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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1 2 *E-FILED: February 4, 2013* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 12 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 13 Plaintiffs, 14 [Re: Docket No. 123] v. 15 16 SEARS, ROEBUCK AND CO. and WHIRLPOOL CORPORATION, 17 Defendants. / 18 19 In Discovery Dispute Joint Report (DDJR) #1, plaintiffs seek the production of 20 approximately 75 documents withheld by defendants as attorney-client privileged 21 communications and attorney work product. In sum, plaintiffs are skeptical whether any 22 communications were made for the purpose of seeking legal advice; whether defendants’ in- 23 house counsel were acting in a legal or business capacity; and whether the documents in 24 question were created because of litigation. This court ordered defendants to submit the 25 disputed documents for an in camera review. The matter is suitable for determination without 26 oral argument. This court has reviewed those documents, and for the reasons discussed below, 27 plaintiffs’ request to compel the production of the withheld documents is granted in part and 28 denied in part. 1 A. Document disputes that are deemed moot. 2 Upon submission of the documents for in camera review, defendants advised that they 3 ended up producing a number of the disputed documents to plaintiffs in redacted form because 4 they learned that some of the information on those documents had been communicated to third- 5 parties. Defendants say that plaintiffs have not objected to the redactions. Plaintiffs do not 6 deny that assertion, and those documents were not submitted to the court for review. 7 Accordingly, the instant dispute is deemed moot as to the following documents on Whirlpool’s 8 privilege log: Tab Nos. 178, 181, 188, 209, 245, 246, 249, 252, 273, 274, 277, 278, and 300. 9 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 11 For the Northern District of California United States District Court 10 the attorney-client privilege and the attorney work product doctrine. Nevertheless, Whirlpool’s 12 privilege log—at least, the version of it provided to this court—is insufficient to establish those 13 protections. No attorney is identified. And, Whirlpool does not say that the documents were 14 created because of this litigation. Its privilege log says only that the documents were created by 15 one Joseph Coletti on January 16, 2009 and that they were “Between counsel and client, 16 providing information requested by counsel.” 17 In DDJR #1, Whirlpool represented that it could and would amend its logs to identify 18 the specific in-house attorney in question and to state that the purpose of the communication 19 was to provide those attorneys with information for use in defending against plaintiffs’ claims 20 here. To the extent it has not already done so, Whirlpool shall amend its logs accordingly. 21 Plaintiffs’ motion to compel the production of these documents is otherwise denied. 22 C. 23 All other Whirlpool documents As for all the remaining Whirlpool documents at issue (Tab Nos. 1-3, 6-15, 17, 46-49, 24 52-54, 57-65, 68-77, 130-132, 160, 218-223, 236, 299, 304-308, 311, and 313), this court is 25 satisfied that they properly have been withheld as attorney-client privileged communications or 26 attorney work product. Plaintiffs’ request to compel their production is denied. 27 28 2 1 2 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 5 at 1). One was created on December 28, 2007; the other, nearly one year later on November 18, 6 2008. David Chowanec is listed as the document “Custodian,” but there is no “To” or “From” 7 identified. Sears claims that they are covered by the attorney-client privilege. Based on the 8 privilege log alone, plaintiffs say that they cannot tell that these documents truly comprise 9 communications made for the purpose of obtaining legal advice, or whether in-house counsel 10 was acting in a business capacity. Citing Roth v. Aon Corp., 254 F.R.D. 538 (N.D. Ill. 2009), 11 For the Northern District of California The log describes them as “[d]raft materials created for submission to CPSC [Consumer 4 United States District Court 3 Sears argues that these drafts remain privileged even if the underlying information eventually 12 was disclosed in a public document. 13 This court generally agrees that “unless the communication does not at the outset meet 14 the elements of the attorney-client privilege, then a draft of a document which becomes public 15 record does not thereby lose that privilege.” Roth, 254 F.R.D. at 541. But, Roth involved an 16 email communication between the client and in-house counsel, seeking legal advice with 17 respect to an attached draft of a document to be submitted to the Securities & Exchange 18 Commission. By contrast, there is no evidence of any attorney-client communication as to 19 these Sears documents. The documents themselves do not appear to be communications. There 20 is nothing in the record presented to this court indicating they were exchanged or discussed 21 between attorney and client. Moreover, the documents in question appear to contain purely 22 factual information. “The privilege only protects disclosure of communications; it does not 23 protect disclosure of the underlying facts by those who communicated with the attorney.” 24 Upjohn Co. v. United States, 449 U.S. 383, 396, 101 S. Ct. 677, 66 L.Ed.2d 584 (1981). 25 26 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 27 28 3 1 2 3 this order. SO ORDERED. Dated: February 4, 2013 4 HOWARD R. LLOYD 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 5:09-cv-00288-JF Notice has been electronically mailed to: 2 Clement L. Glynn cglynn@glynnfinley.com, dmenor@glynnfinley.com, llentz@glynnfinley.com, lvallone@glynnfinley.com 3 Edwin John Kilpela , Jr kilpela@wtotrial.com Galen Driscoll Bellamy bellamy@wtotrial.com 4 5 James C Shah jshah@sfmslaw.com, pleadings@sfmslaw.com, smoss@sfmslaw.com 6 James M. Hanlon , Jr jhanlon@glynnfinley.com, lvallone@glynnfinley.com 7 8 Jennie Lee Anderson jennie@andrusanderson.com, jessica@andrusanderson.com, kelli.good@andrusanderson.com 9 Jessica Moy jessica@andrusanderson.com, kelli.good@andrusanderson.com Joel Steven Neckers 11 For the Northern District of California United States District Court 10 Karen M. Leser-Grenon 12 Lori Erin Andrus lori@andrusanderson.com, jessicamoy@andrusanderson.com, kelli.good@andrusanderson.com neckers@wtotrial.com, prechodko@wtotrial.com kleser@sfmslaw.com 13 14 Michael Timothy Williams williams@wtotrial.com, bliahu@wtotrial.com, griego@wtotrial.com, miller@wtotrial.com, snow@wtotrial.com 15 Rosemary Farrales Luzon 16 Theresa R Wardon rluzon@sfmslaw.com, pleadings@sfmslaw.com wardon@wtotrial.com 17 18 19 20 21 22 23 24 25 26 27 28 5

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