Tietsworth v. Sears, Roebuck and Co. et al

Filing 196

ORDER by Magistrate Judge Howard R. Lloyd re 123 Discovery Dispute Joint Report #1. Plaintiffs' request to compel production of documents granted in part and denied in part. (hrllc2, COURT STAFF) (Filed on 2/4/2013)

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*E-FILED: February 4, 2013*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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RENEE TIETSWORTH, SUZANNE REBRO,
SONDRA SIMPSON, and JOHN CAREY, On
Behalf of Themselves and All Others Similarly
Situated,

No. C09-00288 JF HRL
ORDER RE DISCOVERY DISPUTE
JOINT REPORT #1

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Plaintiffs,
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[Re: Docket No. 123]
v.

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SEARS, ROEBUCK AND CO. and
WHIRLPOOL CORPORATION,

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Defendants.
/

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In Discovery Dispute Joint Report (DDJR) #1, plaintiffs seek the production of

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approximately 75 documents withheld by defendants as attorney-client privileged

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communications and attorney work product. In sum, plaintiffs are skeptical whether any

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communications were made for the purpose of seeking legal advice; whether defendants’ in-

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house counsel were acting in a legal or business capacity; and whether the documents in

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question were created because of litigation. This court ordered defendants to submit the

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disputed documents for an in camera review. The matter is suitable for determination without

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oral argument. This court has reviewed those documents, and for the reasons discussed below,

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plaintiffs’ request to compel the production of the withheld documents is granted in part and

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denied in part.

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A.

Document disputes that are deemed moot.

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Upon submission of the documents for in camera review, defendants advised that they

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ended up producing a number of the disputed documents to plaintiffs in redacted form because

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they learned that some of the information on those documents had been communicated to third-

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parties. Defendants say that plaintiffs have not objected to the redactions. Plaintiffs do not

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deny that assertion, and those documents were not submitted to the court for review.

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Accordingly, the instant dispute is deemed moot as to the following documents on Whirlpool’s

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privilege log: Tab Nos. 178, 181, 188, 209, 245, 246, 249, 252, 273, 274, 277, 278, and 300.

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B.

Whirlpool privilege log Tab Nos. 16 and 51
With respect to these documents, this court is prepared to find that they are protected by

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For the Northern District of California

United States District Court

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the attorney-client privilege and the attorney work product doctrine. Nevertheless, Whirlpool’s

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privilege log—at least, the version of it provided to this court—is insufficient to establish those

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protections. No attorney is identified. And, Whirlpool does not say that the documents were

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created because of this litigation. Its privilege log says only that the documents were created by

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one Joseph Coletti on January 16, 2009 and that they were “Between counsel and client,

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providing information requested by counsel.”

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In DDJR #1, Whirlpool represented that it could and would amend its logs to identify

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the specific in-house attorney in question and to state that the purpose of the communication

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was to provide those attorneys with information for use in defending against plaintiffs’ claims

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here. To the extent it has not already done so, Whirlpool shall amend its logs accordingly.

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Plaintiffs’ motion to compel the production of these documents is otherwise denied.

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C.

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All other Whirlpool documents
As for all the remaining Whirlpool documents at issue (Tab Nos. 1-3, 6-15, 17, 46-49,

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52-54, 57-65, 68-77, 130-132, 160, 218-223, 236, 299, 304-308, 311, and 313), this court is

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satisfied that they properly have been withheld as attorney-client privileged communications or

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attorney work product. Plaintiffs’ request to compel their production is denied.

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D.

Sears’ documents
Plaintiffs challenge only two documents on Sears’ privilege log: Tab Nos. 15 and 16.

Product Safety Commission] by Cary Mergele, in-house counsel for Sears.” (DDJR #1, Ex. D

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at 1). One was created on December 28, 2007; the other, nearly one year later on November 18,

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2008. David Chowanec is listed as the document “Custodian,” but there is no “To” or “From”

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identified. Sears claims that they are covered by the attorney-client privilege. Based on the

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privilege log alone, plaintiffs say that they cannot tell that these documents truly comprise

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communications made for the purpose of obtaining legal advice, or whether in-house counsel

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was acting in a business capacity. Citing Roth v. Aon Corp., 254 F.R.D. 538 (N.D. Ill. 2009),

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For the Northern District of California

The log describes them as “[d]raft materials created for submission to CPSC [Consumer

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United States District Court

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Sears argues that these drafts remain privileged even if the underlying information eventually

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was disclosed in a public document.

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This court generally agrees that “unless the communication does not at the outset meet

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the elements of the attorney-client privilege, then a draft of a document which becomes public

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record does not thereby lose that privilege.” Roth, 254 F.R.D. at 541. But, Roth involved an

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email communication between the client and in-house counsel, seeking legal advice with

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respect to an attached draft of a document to be submitted to the Securities & Exchange

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Commission. By contrast, there is no evidence of any attorney-client communication as to

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these Sears documents. The documents themselves do not appear to be communications. There

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is nothing in the record presented to this court indicating they were exchanged or discussed

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between attorney and client. Moreover, the documents in question appear to contain purely

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factual information. “The privilege only protects disclosure of communications; it does not

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protect disclosure of the underlying facts by those who communicated with the attorney.”

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Upjohn Co. v. United States, 449 U.S. 383, 396, 101 S. Ct. 677, 66 L.Ed.2d 584 (1981).

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Accordingly, plaintiffs’ request for an order compelling the production of these
documents is granted. Sears shall produce them to plaintiffs within 14 days from the date of

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this order.
SO ORDERED.
Dated: February 4, 2013

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:09-cv-00288-JF Notice has been electronically mailed to:

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Clement L. Glynn [e-mail], [e-mail],
[e-mail], [e-mail]

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Edwin John Kilpela , Jr

[e-mail]

Galen Driscoll Bellamy

[e-mail]

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James C Shah

[e-mail], [e-mail], [e-mail]

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James M. Hanlon , Jr

[e-mail], [e-mail]

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Jennie Lee Anderson [e-mail], [e-mail],
[e-mail]

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Jessica Moy

[e-mail], [e-mail]

Joel Steven Neckers

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For the Northern District of California

United States District Court

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Karen M. Leser-Grenon

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Lori Erin Andrus [e-mail], [e-mail],
[e-mail]

[e-mail], [e-mail]
[e-mail]

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Michael Timothy Williams [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

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Rosemary Farrales Luzon

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Theresa R Wardon

[e-mail], [e-mail]

[e-mail]

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