Lebbon et al v. Reed et al

Filing 39

ORDER granting Plaintiff's 25 Motion to Compel; Defendants are ordered to produce the 2010 Investigation. Signed by Judge G Murray Snow on 1/31/13.(REW)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cameron Lebbon, a married man; Peoria
Police Officer’s Association Charities, a
non-profit charitable organization; Peoria
Police Officer’s Association, a non-profit
corporation,

No. CV-12-00921-PHX-GMS
ORDER

Plaintiffs,

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v.

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City of Peoria, a municipality,

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Defendant.

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Pending before the Court is Plaintiffs’ Motion to Compel Discovery. (Doc. 25.) At

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issue is a document referred to by the parties as the 2010 Investigation. On October 19,

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2012, Plaintiffs filed a Request for Production of Documents requesting Defendants to

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produce the 2010 Investigation. (Id. at 2.) Defendants refused, asserting that the 2010

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Investigation is protected by the attorney-client and work product privileges. (Id.)

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“A party asserting the attorney-client privilege has the burden of establishing the

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existence of an attorney-client relationship and the privileged nature of the

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communication.” United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (internal

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quotations omitted) (emphasis in original). Similarly, a party asserting the work product

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privilege bears the burden of proving that the material withheld meets the standards

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established for material to be classified as work product. Garcia v. City of El Centro, 214

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F.R.D. 587, 591 (S.D. Cal. 2003).

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Here, Defendants have made no effort to meet their burden, instead merely

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asserting that Plaintiffs conceded in a telephonic conference that the 2010 Investigation

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was privileged. (Doc. 28 at 2.) Defendants have failed to show that the 2010 Investigation

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is protected by either the attorney-client or the work product privilege.

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Even if Plaintiffs had conceded that the 2010 Investigation was privileged (a fact

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that they strongly dispute), Defendants waived that privilege when they disclosed the

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contents of the 2010 Investigation to Plaintiff Cameron Lebbon in a Memo dated May 31,

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2011. “Disclosing a privileged communication . . . results in waiver as to all other

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communications on the same subject.” Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th

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Cir. 2010). In the 2011 Memo to Lebbon, Defendants set forth a lengthy series of

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conclusions that they reached as a result of the 2010 Investigation. (Doc. 25-1.) Thus,

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Defendants disclosed the contents of the 2010 Investigation to Lebbon.

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Defendants contend that the work product privilege can only be waived “when

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voluntarily disclosed such that it may become readily accessible to an adversary.” (Doc.

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25 at 2–3) (citing Samuels v. Mitchell, 155 F.R.D. 195, 200 (N.D. Cal. 1994)). In fact, the

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case cited by Defendants stands for the narrower proposition that waiver by disclosure

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occurs “if the disclosure substantially increases the opportunity for potential adversaries

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to obtain the information.” Samuels, 155 F.R.D. at 200. Furthermore, the same court has

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held that the work product privilege for written materials is waived as to any factual

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information orally disclosed to the adverse party. S.E.C. v. Roberts, 254 F.R.D. 371, 377

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(N.D. Cal. 2008).

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Here, Defendants disclosed the contents of the 2010 Investigation by citing to

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factual findings from the Investigation in their 2011 Memo to Lebbon. (Doc. 25-1 at 2–

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4.) By setting out those findings in the Memo, Defendants “substantially increased the

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opportunity” for Lebbon to obtain that information. Defendants have thus waived any

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work product privilege they might have had regarding such information in the 2010

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Investigation. See Arizona ex rel. Goddard v. Frito-Lay, Inc., 273 F.R.D. 545, 555 (D.

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Ariz. 2011).
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Defendants have failed to establish that the 2010 Investigation is protected by

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either the attorney-client or work product privileges. Even if they had made such a

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showing, they waived any privilege they may have had by disclosing the contents of the

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2010 Investigation in their 2011 Memo to Plaintiff Lebbon.

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel (Doc. 25) is
GRANTED. Defendants are ordered to produce the 2010 Investigation.
Dated this 31st day of January, 2013.

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