Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding D.C. No. 3:04-cv-05539-FDB.
The opinion of the court was delivered by: Benitez, District Judge
Argued and Submitted December 10, 2009
Submission Withdrawn December 11, 2009
Resubmitted May 12, 2010 -- Seattle, Washington
Before: Ronald M. Gould and Richard C. Tallman, Circuit Judges, and Roger T. Benitez, District Judge.*fn1
Rolando Hernandez appeals the district court's decision finding that any attorney-client or work product privilege between Hernandez and his prior attorney, Gregory Ferguson, was waived and ordering the production of all thirty-five documents referenced in a privilege log.
Hernandez filed suit against the City of Vancouver and Mark Tanninen in 2004, asserting claims for race and national origin discrimination based on disparate treatment, retaliation, and a hostile work environment while employed as a mechanic in the City's Fire Shop. Additionally, he alleges that Mark Tanninen and the City conspired to cover up their actions and to conceal proof of his claims in violation of 28 U.S.C. § 1985(3).
Hernandez was initially represented by Ferguson. During their initial meeting, Hernandez told Ferguson that Tanninen witnessed the discrimination and would corroborate Hernandez's story. In the course of investigating Hernandez's claims, Ferguson had a series of conversations with Tanninen over three days.
Tanninen initially corroborated Hernandez's allegations and agreed to provide a signed statement to that effect. After Tanninen spoke with Deputy Fire Chief Steve Streissguth, however, he indicated that he had known Streissguth for a long time, that he "could not do that to [Streissguth]," and that his getting involved would not be good for Streissguth and everyone involved. Realizing that he might now be a witness to Tanninen's conduct, Ferguson referred the case to another attorney. The tort claim was amended to include an allegation of conspiracy to cover up wrongdoing at the City Fire Shop.
In response to a request for production of documents, Hernandez produced a privilege log referencing thirty-five documents protected by either attorney-client or work product privilege, or both. No action was taken with regard to the request or the privilege log at that time. When the City moved for summary judgment, Hernandez provided his own affidavit, an affidavit from Ferguson, and some of Ferguson's handwritten notes as evidence in opposition to the motion. The district court granted summary judgment for the City, but a prior panel of our court reversed based, in part, on Ferguson's and Hernandez's affidavits. Hernandez v. City of Vancouver, 277 Fed. App'x 666, 671-72 (9th Cir. 2008).
Following remand, the City moved to compel production of Ferguson's entire file, arguing that because Hernandez relied on Ferguson as a witness to Tanninen's conduct, fairness mandated that any privilege that ...