Perez et al v. Clearwater Paper Corporation

Filing 29

MEMORANDUM DECISION AND ORDER. Motion 25 is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THOMAS E. PEREZ, Secretary of
Labor, United States Department of
Labor,

Case No. 3:13-CV-00461-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
CLEARWATER PAPER
CORPORATION,
Defendant.

BACKGROUND
This is a whistleblower case brought under Section 11(c) of the Occupational
Safety and Health Act of 1970 (“Section 11(c)”) by the Secretary of Labor against the
Clearwater Paper Corporation. Clearwater owns and operates a saw mill located in
Lewiston, Idaho. The government alleges that Clearwater retaliated against Anthony
Tenny, the Complainant and a former saw mill employee, because Tenny complained that
red cedar dust at the mill presented health, combustibility, and operational hazards.

MEMORANDUM DECISION AND ORDER - 1

On January 22, 2015, after providing notice and allowing the government to
object, Clearwater served Tenny in this matter with a Subpoena Duces Tecum (“January
Subpoena”) demanding two categories of documents:
1. All Documents and/or ESI related to communications and/or
correspondence by and between Strindberg Scholnick, including, but
not limited to, Erika Birch, and the U.S. Department of Labor,
including, but not limited to, Donna F. Bond, pertaining to the subject
lawsuit or matters underlying the litigation herein, through the present.
2. All Documents and/or ESI related to communications and/or
correspondence by and between Strindberg Scholnick, including, but
not limited to, Erika Birch, and anyone outside of Strindberg Scholnick
related to this Lawsuit, excluding any privileged communications with
Anthony Tenny.
January Subpoena, Attachment 7 to Bond Decl., Dkt. 25-7.
The government moves to quash the subpoena, arguing that (1) the subpoena is
untimely, and (2) the information sought is protected by the common-interest privilege.
ANALYSIS
1. Timeliness
The Court will quash Clearwater’s subpoena for a number of reasons. First, it is
untimely. “Case law establishes that subpoenas under Rule 45 are discovery, and must be
utilized within the time period permitted for discovery in a case.” Integra Lifesciences I,
Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999) (Third party subpoena for
documents served after the discovery cut-off was improper attempt to circumvent court’s
deadline). The discovery deadline expired on January 2, 2015; Clearwater issued this
subpoena two weeks after the deadline, on January 22, 2015. Thus, Clearwater failed to
MEMORANDUM DECISION AND ORDER - 2

issue the subpoena within the discovery timeline, and it is therefore untimely and must be
quashed.
Clearwater argues that “this argument is nonsensical given that the parties are still
engaged in discovery even though discovery technically closed January 2, 2015.” Def’s
Opening Br. at 4, Dkt. 24. But the government agreed – at Clearwater’s request – to
extend discovery for purposes of the 30(b)(6) deposition of Clearwater only because
Clearwater was not available for any of the dates the government proposed within the
discovery period for the 30(b)(6) deposition. Bond Decl. ¶ 13, Dkt. 25-1. At no time did
any party propose taking any deposition or initiating any discovery other than the
government’s proposed 30(b)(6) of Clearwater outside of the discovery period. Id. ¶ 11.
The government should not be penalized for acceding to Clearwater’s request to extend
the discovery period for purposes of the 30(b)(6) deposition.
2. Common-Interest Privilege
Even if the subpoena had been issued before the discovery deadline, the Court finds
that the common-interest privilege applies – at least with respect to the communications
among the Department of Labor legal staff, Tenny, and his retained attorney.
The common interest privilege, or joint defense privilege, is an extension of the
attorney client privilege and the work product doctrine. U.S. v. Gonzalez, 669 F.3d 974,
978 (9th Cir. 2012). The privilege applies if “(1) the communication is made by separate
parties in the course of a matter of common [legal] interest; (2) the communication is
designed to further that effort; and (3) the privilege has not been waived.” Nidec Corp. v.
MEMORANDUM DECISION AND ORDER - 3

Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D.Cal. 2007). Courts have held that the
privilege extends not only to cooperating defendants but also cooperating plaintiffs. U.S.
ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 685–686 (S.D.Cal.1996) (holding
that the relator and the government “are essentially the same party” and can assert a
“joint prosecution privilege” to avoid a waiver of work product immunity).
Whether the jointly interested persons are defendants or plaintiffs and whether the
litigation is civil or criminal, the overarching principle that governs these privileges
remains the same: protecting attorney-client correspondence on matters of common
interest and protecting attorneys' preparations for trial and encouraging the fullest
preparation without fear of access by adversaries In re Grand Jury Subpoenas, 89-3 and
89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990). “[P]ersons who share a
common interest in litigation should be able to communicate with their respective
attorneys and with each other to more effectively prosecute or defend their claims. Id.
A common interest exists between the government and Tenny. Indeed, their interests
are nearly identical. Section 11(c) of the Occupational Safety and Health Act gives the
Secretary of Labor sole enforcement authority in a retaliation case. There is no private
right of action. 29 U.S.C. § 660(c)(2). Congress has provided for the enforcement of the
Act through government suits based on individual claims. The government cannot
achieve this purpose without the aid and cooperation of a complainant who is given the
same opportunity to engage in confidential communications with the government
attorney litigating the case as they would with a retained private attorney. Thus, the Court
MEMORANDUM DECISION AND ORDER - 4

at
munications between th governm attorney in this ca and Ten
he
ment
ys
ase
nny
finds tha the comm
(either directly or th
d
hrough his retained att
r
torney) are p
protected b the comm interest
by
mon
t
privilege
e.
With regard to Clearwater’ claim tha Tenny wa
h
C
’s
at
aived the att
torney-clien privilege the
nt
e,
Court fin that Cle
nds
earwater ha failed to show a suff
as
s
ficient basis in this case to suppor the
s
rt
claim of waiver.
f
ORDER
O
IT IS ORDE
T
ERED that Plaintiff Thomas E. Pe
P
erez’s Motio to Quash Subpoena
on
h
a
(Dkt. 25 is GRANTED.
5)

DAT
TED: Febru
uary 17, 20
015

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECIS
SION AND ORDER - 5
R