Opinion
No. 00-2053-KHV.
February 22, 2001
O R D E R
Pending before the Court is Plaintiff's Motion for Protective Order (doc. 49). More specifically, Plaintiff moves for an order postponing the production of (1) audio tapes created by Plaintiff, which reflect conversations between Plaintiff and supervisors employed by Defendants; and (2) audio tapes saved by Plaintiff, which contain messages left on Plaintiff's answering machine by several of Defendants' employees.
Relevant Factual Background
Plaintiff brings this employment discrimination suit against Sprint Corporation and Sprint PCS (collectively "Sprint") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., for violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615, and for wrongful discharge in violation of Kansas public policy. Relevant to the pending motion, Plaintiff's First Amended Complaint (doc. 43) alleges the following facts:
Plaintiff was employed with Sprint as a financial analyst from October 1996 to April 1999. Throughout Plaintiff's employment, Plaintiff alleges various employees harassed her, which "exacerbated or perhaps precipitated" her disabilities. See Plaintiff's First Amended Complaint at ¶ 12 (doc. 43). Plaintiff's alleged disabilities include bi-polar disorder, hypothyroidism and adult Attention Deficit Disorder. Plaintiff was under the care of Dr. Urdaneta, a psychiatrist, for these disorders.
In November 1997, Plaintiff reported the alleged harassment to her supervisor, Lorrie McCurdy ("McCurdy"), and to Bridget Carson ("Carson"), a director above McCurdy. The alleged harassment continued and relations between Plaintiff, her coworkers and McCurdy continued to deteriorate. On July 22, 1998, Plaintiff received a written warning for inappropriate workplace behavior. The following day, Dr. Urdaneta placed Plaintiff on a medical leave of absence until August 10, 1998, which was later extended through September 28, 1998. Plaintiff returned to work on that date.
Two months later, on December 4, 1998, Plaintiff received another written warning. On December 7, 1998, Plaintiff lodged a complaint with Sprint's Human Resources Department, alleging harassment and discrimination based on her disability, and Dr. Urdaneta placed Plaintiff on a second medical leave. Around this same time, Plaintiff applied for disability benefits under Sprint's short-term disability plan. On the application form, Plaintiff indicated her illness was work related. See Plaintiff's First Amended Complaint at Ex. J. (doc. 43). In a letter dated January 14, 1999, Sprint's Human Resources Department sent workers' compensation forms to Plaintiff "in case [she was] interested in applying for workers compensation benefits." Id. On March 11, 1999, Plaintiff returned to work after her second medical leave. Approximately five weeks later, Sprint terminated Plaintiff's employment. Plaintiff subsequently filed this lawsuit against Defendants.
In their Opening Request for Production of Documents upon Plaintiff, Defendants requested Plaintiff produce all documents identified by Plaintiff in her Fed.R.Civ.P. 26(a)(1) initial disclosures. Plaintiff objected to Defendants' request on numerous grounds. Plaintiff objected to the immediate production of tape recordings of conversations and voice messages of various Sprint employees, but agreed to produce recordings of Sprint employees within a reasonable time after such employees are deposed. Plaintiff further objected to producing information contained on the tape recordings that was of a personal and confidential nature, privileged or not relevant. Attached to Plaintiff's pleading was a privilege log reflecting, in relevant part, the following information:
Bates To: From: CC: Description Privilege Claimed Note: Side 1 contains no relevant information — dated 1997) which is of poor quality, but is Attorney-client believed to include a conversation between and plaintiff and Lorrie McCurdy]
# Tape 1 (which includes voices of Sprint PCS Work employees and an EEOC representative) Product Tape 2 (which includes voices of an EEOC Attorney-client representative and an attorney contacted and by the plaintiff for the purpose of work product obtaining legal advice) Tape 3 (which includes voices of Sprint PCS Attorney-client employees and an EEOC representative) and work product Tape 4 (which includes voices of an EEOC Attorney-client representative and an attorney and contacted by the plaintiff for the work product purpose of obtaining legal advice) Tape 5 (which includes voices of Sprint PCS Attorney-client employees and an attorney contacted and by the plaintiff for the work product purpose of obtaining legal advice) Tape 6 ( Attorney-client . and Side 2 contains voices of Sprint PCS work product employees) Tape 7 ( work product Tape 8 (which includes voices of plaintiff's Attorney-client EAP contact, Diane Crumbaker, an EEOC and representative and several attorneys work product contacted by the plaintiff for the purpose of obtaining legal advice) Tape 9 (which includes voices of various Sprint Attorney-client PCS employees) and work product Tape 10 (which includes voices of plaintiff's Attorney-client EAP contact, Diane Crumbaker and several and attorneys contacted by the plaintiff for work product the purpose of obtaining legal advice) Summarizing the table above, the information on the tapes can be placed into six categories:• Voices of various Sprint PCS employees;
• A conversation between Plaintiff and Lorri McCurdy;
• The voice of an EEOC representative;
• Voices of attorneys contacted by Plaintiff for the purpose of obtaining legal advice;
• The voice of Plaintiff's EAP contact, Diane Crumbaker; and
• Information that is not relevant to this lawsuit.
Plaintiff now moves for a protective order deferring her duty to produce the tapes until after the employees in question are deposed. According to Plaintiff, postponing production of the tapes will successfully destroy any opportunity for Defendants to tailor witness testimony and "explain away" damaging statements made by employees on the tapes.
Discussion
• The Scope of Plaintiff's Request for Protection
Although not clear from Plaintiff's initial Memorandum in Support of Motion for Protective Order, it appears from her Reply brief subsequently filed that Plaintiff's request to defer production does not apply to all the tapes listed in her privilege log, but only to those portions of the tapes that contain prior party statements pursuant to the second paragraph of Fed.R.Civ.P. 26(b)(3). Plaintiff asserts she consistently has maintained, and has not waived, a claim of attorney-client privilege and/or work-product protection for those portions of the tapes that reflect (1) statements made by Sprint PCS employees who qualify as witnesses instead of agents of Sprint; (2) the voice of the EEOC representative; (3) voices of attorneys contacted by Plaintiff for the purpose of obtaining legal advice; and (4) the voice of Plaintiff's EAP contact, Diane Crumbaker. Plaintiff also continues to claim that she has no duty to produce any portion of the tape that contains information not relevant to this lawsuit. Given the limited scope of Plaintiff's request for protection, the only issue before the Court is whether Plaintiff must now produce those portions of the tapes that contain what Plaintiff believes are prior party statements pursuant to Fed.R.Civ.P. 26(b)(3). B. The Work Product Doctrine
Determination of whether Plaintiff's claims of privilege are valid for the other portions of the tapes is not necessary to resolve Plaintiff's Motion for Protective Order and the parties have not placed the issue before the Court.
Each of the tapes listed in Plaintiff's privilege log reflect claims of protection based on the work-product doctrine. Accordingly, the appropriate starting point for this discussion is Fed.R.Civ.P. 26(b)(3) , which provides:
"Unlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed.R.Civ.P. 26(b)(3)." Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 (10th Cir. 1998) (citation omitted).
[A] party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . 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. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Fed.R.Civ.P. 26(b)(3). Relevant to the issue presently before the Court, the second paragraph of Rule 26(b)(3) creates an exception to the protection generally provided for work product materials: "A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party." Id.
Plaintiff asserts the portions of the tapes at issue in her Motion contain 26(b)(3) information but, because they are prior party statements as defined by the second paragraph of Rule 26(b)(3), she concedes Sprint is entitled to them as a matter of right. Plaintiff goes on to request, however, that the Court issue a protective order pursuant to Fed.R.Civ.P. 26(c) to postpone production of the tapes until after she has the opportunity to depose each of the employees who have made the prior party statements.
Plaintiff's request must be denied. Simply put, the Court is unable to address the issue of timing as requested by Plaintiff in her Motion because Plaintiff has failed in the first instance to establish the precondition that those portions of the tapes at issue qualify as work product under Rule 26(b)(3). In other words, the tapes cannot fall into an exception to the work product doctrine if there is no evidence to establish that they are protected by the doctrine in the first place.
To establish work product protection, Defendant must establish that "(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party." Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000) (citations omitted). As the party asserting work product protection, Plaintiff has the burden of establishing that the work product doctrine applies. See McCoo v. Denny's, Inc., 192 F.R.D. 675, 683 (D.Kan. 2000); Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D.Kan. 1995).
To carry that burden, Plaintiff must make a "clear showing" that the asserted objection applies. See McCoo, 192 F.R.D. at 683; Ali v. Douglas Cable Communications, Ltd. Partnership, 890 F. Supp. 993, 994 (D.Kan. 1995). A "blanket claim" as to the applicability of the work product doctrine does not satisfy the burden of proof. McCoo, 192 F.R.D. at 680(where the court found it well settled that the party seeking to invoke work product immunity has the burden to establish all elements of the immunity and that this burden can be met only by an evidentiary showing based on competent evidence.). Moreover, the "burden cannot be discharged by mere conclusory or ipse dixit assertions." Id. (quotations and citations omitted). A party's failure to meet this burden when the trial court is asked to rule upon the existence of the work product immunity is not excused because the material is later shown to be one that would have been privileged if a timely showing had been made. Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984); McCoo, 192 F.R.D. at 680.
With regard to the requirement that work product material be prepared in anticipation of litigation,
the work product standard has two components. The first is what may be called the "causation" requirement. This is the basic requirement that the material in question be produced because of the anticipation of litigation, i.e., to prepare for litigation or for trial. The second component is what may be termed a "reasonableness" limit on a party's anticipation of litigation. Because litigation can, in a sense, be foreseen from the time of occurrence of almost any incident, courts have interpreted the Rule to require a higher level of anticipation in order to give a reasonable scope to the immunity.
The court looks to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of personal business or for other non-litigation purposes are not protected by the work product doctrine. The inchoate possibility, or even likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be "real and imminent."Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan. 2000) (citing Marten v. Yellow Freight System, Inc., No. 96-2013-GTV, 1998 WL 13244 at *10 (D.Kan. Jan.6, 1998)).
Applying the facts of this case to the law set forth above, the Court finds Plaintiff's broad and sweeping claim that the portions of the tapes at issue were prepared in anticipation of litigation fails to meet the burden imposed upon her to establish that fact. Because the privilege log provided by Plaintiff fails to set forth the dates of any of the tape recordings or the names of most of the Sprint employees whose voices are on the tape, the Court is unable to make a determination regarding whether Plaintiff, at the time the tapes were recorded, merely assembled the tapes in the ordinary course of personal business and/or believed there was a "likely chance of litigation" or whether, at the time the tapes were recorded, "the threat of litigation" was "real and imminent." See id. ("To determine the applicability of the work product doctrine, the court generally needs more than mere assertions by the party resisting discovery that documents or other tangible items were created in anticipation of litigation.") (quotations and citations omitted).
Based on the discussion above, Plaintiff's request for an order of protection deferring production of those portions of the tapes listed in her privilege log that contain prior party statements as defined by Fed.R.Civ.P. 26(b)(3) is denied.
Notably, "Rule [26(b)(3)] leaves open the question, which arises when a corporation is a party, which corporate officers and employees will be considered to have given a `party's statement.'" Thornton v. Continental Grain Co., 103 F.R.D. 605, 606 (S.D.Ill. 1984).
IT IS SO ORDERED.