Rotz v. Symetra Financial Corporation et al
Filing
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ORDER granting in part and denying in part 68 Joint Motion for Determination of Discovery Dispute, and granting 69 Motion to File Documents Under Seal. Signed by Magistrate Judge Louisa S Porter on 11/14/16. (kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 15-cv-01647-MMA (DHB)
DEBORAH ROTZ,
Plaintiff,
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v.
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ORDER:
SYMETRA FINANCIAL
CORPORATION, et al.,
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(1) RE: JOINT MOTION FOR
DETERMINATION OF DISCOVERY
DISPUTE (ECF NO. 68); AND
Defendants.
(2) GRANTING MOTION TO FILE
DOCUMENTS UNDER SEAL (ECF
NO. 69)
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Presently before the Court is a Joint Motion for Determination of Discovery Dispute
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Regarding Privileged Information (ECF No. 68) and a Motion to File Documents Under
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Seal filed by Defendants Symetra Financial Corporation, Symetra Life Insurance
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Company, and David Manning (collectively, “Defendants”) (ECF No. 69). In the Joint
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Motion, Defendants seek an order requiring Plaintiff Deborah Rotz (“Plaintiff”) to destroy
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allegedly privileged information in her possession.
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Having considered the parties’ written submissions and evidence, the Court
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GRANTS IN PART and DENIES IN PART the Joint Motion (ECF No. 68). The Court
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further GRANTS Defendants’ Motion to File Documents Under Seal. (ECF No. 69.)
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I.
BACKGROUND
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Plaintiff commenced this action in San Diego Superior Court on June 15, 2015, and
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it was removed to federal court on July 23, 2015. (ECF No. 1.) Plaintiff filed a First
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Amended Complaint on October 29, 2015. (ECF No. 36.) On December 17, 2015, this
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Court issued a Scheduling Order requiring all fact discovery to be completed by all parties
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by September 5, 2016. (ECF No. 49 at ¶ 6.) On January 25, 2016, Plaintiff filed a Second
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Amended Complaint (“SAC”), the operative complaint. (ECF No. 55.) Defendants filed
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an Answer to the SAC on February 10, 2016. (ECF No. 59.) A Protective Order was
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issued in this case on March 25, 2016. (ECF No. 64.)
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In the SAC, Plaintiff alleges she was employed by Defendants Symetra Financial
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Corporation and Symetra Life Insurance Company (collectively, the “Corporate
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Defendants”) for more than twenty years as a Regional Group Manager, until they
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terminated her employment on or about February 13, 2015. (ECF No. 55 at ¶¶ 28, 34.)
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Plaintiff alleges that, prior to her termination, she made complaints to the Human
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Resources Relationship Manager for Corporate Defendants “regarding the improper and
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egregious conduct” directed to Plaintiff by Defendant Manning and the Corporate
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Defendants’ management. (Id. at ¶ 30.) “Such conduct included constant and ongoing
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degrading, insulting, and patronizing comments, as well as ongoing hostile treatment.”
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(Id.) Plaintiff alleges the Corporate Defendants failed to conduct an adequate investigation
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into her complaint. (Id. at ¶ 31.)
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Shortly after lodging her complaints, Plaintiff claims she was falsely accused “of
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withholding and concealing information that was allegedly material to issuing a policy for
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coverage on a potential account,” and thereafter unlawfully terminated as a result. (Id. at
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¶ 32.) She further alleges the Corporate Defendants already possessed the substance of the
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information they accused Plaintiff of withholding and concealing. (Id.) In addition,
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Plaintiff alleges the information was not material to the issuance of the policy for coverage,
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as the Corporate Defendants “issued the policy even with the allegedly ‘absent’
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information” and “have collected premiums and will, more likely than not, significantly
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profit from this account as a result of Plaintiff’s efforts.” (Id.)
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In this action, Plaintiff brings the following claims related to her employment with
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the Corporate Defendants: (1) age discrimination; (2) general discrimination; (3) hostile
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work environment; (4) wrongful termination; (5) retaliation; (6) breach of express and
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implied-in-fact contracts not to terminate employment without good cause; (7) defamation
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and compelled self-defamation; (8) failure to provide accurate itemized wage statements;
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and (9) penalties under the Private Attorney General Act of 2004.
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II.
LEGAL STANDARD
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In a federal action based on diversity of citizenship jurisdiction, such as this, state
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law governs attorney-client privilege claims. See Fed. R. Evid. 501 (“[I]n a civil case, state
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law governs privilege regarding a claim or defense for which state law supplies the rule of
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decision.”); Star Editorial, Inc. v. U.S. D. for the Cent. Dist. Of Cal. (Dangerfield), 7 F.3d
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856, 859 (9th Cir. 1993) (citing Fed. R. Evid. 501); KL Grp. v. Case, Kay & Lynch, 829
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F.2d 909, 918 (9th Cir. 1987) (citing Fed. R. Evid. 501).
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Under California law, “evidentiary privileges such as the attorney-client privilege
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are governed by statute.” HLC Props., Ltd. v. Super. Ct., 35 Cal. 4th 54, 59 (2005) (citing
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Moeller v. Super. Ct., 16 Cal. 4th 1124, 1129 (1997); Cal. Evid. Code § 911). California
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Evidence Code sections 950 through 962 provide for the “lawyer-client privilege,” which
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attaches to “confidential communication between client and lawyer” during the course of
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the attorney-client relationship. Cal. Evid. Code §§ 950-962; Moeller, 16 Cal. 4th at 1130;
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Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993). “Confidential communications
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include information transmitted between attorney and client, and ‘a legal opinion formed
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and the advice given by the lawyer in the course of that relationship.’” Calvert v. State Bar,
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54 Cal. 3d 765, 779 (1991) (quoting Cal. Evid. Code § 952); Roberts, 5 Cal. 4th at 371.
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“The client may assert the privilege and refuse to disclose confidential
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communications as long as the client is the holder of the privilege.” Moeller, 16 Cal.4th at
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1130 (citing Cal. Evid. Code § 954); HLC Props., Ltd., 35 Cal. 4th at 60–61. The client is
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“a person who, directly or through an authorized representative, consults a lawyer for the
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purpose of retaining a lawyer or securing legal service or advice from him in his
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professional capacity. . . .” Cal. Evid. Code § 951; see also Hyon v. Selten, 152 Cal. App.
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4th 463, 469 (2007) (“By including ‘authorized representative’ in the definition of ‘client,’
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the statute extends the [attorney-client] privilege to cover not only communications directly
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between the client and the attorney but also communications between the client’s agents
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and the attorney.”). “A corporation is a person whose confidential communications with
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its attorney are protected by the attorney-client privilege.” Venture Law Grp. v. Super. Ct.,
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118 Cal. App. 4th 96, 102 (2004) (citations omitted); see also Costco Wholesale Corp. v.
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Super. Ct., 47 Cal. 4th 725, 733 (2009).
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“The party claiming the privilege has the burden of establishing the preliminary facts
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necessary to support its exercise, i.e., a communication made in the course of the attorney-
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client relationship.” Costco Wholesale Corp., 47 Cal. 4th at 733; see also Venture Law
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Grp., 118 Cal. App. 4th at 102. “Once that party establishes facts necessary to support a
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prima facie claim of privilege, the communication is presumed to have been made in
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confidence and the opponent of the claim of privilege has the burden of proof to establish
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the communication was not confidential or that the privilege does not for other reasons
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apply.” Costco Wholesale Corp., 47 Cal. 4th at 733 (citing Cal. Evid. Code § 917(a); see
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also Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110, 123 (1997)).
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If a communication serves a “dual purpose, one for transmittal to an attorney in the
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course of professional employment and one not related to that purpose, the question is
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which purpose predominates.” McAdam v. State Nat. Ins. Co., 15 F. Supp. 3d 1009, 1014
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(2014) (citing Costco Wholesale Corp., 47 Cal. 4th at 739-40; 2,022 Ranch L.L.C. v. Super.
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Ct., 113 Cal. App. 4th 1377, 1398 (2003)). “In determining whether a communication is
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privileged, the Court looks to the dominant purpose of the attorney’s work.” Id. at 1015.
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The privilege does not apply where an attorney merely gives business advice. Id. (citing
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Clark v. Super. Ct., 196 Cal. App. 4th 37, 37 (2011)). The predominant purpose test is not
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applied on a document-by-document basis. Id. “[I]t is not the dominant purpose of a
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particular communication that dictates whether the attorney-client privilege is applicable;
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rather the issue is what was the dominant purpose of the relationship.” Id. (quoting Cason
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v. Federated Life Ins. Co., No. 10–cv–0792, 2011 WL 1807427, at *2 (N.D. Cal. Oct. 17,
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2011)); see also Costco Wholesale Corp., 47 Cal. 4th at 739-40; Clark, 196 Cal. App. 4th
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at 51; Umpqua Bank v. First Am. Title Ins. Co., No. CIV S-09-3208 WBS EFB, 2011 WL
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997212, at *7, n. 1 (E.D. Cal. Mar. 17, 2011)). “If the dominant purpose of the relationship
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was attorney-client at the time of the communications, they are privileged.” Id. “If not,
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they are generally discoverable, though the producing party may request an in camera
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inspection of a particular communication to support a claim that it should be protected
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nonetheless.” Id.; see also Costco Wholesale Corp., 47 Cal. 4th at 739-40.
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III.
ANALYSIS
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In the Joint Motion for Determination of Discovery Dispute Regarding Privileged
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Information, Defendants seek an order requiring Plaintiff to destroy allegedly privileged
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information currently in her possession. (ECF No. 68.) Initially, three documents were
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relevant to the present dispute: (1) an October 9, 2014 email from Plaintiff to Thomas
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Bittner, Tom Costello, Joseph McKee, and Sandra Alba; and (2) two copies of an April 14,
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2014 email from Plaintiff to Ms. Bodmer and Defendant Manning. (ECF No. 68 at pp. 2-
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3.)1 Plaintiff does not challenge Defendants’ claim the April 14, 2014 emails were
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inadvertently produced. (Id. at p. 5, lines 25-28.) Therefore, as to those emails, the Court
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GRANTS Defendants’ request to order Plaintiff to destroy all copies of the emails. As to
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the remaining email, Plaintiff challenges Defendants’ designation of the email as attorney-
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client privileged. (Id. at p. 5.)
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Defendants’ filed a Motion to File under Seal Exhibits A through C attached
to the Declaration of Giancarlo Urey (ECF No. 68-1) filed in support of the Joint Motion.
(ECF No. 69.) Defendants contend the exhibits “contain documents that seek or reflect
advise [sic] from Julie Bodmer, Symetra Life’s Associated General Counsel.” (Id. at p. 1.)
Good cause appearing, the Court GRANTS the motion.
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The email at issue was sent from Plaintiff to Thomas Bittner, Tom Costello, Joseph
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McKee, and Sandra Alba on October 9, 2014.2 (ECF No. 68-1 (“Urey Decl.”) at ¶ 2, Exh.
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A.) The email is the last in a chain. (Id.) The prior email, also sent October 9, 2014,
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appears to be from a third party, and asks Plaintiff a business question. (Id.) Plaintiff
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thereafter cut-and-pasted the response of Julie Bodmer into the email at issue sent to Mr.
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Bittner, Mr. Costello, Mr. McKee and Ms. Alba. When Defendants terminated Plaintiff
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from her position, she maintained a copy of this email in her possession, and thereafter
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produced a copy during discovery. (ECF No. 68 at p. 2; Urey Decl. at ¶ 5, Exh. D.)
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Defendants argue that because Ms. Bodmer is Defendant Symetra Life Insurance
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Company’s Associate General Counsel, the email is privileged under California law, and
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therefore must be destroyed. Defendants also claim that Plaintiff was required to return
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the email when she was terminated pursuant to the employee handbook, which requires
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employees to safeguard confidential information and not divulge it to outside parties. (See
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Urey Decl. at Exh. H.)
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Defendants bear the burden of establishing an attorney-client relationship between
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Plaintiff and Ms. Bodmer. See Costco Wholesale Grp., 47 Cal. 4th at 740. In support of
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the present motion, Defendants submit a declaration from their outside counsel stating that
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Ms. Bodmer is Defendant Symetra Life Insurance Company’s Associate General Counsel.
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(Urey Decl. at ¶ 2.) Previously in this litigation, however, Defendants submitted a
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declaration from the Senior Vice President of Human Resources and Administration for
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Defendant Symetra Life Insurance Company attesting that Ms. Bodmer is a Vice President,
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According to documents previously filed by Defendants in this case, as of
August 2015, Julie Bodmer was a Vice President, Associate General Counsel, and
Assistant Secretary of the Corporate Defendants. (ECF No. 30-1 (“Holmes Decl.”) at ¶¶
3-4, Exhs. 2, 4.) In addition, Mr. Costello was the Vice President of Stop Loss Sales for
Defendant Symetra Life Insurance Company, Mr. Bittner was the Regional Vice President
of Stop Loss, and Joseph McKee was a regional manager. (Holmes Decl. at ¶ 4, Exhs. 3,
4.) Defendants have provided no information about Ms. Alba.
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Associate General Counsel, and Assistant Secretary for the Corporate Defendants. (See
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Holmes Decl. at ¶¶ 1, 3-4, Exhs. 2, 4.) Plaintiff asserts that Ms. Bodmer also represents on
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her “Linkedin” page that she is both a Vice President and Assistant General Counsel. (ECF
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No. 68 at p. 5.)
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Based on this information, the Court finds that it does not have sufficient information
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to determine the dominate purpose of the relationship between Ms. Bodmer and Plaintiff.
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Cf. Clark, 196 Cal. App. 4th at 49 (finding that a party made a substantial showing that
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communications were made in the course of an attorney-client relationship where the
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party’s counsel “provided a declaration stating the identities of the parties to each of the
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sets of communications (one of whom was invariably either an in-house attorney or outside
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counsel) and the general nature of the purpose of the communication (all of which involved
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obtaining legal advice on a variety of subjects)”); Gotham City Online, LLC v. Art.com,
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Inc., No. C 14-00991 JSW, 2014 WL 1025120, at *4 (N.D. Cal. Mar. 13, 2014) (finding a
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party made a prima facie claim of privilege where the party’s in-house counsel attested that
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he and other members of the party’s legal department were parties to the communications,
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he described the general nature of the communications, and he attested the communications
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were made for the purpose of obtaining or receiving legal advice). This position is
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supported by the fact the October 9, 2014 email does not appear to be a legal
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communication. Ms. Bodmer’s response does not contain any legal analysis and is in
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response to an apparent non-legal question. The email appears to be solely a business-
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related communication, thus leading the Court to question whether the dominant purpose
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of the relationship between Plaintiff and Ms. Bodmer was a business one, with Ms. Bodmer
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acting primarily in her capacity as Vice President.
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While Plaintiff argues the question before the Court is whether the October 9, 2014
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email is a privileged communication, the real issue is the relationship between Ms. Bodmer
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and Plaintiff. See Clark, 196 Cal. App. 4th at 52 (“The relevant inquiry is not the content
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of the communication but is instead the relationship of the communicators.”). As the Court
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has insufficient information to determine that relationship, the Court DENIES WITHOUT
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PREJUDICE Defendants’ request to order Plaintiff to destroy the October 9, 2014 email.
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The parties, if they so choose, may address the issues raised by the Court in a Second
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Joint Motion for Determination of Discovery Dispute. Such motion must be filed within
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ten (10) days of the date of this Order.
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IV.
CONCLUSION
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For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
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the Joint Motion. (ECF No. 68.) The Court GRANTS Defendants’ request as to the April
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14, 2014 email. Plaintiff must destroy all paper and electronic copies within five (5) days.
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However, for the reasons stated above, the Court DENIES WITHOUT PREJUDICE
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Defendants’ request to have Plaintiff to destroy any copies in her possession of the October
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9, 2014 email. The Court further GRANTS Defendants’ Motion to File Documents Under
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Seal (ECF No. 69) the documents lodged at ECF No. 70.
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IT IS SO ORDERED.
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Dated: November 14, 2016
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_________________________
LOUISA S PORTER
United States Magistrate Judge
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