The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court*fn1 is defendant's motion to compel the production of documents that plaintiff withheld on the grounds that the documents and communications are protected from disclosure by the work product doctrine, the attorney-client privilege, or both.*fn2
(Dkt. No. 14.) The parties previously filed a Joint Statement re Discovery Disagreement ("Joint Statement"). (Dkt. No. 20.)
The court heard this matter on its law and motion calendar on July 15, 2010. Attorney Charles Cordes appeared on behalf of defendant. Attorney Matthew Zinn appeared on behalf of plaintiff. For the reasons that follow, the court will grant defendant's motion, in part, and deny it, in part, as explained below.
In this diversity jurisdiction action, plaintiff seeks quiet title to an implied-in-fact public recreational easement over property owned by defendant, which is a family partnership that operates cattle grazing and herding operations in Pleasant Valley in Alpine County, California. Plaintiff, a non-profit public benefit corporation, contends that prior to March 1972, before the effective date of California Civil Code § 1009, members of the public traversed or recreated on defendant's property in a manner sufficient to create a public recreational easement implied-in-law under the common law, as recognized in Gion v. City of Santa Cruz, 2 Cal. 3d 29, 465 P.2d 50 (1970). The parties state that the legislation enacting Section 1009, which prospectively barred claims of implied dedication of public recreational easements, did not affect such easements perfected prior to the legislation's March 1972 effective date. As a result, the parties state that "facts regarding who accessed Pleasant Valley, when they were there, what they did there, whether they had or sought permission from the landowner, the landowner's efforts to prevent unpermitted use, and the overall numbers of persons accessing Pleasant Valley and the nature of their activities, will be vital to a fair adjudication of the matter." (Joint Statement at 3:21-25.)
The present dispute centers on defendant's First Set of Requests for Production of Documents ("RFPs"), which requested the production of documents relevant to the alleged public use of Pleasant Valley before and after March 1972. (Joint Statement, Ex. 2.) Plaintiff produced some responsive documents and withheld others. The parties met and conferred regarding the RFPs, and plaintiff produced and supplemented privilege logs reflecting documents withheld on the basis of the attorney-client privilege, the work product doctrine, or both protections. (Joint Statement, Ex. 4.) The undersigned will make reference to "Privilege Log One" and "Privilege Log Two" in this order.
Following the parties' meet-and-confer efforts (Joint Statement, Exs. 5-10), two main disputes remain.
First, the parties dispute whether defendant is entitled to discover certain witness questionnaires that are described in Privilege Log One as "Pleasant Valley Trail Witness Questionnaire" or "Questionnaire for Pleasant Valley Trail Use." These documents are reflected in Privilege Log One at entries 9-11 and 18-29. (Joint Statement, Ex. 4, Doc. No. 20-1 at 30-32.) In short, plaintiff contends that these questionnaires are protected from disclosure based on the work product doctrine. Plaintiff argues that the form of questionnaire was prepared by plaintiff's counsel, and that plaintiff's board members administered these questionnaires to third parties at counsel's request and with instructions from counsel. The questionnaires were not given to the witnesses questioned, and, generally speaking, the board member who administered the questionnaire recorded the witness's answers on the form of questionnaire. Generally, defendant argues that these documents are not subject to work product protection at all and, even if they are, defendant has made the showing required under Federal Rule of Civil Procedure 26(b)(3)(ii) to warrant disclosure of these documents and/or plaintiff's person-most-knowledgeable, John Barr, waived the work product protection during his deposition.
Second, the parties dispute whether defendant is entitled to discover several communications, most of which appear to be in e-mail form, which were transmitted among non-attorneys. Plaintiff withheld these documents claiming protection as a result of the work product doctrine, the attorney-client privilege, or both. These communications are reflected in Privilege Log One at entries 13 through 17, and Privilege Log Two at entries 1-3, 5-8, 13-29,*fn3 33-38,*fn4 and 40. (Joint Statement, Ex. 4, Doc. No. 20-1 at 31, 33-36.)
In the meet-and-confer process, the parties disputed whether plaintiff could withhold a communication between non-attorneys where the communication was allegedly in furtherance of forming an intra-organization response to an attorney's inquiry that was within the scope of the representation. (See, e.g., Joint Statement, Ex. 6.) In the present motion, however, the parties' dispute centers on the adequacy of plaintiff's privilege logs and does not reach the substantive privilege dispute. Defendant contends that plaintiff's privilege logs are deficient because it is not possible to adequately assess the claims of privilege from the information provided therein. Defendant seeks disclosure of those documents or, alternatively, in camera review by the court. During the meet-and-confer process, plaintiff provided defendant with organizational titles or positions of some persons identified in the privilege logs via separate letter (Joint Statement, Ex. 6), and those persons are listed as either officers, board members, or "members" of plaintiff; however, per the court's review, the following relevant names remain unexplained: Tom Palmer, Joan Wright, and Sam LeBarron.
A. The Third-Party Witness Questionnaires
Defendant moves to compel production of the documents described in plaintiff's privilege log as "Pleasant Valley Trail Witness Questionnaire" or "Questionnaire for Pleasant Valley Trail Use." Plaintiff withheld these questionnaires on the grounds that the form of the questionnaire and responses recorded by plaintiff's board members thereon ...