United States District Court, D. Colorado
ORDER ON MOTION TO COMPEL
Y. Wang, United States Magistrate Judge.
matter comes before the court on Plaintiffs Maria Chavez,
Chelsa Parsons, and Nicole Garner’s (collectively,
“Plaintiffs”) Motion to Compel Production of
Documents Relevant Pursuant to Defendant’s
Faragher/Ellerth Defense (“Motion to
Compel” or “Motion”), filed June 21, 2019.
[#74]. This court considers the Motion pursuant to 28 U.S.C.
§ 636(b) and the Memorandum dated June 24, 2019, [#76].
Having reviewed the Motion, the Parties’ briefing and
tendered exhibits, the applicable case law, and being
sufficiently advised in its premise, this court
GRANTS IN PART and DENIES IN PART the Motion
to Compel for the following reasons.
2017 and 2018, Plaintiffs worked as dispatchers for Defendant
the Lake County Sheriff’s Office (“LCSO”).
See [#7 at ¶¶ 3-5]. Each resigned,
however, following an investigation into Plaintiffs’
(and others) complaints that Defendants Rodney Fenske and
Fernando Mendoza sexually harassed Plaintiffs and other
female employees and then retaliated against Plaintiffs for
reporting the alleged sexual harassment. See
[id. at ¶¶ 11-43, 52-72].
Plaintiffs’ complaints spurred two investigations: the
first conducted by the Lake County District Attorney’s
Office; the second conducted by a private law firm hired by
Defendant Board of County Commissioners of Lake County,
Colorado (the “County”). See
[id. at ¶¶ 42-43]. Despite the investigations,
Plaintiffs allege the County, LCSO, and Defendants Fenske,
Mendoza, and Hammer (collectively, “Defendants”)
perpetuated a hostile working environment and continued to
mistreat Plaintiffs. See [id. at
then initiated the instant action against Defendants in this
District on December 18, 2018. See [#1]. Pursuant to
their Amended Complaint, filed as a matter of course pursuant
to Rule 15(a)(1)(A), Plaintiffs assert claims against various
Defendants for violations of Plaintiffs’ First and
Fourteenth Amendment rights under 42 U.S.C. § 1983 as
well as violations of Title VII of the Civil Rights Act
claims, 42 U.S.C. § 2000e et seq., for hostile
work environment and retaliation. See generally
here, LCSO filed its Answer to the Amended Complaint on April
29, 2019. See [#39]. As an Affirmative Defense LCSO
asserts it “exercised reasonable care to prevent and/or
promptly address any allegations of sexually harassing,
inappropriate[,] or discriminatory treatment or
behavior” and Plaintiffs “unreasonably failed to
take advantage of any preventative or corrective
opportunities provided by Defendant LCSO to avoid and/or
mitigate the conduct and harm alleged in the Amended
Complaint,” [id. at 17], otherwise known as
the Faragher/Ellerth defense. Plaintiffs have moved to
strike LCSO’s (and any other) invocation of the
Faragher/Ellerth defense pursuant to Rule 12(f) of
the Federal Rules of Civil Procedure, and that Motion remains
pending before the presiding judge, the Honorable William J.
Martinez. See [#25].
23, 2019, LCSO filed a Motion to Quash Subpoena seeking to
quash Plaintiffs’ subpoena, which sought all materials
concerning the investigation of Plaintiffs’ sexual
harassment complaints, served on LCSO’s attorney
Catherine Tallerico; LCSO moved to quash on attorney-client
privilege and work product doctrine grounds. See
[#64]. The undersigned struck the Motion to Quash Subpoena
for failure to follow this court’s informal discovery
dispute procedure, see [#66], and set Plaintiffs and
LCSO for an informal discovery dispute conference on June 5,
2019, see [#67; #69]. At the discovery conference
this court directed LCSO to produce a privilege log
reflecting which sought-after documents were protected by the
attorney-client privilege and directed Plaintiffs to file the
instant Motion to Compel. See [#69].
filed the instant Motion to Compel on June 21, 2019. [#74].
Plaintiffs now seek to compel production of several documents
designated as protected under LCSO’s privilege log,
[#74-1], but which Plaintiffs argue are related to
LCSO’s Faragher/Ellerth defense and thus are
not subject to attorney-client privilege protection. See
generally [#74; #84]. Specifically, Plaintiffs seek
documents bearing Bates Nos. 1, 2-3, 4, 6-7, 15, 16, 33,
58-59, 60-79, 80, 94, 96-97. [#74 at 2]. While acknowledging
the Faragher/Ellerth defense waives the
attorney-client privilege as to documents and communications
surrounding the investigation of Plaintiffs’
complaints, LCSO argues the Faragher/Ellerth defense
does not waive the attorney-client privilege as to all
communication between Ms. Tallerico and LCSO or others.
See [#79]. Because the Motion to Compel is ripe for
disposition, I consider the Parties’ arguments below.
to Rule 37(a)(1), a party may move for a court order
compelling disclosure or discovery and must certify that she
“has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Fed.R.Civ.P. 37(a)(1). A motion to compel may
include a party’s failure to produce documents
requested pursuant to Rule 34. See Fed. R. Civ. P
37(a)(3)(B)(iv). “The party moving to compel discovery
must prove that the opposing party’s answers are
incomplete[,]” and the “party objecting to
discovery must establish that the requested discovery does
not fall under the scope of relevance as defined in Rule
26(b)(1).” Tara Woods Ltd. P’ship v. Fannie
Mae, 265 F.R.D. 561, 566 (D. Colo. 2010). Ultimately,
“[t]he administration of the rule lies necessarily
within the province of the trial court with power to fashion
such orders [as] may be deemed proper to vouchsafe full
discovery for the just, speedy and inexpensive determination
of the lawsuit.” Robison v. Transamerica Ins.
Co., 368 F.2d 37, 39 (10th Cir. 1966).
subject matter jurisdiction in this action arises from 28
U.S.C. § 1331, federal common law governs the
applicability of the attorney-client privilege. See In re
Qwest Commc’ns Int’l Inc., 450 F.3d 1179,
1184 (10th Cir. 2006) (citing Fed.R.Evid. 501 (“The
common law--as interpreted by United States courts in the
light of reason and experience--governs a claim of
privilege” in federal-question cases)). The
attorney-client privilege “is the oldest of the
privileges for confidential communications known to the
common law” and “protects confidential
communications by a client to an attorney made in order to
obtain legal assistance from the attorney in his capacity as
a legal advisor.” In re Grand Jury
Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010)
(internal quotation marks omitted).
federal common law, the attorney-client privilege protects
communications (1) where legal advice of any kind is sought;
(2) from a professional legal advisor in her capacity as
such; (3) the communications relate to that purpose; (4) made
in confidence; (5) by the client; (6) are at her instance
permanently protected; (7) from disclosure by herself or the
legal advisor; (8) unless the protection is waived. Roe
v. Catholic Health Initiatives Colorado, 281 F.R.D. 632,
636 (D. Colo. 2012). Federal courts strictly construe the
privilege. See In re Grand Jury Subpoenas, 144 F.3d
653, 658 (10th Cir. 1998). Indeed, communications do not
become privileged solely because they involve an attorney.
Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51
(10th Cir. 1995). Rather, there must be a connection between
the subject of the communication and the rendering of legal
advice, and legal advice must predominate for the
communication to be protected. “[A]cts or services
performed by an attorney during the course of representation
are not within the privilege because they are not
communications,” and “the subject matter of
meetings with an attorney, the persons present, the location
of the meetings, or the persons arranging the meetings are
not protected by the privilege.” Coorstek, Inc. v.
Reiber, No. CIVA08-CV-01133-KMT-CBS, 2010 WL 1332845, at
*7 (D. Colo. Apr. 5, 2010) (citations omitted). And
“[t]he party seeking to assert [the] privilege has the
burden of establishing its applicability.”
Motley, 71 F.3d at 1550.
attorney-client privilege is not absolute and may be waived.
See generally United States v. Ary, 518 F.3d 775,
783-84 (10th Cir. 2008). Pertinent here, “[c]ourts have
interpreted an assertion of the Faragher/Ellerth
affirmative defense as waiving the protection of the work
product doctrine and attorney-client privilege in relation to
investigations and remedial efforts in response to employee
complaints of discrimination because doing so brings the
employer’s investigations into issue.”
E.E.O.C. v. Outback Steakhouse of FL, Inc., 251
F.R.D. 603, 611 (D. Colo. 2008) (citations omitted)
(collecting cases). In Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998), the Supreme Court of
the United States “determined that an employer should
be held vicariously liable [under Title VII of the Civil
Rights Act] for a ...