United States District Court, E.D. California, Fresno Division
GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs,
DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC. Defendants
ORDER DENYING DAIRYAMERICA, INC.'S MOTION TO
COMPEL PLAINTIFFS' COMMUNICATIONS WITH WITNESSES AND
THEIR COUNSEL (Doc. 470)
case commenced on March 6, 2009 as a class action complaint
against Defendants DairyAmercia, Inc.
(“DairyAmerica”) and California Dairies, Inc.
(“California Dairies”) by Plaintiffs Gerald
Carlin, John Rahm, Paul Razwadowski and Diana Wolfe,
individually and on behalf of themselves and all others
similarly situations (“Plaintiffs”). (ECF No. 1).
On July 19, 2017, the parties filed a joint statement
regarding discovery disputes. (ECF No. 440). Dairy America
has filed a motion to compel Plaintiffs to respond to written
discovery. (ECF No. 470). Plaintiffs have filed an opposition
response to the motion. (ECF No. 443-2). The Court held oral
argument on July 26, 2017, (ECF No. 451), and took the matter
requested documents relating to Plaintiffs' draft
declarations and communications with DairyAmerica's
former employees: Doug White, Candice Bimemiller, and Lani
Ellingsworth and counsel for these individuals. DairyAmerica
also requested documents relating to Plaintiffs'
communications with John Bunting, who is now deceased.
Plaintiffs have withheld the documents on the basis that they
are protected by the attorney work product doctrine.
argue that the draft affidavits and related correspondence
between these former employee witnesses and Plaintiff's
counsel “are squarely protected as attorney work
product, and [that] there is no applicable exception
warranting [the] production of these materials.”
Plaintiffs state in their opposition motion that
“DairyAmerica has already deposed one of the three key
witnesses and will have the opportunity to depose the other
two witnesses” pending this motion to amend the
complaint, and therefore will have “the opportunity to
obtain the substantial equivalent of the information it seeks
by other means.” At oral argument, Plaintiffs further
assert there to be only four types of communication at issue:
1) communications with and between witness Ms. Lani
Elligsworth; 2) communications with and between witness Ms.
Candice Bimemiller; both and all of which were exclusively
communicated in anticipation for litigation and for securing
their declarations for trial; 3) four email communications
with Ms. Ellingsworth's lawyer, one of which was a
“follow-up question about the testimony of the witness,
” and 4) five email communications with Ms.
Bimemiller's lawyer, both and all of which is claimed as
attorney “impressions, analyses, and thoughts on the
case, ” and constitute classic opinion work product.
(ECF No. 451, p. 29).
general, Fed.R.Civ.P. 26(b)(1) recognizes that
“nonprivileged matter…relevant to any
party's claim or defense and proportional to the needs of
the case” may be obtained through discovery upon
consideration of “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 proposed
discovery outweighs it likely benefit.” Fed.R.Civ.P.
26(b)(1). However, Fed.R.Civ.P. 26(b)(3) provides exception
to this provision for “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,
insurer, or agent.” Fed.R.Civ.P. 26(b)(3). Announced in
Hickman v. Taylor, 329 U.S. 495, 509-510, 67 S.Ct.
385, 91 L.Ed. 451 (1947) and codified in Rule 26(b)(3), this
exception is known as the work product doctrine. The Supreme
Court addressed this issue in United States v.
Nobles, 422 U.S. 225, 238-239, 95 S.Ct. 2160, 45 L.Ed.2d
141 (1975) stating that:
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. . .
[A]ttorneys often must rely on the assistance of
investigators and other agents in the compilation of
materials in preparation for trial. It is therefore necessary
that the doctrine protect material prepared by agents for the
attorney as well as those prepared by the attorney himself.
Id. at 238-239. The work product doctrine applies
not only to documents prepared by an attorney, but to
documents created by investigators or agents working for
attorneys in anticipation of litigation. Id. at
238-239. The Court goes on to say that the work product
doctrine has uniformly been viewed solely as a limitation on
pretrial discovery and not as a qualified evidentiary
privilege by Congress, the cases, and the commentators.
Id. at 246. As such, the Court holds that” the
privilege derived from the work-product doctrine is not
absolute…[and] like other qualified privileges, it may
be waived.” Id. at 239.
26(b)(3) distinguishes work product as one of two types:
opinion and fact. Opinion work product has been offered
greater protection against disclosure as core work product
because it comprises material prepared in anticipation of
litigation and includes the “…mental impression,
conclusions, opinion, or legal theories of a party's
attorney or other representative concerning the
litigation.” Fed.R.Civ.P. 26(b)(3)(B). Fact work
product includes material prepared in anticipation of
litigation, but does not include an attorney's,
consultant's, or agent's mental impressions,
conclusions, opinion, or legal theories. Fed.R.Civ.P.
26(b)(3). While opinion work product has the benefit of
nearly absolute immunity from discovery, in that it requires
a showing of “rare and exceptional circumstances”
Fed.R.Civ.P. 26(b)(4)(D)(ii), fact work opinion product
enjoys only qualified immunity and is not discoverable unless
the party seeking discovery demonstrates a “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)(ii). See
Upjohn Co. v. United States, 449 U.S. 401, 101 S.Ct.
677, 66 L.Ed.2d 584 (1981). When a court does order discovery
of fact work product upon the required showing, it must also
protect against the disclosure of opinion work product
material. Id. 449 U.S. at 402. Fed.R.Civ.P.
26(b)(4)(D)(ii). See Holmgren v. State Farm Mut. Auto.
Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992)
(“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”); Green v.
Baca, 226 F.R.D. 624, 652 (C.D. Cal. 2005) (“Fact
work product is discoverable only upon a showing of
substantial need and an inability to secure a substantial
equivalent by alternate means without undue hardship.”)
When a party withholds information otherwise discoverable by
claiming that the information is protected by the work
product doctrine, that party has the burden of establishing
the documents' eligibility for protection. Fed.R.Civ.P.
ANALYSIS OF REQUESTS FOR PRODUCTION
Fact Work Product
No. 2 in Defendants' Fourth Set of Requests for
Productions seeks: “Documents relating to
Plaintiffs' communications with DairyAmerica's former
employees (Doug White, Candice Bimemiller, and Lani
Ellingsworth) and counsel for these individuals.” (ECF
No. 470 pp. 1-2). Defendants claim that requested documents
are not protected by work product, because “they are
simply facts.” (ECF 470 No. p.3). At oral argument,
There's communications with an attorney representing a
witness. How can that be interview correspondence? We see in
the privilege log an example on page three of a log produced
by Ms. Ellingsworth's attorney, communications containing
legal analysis of employment rights. What does that have to
do with either Plaintiffs' mental impressions or facts
about this case? I mean, there's just nothing there, and
then there's communications that are being withheld with
Mr. White's attorney even before he was retained, and
then there's communications after his deposition ends and
when they are ...