Westmoreland v. Wells Fargo Bank Northwest, N.A.

Filing 36

MEMORANDUM DECISION AND ORDER RE: MOTION FOR RELIEF FROM PROTECTIVE ORDER (DKT. 21 ); and MOTION TO COMPEL (DKT. 26 ) - NOW THEREFORE IT IS HEREBY ORDERED: 1) Plaintiffs Motion for Relief from Protective Order (Dkt. 21) is GRANTED; 2) Defendants Mo tion to Compel (Dkt. 26) is GRANTED in part and DENIED in part; 3) A telephonic status conference is set for 12/2/2016 at 10:00 a.m. Plaintiff to initiate the call, once all parties are on the line, and connect to the Courtroom at [phone] (Tel ephonic Status Conference set for 12/2/2016 10:00 AM in Boise - Courtroom 6 before Judge Candy W. Dale.); and 4) The dispositive motion deadline is extended through 12/16/2016 (Dispostive Motions due by 12/16/2016). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DEBORAH WESTMORELAND,
Case No. 1:15-cv-00312-CWD
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER RE:

WELLS FARGO BANK
NORTHWEST, N.A.,

MOTION FOR RELIEF FROM
PROTECTIVE ORDER (DKT. 21); and

Defendant.

MOTION TO COMPEL (DKT. 26)

INTRODUCTION
Pending before the Court are two motions. First, Plaintiff Deborah Westmoreland
filed a Motion for Relief from Protective Order, seeking an order directing Defendant
Wells Fargo Bank to re-designate certain personnel documents designated “Attorney’s
Eyes Only” to “Confidential.”(Dkt. 21.) Second, Wells Fargo Bank filed a Motion to
Compel Westmoreland to produce social media postings, communications from a joint email account Westmoreland shares with her husband, and a company issued laptop in
Westmoreland’s possession. (Dkt. 26.)
The Court heard oral argument from the parties on October 18, 2016. After review
of the record, consideration of the parties’ arguments and relevant legal authorities, and
MEMORANDUM DECISION AND ORDER - 1

otherwise being fully advised, the Court issues the following memorandum decision and
order granting Westmoreland’s motion, and granting in part and denying in part Wells
Fargo Bank’s motion.
FACTUAL/PROCEDURAL BACKGROUND
On August 10, 2015, Deborah Westmoreland filed a Complaint against Wells
Fargo Bank asserting claims for sex discrimination, age discrimination, and retaliation in
violation of state and federal law. (Dkt. 1.) Westmoreland alleges her direct supervisor,
Don Melendez, discriminatorily harassed and retaliated against her, resulting in her
receiving multiple “corrective actions,” and forcing her to take a constructive demotion
outside Idaho to salvage her career. Wells Fargo Bank denies the allegations and
contends Westmoreland chose to leave her position in Idaho, and that her various
corrective actions were non-discriminatory, non-retaliatory, and justified due to her lack
of leadership and inadequate job performance.
MOTION FOR RELIEF FROM PROTECTIVE ORDER
Wells Fargo Bank produced numerous personnel documents in this action, at least
222 of which were designated by Wells Fargo Bank as “Confidential/Attorney’s Eye’s
Only” (AEO), pursuant to a stipulated protective order. (Dkt. 15.) Westmoreland objects
to this designation on the 222 personnel documents, and seeks an order directing Wells
Fargo Bank to re-designate the AEO documents to “Confidential,” because the AEO
designation hinders Westmoreland’s counsel’s ability and obligation to adequately and
fully advise his client, and to prepare for depositions and other litigation activities.
Specifically, Westmoreland’s counsel contends re-designation is essential because he
MEMORANDUM DECISION AND ORDER - 2

needs the assistance of and insight from Westmoreland to: (1) fully understand the
documents’ information in the context of the culture and practices of Wells Fargo Bank;
(2) properly assess damages; and (3) determine what information can be used as potential
evidence at trial, or whether there is a need for further discovery.
Wells Fargo Bank is willing to consider re-designating some of the personnel
documents marked as AEO, but only if Westmoreland’s counsel first identifies the
specific documents or portions of the documents he seeks re-designation, and explains
why he needs to reveal the personnel documents to Westmoreland. In support of the AEO
designation, Wells Fargo Bank asserts Westmoreland’s review of the documents at issue
would be unduly invasive, harassing, and unnecessary because Westmoreland is still a
Wells Fargo Bank employee. The Bank contends also that Plaintiff’s counsel did not
meet and confer with Wells Fargo Bank before filing the current motion. However, Wells
Fargo Bank did agree to re-designate some, but not all of the documents marked AEO,
after e-mail communications were exchanged among counsel.
The Court finds Plaintiff’s counsel fully satisfied the threshold requirement to
meet and confer when he e-mailed Wells Fargo’s counsel, requesting they re-designate
the documents. (Dkt. 22-1 at 2.) Counsel for the Bank indicated she was expecting further
discussion with opposing counsel regarding which documents were still at issue and the
reason Westmoreland needed to review them before the motion was filed. However, the
Court finds further discussion demanded by Wells Fargo Bank, in this context, would
likely require Westmoreland’s counsel to reveal attorney work product, which is of
course, not the purpose of the meet and confer. In addition, the Court finds nothing
MEMORANDUM DECISION AND ORDER - 3

precluded counsel for Wells Fargo from extending this offer during the nearly three
months between the time the motion was filed and before the hearing conducted on the
same by the Court.
Turning to the substance of the motion, the Court finds also that Wells Fargo Bank
failed to meet its burden for the AEO designation on the personnel documents produced.
The disclosure of confidential information on an “attorneys' eyes only” basis is typically
“‘a routine feature of civil litigation involving trade secrets.’” MWI Veterinary Supply
Co. v. Wotton, 2012 WL 2872770, at *1 (D. Idaho July 12, 2012) (quoting In re The City
of New York, 607 F.3d 923, 936 (2nd Cir.2010)); see also Gillespie v. Charter Commc'ns,
133 F. Supp. 3d 1195, 1202 (E.D. Mo. 2015) (“Generally, an ‘attorneys' eyes only’
designation is an appropriate only in cases involving trade secrets.”). To protect the
confidentiality of such disclosure, the Court has authority pursuant to Fed. R. Civ. P.
26(c) to issue an order that limits its disclosure. Fed. R. Civ. P. 26(c)(1)(G)(“The court
may, for good cause, issue an order to protect a party or a person requiring that a trade
secret or other confidential research, development, or commercial information not be
revealed only in a specified way.”).
The Court has “broad discretion…to decide when a protective order is appropriate
and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20,
36 (1984). However, the Court must be careful in issuing orders which allow for AEO
designations, “because at least until trial, the opposing party itself cannot see the most
crucial evidence in the case.” MWI Veterinary Supply Co., 2012 WL 2872770, at *2
(internal quotations omitted). Thus, in its determination as to whether an AEO
MEMORANDUM DECISION AND ORDER - 4

designation is appropriate, “there must be solid grounds for keeping such material from a
party, and there must be protections to allow that party to fully prepare for trial despite
being unable to see the material.” Id.
“While courts generally make a finding of good cause before issuing a protective
order, a court need not do so where…the parties stipulate to such an order.” In re Roman
Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011). In
situations like here, where the parties stipulated to a protective order without making a
good cause showing, “the burden of proof…remain[s] with the party seeking protection.”
Id.(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 n.
1 (9th Cir. 2002). “If a party takes steps to release documents subject to a stipulated
order, the party opposing disclosure has the burden of establishing that there is good
cause to continue the protection of the discovery material.” Id.
Here, Wells Fargo Bank is mistaken as to who bears the burden of establishing
good cause to maintain the AEO designation to the personnel documents at issue—Wells
Fargo Bank carries the burden, not Westmoreland. The Bank has not shown an AEO
designation is necessary to protect the confidentiality of the personnel documents at
issue, given production as “Confidential” would ensure the necessary protection—
Westmoreland cannot publish or otherwise use the personnel documents outside the
scope of this litigation. Wells Fargo Bank fails to demonstrate why a “Confidential”
designation would be insufficient to protect the personnel documents, other than by
alleging that Westmoreland’s review of these documents would be unduly invasive,
harassing, and unnecessary because she is still employed by Wells Fargo Bank. This
MEMORANDUM DECISION AND ORDER - 5

argument is neither persuasive nor sufficient to establish good cause to maintain the AEO
designation. Therefore, the Court will order Wells Fargo Bank to re-designate the
personnel documents at issue as “Confidential.” 1
MOTION TO COMPEL
Wells Fargo Bank seeks an order compelling: (1) an additional-third review of
Westmoreland’s Facebook account by a paralegal; (2) production of any and all e-mails
sent by Westmoreland’s counsel to an e-mail account shared by Westmoreland and her
husband during the period of legal representation to the present; and (3) the return of the
company issued laptop in Westmoreland’s possession to obtain the contents of the laptop.
For the following reasons, the Court will deny the motion to compel the Facebook and emails, and will grant, in part, Wells Fargo Bank’s request as it relates to the laptop
computer.
I. Discovery Standard
Federal Rule of Civil Procedure 26(b)(1), as amended December 1, 2015, allows
parties to obtain discovery:
Regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to information, the parties’ resources, the
importance of the discovery resolving the issues, and whether the burden or
expense of the propounded discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in
evidence to be discoverable.

1

Inherent in this order is the expectation that Westmoreland and her counsel will fully abide by the terms
of the protective order as it relates to the “Confidentiality” designation.

MEMORANDUM DECISION AND ORDER - 6

Further, “[o]n motion or on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines that … the
proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C)(iii).
If the answering party fails to adequately respond to discovery requests or fails to
make a disclosure required by Fed. R. Civ. P. 26(a), the propounding party can move for
an order compelling discovery under Fed. R. Civ. P. 37(a). Generally, a court should
deny a motion to compel only if the information requested falls outside the scope of
discovery (or if it is disproportionate, etc.). See Nugget Hydroelectric, L.P. v. Pacific Gas
& Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992); cert. denied, 508 U.S. 908 (1993). In
other words, a motion to compel “should be granted if questions are relevant and
proper….” Charles A. Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL
PRACTICE AND PROCEDURE § 2286 (1994).
II. Discussion
A. Additional Facebook account review
Wells Fargo Bank seeks an order compelling a paralegal within the law office of
Plaintiff’s counsel to conduct a third search of Westmoreland’s Facebook account. 2 Wells
Fargo Bank insists social media postings and messages fall within its Request for
Production Nos. 11-14 and its deposition notice of Westmoreland. The Bank requests
2

Specifically, Wells Fargo Bank requests a paralegal to search for social media information between
Westmoreland and any Wells Fargo employee, former employee, or third party related to this litigation,
including, but not limited to communications concerning Westmoreland’s job performance and her
statements concerning her supervisor, Melendez. Wells Fargo Bank seeks also social media information
that relates to Westmoreland’s alleged emotional distress or lack thereof, and other factors affecting
Westmoreland’s wellbeing.

MEMORANDUM DECISION AND ORDER - 7

also that Westmoreland’s deposition be re-opened to allow inquiry into issues of potential
spoliation and the substance of the disclosed social media messages. For the reasons that
follow, the Court will deny Wells Fargo Bank’s requests.
The requests for production at issue here include the following:
Request No. 11: All documents relating to any communication you had
with any of Defendants current or former employees, agents or legal
counsel at any time during the term of your employment with Defendants
concerning any of the matters alleged in your Complaint, including, but not
limited to, handwritten notes, emails, text messages, instant or chat
messages, and telephone or cellular phone bills evidencing such
communications.
Request No. 12: All documents relating to any communication between
you and any third-party (other than your attorney) relating to your
employment with Defendant, change of position, or any of the allegations
in your Complaint, including, but not limited to, handwritten notes, emails,
text messages, instant or chat messages, and telephone or cellular phone
bills evidencing such communications.
Request No. 13: All written statements, recorded or transcribed statements,
affidavits, or declarations obtained by you or your representatives, agents or
attorneys from any individual related to the allegations in your Complaint.
Request No. 14: All documents provided to you by a third party related to
this lawsuit including pursuant to a subpoena duces tecum or otherwise.
Although these requests are overbroad regarding the scope of time and in other
regards, and social media is not specifically included in them, Facebook messages
reasonably fall within these communication requests and are addressed by the duces
tecum. The Court finds, however, Westmoreland’s production to date of her Facebook
messages is satisfactory. Although the Facebook messages were not initially disclosed, 3

3

Counsel apparently failed to discuss and agree early on in the litigation how e-discovery and social
media would be reviewed and produced.

MEMORANDUM DECISION AND ORDER - 8

once counsel realized their existence vis-a-vis Ms. Razzeto’s deposition testimony, the
messages were produced.
With regard to Westmoreland’s Facebook postings and photographs, the Court is
not convinced a third review of the account is proportional to the needs of this litigation.
See E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010)
(“Although ... the contours of social communications relevant to a claimant's mental and
emotional health are difficult to define, that does not mean that everything must be
disclosed.”) see also Ye v. Cliff Veissman, Inc., No. 14-CV-01531, 2016 WL 950948, at
*3 (N.D. Ill. 2016) (“Although almost everything that is posted on social media can
reflect a person's emotional state of mind, that does not mean that Defendants can inquire
into every conversation and interaction the decedent and her next of kin ever had with
anyone in the world.”).
Both Westmoreland and her counsel have testified (through declaration) they each
spent several hours reviewing Westmoreland’s Facebook account for any information
“remotely relevant” to Wells Fargo Bank’s requests. And, at the conclusion of their
searches, counsel produced approximately eight pages of postings after the Razzeto
messages were produced, to Wells Fargo Bank. No explanation is offered by the Bank to
support a contention that an additional third search would result in the identification or
production of additional responsive information. Seeing no basis for the time or costs of a
third search of Westmoreland’s Facebook account, the Court will deny Wells Fargo
Bank’s request.

MEMORANDUM DECISION AND ORDER - 9

B. E-mails from shared spousal account
Wells Fargo Bank seeks to compel the production of all e-mail communications
sent by Westmoreland’s counsel to an e-mail account (“Saxman”) shared by Deborah and
David Westmoreland 4—the majority of messages of which were intended for only Mrs.
Westmoreland. Wells Fargo Bank contends it is entitled to these e-mails because no
attorney-client relationship exists between Mr. Westmoreland and Plaintiff’s counsel, and
thus, communications sent by his wife’s counsel are not protected. In addition, Wells
Fargo Bank asserts the e-mail communications are not protected by a marital privilege.
For the following reasons, the Court will deny Wells Fargo Bank’s request.
Federal law governs attorney client privilege in nondiversity actions. 5 Fed.R.Evid.
501. The purpose of the attorney-client privilege is to encourage candid communications
between client and counsel. See Upjohn Company v. United States, 449 U.S. 383, 390–
91, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The attorney-client privilege attaches to “(1)
communications (2) made in confidence (3) by the client (4) in the course of seeking
legal advice (5) from a lawyer in his capacity as such, and applies only (6) when invoked
by the client and (7) not waived.” United States v. Abrahams, 905 F.2d 1276, 1283 (9th
Cir.1990), overruled in part on other grounds by United States v. Jose, 131 F.3d 1325,
1329 (9th Cir.1997).
4

In this section, the Court refers to the Plaintiff as “Mrs. Westmoreland” and her husband as “Mr.
Westmoreland.”

5

The Court mistakenly indicated during the hearing that the Idaho, rather than Federal, rules of evidence
governed the application of the marital privilege in the context of the issues before it. The Court clarifies
that the Federal Rules of Evidence apply and Defendants citation to the criminal case (and cited in
footnote 7) was not inappropriate.

MEMORANDUM DECISION AND ORDER - 10

The e-mail communications sent by Westmoreland’s counsel to the shared
Saxman account were intended, unless otherwise indicated, for his client, Mrs.
Westmoreland. 6 While there may have been morsels of privileged attorney-client
communications in these e-mails, Westmoreland’s counsel contends the substance of the
e-mails pertain to, for the most part: scheduling arrangements, copies of correspondence
to or from opposing counsel, or discussion of information that ultimately was disclosed in
discovery. However, Westmoreland seeks to maintain the privileged nature of these
communications and contests the argument that the privilege was waived by her counsel
sending communications to the shared e-mail account.
The Court finds the Bank has not sufficiently demonstrated that Mrs.
Westmoreland waived any privilege to her communications with her counsel by asking
her counsel to send communications to the shared Saxman e-mail address. The Saxman email account is a private account, in which only Mr. and Mrs. Westmoreland have access.
Accordingly, Mrs. Westmoreland and her husband have some expectation of privacy in
messages that are sent to and from that account. But cf. Alamar Ranch, LLC v. Cty. of
Boise, 2009 WL 3669741, at *4 (D. Idaho Nov. 2, 2009) (client waived attorney-client
privilege for e-mails sent to her attorney using her work computer and work e-mail
address, when put on notice her employers could access her accounts at any time); see
also Thygeson v. Bancorp, 2004 WL 2066746 at *21 (D.Or. Sept.15, 2004) (finding
employee had no reasonable expectation of privacy in files he stored in his personal
6

Wells Fargo Bank suggests that no attorney-client relationship exists between Mr. Westmoreland and
his wife’s counsel. The Court, however, does not need to reach a conclusion on this issue to reach a
determination on the motion to compel.

MEMORANDUM DECISION AND ORDER - 11

folder on his computer because office had monitoring policy.). Although the account is
shared, there no evidence to support that Mr. Westmoreland reviewed or read any e-mails
or opened any attachments that were intended for Mrs. Westmoreland. Rather, to the
contrary, Mr. Westmoreland testified in his sworn affidavit that it is his practice to inform
his wife when he sees an e-mail in the Saxman inbox that is from his wife’s counsel and
addressed to her, and to not otherwise read the contents.
In addition, even if Mr. Westmoreland read the e-mails, the Court is reluctant to
conclude that Mr. Westmoreland qualifies as a third-party for the purposes of waiver of
the privilege to attorney-client communications. All communications between Mr. and
Mrs. Westmoreland are presumed to be confidential and protected by the martial
communications privilege. 7 If counsel communicated privileged information to Mrs.
Westmoreland over the telephone or in person, Mrs. Westmoreland could theoretically
share that information with her husband, and those communications would be protected
by the marital communications privilege. Pereira v. United States, 347 U.S. 1, 6 (1954)
(martial communications are presumed to be confidential unless fact support a showing
that the communication was not intended to be private). The Court does not believe,
under the circumstances presented in this case, that reading a spouse’s e-mail from her
attorney is any different, or should be afforded any less protection, than if the wife
verbally recited the same information she learned from her attorney to her husband. There
7

Wells Fargo Bank cited United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir. 1972), for the
proposition that Mr. Westmoreland waived the martial privilege by virtue of allowing to have his
deposition taken. However, according to that case, the martial privilege is waived only if neither spouse
asserts the privilege. During Westmoreland’s deposition, the martial privilege was asserted with respect to
the Saxman e-mail account. (Dkt. 29-2 at 3.)

MEMORANDUM DECISION AND ORDER - 12

is no evidence here to suggest Mr. Westmoreland waived or breached the confidentiality
of either the attorney-client or martial communications privilege. Accordingly, the Court
will deny Wells Fargo Bank’s request. 8
C. Company issued laptop
Wells Fargo Bank seeks return of a laptop computer it issued to Westmoreland for
use in the course of her employment for review by its internal IT department. During the
hearing, it became clear that neither party has accessed the laptop computer during the
course of this litigation, and that both parties are interested in the obtaining certain
contents of the laptop computer. Due to certain information that Westmoreland contends
she saved on the computer, but may later have been removed by her supervisor or others
during a leave of absence (prior to this litigation), the parties disagree as to how they will
obtain and review the contents. Wells Fargo Bank contends their company IT technicians
should conduct the imaging and retrieval process, while Westmoreland contends a third
party technician should be hired instead.
The Court will order that an agreed upon a third-party technician will conduct the
imaging and retrieval process. In consideration of Wells Fargo Bank’s security concerns,
a Wells Fargo Bank technician and representative of Westmoreland may be present
during the process. The contents of the laptop will be provided to both parties subject to
the protective order. The parties must meet and agree to the imaging and retrieval
8

Westmoreland offered to provide all the emails to the Court and the Bank to resolve the Bank’s inquiry
or suspicion regarding the substantive nature of the same. The Court finds an in camera review is
unnecessary. But, if Westmoreland does provide the messages to the Bank, the Court finds that such
disclosure will not waive either the attorney-client or the marital communication privileges to any other
communications that have to date, been withheld from disclosure.

MEMORANDUM DECISION AND ORDER - 13

process, as well as upon cost sharing, prior to the technician beginning the process, which
must be completed within thirty (30) days of this order.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiff’s Motion for Relief from Protective Order (Dkt. 21) is
GRANTED;
2) Defendants’ Motion to Compel (Dkt. 26) is GRANTED in part and
DENIED in part;
3) A telephonic status conference is set for December 2, 2016 at 10:00 a.m.
Plaintiff to initiate the call, once all parties are on the line, and connect to
the Courtroom at [phone]; and
4) The dispositive motion deadline is extended through December 16,
2016.
October 31, 2016

MEMORANDUM DECISION AND ORDER - 14