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Robinson v. Chefs' Warehouse

United States District Court, N.D. California

July 7, 2017



          KANDIS A. WESTMORE United States Magistrate Judge

         On June 29, 2017, the parties filed a joint discovery letter concerning four requests for production of documents Defendant propounded to Sean Clark. (Joint Letter, Dkt. No. 111.)[1]

         Upon review of the joint letter, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, orders Plaintiff Sean Clark to supplement his responses to all four requests and to produce an amended privilege log that complies with the Federal Rules of Civil Procedure.


         Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, ” considering a number of factors. Fed.R.Civ.P. 26(b)(1). The broad scope of permissible discovery is limited by, among other things, the attorney work product doctrine. See Fed. R. Civ. P. 26(b)(3). “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” United States v. Nobles, 422 U.S. 225, 238 (1975). “The work-product rule is...a qualified immunity protecting from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” Admiral Ins. Co. v. U.S. Dist. Ct. for Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989) (citing Fed.R.Civ.P. 26(b)(3).).

         Specifically, Rule 26(b)(3) states that “[o]rdinarily, 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's attorney, consultant, surety, indemnitor, or agent”).” Fed.R.Civ.P. 26(b)(3)(A). To qualify for protection against discovery under this doctrine, the documents or information 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 re Grand Jury Subpoena (Mark Torf/Torf Envt'l Mgmt.), 357 F.3d 900, 907 (9th Cir. 2004) (internal quotation marks and citation omitted). The work product doctrine “shields both opinion and factual work product from discovery.” Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008).

         Attorney work product may nonetheless 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.” Fed.R.Civ.P. 26(b)(3)(A). Even when the court finds disclosure warranted due to substantial need, it still must “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(B). However, even “opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling.” Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992) (citations omitted).

         The party asserting work-product protection bears the burden of establishing the applicability of the doctrine. Skynet Elec. Co. v. Flextronics Int'l, Ltd., 2013 WL 6623874, at *2 (N.D. Cal. Dec. 16, 2013).


         A. Requests for Production of Documents

         i. Request for Production No. 25

         Request No. 25 seeks “All DOCUMENTS RELATING TO any COMMUNICATION(S) between YOU and any current employee of DEFENDANT regarding the subject-matter of YOUR COMPLAINT.” (Joint Letter, Ex. 1 at 24.) Plaintiff has twice supplemented his response, and most recently responded, subject to an objection of attorney-client privilege, that “[r]esponsive texts may exist on an inactive cell phone.” (Joint Letter, Ex. 1 at 25.) In the joint letter, Plaintiff believes that he has responded completely, and that other communications with putative class members are protected by attorney-client privilege. (Joint Letter at 2.) This position is incorrect, as class certification is required to establish an attorney-client relationship with Hoffman Employment Lawyers and putative class members. Kullar v. Foot Locker Retail, Inc., 191 Cal.App.4th 1201, 1205 (2011) (citing Atari, Inc. v. Superior Court, 166 Cal.App.3d 867, 873 (1985)).

         Defendant also argues that Plaintiff's response is not complete, because he does not respond as to current employees who may not be putative class members. (Joint Letter at 1-2.) This is well taken, and Plaintiff must answer fully, even if it is to say that he has not had any communications with current employees other than the potential text messages on the inactive phone.

         Accordingly, Plaintiff is ordered to further supplement his response to Request No. 25 to fully respond. If responsive documents are being withheld, he shall furnish a privilege log, which ...

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