardey or his termination”; and (2) the
requested documents were prepared in anticipation of
litigation for Alliance's in-house counsel and at
counsel's direction. Docket No. 34 at 25-26. T he
magistrate judge further determined that plaintiff had not
shown either substantial need for the information or undue
hardship, given plaintiff's statement that the Pate
investigation was unrelated to his termination and the
availability of other means of discovery for obtaining the
information sought. Id. at 27.
Plaintiff
argues that there was insufficient evidence to support the
magistrate judge's finding that the interviews were
conducted in anticipation of litigation because the anonymous
complaint on which the magistrate judge relied to make his
finding did not make any mention of a “specific legal
action” or “actual legal claim he/she might have
against Alliance.” Docket No. 29 at 7-8. Contrary to
plaintiff's suggestion, however, the work product
doctrine is not confined to situations in which litigation is
certain. The test is whether, “in light of the nature
of the document and the factual situation in the particular
case, the document can fairly be said to have been prepared
or obtained because of the prospect of
litigation.” Martin, 150 F.R.D. at 173
(quoting 8 Charles Alan Wright et al., Federal Practice
& Procedure § 2024)); see also Mattenson v.
Baxter Healthcare Corp., 438 F.3d 763, 768 (7th Cir.
2006) (“[P]rovided the prospect of litigation was not
remote . . ., the fact that the case hadn't begun and
might never be brought did not disqualify [attorney's]
jottings from the shelter of the work-product
doctrine.”); Agility Public Warehousing Company
K.S.C. v. Dep't of Defense, 110 F.Supp.3d 215, 228
(D.D.C. 2015) (“The work-product doctrine is not
limited to those cases where litigation is a foregone
conclusion.”); Masters v. Gilmore, No.
08-cv-02278-LTB-KLM, 2009 WL 4016003, at *3 (D. Colo. Nov.
17, 2009) (“Litigation need not be imminent for the
attorney work-product privilege to apply; rather, it must
only be reasonably foreseeable.”). Under this standard,
both the anonymous complaints and the timing of Ms.
Pate's investigation - approximately five months after
plaintiff filed his charge of discrimination with the EEOC,
Docket No. 25 at 1 (noting Pate investigation took place
“in and around May 2017); Docket No. 25-2 (EEOC charge
filed December 12, 2016) - were adequate to support a finding
that Alliance had reasonable grounds to anticipate
litigation. As the magistrate noted in his ruling, Alliance
received multiple, anonymous complaints during a similar time
frame, one of which specifically threatened legal action in
the event that Alliance did not take steps to address
employees' concerns about Mr. Thill. See Docket
No. 29-2 at 1. Given this evidence, the magistrate judge did
not clearly err in holding that the investigation documents
were created in anticipation of litigation.
Plaintiff
also contends that the magistrate judge “made a factual
error by misinterpreting Plaintiff's argument on the work
product doctrine” to find that the “Pate
documents were not highly relevant or necessary for
Plaintiff's case.” Docket No. 29 at 9. But
plaintiff's disagreement with the magistrate judge over
the legal effect of arguments made in the
parties' joint statement does not demonstrate the
existence of a “factual error.” Even if not
dispositive of the issue, plaintiff's statements that the
Pate investigation had “no known relationship to
disability discrimination” and involved several
complaints that “were never made by David Collardey in
any context” supported a finding that plaintiff does
not have a substantial need for the Pate documents. Docket
No. 25 at 4.
In any
event, before plaintiff can overcome the protections afforded
by the work product doctrine, he must also show that he would
suffer an undue hardship if forced to obtain the substantial
equivalent of the Pate documents by other means. See
Martin, 150 F.R.D. at 173. The magistrate judge
concluded that plaintiff had failed to make this showing
because he could use “depositions, subpoenas, or other
means of discovery to obtain information from
[Alliance's] current and former coworkers who had
experiences with Mr. Thill.” Docket No. 34 at 27.
Plaintiff has not demonstrated that this finding was clearly
erroneous. While plaintiff argues that he “cannot
afford to conduct even a few additional depositions . . .,
much less dozens of depositions of interviewees, ”
Docket No. 29 at 10, the cost and inconvenience of conducting
additional depositions is generally insufficient, standing
alone, to constitute an undue hardship. See 8 Charles Alan
Wright et al., Federal Practice & Procedure
§ 2025 (3d ed.) (updated Apr. 2019) (“The fact
that depositions are expensive is not a sufficient showing
unless the expense would amount, in the particular case, to
undue hardship.” (internal quotation marks omitted));
compare Carver v. Allstate Ins. Co., 94 F.R.D. 131,
136 (S.D. Ga. 1982) (holding that “the mere added
expense of deposition discovery [did] not amount to undue
hardship as required by” Fed.R.Civ.P. 26(b)(3)),
and In re LTV Sec. Litig., 89 F.R.D. 595, 616 (N.D.
Tex. 1981) (finding that the potential duplication of effort
and cost did not demonstrate undue hardship because
“duplication of effort and cost is implicit in every
application of the work-product rule”), with
Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611,
617 (N.D. Cal. 2011) (finding sufficient showing of undue
hardship where plaintiffs would have had to survey
“over 600 restaurants to obtain relevant information,
” which “would have cost between $630, 000 and
$825, 000 and taken two to two and a half years to
complete”), and Resolution Trust Corp. v.
Heiserman, 151 F.R.D. 367, 376 (D. Colo. 1993) (holding
that defendants had made an adequate showing of undue
hardship because it would have been “extremely
difficult . . . for defendants to attempt to replicate [the
plaintiff's] three-year investigation”).
For the
foregoing reasons, plaintiff has failed to demonstrate that
the magistrate judge clearly erred in declining to compel
production of the ...