Opinion
Civ. 6:17-cv-00798-AA
05-03-2021
JOSHUA MCINTYRE, Plaintiff, v. DOUGLAS COUNTY, Defendant.
OPINION & ORDER
ANN AIKEN, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Motions to Compel filed by Plaintiff, ECF Nos. 22, 37, and Defendant, ECF No. 24, and a Motion to Quash filed by Defendant, ECF No. 33.
LEGAL STANDARDS
I. Motion to Compel
Federal Rule of Civil Procedure 26(b)(1) sets forth the general scope of permissible discovery, providing, in relevant part:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within this scope discovery need not be admissible in evidence to be discoverable.Fed. R. Civ. P. 26(b)(1).
The court, however, must limit the extent of discovery if it determines that the discovery sought is outside the scope of Rule 26(b)(1), or if it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i).
A party seeking discovery may move for an order compelling the production of requested documents. Fed.R.Civ.P. 37(a)(3)(B). The party seeking to compel discovery is burdened with demonstrating the information he or she seeks is relevant under Rule 26(b)(1). Information is “relevant” if it is “reasonably calculated to lead to discovery of admissible evidence, ” and district courts have broad discretion to determine the relevancy of the information sought. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (internal quotation marks and citation omitted). If a party elects to oppose a discovery request, the opposing party bears the burden of establishing that the discovery is overly broad, unduly burdensome, or not relevant. Yufa v. Hach Ultra Analytics, No. 1:09-cv-3022-PA, 2014 WL 11395243, at *1 (D. Or. Mar. 4, 2014). Boilerplate or generalized objections are inadequate. Id. If a party objects to a discovery request, it is the burden of the party seeking discovery on a motion to compel to demonstrate why the objection is not justified. Weaving v. City of Hillsboro, No. CV-10-1432-HZ, 2011 WL 1938128, at *1 (D. Or. May 20, 2011).
II. Motion to Quash
Federal Rule of Civil Procedure 23 authorizes the issuance of a subpoena to command a nonparty to produce designated documents, electronically stored information, or tangible things in its possession, custody, or control. Fed.R.Civ.P. 45(a)(1)(A)(iii). The court, on timely motion, must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to an undue burden. Fed.R.Civ.P. 45(d)(3)(A).
DISCUSSION
Plaintiff's First Motion to Compel seeks to compel production of documents requested in Plaintiff's Requests for Production (“RFP”). ECF No. 22. Plaintiff's Second Motion to Compel likewise seeks to compel production of documents requested in RFP. ECF No. 37.
Defendant's Motion to Compel seeks to compel production of Plaintiff's medical records related to his treatment by Dr. Nicholas Strasser. ECF No. 24. Defendant's Motion to Quash seeks quash subpoenas directed at Defendant's third-party workers' compensation administrators, Corvel Corporation (“Corvel”) and Tristar Risk Management (“Tristar”). ECF No. 33.
I. Workers' Compensation Administrators
Documents related to the administration of Defendant's workers' compensation program are at issue in Plaintiff's First Motion to Compel and Defendant's Motion to Quash. During depositions, Plaintiff learned that Defendant would not be producing communications with Tristar or Corvel on the basis that such materials were covered by attorney-client privilege and/or work product privilege. Creighton Decl. ¶ 5. ECF No. 23.
Plaintiff has served a notice of intent to serve a subpoena duces tecum on Corvel and Tristar, seeking production of: (1) copies of any and all documents related to Plaintiff, including related to any and all payments made to him, from January 1, 2013, through December 21, 2016; (2) copies of any and all communications to and from Douglas County relating in any way to Plaintiff; (3) copies of any and all documents describing, evidencing, or relating to any investigations into Plaintiff, including, but not limited to the hiring of investigators and investigation reports; and (4) copies of records reflecting payment to other employees of Douglas County between January 1, 2013, and December 31, 2016. Vickers Decl. Ex 1, at 5; Ex. 2, at 5. ECF No. 34.
Defendant asserts that attorney-client and work product privilege shield its communications with Corvel and Tristar.
A. Attorney-Client Privilege
The party asserting attorney-client privilege bears the burden of proving each element of the test used to determine whether information is covered by the privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (2) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the protection be waived.United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal quotation marks and citation omitted).
In this case, Defendant asserts that at least some of the withheld communications were between the County and its workers' compensation attorney, Brian Solodky, and that they concerned the processing of Plaintiff's workers' compensation claim. Such communications would ordinarily be privileged. However, Plaintiff asserts that no privilege log has been produced. Blanket claims of privilege are disfavored and Defendant is ordered to produce a privilege log detailing all relevant documents withheld under a claim of privilege to allow Plaintiff to challenge Defendant's claim of privilege.
The communications between the County and Corvel or Tristar, which are the subject of both Plaintiff's First Motion to Compel and the disputed subpoenas, represent a different matter. Corvel and Tristar are not attorneys. Attorney-client privilege “may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice, as well as to communications with third parties ‘acting as agents' of the client.” United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (internal quotation marks and citations omitted). However, “[i]f the advice sought is not legal advice, but, for example, accounting advice from an accountant, then the privilege does not exist.” Id. (internal quotation marks and citation omitted). Additionally, “merely copying or ‘cc-ing' legal counsel, in and of itself, is not enough to trigger the attorney client privilege.” Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013).
In this case, Defendant has not shown that the communications between the County and its workers' compensation administrators concerning Plaintiff's workers' compensation claim were for the purposes of legal advice. Accordingly, the Court concludes that Defendant has not met its burden in demonstrating the communications between the County, Corvel, and Tristar are covered by attorney-client privilege. The Court therefore declines to quash the subpoena of documents related to Plaintiff's workers compensation claim on the basis of attorney-client privilege.
B. Work Product
The work product doctrine protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation. United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011). The work product doctrine also “covers documents or the compilation of materials prepared by agents of the attorney in preparation for litigation.” Id.
To qualify for work-product protection, documents must: (1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that other party's representative. In circumstances where a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the “because of” test is used. Dual purpose documents are deemed prepared because of litigation if in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation. In applying the “because
of” standard, courts must consider the totality of the circumstances and determine whether the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.Richey, 632 F.3d at 567-68 (internal quotation marks and citation omitted).
“The primary purpose of the work-product doctrine is to prevent exploitation of a party's efforts in preparing for litigation.” McKenzie Law Firm, P.A. v. Ruby Receptionists, Inc., 333 F.R.D. 638, 641 (D. Or. 2019) (internal quotation marks and citations omitted). As with attorney-client privilege, the burden of establishing that the work product doctrine applies rests with the party asserting the privilege. Id. at 641-42.
In this case, the Court accepts that Corvel and Tristar are likely agents of Defendant. However, Defendant has not made a sufficient showing that the documents sought by the subpoenas were not prepared in the ordinary course of Corvel's and Tristar's duties as Defendant's workers' compensation administrators. Defendant has not, therefore, established that the protection of the work product doctrine apply to prevent disclosure.
In sum, both Plaintiff's Motion to Compel production of County's communications with its workers' compensation administrator and Defendant's Motion to Quash the subpoenas directed at Corvel and Tristar are GRANTED in part and DENIED in part. Defendant is ordered to produce all relevant communications with Corvel and Tristar that do not directly involve attorney Brian Solodky. The Motion to Quash is granted as to any materials evincing direct communication between Corvel and Tristar and attorney Solodky. The Motion to Quash is otherwise denied and Plaintiff may reframe his subpoenas to Corvel and Tristar to exclude any communications directly involving attorney Solodky.
Defendant is ordered to provide a detailed privilege log setting forth its claims of privilege as to all communications involving attorney Brian Solodky within fourteen days of the date of this Order. Plaintiff shall have leave to renew his motion to challenge Defendant's assertions of privilege within thirty days of receipt of the privilege log.
II. Plaintiff's Other Requests for Production
Plaintiff's remaining requests for production concern a variety of other issues, which will be addressed according to their subject matter.
A. Supervisor Files
Plaintiff's RFP Nos. 30 and 31 seek the personnel files, management files, job performance, drafts of performance evaluations, complaints or grievances, investigations, and “all memoranda and communications, including all electronic mail and text-message communications, ” concerning Sergeant Loren Hughes and Lieutenant Mike Root. Creighton Decl. Ex. 1, at 13-15. Hughes and Root were Plaintiff's managers during the time he was employed by Defendant. Defendant objected to the RFPs, asserting that the documents are not admissible or likely to lead to the discovery of admissible evidence, and that they are confidential personnel records not subject to disclosure. Id.
As a preliminary matter, the request for all emails and text messages involving Hughes and Root is not proportional to the needs of the case. Plaintiff's motion is, however, granted to the extent that it seeks to compel any email or text message concerning a subordinate employee's use of the worker's compensation system, medical leave, or light duty assignments.
With respect to the rest of the supervisors' personnel files, courts within this District have rejected a broad ruling that the entire personnel file of a supervisor is always relevant and therefore always discoverable. Lamb v. Kaiser Found. Health Plan Nw., No. 3:14-cv-01508-MO, 2015 WL 13858457, at *1 (D. Or. April 3, 2015). “In order to force the production of the entire personnel file, a plaintiff must come forward with a plausible theory why the entire file is likely to be, or result in the discovery of, admissible evidence.” Id.
In this case, the Court concludes that Plaintiff has failed to meet this burden. However, Plaintiff's motion to compel is granted to the extent that it seeks to compel production of any document in the personnel files of Plaintiff's supervisors that directly concern a subordinate employee's use of the workers' compensation system, medical leave, or light duty assignments.
B. Comparator Documents
Plaintiff seeks to compel production of documents evidencing comparator evidence. Specifically, Plaintiff seeks (1) documents relating to the termination of any employee of Defendant between January 2003 and February 2016 (RFP No. 6); (2) documents concerning complaints from Defendant's employees regarding OFLA between January 2003 and February 2016 (RFP No. 17); (3) documents concerning complaints made against any of Defendant's staff regarding safety between January 2003 and February 2016 (RFP No. 21); (4) documents concerning complaints made against Defendant's staff regarding light duty between January 2003 and February 2016 (RFP No. 25); (5) documents concerning complaints made against Defendants staff regarding anti-retaliation or anti-discrimination for use of workers' compensation between January 2003 and February 2016 (RFP No. 29); (6) documents identifying the name, sex, position, date of hire/termination, and last known contact information for all person employed by Defendant from January 2010 to the present (RFP No. 35); and (7) any documents related to the filing of tort claim notices against Defendant for discrimination or retaliation for the use of FMLA in the last ten years (RFP No. 39). Creighton Decl. Ex. 1.
In the case of RFP No. 39, Defendant objects that no documents responsive to this request have been located. The Court accepts this representation, along with Defendant's continuing obligation to produce any responsive material, should it be discovered.
Defendant objects that RFP No. 21 is vague and, as Plaintiff has not raised any claims concerning a failure of safety procedures, the request is not likely to lead to the production or discovery of relevant or admissible evidence. The Court agrees and declines to compel production of documents responsive to RFP No. 21.
As to the other RFP seeking comparator evidence, Defendant objects that the materials sought are, variously, not admissible or likely to lead to the discovery of admissible evidence; are personnel records not subject to disclosure; and/or are not proportional to the needs of the case. The Court concludes that Plaintiff's RFP Nos. 6, 17, 25, 29, and 35 are overbroad and not proportional to the needs of the case to the extent that they seek information concerning every employee of Douglas County. The scope of production shall therefore be limited to employees of the Douglas County Sheriff's Office. Plaintiff's motion to compel production of responsive material is otherwise granted.
C. Information Concerning Other Employees' Work-Related Injuries
Plaintiff's RFC No. 56 seeks non-privileged material related to how much the County paid through its workers' compensation administrators between 2003 and 2016. Second Creighton Decl. Ex. 2, at 2. ECF No. 38. Plaintiff's RFC No. 58 seeks production of ledgers kept by a specific custodian regarding the total cost of the County's workers' compensation claims from 2003 to 2016. Id. at 3. RFC No. 78 seeks the production of all County employees OSHA-300 forms from 2003 to the present. Id. at 9. Defendant objects that these requests are not proportional to the needs of the case. The Court is satisfied that the requests are proportional and Defendant is directed to produce the requested materials.
D. Use of Sick Leave by Other Employees
Plaintiff's RFP No. 60 seeks to production of documents relating to the use of sick leave by two other employees of the Douglas County Sheriff's Office, as well as all other deputies whose sick leave fell beneath 50 hours between 2013 and 2016. Second Creighton Decl. Ex. 2, at 3-4. Defendant objects that this request seeks evidence that is not admissible or likely to lead to admissible evidence; that it seeks confidential personnel records; and that it seeks private and confidential information. Id. Plaintiff contends that this material is necessary as comparator evidence and to rebut Defendant's contentions concerning an investigation into Plaintiff's use of sick leave.
The Court grants this request in part. Defendant is directed to produce any documents related to a jail-wide investigation into the use of sick leave by Douglas County deputies in 2014. Otherwise, the motion is denied as to this request.
E. Disciplinary Policies
Plaintiff's RFP No. 65 seeks to compel production of any non-privileged documents relating to Defendant's policies regarding employee discipline between 2003 and 2016. Second Creighton Decl. Ex. 2, at 5. Defendant represents that it has produced the requested materials and, should additional materials be discovered, they will be produced as well. The Court accepts Defendant's representation.
F. Access Card Recordings
Plaintiff's RFC No. 68 seeks production of all card key recordings related to the key pad scan to access the Douglas County Sheriff's Office from 2013 to 2016. Second Creighton Decl. Ex. 2, at 6. The Court concludes that this request is unduly burdensome and not proportional to the needs of the case and the Court declines to order production of the records sought in RFC No. 68.
G. Jail Staffing Levels
Plaintiff's RFC No. 77 seeks production of material relating to staffing levels at the Douglas County Jails between 2013 and the present. Second Creighton Decl. Ex. 2, at 8. Plaintiff's motion is granted as to this request and Defendant is directed to produce documents responsive to Plaintiff's RFC No. 77.
H. Light Duty Assignment
Plaintiff's RFC No. 80 seeks to compel production of documents related to Tim Huckin's light duty assignments when he was employed by the Sheriff's Office. Creighton Decl. Ex. 2, at 9. Defendant is ordered to produce the requested materials, subject to the protective order.
III. Plaintiff's Medical Records
Defendant seeks to compel production of Plaintiff's medical records related to his treatment by Dr. Strasser for his ankle injuries. ECF No. 24. Although the Court agrees with Plaintiff that Dr. Strasser's treatment records are not relevant as to the question of whether Plaintiff was perceived to be disabled, the Court is persuaded that the records are potentially probative of other issues, including the scope of Plaintiff's light duty assignments. The Court directs that Plaintiff produce Dr. Strasser's treatment notes concerning Plaintiff's ankle, subject to the protective order.
CONCLUSION
Plaintiff's First Motion to Compel, ECF No. 22 is GRANTED in part and DENIED in part as set forth above. Defendant's Motion to Compel, ECF No. 24, is GRANTED. Defendant's Motion to Quash, ECF No. 33 is GRANTED in part and DENIED in part as set forth above. Plaintiff's Second Motion to Compel, ECF No. 37 is GRANTED in part and DENIED in part as set forth above.
Defendant is directed to produce a privilege log detailing all relevant communications with attorney Brian Solodky withheld under a claim of attorney-client privilege. Defendant shall provide the privilege log to Plaintiff's counsel within fourteen (14) days of the date of this Order. Plaintiff may renew his motion to compel within thirty (30) days of receipt of the privilege log to challenge Defendant's assertion of privilege.
It is so ORDERED.