Elan Microelectronics Corporation v. Apple, Inc.

Filing 422

Declaration of Nathan Greenblatt in Support of 421 Response to Elan Microelectronics Corporation's Objections to Non-Dispositive Ruling of Magistrate Judge 406 filed byApple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 421 ) (Greenblatt, Nathan) (Filed on 9/9/2011)

EXHIBIT B

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(Cite as: 2002 WL 31947153 (N.D.Cal.))

170Ak1558 Objections and Grounds
Only the Westlaw citation is currently available.

for Refusal

United States District Court,
N.D. California.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
SAFEWAY STORE, INC., Defendant.

Cited Cases

170Ak1558.1 k. In General. Most

No. C-00-3155 TEH(EMC).
Sept. 16, 2002.
Intervenor/claimant in Equal Employment Opportunity Commission (EEOC) worker's compensation action against employer moved to compel production of documents from employer. The District
Court, Chen, United States Magistrate Judge, held
that: (1) employer's late delivery of privilege log in
response to discovery requests did not warrant
waiver of asserted privileges; (2) attorney-client
privilege was not applicable absent evidence of
confidentiality; (3) documents created by selfinsured employer as part of internal investigation
into claim were not within work-product doctrine;
(4) work-product doctrine did protect documents
authored in anticipation of EEOC case; (5) workproduct doctrine did not protect third-party investigator's report that included co-worker interviews,
given its relevance to claimant's assertion of harassment; and (6) claimant was entitled to attorney fees
based on employer's needless delay in producing
privilege log.
Motion granted in part and denied in part.
West Headnotes
[1] Federal Civil Procedure 170A

1558.1

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of Documents and Other Tangible Things
170AX(E)1 In General

Privileged Communications and Confidentiality
311H
22
311H Privileged Communications and Confidentiality
311HI In General
311Hk22 k. Privilege Logs. Most Cited
Cases
(Formerly 410k220)
Defendant's privilege log which served as cure
for inadequate blanket objection to discovery request, even though filed six months late, did not
warrant district court's exercise of its discretion to
find waiver of attorney-client privilege or workproduct claim, given fact that plaintiff had repeatedly requested and defendant had repeatedly
promised to produce log, so that there was no complete surprise attendant to delay and risk of prejudice to plaintiff was not severe, and given fact that
log was produced prior to hearing on plaintiff's motion to compel. Fed.R.Civ.P. 26(b)(5), 34(b).
[2] Federal Civil Procedure 170A

1558.1

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of Documents and Other Tangible Things
170AX(E)1 In General
170Ak1558 Objections and Grounds
for Refusal
170Ak1558.1 k. In General. Most
Cited Cases
Privileged Communications and Confidentiality
311H
22
311H Privileged Communications and Confidentiality
311HI In General

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311Hk22 k. Privilege Logs. Most Cited
Cases
(Formerly 410k222)
Where defendant objected to discovery request
based on attorney-client privilege and work-product
doctrine, but filed generally conclusory privilege
log in support of objection, district court in deciding objection based on in camera examination of
documents would find privilege only where privilege obviously applied based on face of document.
Fed.R.Civ.P. 26(b)(5), 34(b).

Documents created by self-insured employer as
part of internal investigation into employee's worker's compensation claims were not protected from
discovery under work-product doctrine, in Equal
Employment Opportunity Commission (EEOC)
worker's compensation action against employer,
where documents did not state that employer had
taken adverse position on claims and was preparing
for litigation over compensability. Fed.R.Civ.P.
26(b)(5), 34(b).
[5] Federal Civil Procedure 170A

[3] Privileged Communications and Confidentiality 311H
137
311H Privileged Communications and Confidentiality
311HIII Attorney-Client Privilege
311Hk135 Mode or Form of Communications
311Hk137 k. Documents and Records in
General. Most Cited Cases
(Formerly 410k204(2))
Attorney-client privilege did not apply to documents that employer sought to withhold from discovery in Equal Employment Opportunity Commission (EEOC) worker's compensation action, where
documents did not appear on their face to involve
any communications between employer as client
and its counsel for purpose of obtaining or providing legal advice, and employer offered no evidence
as to their intended confidentiality. Fed.R.Civ.P.
26(b)(5), 34(b).
[4] Federal Civil Procedure 170A

1604(1)

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of Documents and Other Tangible Things
170AX(E)3 Particular Subject Matters
170Ak1604 Work Product Privilege;
Trial Preparation Materials
170Ak1604(1) k. In General. Most
Cited Cases
(Formerly 170Ak1600(3))
Work-product doctrine protected from discovery, in Equal Employment Opportunity Commission (EEOC) worker's compensation action against
employer, employer's reports that on their face had
been authored in anticipation of EEOC case, and as
to which intervenor/claimant had not established
compelling need; reports indicated that they were
prepared at request of, and addressed to, employer's
counsel of record, and clearly would not have been
prepared but for impending litigation. Fed.R.Civ.P.
26(b)(5), 34(b).

1604(1)
[6] Federal Civil Procedure 170A

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of Documents and Other Tangible Things
170AX(E)3 Particular Subject Matters
170Ak1604 Work Product Privilege;
Trial Preparation Materials
170Ak1604(1) k. In General. Most
Cited Cases
(Formerly 170Ak1600(3))

1604(1)

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of Documents and Other Tangible Things
170AX(E)3 Particular Subject Matters
170Ak1604 Work Product Privilege;
Trial Preparation Materials
170Ak1604(1) k. In General. Most
Cited Cases

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Not Reported in F.Supp.2d, 2002 WL 31947153 (N.D.Cal.)
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(Formerly 170Ak1600(3))
Work-product doctrine did not protect from
discovery, in Equal Employment Opportunity Commission (EEOC) worker's compensation action
against employer, third-party investigator's report
on behalf of employer summarizing interviews with
claimant and claimant's co-workers that concerned
worker's compensation claims and alleged incident
in which claimant had made racial comment to coworker; report was relevant to employer's state of
mind and in turn to intervenor/claimant's allegation
that employer had engaged in long-term pattern of
retaliation and harassment against claimant, and
could not be obtained by any other means.
Fed.R.Civ.P. 26(b)(5), 34(b).
[7] Federal Civil Procedure 170A

1637

170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of Documents and Other Tangible Things
170AX(E)5 Compliance; Failure to Comply
170Ak1636 Failure to Comply; Sanctions
170Ak1637 k. Payment of Expenses. Most Cited Cases
Claimant/intervenor in Equal Employment Opportunity Commission (EEOC) worker's compensation action against employer was entitled to attorney fees in connection with her motion to compel
discovery of documents that included employer's
internal investigations into compensation claims;
employer had waited six months to produce privilege log in response to discovery request, until
after motion to compel was filed, without substantial justification. Fed.R.Civ.P. 37(a).
ORDER RE ORR'S MOTIONS TO COMPEL (No.
46) AND FOR ATTORNEY'S FEES (No. 45)
CHEN, Magistrate J.
*1 On May 23, 2002, Intervenor Karen Orr
filed a Motion to Compel Production of Documents
and a Motion for Attorney's Fees.

On August 5, 2002, the Court granted in part
Orr's Motion to Compel and took under submission
the issue of whether defendant Safeway Stores, Inc.
(“Safeway”) waived its asserted attorney-client
privilege doctrine and/or work-product doctrine
over Safeway's internal investigative reports requested by Orr in Inspection Demand Nos. 17 and
18, and Orr's Motion for Attorney's Fees.
The Court, having reviewed the briefs, supporting documentation and record in this case, as well
as having heard the argument of counsel at the July
31, 2002 hearing, makes the following determinations:
WAIVER OF THE PRIVILEGE CLAIMS
Orr contends that Safeway's assertion of the attorney-client privilege and/or work-product doctrine for the investigative reports that are the subject of Orr's Inspection Demand Nos. 17 and 18, is
improper, because Safeway has waived any privileges based on its failure to provide a privilege log
until 4:00 p.m. on July 30, 2002.
Once a request for discovery is served, Federal
Rule of Civil Procedure 34(b) provides in pertinent
part that the responding party must “state with respect to each item or category, that inspection and
related activities will be permitted as requested, unless the request is objected to, in which event the
reasons for the objection shall be stated.” Where
the responding party seeks to assert the attorney-client privilege and or the work-product doctrine, the
party's assertion must be express and “describe the
nature of the documents, communications, or things
not produced or disclosed in a manner that, without
revealing information itself privileged or protected,
will enable other parties to assess the applicability
of the privilege or protection.” Fed.R.Civ.P.
26(b)(5). See Cable & Computer Technology, Inc.
v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650
(C.D.Cal.1997) (“[T]he party who resists discovery
has the burden to show that discovery should not be
allowed, and has the burden of clarifying explaining and supporting its objections.”); Brown v.
Smythe, No. Civ. 90-3815, 1991 WL 275785, *1

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(E.D.Pa. Dec.18, 1991) (stating that the party seeking to assert the attorney-client privilege or the
work product doctrine must make “a specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their confidentiality”). Generally, the responding party asserting certain protections
provides the propounding party with a privilege log
containing “the date of the document, the name of
its author, the name of its recipient, the names of all
people given copies of the document, the subject of
the documents and the privileges asserted.” Brown,
1991 WL 275785, at *1. See Schwarzer, Tashima &
Wagstaff, California Practice Guide: Federal Civil
Procedure Before Trial, § 11:735-36 (2001 revised). The responding party should also provide
competent evidence where necessary to substantiate
a claim of privilege.
*2 [1] Here, Orr's discovery request was propounded on Safeway in November 2001. Safeway
timely responded to the request in January 2002. In
response to Inspection Demand Nos. 17 and 18,
Safeway offered the following responses:
[Safeway] objects to [Inspection Demand No.
17] on the grounds that is (sic ) vague, ambiguous and overly broad as to time an (sic ) subject
matter, seeks documents that are not relevant to
this action nor reasonably calculated to lead to
the discovery of admissible evidence, seeks documents protected from disclosure by the attorney-client privilege and/or work product doctrine, and
seeks documents protected from disclosure by
third-party privacy rights.
[Safeway] objects to [Inspection Demand No.
18] on the grounds it is vague, ambiguous and
overly broad as to time and the terms
“investigator” and “statements,” and seeks documents protected from disclosure by third-party
privacy rights.
Safeway's response was clearly inadequate.
Where, as here, the responding party provides a

boilerplate or generalized objection, said
“objections are inadequate and tantamount to not
making any objection at all.” Walker v. Lakewood
Condominium Owners Association, 186 F.R.D. 584,
587 (C.D.Cal.1999). See Ritacca v.. Abbott Laboratories, 203 F.R.D. 332, 335 n. 4 (N.D.Ill.2001)
(“As courts have repeatedly pointed out, blanket
objections are patently improper, ... [and] we treat
[the] general objections as if they were never
made.” (internal citation omitted)). See also U.S. ex
rel. Burroughs v. Denardi Corp., 167 F.R.D. 680,
687 (S.D.Cal.1996) ( “Denardi” ) (“Generally, a
party's failure to serve timely objections to document production requests constitutes waiver of any
objections which the party might have to the requests.”), citing, Richmark Corp. v. Timber Falling
th
Consultants, 959 F.2d 1468, 1473 (9 Cir.), cert.
dismissed, China Everbright Trading Co. v. Timber
Falling Consultants, Inc., 506 U.S. 948, 113 S.Ct.
454, 121 L.Ed.2d 325 (1992).
However, this inadequate response does not necessarily imply that Safeway has waived attorney-client privilege and/or the work product doctrine as to
Inspection Demand Nos. 17 and 18. Safeway
provided Orr with a privilege log on July 30, 2002.
The log was six months tardy and was provided
only after Orr filed a motion to compel discovery of
documents.
Safeway answers that since January, it has indicated to Orr that a privilege log would be forthcoming and that Safeway's delay was due in part to
its effort to clarify the scope of Orr's request and attempt to negotiate a protective order.
Finding that a party has waived its right to assert a privilege objection due to its conduct (or lack
thereof) is a harsh sanction utilized where that party
has unjustifiably delayed discovery. Ritacca, 203
F.R.D. at 335. See Eureka Financial Corp. v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 185
(E.D.Cal.1991). In exercising the Court's discretion,
it must analyze the circumstances of such delay on
a case by case basis. See id. “Minor procedural violations, good faith attempts at compliance, and

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other such mitigating circumstances militate against
finding waiver. In contrast, evidence of footdragging or a cavalier attitude towards following
court orders and the discovery rules supports finding waiver.” Ritacca, 203 F.R.D. at 335 (citations
omitted). For example in Denardi, supra, the court
found that although a party's failure to serve timely
objections to document production requests generally constitutes waiver of any objections which the
party might have to the requests, a six-day delay in
responding to the propounding party's requests was
not unfair and thus did not equate to a waiver.
Denardi, 167 F.R.D. at 687. Conversely, in
Ritacca, supra, the court found that the defendant's
five month delay during which time it never mentioned its privilege objections to be inexcusable and
unjustified. Ritacca, 203 F.R.D. at 336. The court
concluded that the defendant's “casual disregard for
the discovery rules in this litigation can only be
characterized as unjustified, inexcusable, and in bad
faith.” Id.
*3 While the length of the delay in the case at
bar is more similar to Ritacca than Denardi, this
case is distinguishable from Ritacca. In Ritacca, the
plaintiff had no idea that the defendant intended to
assert privilege doctrines until after the plaintiff
filed a motion to compel almost five months after
discovery was due. Id. at 335. Unlike Ritacca, both
parties were aware that Safeway was asserting the
attorney-client privilege and/or the work-product
doctrine as to certain documents. Orr repeatedly requested and Safeway promised to produce a privilege log. Thus, there was no complete surprise attendant to Safeway's delay and thus the risk of prejudice to Orr in the instant case is not as severe as
that in Ritacca. Moreover, at least one court has
stated that an improper blanket assertion of privilege might be excused “if [the defendant] had
taken the time to correct its error prior to the discovery hearing on the issue.” Eureka, 136 F.R.D. at
184 (emphasis in original). See Bud Antle, Inc. v.
Grow-Tech, Inc., 131 F.R.D. 179, 182-83
(N.D.Cal.1990) (six week delay in producing privilege log after making generalized assertions of

privilege was not deemed waiver).
While the Court could in its discretion find a
waiver, it is reluctant to do so here given the harshness of the sanction. Safeway's delay however, does
inform the analysis of Orr's Motion for Attorney's
Fees discussed below.
ANALYSIS OF THE DOCUMENTS
The analysis of the claimed privileges is informed by the applicable procedural history herein.
Orr propounded her discovery request in November
2001 and Safeway responded in January 2002. In
response, Safeway asserted in conclusory terms that
some of the documents requested were protected by
the attorney-client privilege and/or the workproduct doctrine. On May 23, 2002, Orr filed a Motion to Compel Discovery. In its opposition to Orr's
Motion, Safeway submitted neither privilege log
nor any specific evidence in support of its privilege
claims. When Safeway finally produced a privilege
log on July 30, 2002, it failed to supplement the log
with any competent evidence explaining or substantiating the bases of its privilege claims.
[2] On August 14, 2002, the Court ordered that
the documents Safeway asserted were protected by
the attorney-client privilege and/or work-product
doctrine (Orr's Inspection Demand Nos. 17 and 18)
be produced in camera and under seal for the
Court's review. The Court also invited Orr to brief
the applicability of the attorney-client privilege
and/or the work-product doctrine based on the description of the reports contained in the privilege
log. However, even though Safeway produced the
documents under seal, it never sought to supplement the record with any affidavits or evidence explaining the applicability of the attorney-client
privilege and/or the work-product doctrine to the
documents. Accordingly, the Court must take the
record as it finds it. Under these circumstances,
Safeway has the burden of establishing applicability of the attorney-client privilege and/or work
product doctrine. See Newport Pacific, Inc. v.
County of San Diego, 200 F.R.D. 628, 632-33
(S.D.Cal.2001). Because the Court has nothing oth-

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er than a generally conclusory privilege log and the
documents themselves, the Court can find a document privileged only where the attorney-client privilege and/or work-product doctrine obviously applies based on the face of the document itself.
*4 The following documents were produced
under seal by Safeway for the Court's in camera review: Proposed Livadas Warning Notice; March 14,
2001 SIU Investigation Report (authored by Leigh
Ann Rice); July 23, 1997 Document from Bill Best
Investigations; November 9, 2000 SIU Investigation Report (authored by Mike Wallach); November
17, 2000 Document from Perez Investigations;
September 20, 2001 Investigation Report (authored
by Richard Naumann); and an October 18, 2001 Investigation Report (authored by Richard Naumann).
Included with the in camera document production
were several audiotapes (witness interviews summarized in the Leigh Ann Rice report) and one
videotape (related to the Perez report).
Having reviewed these documents, the Court
determines that not all the documents warrant exclusion from discovery.
ATTORNEY-CLIENT PRIVILEGE
“The attorney-client privilege protects confidential disclosures made by a client to an attorney in
order to obtain legal advice, as well as an attorney's
advice in response to such disclosures.” United
th
States v. Chen, 99 F.3d 1495, 1501 (9 Cir.1996)
(internal quotation omitted), cert. denied, 520 U.S.
1167, 117 S.Ct. 1429, 137 L.Ed.2d 538 (1997). The
privilege applies to a communication between a
lawyer and his or her client where the lawyer counsels, as well as when the lawyer actually represents
the client in litigation. Id.
Because the attorney-client privilege “impedes
full and free discovery of the truth,” the privilege
must be strictly construed. Weil v. Investment/Indicators, Research and Management, Inc. 647 F.2d 18,
th
24 (9 Cir.1981). See Hartford Fire Insurance Co.
v. Garvey, 109 F.R.D. 323, 327 (N.D.Cal.1985).
The privilege is applicable to communications: “(1)

When legal advice of any kind is sought (2) from a
professional legal adviser in his or her capacity as
such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6)
are, at the client's instance, permanently protected
(7) from disclosure by the client or by the legal adviser (8) unless the protection be waived.” United
th
States v. Martin, 278 F.3d 988, 999 (9 Cir.2002),
citing, 8 Wigmore, Evidence §§ 2292, at 554
(McNaughton rev.1961).
[3] Here, on their face, none of the documents
reviewed by the Court meets all of the elements of
attorney-client privilege. As a threshold matter, the
documents do not appear to involve any communications between Safeway as client and its counsel for
the purpose of obtaining or providing legal advice.
See Admiral Insurance Co. v. United States District
th
Court, 881 F.2d 1486, 1492 (9 Cir.1989). Nor is
there any evidence as to their intended confidentiality. Based on the record before the Court, the privilege is inapplicable.
WORK-PRODUCT DOCTRINE
While in general, “parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter involved in the pending
action,” Fed.R.Civ.P. 26(b)(1), the work-product
doctrine was created to “prevent exploitation of a
party's efforts in preparing for litigation.” Admiral
Insurance, 881 F.2d at 1494. “The work-product
doctrine is not a privilege, but a qualified immunity
protecting from discovery documents and tangible
things prepared by a party or his representative in
anticipation of litigation.” Id. (emphasis added).
See Fed.R.Civ.P. 26(b)(3). The doctrine seeks to
preserve the privacy of an attorney's thought processes, encourage careful and thorough preparation
by the attorney without undue and needless interference, and prevent exploitation of a party's efforts in
preparing for litigation. Hickman v. Taylor, 329
U.S. 495, 511-16, 67 S.Ct. 385, 91 L.Ed. 451
(1947).
*5 In determining what documents are prepared
“in anticipation of litigation,” documents prepared

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in the ordinary course of business do not fall under
the work-product rule, because the documents
would have been created regardless of any threat of
litigation. See Matter of Fishchel, 557 F.2d 209,
th
213 (9 Cir.1977). “The privilege is available only
if the primary motivating purpose behind the creation of the materials was to assist in pending or
impending litigation.” United States v. Bell, No. C
94-20342, 1994 WL 665295, *4 (N.D.Cal. Nov.9,
1994). In other words, documents are created “in
anticipation of litigation” where “such documents
would not have been generated but for the pendency or imminence of litigation.” Newport Pacific,
200 F.R.D. at 632 (internal quotation omitted)
(emphasis added).
Orr contends and Safeway does not dispute that
Safeway self-insures and conducts its own internal
investigations into worker's compensation claims.
Generally, in the insurance context, such claims investigations are prepared in the normal course of
business and are rarely considered attorney workproduct. See Schmidt v. United States District
Court, 127 F.R.D. 182, 184 (D.Nev.1989) (“since
insurance companies have a routine duty to investigate accidents, such materials are not prepared in
anticipation of litigation, but are prepared in the ordinary course of business absent unique circumstances”). Distinguishing between claims investigating and work done in anticipation of litigation
may turn on whether the investigations include or
involve legal opinions or trial strategies, id., and
whether the investigation deviated from the norm.
See, e.g., Allendale Mutual Ins. Co. v. Bull Data
Systems, Inc., No. 91-6103, 1993 WL 20164, *4
(N.D.Ill. Jan. 27, 1993) (examining whether the investigation deviated from the norm). The relationship between the investigation and the impending
litigation “must be sufficiently concrete so as to
provide assurance that the routine claims processing material prepared in the ordinary course of
[ ] business will not immunized from discovery .”
Schmidt, 127 F.R.D. at 184.
The Court will discuss the applicability of the

work-product doctrine to each of the documents reviewed in camera in turn.
- Proposed Warning Notice to Livadas
On its face, the Proposed Warning Notice to
Livadas was created in the scope of ordinary business practice. The document is a draft of a warning
notice addressed to Livadas. Nothing suggests that
such a written warning (and drafts thereof) are not
prepared in the ordinary course of employee relations. As such, this document does not warrant
work-product protection.
- March 14, 2001 SIU Investigation Report
(authored by Leigh Ann Rice); November 9,
2000 SIU Investigation Report (authored by Mike
Wallach); and November 17, 2000 Document
from Perez Investigations
[4] On their face, the March 14, 2001 SIU Investigation Report, the November 9, 2000 SIU Investigation Report, and the November 17, 2000
Document from Perez Investigations involve investigations into worker's compensation claims
filed by Orr.
*6 The report by Leigh Ann Rice is a summary
of Ms. Rice's interviews of other Safeway employees whom came into contact with, or observed, Orr
prior to March 14, 2001. The report appears to have
been generated as a result of Orr's worker's compensation claim filed on February 15, 2001.
The report by Mike Wallach involves a thorough background check of Orr. The report appears
to have been generated as a result of Orr's filing of
a worker's compensation claim on September 28,
2000.
The Perez Sub-Rosa Report is the summary of
an investigation into Orr's day-to-day activities
over a three-day period beginning November 2,
2000. The request for the report was prompted by
yet another worker's compensation claim filed by
Orr, arising from an injury suffered on June 1,
1997.

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On the face of these reports, the Court cannot
conclude that they were anything other than an investigation into Orr's worker's compensation claim
prepared in the ordinary course of investigating and
adjusting such claims by Safeway as a self-insurer.
Significantly, these documents do not state that
Safeway had taken an adverse position on the
claims and was preparing for litigation over compensability. As noted above, Safeway submitted no
evidence to the contrary. Thus, there is no evidence
in the record that establishes that these reports
would not have been created but for the imminency
of litigation. Because it is Safeway's burden to
demonstrate that these documents warrant workproduct protection, the Court finds that Safeway
failed to carry its burden in establishing application
of the attorney work-product doctrine.
- September 20 and October 18, 2001 Investigation Reports (authored by Richard Naumann)
[5] On their face, these reports were clearly authored in anticipation of the instant litigation. The
reports specifically identify as the subject of the report the instant case, Equal Employment Opportunity Commission v. Safeway. Moreover, the reports
indicate that they were prepared at the request of,
and are addressed to, Ann Wicks, Safeway's counsel of record in the instant case. Having reviewed
the reports, it is clear that the reports would not
have been created but for the impending litigation
and as such, warrant work-product protection. The
Court also finds Orr has no compelling need for
these documents.
- July 23, 1997 Document from Bill Best Investigations
[6] This report involves Safeway's investigation into Orr's June 1, 1997 worker's compensation
claim and summarizes interviews with Orr and several co-employees. The report also includes, in limited form, the opinion of Mr. Best as to certain matters.
The report states this investigation was initi-

ated after Safeway concluded that it would contest
Orr's worker's compensation claim. On its face,
therefore, it appears that the report was prepared in
anticipation of litigation over Orr's worker's compensation claim, and therefore constitutes attorney
work-product.
Because the work-product doctrine is not an
absolute privilege, but a qualified one, Orr may
overcome the doctrine where she makes a sufficient
showing of need. The standard for overriding workproduct privilege is more demanding where documents are considered opinion work-product. See
th
McKenzie v. McCormick, 27 F.3d 1415, 1420 (9
Cir.1994) (stating that more than substantial need
and undue hardship need be shown to overcome traditional work-product protections, but that a far
greater showing of necessity and unavailability by
other means is required for “opinion” work
product), cert. denied, McKenzie v. Weer, 513 U.S.
1118, 115 S.Ct. 916, 130 L.Ed.2d 797 (1995).
*7 In this case, the bulk of the Best report consists of summaries of witness interviews. While
some degree of opinion or mental impression arguably inheres in such summaries, see, e.g., Upjohn
Co. v. United States, 449 U.S. 383, 399, 101 S.Ct.
677, 66 L.Ed.2d 584 (1981) (“[f]orcing an attorney
to disclose notes and memoranda of witnesses' oral
statements is particularly disfavored because it
tends to reveal the attorney's mental processes”),
the report is largely a factual narrative. But whether
considered traditional work-product or opinion
work-product, the Court concludes the report must
be produced.
The Ninth Circuit has expressly held that even
opinion work-product may be discovered where
“mental impression are at issue in a case and [ ] the
need for the material is compelling.” Holmgren v.
State Farm Mutual Auto. Ins. Co., 976 F.2d 573,
th
577 (9 Cir.1992) (emphasis in original). Cf. Duplan Corp. v. Moulinaje et Retorderie de Chavanoz,
th
509 F.2d 730, 734 (4 Cir.1974), cert. denied, 420
U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975).
Here, Orr has alleged that Safeway has engaged in

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Not Reported in F.Supp.2d, 2002 WL 31947153 (N.D.Cal.)
(Cite as: 2002 WL 31947153 (N.D.Cal.))

a pattern of retaliation against Orr dating back to
1997 including, inter alia, its incessant effort to investigate a claim of Orr's racially discriminatory
conduct Safeway knew was baseless. According to
Orr, the Best report may prove that Safeway knew
there was no evidence to substantiate that Orr made
a racial comment to a co-worker as alleged. The
Best report containing evidence relative to this
claim and the investigator's comments about the
evidence (e.g., witness credibility) goes to Safeway's state of mind, an element directly relevant to
Orr's claim of harassment and retaliation.
Additionally, the information contained in the
Best report cannot be obtained from any other
source. Mr. Best interviewed numerous witnesses in
1997 about the alleged incident. Even if the witnesses were available for examination today, there
is no substitute for the contemporaneous statements
made by those witnesses close in time to the alleged
incident. Prior statements have independent corroborative or impeachment value. Moreover, the report
itself is probative of Safeway's knowledge and state
of mind. Safeway has not identified any substitute
for this information. Therefore, the Court determines that, because Orr has demonstrated that Safeway's knowledge and state of mind may be informed by the Best report, Orr's need for the report
is compelling. Moreover, the report cannot be obtained from any other equivalent means. It must be
produced.
ATTORNEY'S FEES
[7] Federal Rule of Civil Procedure 37(a)
provides in pertinent part that where a motion to
compel the production of evidence is granted, the
Court “shall, after affording an opportunity to be
heard, require the party [ ] whose conduct necessitated the motion ... to pay to the moving party the
reasonable expenses incurred in making the motion,
including attorney's fees.”
Based on the above analysis, the Court determines that Safeway's action in failing timely to
provide Orr a privilege log was inexcusable and
without substantial justification. The Court also

finds that Safeway's failure to produce the documents and insistence on a protective order without
moving for such an order as directed by the District
Court, necessitated Orr's Motion to Compel and
caused Orr to incur needless delay.
*8 Based on the affidavit submitted by Orr in
support of the Motion for Attorney's Fees, the
Court orders that Safeway shall pay Orr reasonable
attorney's fees and costs in the amount of
$5,400.00, incurred in connection with Orr's Motion to Compel. These fees were based in part upon
estimates made when the motion was filed. In light
of further developments, including the additional
briefing relative to the belatedly produced privilege
log, the amount awarded is conservative and reasonable.
ORDER
The Motion to Compel (No. 46) is GRANTED
IN PART AND DENIED IN PART. Safeway shall
produce to Orr, the Proposed Livadas Warning Notice, the March 14, 2001 SIU Investigation Report
(authored by Leigh Ann Rice), the November 17,
2000 Document from Perez Investigations, the
November 9, 2000 SIU Investigation Report
(authored by Mike Wallach), and the July 23, 1997
Document from Bill Best Investigations. Safeway
shall also produce any and all audio or videotapes
that correspond with the above documents. Safeway
may redact any information relating to costs or fees
charged by the investigators since that information
is irrelevant.
Safeway is not required to produce the September 20 and October 18, 2001 Investigation Reports
(authored by Richard Naumann), as such documents are protected by the work-product doctrine.
All documents ordered produced by this Order shall
be delivered to Orr's counsel, Daniel Qualls, at
Qualls & Workman, LLP, 244 California Street,
Suite 410, San Francisco, Calif. 94111, on or before
Friday, September 20, 2002, at 12:00 noon. Additionally, all documents ordered produced by this
Order shall be covered by the Protective Order
entered into by the parties on August 9, 2002.

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Not Reported in F.Supp.2d, 2002 WL 31947153 (N.D.Cal.)
(Cite as: 2002 WL 31947153 (N.D.Cal.))

The Motion for Attorney's Fees and Costs (No.
45) is GRANTED. Safeway shall pay Orr fees and
costs in the amount of $5,400.00, within fourteen
(14) days of this Order.
IT IS SO ORDERED.
N.D.Cal.,2002.
E.E.O.C. v. Safeway Store, Inc.
Not Reported in F.Supp.2d, 2002 WL 31947153
(N.D.Cal.)
END OF DOCUMENT

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