Opinion
No. 2:11-cv-3396 JAM GGH
06-22-2012
NINA FISHER, Plaintiff, v. KOHL'S DEPARTMENT STORES, INC., Defendant.
ORDER
Presently pending before the court is plaintiff's motion to compel production of documents, originally filed on May 24, 2012 and noticed for hearing on June 14, 2012. (Dkt. No. 26.) The parties filed a joint statement pursuant to E.D. Cal. L.R. 251 on June 7, 2012. (Dkt. No. 30.) At the June 14, 2012 hearing, Joshua Boyce appeared on behalf of plaintiff and Matthew Noel appeared on behalf of defendant. After considering the parties' joint statement and supporting documentation, the oral arguments of counsel, and the applicable law, the court now issues the following order.
BACKGROUND
This diversity action, removed from state court on December 21, 2011, arises from a December 22, 2009 accident during which plaintiff Nina Fisher allegedly slipped and fell on a discarded hanger in defendant Kohl's Department Stores, Inc.'s Roseville store. Plaintiff purportedly suffered serious resulting injuries, including a comminuted fracture of the proximal left humerus and a fracture of the distal right femur above the knee, requiring surgical intervention. Plaintiff sues defendant on theories of negligence and premises liability.
According to plaintiff, she suffers from dementia, and at her April 5, 2012 deposition she could not specifically recall anything that had happened within five minutes after the accident, including whether she spoke to any Kohl's employees, whether she told anyone in the store about a hanger, or whether anyone from Kohl's provided her with assistance after the accident. (Dkt. Nos. 28-15, 28-16.) Mary Ann Haughner, an Assistant Store Manager who apparently authored an incident report regarding the accident, testified at her April 30, 2012 deposition that she did not recall the incident, speaking with plaintiff or anyone else regarding the incident, or assisting plaintiff at the time of the incident. (Dkt. No. 28-14.) Ms. Haughner also did not recall any other slip-and-fall accidents at defendant's Roseville store. (Id.)
On March 20, 2012, plaintiff propounded several requests for production of documents to which defendant filed responses on April 23, 2012. For purposes of this motion, the following 6 requests are technically at issue: documents relating to "prior or subsequent slip and fall accidents," including any lawsuits that were filed, from January 1, 2001 to the present (Request No. 5); documents that identify or refer to any persons who witnessed the incident (Request No. 8); documents identified or referred to in defendant's March 6, 2012 initial disclosure statement (Request No. 9); reports, writings, and/or photographs relating to the investigation of the incident (including conversations with plaintiff, inspection of the area where the incident occurred, instructions to defendant's employees following the incident, and interviews of any witnesses) (Request No. 21); any incident reports filed by defendant's employees relating to events giving rise to the incident (Request No. 25); and any incident reports and/or written statements made by defendant's employees which were prepared in the regular course of business regarding the events as they relate to the litigation (Request No. 26). (Dkt. Nos. 28-4, 28-5.)
However, after further meet-and-confer efforts and in light of defendant's service of privilege logs on May 17, 2012 and May 18, 2012, the parties now agree that the motion essentially only involves the discoverability of two incident reports: (a) a December 22, 2009 incident report regarding the accident at issue prepared by Assistant Store Manager Mary Anne Haughner; and (b) a February 16, 2009 incident report regarding a previous accident prepared by Store Manager Valerie Donnelly.
According to plaintiff, these incident reports are relevant to defendant's potential liability and prior notice of a possibly dangerous condition(s) in its store. Plaintiff claims the need for their disclosure here is even greater due to plaintiff's amnesia and Ms. Haughner's present inability to recall anything regarding the incident. Plaintiff argues that defendant's various boilerplate objections as to vagueness, ambiguity, overbreadth, relevance, compound form, as well as objections based on trade secret protection, are without merit. Plaintiff also contends that defendant's objections based on the attorney-client privilege and the attorney work product doctrine fail, and that in any event, these objections were waived when defendant failed to make timely and specific objections to several of the requests on these grounds. Defendant disputes that the attorney-client privilege and attorney work product objections were waived and contends that the incident reports are privileged and subject to work product protection.
In its responses, defendant included "general objections" to any request that calls for information protected by the attorney-client privilege and the attorney work product rule. Additionally, defendant specifically asserted objections on the basis of the attorney-client privilege and/or the attorney work product doctrine to Request Nos. 8, 25, and 26, but did not specifically assert these objections in response to Request Nos. 5, 9, and 21. However, in the course of subsequent meet-and-confer correspondence, defendant's counsel raised these objections with respect to all six requests.
DISCUSSION
In diversity cases, issues regarding privilege are determined under the state law that governs decision of the case. See Fed. R. Evid. 501; Star Editorial, Inc. v. United States District Court for the Central District of California, 7 F.3d 856, 859 (9th Cir. 1993). Thus, in determining the existence or extent of the attorney-client privilege in this case, California law controls. Under California law, the attorney-client privilege confers a privilege on the client "to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer...." Cal. Evid. Code § 954. The phrase "confidential communication between client and lawyer" means "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Cal. Evid. Code § 952.
"The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply." Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 733 (2009) (internal citations omitted).
"[T]o determine whether a communication is privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication. Under that approach, when the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege." Clark v. Superior Court, 196 Cal. App. 4th 37, 51 (2011). As the California Supreme Court explained, when deciding whether a corporate employee reporting to the corporation's attorney was speaking on behalf of the corporation so that the report was in effect a communication from the corporation to the attorney:
the dominant-purpose test determines whether the relationship between the attorney and the corporate employee is an attorney-client relationship; if the corporation's dominant purpose in requiring the employee to make a statement is the confidential transmittal to the corporation's attorney of information emanating from the corporation, the communication is privileged. And as we have explained, because the privilege protects the transmission of information, if the communication is privileged, it does not become unprivileged simply because it contains material that could be discovered by some other means.Costco Wholesale Corp., 47 Cal. 4th at 734-35 (emphasis in original).
"However, the attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication." State Farm Fire & Casualty Co. v. Superior Court, 54 Cal. App. 4th 625, 639 (1997) (emphasis in original). Furthermore, "documents prepared independently by a party, including witness statements, do not become privileged communications or work product merely because they are turned over to counsel." Wellpoint Health Networks, Inc v. Superior Court, 59 Cal. App. 4th 110, 119 (1997). The California Supreme Court's opinion in Costco made clear that these well-established principles remain intact. Costco Wholesale Corp., 47 Cal. 4th at 735 (holding that the privilege "does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney").
In this case, defendant's privilege log merely indicates that the identity and position of the recipients of both the February 16, 2009 and December 22, 2009 incident reports were "Kohl's Department Stores, Inc." (Dkt. No. 28-12.) Assistant Store Manager Mary Anne Haughner testified that if a customer gets injured in the store, the standard protocol is for a manager to complete an incident report, called the "accident sheet," containing the date; the customer's name, address, and contact information; the customer's description of what happened; the names and statements of any witnesses to the accident; and to take a picture of the area where the accident occurred. (Dkt. No. 28-14.) The manager then calls the information into the Kohl's accident hotline, a "center that takes any customer or associate accidents and then goes on to insurance." (Id.) Defendant also submitted the declaration of Kimberly Stuart, another Assistant Manager at the Kohl's Roseville store, which stated, in part, that:
As part of defendant's policies and procedures, it requires of its employees that incident reports such as those at issue in this motion be generated in response to accidents that were claimed to have occurred. These incident reports are then transmitted to defendant's corporate offices located in Menomonee Falls, Wisconsin and are intended to be confidential for transmission to and use by attorneys defending petitioner in litigation arising out of such claims. These incident reports were transmitted to defendant's risk management department and corporate counsel for use in defending litigation arising out of these respective claims.(Dkt. No. 30-2 at 10-11.) After the hearing, defendant also filed a copy of the relevant Kohl's policies and procedures relating to accident investigation pursuant to the court's order. (Dkt. No. 34-1.) Those policies state, in part, that:
Incident Investigation has one primary goal - to prevent recurrence. It can also help in auditing the effectiveness of your overall safety program...It is important for the store management team to educate Associates about the importance of incident investigation and to communicate that the true objective is to make the workplace safer for everyone.(Dkt. No. 34-1 at 2-3.) The policies then continue to instruct the store employees, after taking appropriate care of the customer, to take certain steps to document the incident, not to discuss the incident with any attorneys without prior approval from the Corporate Risk Management Department, and to contact the Corporate Risk Management Department for further directions. (Dkt. No. 34-1 at 3.) (Emphasis added). It states that the Risk Management Department would notify the employees in advance if one of defendant's attorneys would be contacting them. (Id.) The policies also suggest that accident reports are at some point forwarded to a claims adjuster, presumably working for defendant's insurer(s). (Dkt. No. 34-1 at 4.)
In light of the above, the court finds that defendant has failed to make a sufficient showing of the preliminary facts necessary to application of the attorney-client privilege. It is clear that these incident reports are routinely prepared by employees after an accident in a Kohl's store in the ordinary course of business and pursuant to corporate policy, and that they contain essentially factual information. According to defendant's own policies, the dominant purpose of these statements, independently prepared by store employees, is to prevent recurrence and make the workplace safer - not to communicate information to or seek advice from defendant's attorneys. The mere fact that these statements may ultimately be forwarded to defendant's in-house counsel (or outside counsel), for example when litigation ensues, does not transform them into privileged documents.
Although defendant's counsel at the hearing made much of the fact that defendant's policies and procedures regarding accident investigation were developed by defendant's attorneys, that is not the pertinent question for purposes of determining whether the reports at issue are privileged. Instead, as noted above, the court must look to the dominant purpose of the relationship between the parties to the communication.
Also, the evidence as to where the incident reports are routinely sent is at best ambiguous - the privilege log merely states that the recipient here was "Kohl's Department Stores, Inc."; Ms. Haughner suggested that the incident reports are called into a hotline "center" and then goes to "insurance"; and Ms. Stuart indicated that incident reports are sent to defendant's "corporate offices," from where they are apparently forwarded to the "risk management department," corporate counsel, and/or outside counsel if litigation ensues. In turn, defendant's policies and procedures only suggest transmission to a claims adjuster and possibly the "risk management department." Even if it were anticipated that these independent factual statements may prove useful in potential future litigation, there is no clear indication that they were in the first instance directed to an attorney for legal advice.
As such, the court concludes that defendant has failed to make a sufficient showing that the dominant purpose of the incident reports was transmission to an attorney for purposes of seeking legal advice. Stated differently, defendant failed to make a preliminary showing that the dominant purpose of the relationship between the parties to the communications at issue was attorney-client communication.
Defendant's reliance on Payless Drug Stores, Inc. v. Superior Court, 54 Cal. App. 3d 988 (1976) is misplaced. In Payless, the plaintiff sought to discover accident reports prepared by defendant's employees on pre-printed forms supplied, and required to be completed by, the employer's insurance company. Id. at 989-91. The defendant supplied evidence that both the insurance carrier and the defendant intended the reports to be confidential for transmission to and use by attorneys provided by the insurance company to defend the defendant in litigation arising out of the accidents. Id. at 991. The Payless court found that "[e]vidence to the effect that the report in question was prepared by an employee of the corporate employer on the date of the accident on a preprinted form furnished by the insurance carrier headed 'Public Liability Accident-Report Every Accident Immediately to Harbor Insurance Company' is sufficient to establish the dominant purpose." Id. By contrast, in this case, defendant provided no evidence that the incident reports were prepared primarily for, and at the direction of, defendant's liability insurance company and its appointed attorneys. Instead, while there are some indications that these type of incident reports are forwarded to defendant's insurers, it appears that they were prepared pursuant to a protocol and course of business established by Kohl's.
Furthermore, it seems clear that the incident reports do not qualify for attorney work product protection. Since the attorney work product doctrine involves a procedural consideration and not application of a substantive privilege, federal law applies. Great American Assurance Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1090 (N.D. Cal. 2009); Connolly Data Systems, Inc. v. Victor Technologies, Inc., 114 F.R.D. 89, 95 (S.D. Cal. Feb. 17, 1987). Fed. R. Civ. P. 26(b)(3) provides, in part, that:
(A) Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party'sThus, "the pertinent authority divides work product into two general categories - 'qualified' work product which protects an attorney's factual investigations, and 'absolute' work product which protects an attorney's mental impressions, legal strategies and so forth. The party seeking qualified work product has the burden of demonstrating a 'substantial need' for the qualified work product, as well as an inability to obtain the information from other sources without undue hardship." Doubleday v. Ruh, 149 F.R.D. 601, 607 (E.D. Cal. 1993).
attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
Here, defendant failed to show that the incident reports at issue were prepared at the specific direction of counsel in anticipation of litigation rather than pursuant to a general protocol or course of business established by defendant. "[U]nlike interview notes prepared by counsel, statements written or recorded independently by witnesses neither reflect an attorney's evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product." Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal. App. 4th 214, 218 (1996). "Defendants cannot shield independently prepared witness statements by having their employees turn such statements over to defendants' attorney during his interviews with the employees." Id. at n.2. Moreover, even if the incident reports could be classified as qualified work product, they would be discoverable under the substantial need/undue hardship theory in light of plaintiff's amnesia and plaintiff's counsel's apparent inability to obtain the information by other means, such as by deposition of the Assistant Store Manager, Mary Anne Haughner, who does not recall the incident or preparing her report regarding the incident.
Although Nacht involved application of California law, courts have recognized that federal and California law regarding attorney work product are similar and often lead to the same result. Fireman's Fund Ins. Co. v. Superior Court, 196 Cal. App. 4th 1263, 1280 (2011). As such, Nacht is considered to be persuasive authority by this court.
Because the incident reports clearly do not contain attorney mental impressions, conclusions, opinions, or legal theories, defendant cannot plausibly contend that they constitute absolute work product.
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Because the court finds that the incident reports are not protected from disclosure by the attorney-client privilege or attorney work product protection, it is unnecessary to decide whether defendant waived any of these objections. The court further finds that defendant's remaining boilerplate objections as to vagueness, ambiguity, overbreadth, relevance, compound form, as well as objections based on trade secret protection, are plainly without merit. Defendant failed to identify specifically how the requests are vague, ambiguous, overbroad, or irrelevant, and did not seek a protective order on that basis. Defendant also failed to explain how the incident reports involve any trade secret material. Accordingly, the court concludes that the incident reports should be produced in response to plaintiff's requests.
For the reasons discussed above, IT IS ORDERED that:
1. Plaintiff's motion to compel production of documents (dkt. nos. 26, 30) is GRANTED.
2. Defendant shall produce the February 16, 2009 and December 22, 2009 incident reports, identified in its privilege log dated May 18, 2012, within three (3) days of the date of this order.
Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH/wvr
Fisher.3396.mtc.wpd