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rejecting party's attempt to apply Chen in part because the applicable circuit "has repeatedly stated that the party advancing the attorney-client privilege bears the burden of establishing it applies"
Summary of this case from U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co.Opinion
Case No. 3:11cv00247
03-11-2014
MICHELE WILKINSON, et al., Plaintiffs, v. GREATER DAYTON REGIONAL TRANSIT AUTHORITY, et al., Defendants.
District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington
ORDER
I.
This case is before the Court for in camera review of the documents remaining at issue in Defendant Greater Dayton Regional Transit Authority's privilege log. Pursuant to the Court's previous Orders (Doc. #s 114, 131), Defendant has submitted the documents along with a Memorandum (Doc. #124), and Plaintiffs have filed a Memorandum (Doc. #134). See United States v. Zolin, 491 U.S. 554, 569, 109 S. Ct. 2619, 2629 (1989) (in camera review of potentially privileged documents is a "practice ... well established in the federal courts."). Defendant has submitted approximately 268 documents for in camera review. (Doc. #124, PageID at 2762).
By way of very brief background, Plaintiffs claim that Defendant violated their rights, and the rights of proposed class members, under the Family and Medical Leave Act in many ways. For instance, they claim that Defendant wrongfully charged them with absenteeism and misuse of medical leave; wrongfully required them to obtain second and third medical opinions without reason to doubt the validity of their medical certifications; and wrongfully imposed higher medical certification and notification requirements than the FMLA permitted.
II.
Defendant explains that the attorney-client privilege applies to the withheld documents because the documents contain more than six years of confidential communications between Defendant and its outside legal counsel, who are labor- and employment-litigation attorneys. The communications arose during labor arbitrations and federal lawsuits and in connection with unfair labor practice charges and administrative agency complaints. Defendants maintain, "All communications between GDRTA and outside litigation counsel were for the purpose of seeking legal advice for labor and employment issues." (Doc. #124, PageID at 2763).
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery of "any nonprivileged matter that is relevant to a party's claim or defense ...." In general, the attorney-client privilege precludes revelation of "legal advice ... sought from a professional legal adviser in his capacity as such ... and communications relating to that purpose...." Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998). "It 'exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.'" Nilavar v. Mercy Health Sys.-W. Ohio, 3:99cv00612, 2004 WL 5345311 at *2 (S.D. Ohio Mar. 22, 2004) (Rice, D.J.) (quoting, in part, Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 683 (1981)).
Because Plaintiffs raise claims under federal law (the FMLA), "federal common law determines the extent of the privilege." Moss v. Unum Life Ins. Co., 495 Fed. App'x 583, 595 (6th Cir. 2012) (citing Fed. R. Evid. 501; Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081 (1998)).
To trigger the attorney-client privilege, the communications must relate to the purpose of obtaining or providing legal advice and must be "made in confidence ...." Reed, 134 F.3d at 355. The person or party seeking to invoke the attorney-client privilege - here, Defendant - bears the burden of establishing that it applies. See In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002). "The attorney-client privilege is 'narrowly construed because it reduces the amount of information discoverable during the course of a lawsuit.'" Ross v. City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005)(citation omitted). A person or party may waive their right to exercise the privilege "by conduct which implies a waiver of the privilege or a consent to disclosure." In re Columbia/HCA Healthcare, 293 F.3d at 294 (citations omitted).
The primary purpose of the attorney-client privilege is to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682 (1981); see Ross v. City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005).
This purpose is served equally whether a corporation or an individual is asserting the privilege. The attorney-client privilege is "narrowly construed because it reduces the amount of information discoverable during the course of a lawsuit." However, its scope must be determined in light of its purpose of increasing full and frank communication.Id. (internal citations omitted); see Upjohn, 449 U.S. at 389, 101 S.Ct. at 682; see Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992) ("a corporation may claim an attorney-client privilege to prevent an attorney from testifying about confidential communications with the corporation as a client").
Defendant contends that communications between a client and outside legal counsel are presumed to contain legal advice and that a party challenging this presumption must provide specific facts "showing that 'the lawyer was employed without reference to his knowledge and discretion in the law.'" (Doc. #124, PageID at 2765). Defendant relies on and quotes from United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). But Chen is not controlling in this District. Additionally, Defendant does not point to a case decided by the United States Court of Appeals for the Sixth Circuit addressing or holding that the presumption - called a rebuttable assumption in Chen, 99 F.3d at 1501-02 - applies in situations similar to those at issue presently in this case. Although Defendant also relies on Matter of Federated Dept. Stores, 170 B.R. 331, 354 (S.D. Ohio 1994), that case does not rely on a Sixth Circuit case specifically adopting the presumption or rebuttable presumption Defendant seeks to invoke. Such specificity is necessary because the Sixth Circuit has repeatedly stated that the party advancing the attorney-client privilege bears the burden of establishing it applies. In re Columbia/HCA Healthcare, 293 F.3d at 294; see Ross v. City of Memphis, 423 F.3d 596, 606 (6th Cir. 2005) (citing United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999)); In re Grand Jury Investigation, 723 F.2d 447, 450 (6th Cir. 1983). Plaintiffs are therefore correct that Defendant bears the burden of establishing that the attorney-client privilege applies to the documents at issue.
Defendant has organized its withheld documents into three binders. In camera review of the documents in Binders 1 and 2 confirms that each document contained, or related to, communications to or from its outside legal counsel in connection with administrative proceedings or litigation matters, including labor arbitrations, federal lawsuits, unfair labor practice charges, or administrative agency complaints. The same is true of those documents in Binder 3 that Defendant has designated as protected by the attorney-client privilege. All the documents Defendant has designated as subject to the attorney-client privilege involve or relate directly to communications between Defendant and its outside legal counsel for the purposes of obtaining and providing confidential professional legal advice. Considering the documents individually and collectively, the communications were often interrelated by particular topic and timeframe, and thus reveal a pattern of give-and-take between a corporate client who is communicating with its legal counsel, and vice versa, with the goal of ensuring that the client complies with the FMLA and its accompanying Regulations. E.g., Exhibits 17-20 and 22; 148-149; 186, 189, and 192; 283-287. Enforcing the attorney-client privilege here will encourage Defendant and its counsel - as well as other employers facing FMLA compliance issues - to engage in the open and frank discussions necessary to promote FMLA compliance. The attorney-client privilege fully embraces these documents. "In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, 'constantly go to lawyers to find out how to obey the law,' ... particularly since compliance with the law in this area is hardly an instinctive matter." Upjohn, 449 U.S. at 392, 101 S.Ct. at 684 (citation omitted). Although the area of law Upjohn refers to is tax law, FMLA compliance is hardly an instinctive matter, particularly when many employers must likewise comply with an array of employment-related laws including, for example, Title VII, the ADA, and HIPPA.
Binder 3 contains other documents purportedly protected by the work-product doctrine.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-2, et seq.; the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq.; and the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936.
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In addition, the Binders contain draft documents (mostly draft letters) prepared or analyzed by Defendant's outside legal counsel as an integral part of their give-and-take communications with Defendant. As noted above, Defendant and its outside counsel engaged in such communications for the purposes of obtaining and providing confidential professional legal advice with the goal of FMLA compliance. As a result, the attorney-client privilege protects the draft documents related to those communications. See Reed, 134 F.3d at 355 (attorney-client privilege protects "communications relating to ... [a party's] purpose" in obtaining legal advice); see also Graff v. Haverhill N. Coke Co., 1:09-CV-670, 2012 WL 5495514 at *23-34 (S.D. Ohio Nov. 13, 2012) (Litkovitz, M.J.) (applying attorney-client privilege to draft documents); Guy v. United Healthcare Corp., 154 F.R.D. 172, 178 (S.D. Ohio 1993) (King, M.J.) ("Preliminary drafts of communications subsequently sent to third parties, to the extent they reflect legal advice, are covered by the attorney-client privilege.").
Turning to the possibility of waiver, nothing in the documents or in Defendant's privilege log tends to show that Defendant or its outside counsel sent or otherwise disclosed the privileged communications to third persons or entities. E.g., Exhs. 18, 20, 157, 183, 287, 470, 472, 493-96, 530. Consequently, Defendant has not waived its right to invoke the attorney-client. See Reed, 134 F.3d at 355 (attorney-client privilege protects "communications relating to ... [a party's] purpose" in obtaining legal advice).
Plaintiffs have previously maintained that the withheld documents concern business advice in the form of routine human resources and business-management matters, rather than legal advice, and that the attorney-client privilege does not apply to such business documents, in Plaintiffs' view. (Doc. #110, PageID at 2007-2009).
As a general matter, Plaintiffs are correct: "[T]he attorney-client privilege 'applies only to communications made to an attorney in his capacity as legal advisor. 'Where business and legal advice are intertwined, the legal advice must predominate for the communication to be protected.'" Alomari v. Ohio Dep't of Pub. Safety, 2:11-CV-00613, 2013 WL 5180811 at *2 (S.D. Ohio Sept. 13, 2013) (Deavers, M.J.) (internal citation omitted). As a specific matter, Plaintiffs are off-kilter: in camera review of the documents reveals that the legal advice provided by outside counsel in the documents predominates over other information. Indeed, it is impossible to glean any substantive business advice given by outside counsel on the face of the documents. The documents do not contain communications with outside legal counsel concerning the type of business - regional bus transportation/public transit - Defendant engages in. Outside counsel is not advising Defendant about how to operate a bus company or a public-transit service. The documents do not contain business advice on strategic topics, such as marketing, planning, or operational strategies or goals. The documents are similarly silent on operational tactics, such as what routes Defendant should offer, what schedule its buses should run on, or what fares it should charge. Contrary to Plaintiff's view, the fact that the documents are informative about routine human resources issues does not transform the legal advice outside counsel provided on those matters into business advice.
Accordingly, although narrowly construed, the attorney-client privilege applies to the communications presently at issue because the substance of those communications is well within the scope of the privilege. Due to this, Plaintiffs are not entitled to an order compelling Defendant to produce the documents protected by the attorney-client privilege in Binders 1, 2, and 3.
III.
Defendant asserts that the work-product doctrine applies to 13 documents in Binder 3.
Plaintiffs contend that Defendant could not have harbored a subjective fear of litigation and did not have an objectively reasonable basis for anticipating litigation when it prepared the withheld documents as part of routine human-resources functions. The work- product doctrine therefore does not apply to the withheld documents, in Plaintiffs' view.
Defendant maintains, "if a document is prepared in anticipation of litigation, the fact that it also serves as ordinary business purpose does not deprive it of protection." (Doc. #124, PageID at 2773).
Rule 26(b)(3)(A) contains the work-product doctrine by providing, "Ordinarily, 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, insurer, or agent)." "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, 238-39, 95 S.Ct. 2160, 2170 (1975). "Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney." Hickman v. Taylor, 329 U.S. 495, 510, 67 S. Ct. 385, 393 (1947); see Upjohn, 449 U.S. at 397-98, 101 S.Ct. at 686-87. "The doctrine is designed to allow an attorney to 'assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference ... to promote justice and to protect [his] clients' interests." In re Columbia/HCA Healthcare Corp., 293 F.3d at 304 (quoting Hickman, 329 U.S. 495). The doctrine is likewise "concerned with giving an attorney a sense of confidence that he or she will not be required to reveal his or her theory of the case prior to trial." Melhelm v. Meijer, Inc., 206 F.R.D. 609, 614-15 (S.D. Ohio 2002) (Rice, D.J.).
In the instant case, the 13 documents in Binder 3 withheld under the work-product doctrine were not written by, sent to, or received from Defendant's outside legal counsel; they were internal emails written by, and exchanged between, personnel in Defendant's human resources department and/or management-level employees. "[T]he work product protection under Rule 26(b)(3) is not limited to attorneys, but has been extended to documents and tangible things prepared by or for the party and the party's representative, as long as such documents were prepared in anticipation of litigation." Roa v. Tetrick, 1:13-CV-379, 2014 WL 695961 at *2 (S.D. Ohio Feb. 24, 2014)(Litkovitz, M.J.)(citing Eversole v. Butler County Sheriff's Office, No. 1:99-cv-789, 2001 WL 1842461, at *2 (S.D. Ohio Aug. 7, 2001)("Rule 26(b)(3) is not limited solely to attorneys" and "documents and things prepared by the party or his agent fall within the work product rule.") (other citations omitted). This much is plain from the text of Rule 26(b)(3)(A), which precludes one party from discovering "documents that are prepared in anticipation of litigation or for trial by or for another party or its representative ...." Fed. R. Civ. P. 26(b)(3) (emphasis added); see Roa, 1:13-CV-379, 2014 WL 695961 at *2. The issue thus becomes whether the documents were prepared "in anticipation of litigation or for trial ...." Fed. R. Civ. P. 26(b)(3); see, e.g., In re Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009).
A two-part inquiry controls whether a document has been prepared "in anticipation of litigation or for trial": "(1) whether that document was prepared 'because of a party's subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable." In re Professionals Direct Ins. Co., 578 F.3d at 439 (quoting United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)). "[A] party may satisfy its burden of showing anticipation of litigation in any of the traditional ways in which proof is produced in pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to interrogatories, and that the showing can be opposed or controverted in the same manner." Roxworthy, 457 F.3d at 597 (citation and internal quotes omitted). Documents do not lose protection under the work-product doctrine unless they "would have been created in essentially similar form irrespective of litigation." Id., 457 F.3d at 599; see Little Hocking Water Assn., Inc. v. E.I. Du Pont De Mours & Co., Case No. 2:09cv1081, 2013 WL 607969 at *9 (S.D. Ohio Feb. 19, 2013)(King, M.J.). Yet, "a document can be created for both use in the ordinary course of business and in anticipation of litigation without losing its work-product privilege." Roxworthy, 457 F.3d at 599.
In camera review of the 13 withheld documents reveals that some were created after the date this case was filed (July 18, 2011). (Exhibits 438, 439, 443, 448). In light of this, and because the content of these documents deals with FMLA matters that are part and parcel of this case, the documents were created because of this litigation. As a result, the documents were created with a subjective anticipation of litigation which was objectively reasonable. The work-product doctrine therefore protects these documents from disclosure to Plaintiffs.
The other documents withheld by Defendant based on the work-product doctrine concern FMLA matters that arose before this case began but at a time when Defendant faced pending or soon-to-be pending arbitration. (Exhs. 141-147, 437, 625). The content of the documents reveals that they were prepared in anticipation of arbitration with certain employees and/or their labor union. Defendant contends that the work-product doctrine's use of the term "litigation" includes contractual grievance and arbitration proceedings; for example, when a labor unions charges an employer with statutory violations, "this amounts to 'a potential claim following an actual event or series of events that reasonably could result in litigation.'" (Doc. #124, PageID at 2774). This is correct. Jumper v. Yellow Corp., 176 F.R.D. 282, 286 (N.D. Ill. 1997); see Vigil v. Pueblo Sch. Dist. No. 60, No. 11-CV-00834-CMA-BNB, 2012 WL 1278047 at *3 (D. Colo. Apr. 16, 2012); U.S. Info. Sys., Inc. v. Int'l Bhd. of Elec. Workers, 2002 WL 31093619 (S.D.N.Y. Sept. 17, 2002) (work-product doctrine shields documents closely related to prior NLRB hearing); cf. United States v. Leggett & Platt, Inc., 542 F.2d 655, 660 (6th Cir. 1976)("work product doctrine applies to work produced in anticipation of other litigation ...."). The content of these documents reveals that they were created because of pending or likely arbitration, which actually arose around the time the documents were created. Defendant therefore held a subjective anticipation of arbitration and its anticipation was objectively reasonable. Consequently, the work-product doctrine shields the documents from disclosure to Plaintiffs.
IT IS THEREFORE ORDERED THAT:
For the above reasons, either the attorney-client privilege or the work-product doctrine protects the documents Defendant has submitted for in camera review. Plaintiffs, therefore, are not entitled to an Order compelling Defendant to produce those documents.
__________________________
Sharon L. Ovington
Chief United States Magistrate Judge