Summary
sustaining objections to magistrate judge's order rejecting claim of attorney-client privilege and work-product
Summary of this case from Joyce Music v. ClemensOpinion
Case No. C-1-99-789
August 6, 2001
ORDER
This matter is before the Court on objections to a discovery order entered by Magistrate Judge Sherman filed by Defendants Butler County Sheriff's Office, Butler County Board of Commissioners, Guy Rowland, and David Jeffries (Doc. No. 43). For the reasons set forth below, Defendants' objections are SUSTAINED.
On September 24, 1999, plaintiff Tammy K. Eversole filed a complaint (Doc. No. 1) asserting hostile environment and sexual harassment claims pursuant to Title VII of the Civil Rights Act of 1964 and the Ohio Civil Rights Act against the above Defendants, and Defendant Charles Profitt. Plaintiff's claims arise out of her employment as a Butler County Deputy Sheriff. The Complaint also asserts pendent state law claims for negligent supervision, intentional infliction of emotional distress, and assault and battery. Plaintiff filed a complaint at discrimination with the Equal Employment Opportunity Commission on March 16, 1999 and received a right to sue letter on June 27, 1999.
During discovery, Defendants submitted to Plaintiff's attorney a privilege log which indicated that it was in possession of three documents which were non-discoverable: 1) a summary of an internal investigation of plaintiff's charges prepared by Public Information Officer Bradley Kramer on behalf of the Sheriff's Department; 2) notes taken by Butler County Assistant Prosecutor Douglas Duckett during Plaintiff's EEOC hearing and during her unemployment compensation hearing; and 3) the results of a polygraph examination given to Defendant Profitt on April 2, 1999 and administered by Detective Frank Smith of the Sheriff's office. Defendants claimed that these documents are protected by either the attorney-client privilege or the work product privilege. On December 26, 2000, Plaintiff filed a motion to compel the production of these documents. See Doc. No. 23. Defendants submitted the documents under seal for in camera review.See Doc. No. 39.
On April 25, 2001, Magistrate Judge Sherman granted in part and denied in part Plaintiff's motion. See Doc. No. 41. With respect to the investigative summary, Judge Sherman found that neither the attorney-client privilege nor the work product privilege prevented the disclosure of this document. Judge Sherman found the attorney-client privilege inapplicable because although a licensed attorney, Mr. Kramer was not functioning as legal counsel when he produced the report. Judge Sherman further found the work product privilege inapplicable because Mr. Kramer was directed by the Sheriff, a non-attorney, to conduct the investigation. Judge Sherman, however, found that a qualified executive privilege was partly applicable and ordered that the factual sections of the summary should be disclosed but that the conclusion sections of the summary are protected.
Judge Sherman then found that the notes taken by Attorney Duckett were protected by both the attorney-client privilege and the work product privilege. Finally, Judge Sherman found that the polygraph results are not protected by the attorney-client privilege because the polygraph examiner, Detective Smith, is not an attorney. Judge Sherman further found the work product privilege inapplicable to the polygraph results because the test was administered pursuant to the direction of the Sheriff, a non-lawyer.
Defendants now object to those portions of Judge Sherman's order which compel production of the factual sections of the investigative summary prepared by Mr. Kramer and the results of the polygraph test. Defendants contend that even though these documents were created by non-lawyers, they are still subject to the protection of the work product privilege because they were prepared in anticipation of litigation. Defendants point out that both documents were created shortly after Plaintiff filed, and they were made aware of, her EEOC complaint thereby establishing that the documents were prepared in anticipation of litigation.
Upon objection by a party, the district court must modify or set aside any portion of a magistrate judge's non-dispositive pretrial order which is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.CIV.P. 72(a). The Court reviews dispositive trial motions decided by a magistrate judge de novo. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). Because matters concerning discovery are generally considered non-dispositive, a district court applies the "clearly erroneous or contrary to law" standard in its review of Magistrate Judge Sherman's order. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). "[A] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
The work product rule is a qualified immunity which protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation. See In re Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997). The rule protects an attorney's mental impressions and opinions, but other materials may be ordered produced upon a showing of substantial need or inability to obtain the equivalent without undue hardship. Id. The rule applies to documents, records, reports, and exhibits created in anticipation of litigation, and to opinions, testimony, and statements given by witnesses to counsel in confidence. Id.
As noted, the sole reason given by Magistrate Judge Sherman for requiring disclosure of these documents or reports was that the documents were not prepared at the direction of an attorney. Judge Sherman made no finding that Mr. Kramer's report and the polygraph examination were not prepared in anticipation and Plaintiff does not contend otherwise. Therefore, the Court's review is limited to determining whether Judge Sherman's ruling that the documents are discoverable because they were not prepared at the direction of an attorney was clearly erroneous or contrary to law. The Court finds that this ruling was clearly erroneous.
Application of Rule 26(b)(3) is not limited solely to attorneys. Rather, the Rule explicit states that it applies to documents and tangible things prepared by or for the party and the party's representative. See Fed.R.Civ.P. 26(b)(3). Therefore, documents and things prepared by the party or his agent fall within the work product rule. See Wright, et al., 8 Federal Practice Procedure § 2024, at 207 (1970 Supp. 2001). In this case, it is undisputed that the documents and reports in question were created by persons working in a representative capacity for a party, the Butler County Sheriff's Department, in anticipation of litigation. Thus, the work product privilege is applicable and the documents are not discoverable. Therefore, Magistrate Judge Sherman's ruling that the documents are discoverable because they were not prepared at the direction of any attorney was clearly erroneous.
Accordingly, Defendant's objections to Magistrate Judge Sherman's order of April 25, 2001 are SUSTAINED. Defendants shall not be required to disclose the documents at issue (Doc. No. 39).