Opinion
CIV. NO. 99-2771 SECTION "G" (2).
April 14, 2000.
ORDER AND REASONS
Plaintiff, Lou Emma Woodward, sued defendants, Avondale Industries Inc. ("Avondale"); National Technologies, Incorporated; and Avondale Steel Industries, Shipyard Division. Woodward alleges sexual harassment, sex discrimination, constructive discharge and retaliation in connection with her employment in violation of Title VII. Avondale has moved to compel Woodward to produce the handwritten "statement" or chronology of events that she wrote on June 17, 1998 and gave to her attorneys before she filed her complaint of sexual discrimination with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff opposes the motion, arguing that her statement is protected from disclosure by the attorney-client privilege.
After reviewing plaintiff's June 17, 1998 statement in camera, Plaintiff's Exit. A, I find that (1) the statement is not a privileged attorney-client communication, and (2) even if it were privileged, Woodward waived the privilege with respect to that statement by relying on it to prepare her affidavit filed with the EEOC, Defendant's Exh. B, and/or by using the statement to refresh her recollection before testifying at her deposition. Fed.R.Evid. 612(2).
First, my review of the statement reveals that it contains only factual recitations and a list of witnesses to the events recited. It is axiomatic that the attorney-client privilege "only protects disclosure of confidential communications between the client and attorney; it does not protect disclosure of underlying facts." United States v. Edwards, 39 F. Supp.2d 716, 723 (M.D. La. 1999) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981); In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992); United States v. Freeman, 619 F.2d 1112 (5th Cir. 1980); Computer Network Corp. v. Spohler, 95 F.R.D. 500 (D.D.C. 1982)) (emphasis added). "`Pre-existing facts that underlie the client's confidential communications, whether oral or written, are not privileged simply because the client disclosed them to an attorney for the purpose of obtaining legal services.'" Id. at 736 (quoting Weinstein's Federal Evidence, § 503.14[4][a] (2d ed. 1998), citing Upjohn, 449 U.S. at 395) (emphasis added). As a purely factual recitation, therefore, Woodward's June 17, 1998 statement is not privileged merely because she gave it to her attorneys. In the absence of any privilege, the statement is discoverable.
The Court applies federal common law of attorney-client privilege in this case arising solely under Title VII. Fed.R.Evid. 501; United States v. Moore, 970 F.2d 48, 49-50 (5th Cir. 1992); Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992);Robertson v. Neuromed, Ctr., 169 F.R.D. 80, 81-82 (M.D. La. 1996); Soriano v. Treasure Chest Casino, Inc., No. 95-3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996).
Second, even if the statement were considered privileged, it is discoverable under Federal Rule of Evidence 612(2) and/or the doctrine of waiver of attorney-client privilege. The statement recounts events that occurred between February 1 and June 4, 1998. Plaintiff's Exh. A, Woodward's June 17, 1998 Statement. Woodward testified that she used the statement to develop her EEOC complaint, which was filed in November 1998. Defendant's Exh. A, Woodward deposition at 7, 48, 119, 222. She also testified, based on her review of her June 17, 1998 statement, about her recollection of having reported certain incidents of alleged harassment to Avondale's personnel department. She stated that her recollection of dates and events was clear when she drafted the statement. Id. at 118-19, 241-42. Plaintiff testified about other incidents of inappropriate or threatening conduct, which were set forth in her statement but were not included in her EEOC affidavit. Id. at 171-72, 174, 182-83, 208-09; Defendant's Exh. B, EEOC affidavit.
Woodward stated that she prepared the June 17, 1998 statement after the events occurred by referring to notes she had made contemporaneously with the events in a small notebook, but that she no longer had the notebook. Defendant's Exh. A, Woodward deposition at 48-51, 223. Since the deposition, plaintiff has apparently located the notebook of contemporaneous notes and produced it to Avondale. Plaintiff's Memorandum in Opposition to Motion to Compel, Record Document. No. 31, at 2; Plaintiff's Exh. B. However, it is clear that the June 17, 1998 statement contains more entries and more information than either the notebook or plaintiff's EEOC affidavit.
Fed.R.Civ.P. 612(2) provides that
if a witness uses a writing to refresh memory for the purpose of testifying, before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
"If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto." Id. Plaintiff does not dispute that the subject matter of the statement was related to the subject matter of her deposition testimony.
Thus, the Court may compel production of Woodward's statement if she used it to refresh her memory for the purpose of testifying at her deposition, and if it is necessary for Avondale to have the statement in the interests of justice. Plaintiff's testimony makes clear that she relied on her review of the June 17, 1998 statement when testifying about her recollection of events. The only question then is whether it is in the interests of justice to compel its production to defendant.
"The vast majority of cases . . . have concluded that Rule 612 is applicable to depositions" pursuant to Fed.R.Civ.P. 30(c). 28 Charles A. Wright Victor J. Gold, Federal Practice and Procedure: Evidence § 6183, at 452 (1993) (hereinafter "Wright Gold"). Fed.R.Civ.P. 30(c) provides that "[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615," which clearly implies that Fed.R.Evid. 612 does apply to depositions. Fed.R.Civ.P. 30(c) (emphasis added). Plaintiff does not argue that Rule 612(2) is inapplicable to deposition testimony.
The purpose of Rule 612(2) is "to promote the search of credibility and memory." 1972 Advisory Committee Note to proposed Fed.R.Evid. 612(2). Although the Advisory Committee "intends that nothing in the Rule be construed as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory," 1974 Advisory Committee Note to Fed.R.Evid. 612(2), federal courts have held that the attorney-client privilege does not automatically bar an opponent's access to such a writing.
Although some courts have found an automatic waiver of the privilege whenever a witness has used a privileged document to refresh her memory before testifying, Wright Gold, § 6188 at 483, the majority view is that the reviewing court should "balance the interests promoted by recognizing Rule 612(2) rights in the adverse party against the burden those rights impose on work-product and privilege protections." Id. at 488.
Factors suggesting that the balance should be struck in favor of adverse-party rights are the inability of the adverse party to obtain access to the matters revealed by the writing through means other than production of the writing, the absence of opinion work product, discrepancies between a witness's testimony and the contents of the writing used to refresh, heavy reliance on a particular document by the witness, testimony that is especially important, disclosure of a significant part of the writing in the witness's testimony, and evidence that witness coaching may have occurred.Id. at 488-89 (and cases cited in accompanying footnotes).
In the instant case, several of the factors recited above indicate that the interests of justice will be served if plaintiff is ordered to produce the June 17, 1998 statement to Avondale. First, the statement contains more information than either the contemporaneous notebook or plaintiff's EEOC affidavit, and the statement was prepared soon after the events that it recounts, when those events were (by plaintiff's own testimony) fresh in her mind and were certainly fresher than when she was deposed in January 2000. Thus, Avondale will be unable to obtain access to the matters revealed by the statement through means other than its production.
Second, the statement is factual in nature and contains no work product in the form of mental impressions, conclusions, opinions or legal theories. Third, Woodward relied heavily on and disclosed much of the document during her deposition testimony, and that testimony concerned the heart of her factual allegations in this lawsuit. On the opposite side of the balancing scales, very little, if any, interest in the attorney-client privilege exists to protect because the statement is factual.
Therefore, I find that the balance of factors and the interests of justice weigh heavily in favor of allowing Avondale to have access to plaintiff's statement. See Bedvanly v. Nynex Corp., 152 F.R.D. 460, 470-72 (S.D.N.Y. 1993) (in Title VII case, ordering production of notes taken at meeting by defendant's in-house counsel, despite defendant's assertion of work product doctrine; notes were a factual recitation of events in dispute, had been reviewed by in-house counsel before testifying at his deposition and were necessary for plaintiff to test witness's memory, credibility and extent to which notes influenced his testimony).
Finally, plaintiff waived any attorney-client privilege by relying extensively on the statement to prepare her EEOC affidavit. "Patently, a voluntary disclosure of information which is inconsistent with the confidential nature of the attorney-client relationship waives the privilege." Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993); accord Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1415 (Fed. Cir. 1997). Woodward testified that she relied on the statement to develop the EEOC affidavit. The contents of the affidavit mirror the language of her statement and reveal much of the statement's contents. Thus, she voluntarily waived any privilege that arguably could be asserted as to the statement.
Accordingly, IT IS ORDERED that defendant's motion to compel production of documents is GRANTED. IT IS FURTHER ORDERED that plaintiff must produce the June 17, 1998 statement to defendant within ten days of entry of this order.