ORDER AND REASONS

JOSEPH C. WILKINSON, JR., United States Magistrate Judge

Plaintiff, Gerald J. Naquin, Sr., moved to compel defendant, Union Oil Company of California ("UNOCAL"), to produce documents that UNOCAL asserts are protected from disclosure by the attorney-client privilege and/or the work product doctrine. Record Doc. No. 16. UNOCAL provided plaintiff with a privilege log, Plaintiff's Exh. C, and delivered the documents to the court for in camera review, as previously ordered. Record Doc. No. 15. UNOCAL filed a timely opposition memorandum to plaintiffs motion to compel. Record Doc. No. 17. Naquin received leave to file a reply memorandum. Record Doc. Nos. 18, 19.

UNOCAL admits that while Naquin's discrimination complaint was pending before the Equal Employment Opportunity Commission ("EEOC"), it "inadvertently" produced to the EEOC a document that was subject to the attorney-client privilege, as part of its response to Naquin's complaint. The document consists of an e-mail dated November 27, 2000 from UNOCAL's in-house attorney, Veronica Roa, to Union Oil's Manager of Employee Assistance Program, Richard Wall, and Wall's e-mail response to Roa dated the same day. Plaintiffs Exh. B. Roa also sent a copy of her e-mail to Bill Herrington, UNOCAL's Human Resources Consultant, and Wall sent copies of his response to Herrington and to Eugenia C. George, who is not identified on defendant's privilege log. In its memorandum, UNOCAL does not state whether it concedes that it waived the attorney-client privilege with respect to this document.

However, in the event that the court finds such a waiver, the parties dispute whether UNOCAL's disclosure waived its attorney-client privilege as to all subjects disclosed in that communication, and if so, what subjects are covered by the waiver. In addition, UNOCAL asserts that the attorney-client privilege and/or the work product doctrine protect all documents listed on its privilege log as to which it has not waived the privilege.

Having reviewed the complaint, the record, the submissions of the parties, the documents submitted for in camera review and the applicable law, and for the following reasons, IT IS ORDERED that plaintiff's motion to compel is GRANTED IN PART AND DENIED IN PART as follows.

I. FACTUAL BACKGROUND

According to plaintiffs complaint, he worked for defendant on offshore production platforms in the eastern Gulf of Mexico for many years. He asserts that he began suffering from major clinical depression after he was transferred to a platform in the western Gulf of Mexico, which was serviced out of Cameron, Louisiana, about a five-hour drive from his home. Naquin alleges that he took an authorized leave of absence from UNOCAL, during which he was treated for depression; that UNOCAL knew about his continuing treatment; and that both he and his doctors requested that he be transferred to a platform in the eastern Gulf as an accommodation for his illness. According to plaintiff's complaint, he was treated by a psychologist, Clarence M. Bergeron, Ph.D., and a psychiatrist, Dr. Dennis M. Spiers.

However, UNOCAL refused to transfer Naquin. Plaintiff alleges that, although his doctors had not discharged him to return to work unless he received a transfer to the eastern Gulf, UNOCAL insisted that he had been fully discharged to return to work at his current job. When Naquin refused to return to work in the western Gulf, UNOCAL terminated his employment. Plaintiff asserts that defendant's actions violate Title VII of the Civil Rights Act, the Employment Retirement Income Securities Act ("ERISA"), the Americans with Disabilities Act and Louisiana anti-discrimination law.

II. ANALYSIS

A. The Attorney-Client Privilege

Federal law governs the analysis of the attorney-client privilege in this case. Under Federal Rule of Evidence 501, privilege questions are generally governed by common law unless otherwise required by federal law. Thus, privilege questions are governed by the federal courts' interpretation of federal common law, except when state law supplies the rule of decision, in which case state law on privilege governs. Fed.R.Evid. 501; United States v. Moore, 970 F.2d 48, 49-50 (5th Cir. 1992); Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992); Robertson v. Neuromed. Ctr., 169 F.R.D. 80, 81-82 (M.D. La. 1996); Soriano v. Treasure Chest Casino, Inc., No. 95-3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996).

Plaintiff's federal claims are brought under Title VII, ERISA and the Americans with Disabilities Act. He also asserts supplemental jurisdiction over his claims brought under Louisiana law. Federal law provides the rule of decision on his federal claims, while state law provides the rule of decision on his state law claims. "Rule 501 makes it clear that state privilege law will apply in diversity cases, and that federal privilege law will apply in federal question cases. However, in federal question cases where pendent state law claims have been asserted, the rule is equivocal." In re Combustion, Inc., 161 F.R.D. 51, 53 (W.D. La. 1995) (Tynes, M.J.), aff'd, 161 F.R.D. 54 (W.D. La. 1995) (Haik, J.) (citing Hancock v. Hobbs, 967 F.2d at 466; Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992); American Civil Liberties Union of Miss., Inc. v. Finch, 638 F.2d 1336, 1343 (5th Cir. Unit A March 1981)).

"[T]he weight of authority among courts that have confronted this issue in the context of discovery is that the federal law of privilege governs even where the evidence sought might be relevant to pendent state law claims." Robertson, 169 F.R.D. at 82-83 (citing Hancock, 967 F.2d at 466; von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982); Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061 n. 3 (7th Cir. 1981); In re Combustion, Inc., 161 F.R.D. at 54; Pagano v. Oroville Hosp., 145 F.R.D. 683, 687 (E.D. Cal. 1993), overruled in part on other grounds by Jaffee v. Redmond, 518 U.S. 1, 8 (1996)).

For the reasons stated in the cases cited above, I conclude "that the federal law of privilege provides the rule of decision with respect to privilege issues affecting the discovery of evidence in this federal question case involving pendent state law claims." In re Combustion, Inc., 161 F.R.D. at 53.

Federal courts have looked to various sources to define the federal common law of attorney-client privilege. Some courts rely on the time-honored Wigmore formulation.

The elements of the attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998) (citations omitted); accord United States v. Massachusetts Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997) (quoting 8 J. Wigmore, Evidence § 2292, at 554 (McNaughton rev. 1961)). Relying in part on the Wigmore formulation, Judge Alvin B. Rubin stated: "The oldest of the privileges for confidential communications, the attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice. The privilege also protects communications from the lawyer to his client, at least if they would tend to disclose the client's confidential communications." Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 720-21 (5th Cir. 1985).

In addition, proposed Federal Rule of Evidence 503:

provides a useful starting place for our discussion. Although not enacted by Congress, courts have relied upon [proposed Federal Rule of Evidence 503, also known as Supreme Court Standard 503] as an accurate definition of the federal common law of attorney-client privilege. . . . Consequently, despite the failure of Congress to enact a detailed article on privileges, Standard 503 should be referred to by the Courts. The most relevant aspect of Standard 503 is its statement of the general rule:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and his lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.

In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (quoting Supreme Court Standard 503(b); additional citations and quotations omitted).

The court "may also look to state privilege law . . . if it is enlightening." Tennenbaum v. Deloitte Touche, 77 F.3d 337, 340 (9th Cir. 1996) (citing Lewis v. United States, 517 F.2d 236, 237 (9th Cir. 1975) ("In determining the federal law of privilege in a federal question case, absent a controlling statute, a federal court may consider state privilege law. But the rule ultimately adopted, whatever its substance, is not state law but federal common law.")).

B. Waiver by Implication

"[D]isclosure of any significant portion of a confidential communication waives the privilege as to the whole." Nguyen v. Excel Corp., 197 F.3d 200, 207 (5th Cir. 1999) (quoting Industrial Clearinghouse, Inc. v. Browning Mfg., 953 F.2d 1004, 1007 (5th Cir. 1992)); accord United States v. Davis, 636 F.2d 1028, 1043 n. 18 (5th Cir. 1981) (citing United States v. Cote, 456 F.2d 142, 144-145 (8th Cir. 1972)); 8 J. Wigmore, Evidence § 2327. "Patently, a voluntary disclosure of information which is inconsistent with the confidential nature of the attorney[-]client relationship waives the privilege." Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993). "Waiver of the privilege in an attorney-client communication extends to all other communications relating to the same subject matter." In re Grand Jury Subpoena (Zerendow), 925 F. Supp. 849, 855 (D. Mass. 1995) (citing In re Sealed Case, 877 F.2d 976, 980-81 (D.C. Cir. 1989)) (emphasis added)); accord In re Papst Licensing, GmbH Patent Litig., No. MDL-1298, 99-CA-3118, 2001 WL 1135465, at *4 (E.D. La. Sept. 24, 2001) (Sear, J.).

In this case, UNOCAL voluntarily produced the e-mail correspondence between Roa and Wall to the EEOC. Although UNOCAL asserts that Herrington attached the document to UNOCAL's position paper without legal advice, there was nothing inadvertent about the disclosure. Thus, UNOCAL has waived its attorney-client privilege as to all other communications relating to the same subject matter. As noted above, the parties dispute the breadth of the subject matter disclosed.

The "waiver by implication" doctrine appears applicable to these circumstances. That doctrine provides that the disclosure of otherwise privileged communications can "in some circumstances . . . waive the privilege not only with respect to the disclosed documents but also as to all other communications made about the same subject between the attorney and the client." Palazzetti Import/Export, Inc. v. Morson, No. 98 CIV 0722, 2000 WL 1015921, at *4 (S.D.N.Y. July 21, 2000) (quoting In re Leslie Fay Cos. Secs. Litig., 161 F.R.D. 274, 282 (S.D.N.Y. 1995)); accord In re Papst Licensing, 2001 WL 1135465, at *4.

Waiver by implication is determined by the standard of fairness. If the disclosure of privileged communications "may be misleading because only favorable material has been disclosed, waiver is likely to be found for so much of the withheld information as will make the disclosure complete and not misleadingly one-sided." Koster v. Chase Manhattan Bank, No. 81 Civ. 5018, 1984 WL 883, at *4 (S.D.N.Y. Sept. 18, 1984); accord In re Papst Licensing, 2001 WL 1135465, at *4.

In Palazzetti, the court found that defendants had produced to plaintiffs counsel two memoranda from one defendant to his attorney. Defendants claimed that production of the documents was inadvertent, but their attorney allowed a defendant to answer questions concerning the documents at a deposition. The court concluded that defendants had waived their attorney-client privilege as to these memoranda, then turned to the scope of the waiver. The court held that defendants would be required to disclose all documents or portions of documents "necessary to ensure that the disclosure of the Waiver Documents . . . [was] not misleading." Palazzetti, 2000 WL 1015921, at *4.

In Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3rd Cir. 1995), Glenmede argued that it had waived its privilege only as to the tax advice and other advice set forth in the opinion letter which it had produced, and objected to production of its attorney's entire file concerning services it received in connection with the transaction at issue. The court ordered production of the file.

There is an inherent risk in permitting the party asserting a defense of its reliance on advice of counsel to define the parameters of the waiver of the attorney-client privilege as to that advice. That party should not be permitted to define selectively the subject matter of the advice of counsel on which it relied in order to limit the scope of the waiver of the attorney-client privilege and therefore the scope of discovery. To do so would undermine the very purpose behind the exception to the attorney-client privilege at issue here — fairness.

Id. at 486; see also In re Sealed Case, 877 F.2d 976, 981 (D.C. Cir. 1989) ("[A] waiver of the privilege in an attorney-client communication extends to all other communications relating to the same subject matter.") (quoting In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982)).

Naquin contends that the subject matter of the disclosed e-mails consists of the following topics: (1) whether UNOCAL regarded Dr. Spiers' letters as medical evidence that plaintiff could stay away from work; (2) whether and when plaintiff was released to return to work; (3) what was discussed with Naquin about his condition, his transfer requests and if he could return to work; (4) the details of plaintiffs "problem" and whether said problems constituted a disability; (5) whether the documentation UNOCAL had from Naquin's physician and psychologist created a "reason" that UNOCAL should not discipline him and (6) whether Naquin was requesting an accommodation for a disability. These suggested subjects are clearly too broad and go beyond the actual subjects discussed in the correspondence.

UNOCAL contends that any waived subject matter is much narrower, consisting of: (1) the specifics of Dr. Spiers' November 6, 2000 letter, (2) Dr. Spiers' opinion regarding plaintiff's ability to return to work, (3) Dr. Bergeron's opinion regarding the lack of psychological restrictions on Naquin's return to work and (4) the requirement that plaintiff return to work. These limited subjects are clearly too narrow and fail to account for the revelation via his own e-mail of the actions and opinions of Wall, the employee assistance program manager.

I find that the November 27, 2000 e-mail correspondence between Roa, defendant's in-house counsel, and Wall relates to the following subjects: (1) the contents of Dr. Spiers' November 6, 2000 letter, (2) UNOCAL's communications with Naquin about the opinions of plaintiff's doctors and plaintiff's ability to return to work, (3) Wall's reasons for and the contents of his telephone call with Dr. Spiers, (4) the contents of Wall's conversation with Dr. Bergeron, (5) the contents of Wall's "recent" conversation with Bill Herrington about plaintiff's "apparent malingering" and (6) the contents of and reasons for Wall's opinion that plaintiff was malingering.

UNOCAL was not required to waive the attorney-client privilege, but affirmatively chose to do so by submitting these privileged communications to a third-party, the EEOC, in opposition to plaintiffs EEOC charge as purported evidence that Naquin's employment was terminated for his failure to comply with defendant's sick leave and reporting procedures and that UNOCAL did not violate any antidiscrimination laws. See Plaintiff's Exh. A, UNOCAL's response to EEOC dated February 23, 2001, at p. 4 (reference to e-mail to Wall dated November 27, 2000, Attachment # 9 to response).

Thus, I find that UNOCAL waived its attorney-client privilege as to the following Bates-numbered documents, all of which must be produced: UO-126 through UO-126.1; UO-128; UO-131 through 132 except that the last sentence of the third paragraph (beginning "I understand") is privileged and may be redacted; UO-140 through UO-142, except that the two sections headlined "Veronica" on UO-141 and UO-142 are privileged and may be redacted; UO-282 through UO-285; UO-314; UO-359; UO-360; UO-379 through UO-382; UO-399 through UO-400 to the same extent as UO-131 through 132; UO-404 through 406; UO-410; UO-452 through 453 to the same extent as UO-131 through 132; UO-454 through 456; UO-520 through 521 to the same extent as UO-131 through 132; UO-525 through 529; UO-533; on UO-540, the e-mail from Bondurant to Ettensohn only (the remainder of UO-540 through 541 is privileged); UO-561; and UO-814.

In addition, UNOCAL has exceeded the bounds of the attorney-client privilege in designating many of the documents as privileged. For example, included in the documents for in camera review and listed on the privilege log are copies of the Roa/Wall e-mail correspondence as to which it has waived the privilege. There is also a settlement demand letter from plaintiffs attorney with its attachments, which are clearly not privileged even if they were contained in defendant's attorney's files. Fax transmittal cover sheets and e-mail transmittal messages are not privileged because they contain no confidential communications, regardless whether they were sent from, addressed to or copied to an attorney or paralegal.

Thus, I find that the following documents are not protected by the attorney-client privilege and must be produced: UO-123; UO-124; UO-127 except that the second sentence of the third paragraph is privileged and may be redacted; UO-227 through 245 except that the handwritten notes in the margin of UO-232 are privileged and may be redacted; UO-340; UO-363; UO-372; UO-378; UO-383; UO-393; UO-413; UO-420 through UO-422; UO-424 through UO-426; UO-428; UO-430; UO-467; UO-477; UO-497; UO-506; UO-536; UO-546; UO-548; and UO-870.

C. Work Product Doctrine

The work product protection arises under federal law and is governed by Fed.R.Civ.P. 26(b)(3), which provides that:

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Fed.R.Civ.P. 26(b)(3) (emphasis added). Federal law governs defendant's assertions that certain information is protected from disclosure by the work product doctrine. Dunn v. State Farm, 927 F.2d 869, 875 (5th Cir. 1991).

UNOCAL, as the party seeking protection, bears the burden to show that the disputed documents are work product, i.e., that they were prepared in anticipation of litigation. Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997) (Tynes, M.J.) (citing Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)). "The law is settled that excluded from the work product doctrine are materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation." Id. at 62 (quoting United States v. El Paso Co., 682 F.3d 530, 542 (5th Cir. 1982) (citing Rule 26(b)(3) advisory committee notes)).

The Fifth Circuit has described the standard for determining whether a document has been prepared in anticipation of litigation as follows:

It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine. We conclude that litigation need not necessarily be imminent, as some courts have suggested, as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.

United States v. Davis, 636 F.2d 1028, 1039 (1981) (citations omitted) (emphasis added); accord In re Kaiser Alum. Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000), cert. denied, 121 S.Ct. 1354 (2001).

It is not dispositive that some documents were not prepared by attorneys. Rule 26(b)(3) protects from discovery documents prepared by a party's agent, as long as they are prepared in anticipation of litigation. As the Supreme Court explained:

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.

United States v. Nobles, 422 U.S. 225, 238-39 (1975) (emphasis added).

However, UNOCAL has presented no evidence to establish a date when its primary motivating purpose for creating the documents at issue became to aid in possible future litigation, other than the date proposed by plaintiff, which is February 7, 2001, the date when plaintiffs EEOC charge was mailed to defendant. Although "prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced," C.A. Wright, A.R. Miller R.L. Marcus, Federal Practice and Procedure § 2024, at 343 (1994), the evidence (or lack thereof) in the instant case does not support a conclusion that anticipation of litigation was the primary motivating purpose for documents created before February 7, 2001. If a party or its attorney prepares a document in the ordinary course of business, "it will not be protected [from discovery] even if the party is aware that the document may also be useful in the event of litigation." Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 435 (W.D.N.Y. 1997) (quotation and citations omitted).

Accordingly, I find that defendant has failed to bear its burden of establishing that any of the documents generated before February 7, 2001 are protected by the work product doctrine. Thus, all of those documents generated before February 7, 2001 as to which defendant claims work product protection, except those that are protected by the attorney-client privilege which has not been waived as discussed in the preceding section, must be produced. In addition, I find that the following documents generated after February 7, 2001 are not protected work product and must be produced: UO-219; UO-378; UO-383; UO-386; UO-497; UO-506; and UO-548.

Finally, UNOCAL's objections that UO-125 and UO-627 are irrelevant are sustained. I also find that the redacted portion of UO-832 is irrelevant and need not be produced.

CONCLUSION

For the foregoing reasons, plaintiffs motion to compel is GRANTED IN PART as described above in that all documents that I have specifically identified above for production must be produced. In all other respects described above, the motion is denied.

Plaintiffs deposition is scheduled to commence today. By agreement of all counsel and the court as discussed in our telephone conference of August 9, 2002, those documents whose production has been ordered will be produced to plaintiff's counsel immediately, so that they may be reviewed prior to the deposition, unless either party intends to seek review of this order pursuant to 28 U.S.C. § 636 (b)(1)(A) and Fed.R.Civ.P. 72(a). If review will be sought, counsel must confer with each other and me to determine the manner and timing of implementation of this order and conduct of the deposition.