Chavez v. The Board of County Commissioners of Lake County

          ORDER ON MOTION TO COMPEL

          Nina Y. Wang, United States Magistrate Judge.

         This 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.

         BACKGROUND

         Throughout 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].^[1] 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 ¶¶ 35-86].

         Plaintiffs 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 [#7].

         Relevant 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.^[2] 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].

         On May 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].

         Plaintiffs 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.

         LEGAL STANDARD

         Pursuant 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).

         ANALYSIS

         Because 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).

         Under 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.

         The 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 ...