On April 26, 2012, the court held a hearing on defendants' motion for a protective order. Peter Haberfeld appeared for plaintiffs. Brian Duus appeared for defendants. Upon review of the joint discovery statement, consideration of the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
At the March 6, 2012 deposition of Superintendent Glenn Harris, plaintiffs produced four letters that were written by Harris and addressed to the District Board members. These letters are part of a weekly Superintendent's report that Harris provides to the Board members to keep them apprised of ongoing events throughout the District. At the deposition, Harris was advised by defense counsel not to answer any questions regarding the letters as they contained attorney-client communications. Defendants thereafter filed the instant motion for protective order.
A. The Parties' Positions
Defendants seek an order directing plaintiffs to return the letters
Federal Rule of Civil Procedure 26(b)(5), and further directing them
not to use or disclose the information contained therein. Defendants
claim the letters are internal, classified letters that incorporate
information covered by the attorney-client privilege*fn1
and the deliberative process privilege, and include private
employment/personnel information of third party employees who are not
involved in this case. Defendants assert these documents were
confidential and were intended to remain confidential, were
distributed to only a select group of individuals and contained
privileged matters. They argue that if plaintiffs wanted these
letters, they could have filed a Public Records Act Request, which
would have allowed defendants to produce the letters after redacting
the privileged information contained therein.
Plaintiffs argue that the letters should have been turned over to them months ago in response to their June 21, 2011 Request for Production ("RPD") 9, which asked for:
All documents prepared by DISTRICT personnel and allegedly independent and impartial investigators that investigated, analyzed, described, commented on, sought guidance concerning, and/or responded to each of the documents submitted by PLAINTIFFS J.C. EAGLESMITH, COX and BARNES, including but not limited to grievances, complaints, incident reports, and other writings, that were presented by PLAINTIFFS J.C. EAGLESMITH, COX and BARNES to DISTRICT supervisors and their superiors that alleged that DISTRICT personnel, volunteer coaches, other volunteers, officials from organizations participating in District activities, and parents or other members of the community violated collective bargaining agreements under which they were covered, Board Policies and/or Administrative Regulations, as well as State and/or Federal criminal and civil statutes.
Plaintiffs assert that the four letters in their possession are responsive to this request, but defendants never provided the letters (in either redacted or unredacted form) to the plaintiffs.
Plaintiffs also argue that defendants did not intend for the letters to be confidential, as evidenced by Superintendent Harris's testimony at his deposition.
As to defendants' argument that the letters must be returned pursuant to Rule 26(b)(5), plaintiffs claim defendants may not avail themselves of this provision because defendants admit ...