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Carlin v. DairyAmerica, Inc.

United States District Court, E.D. California, Fresno Division

September 6, 2017

GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs,


         A. BACKGROUND

         This 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 under advisement.

         DairyAmerica 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.

         Plaintiffs 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).


         In 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.

         Rule 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. 26(b)(5)(A).


         1. Fact Work Product

         Request 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, counsel stated:

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 ...

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