Smith et al v. Best Buy Stores, L.P.

Filing 33

MEMORANDUM DECISION AND ORDER. IT IS ORDERED Defendant's Motion to Claw Back Certain Work Product Material Produced During Discovery and for Entry of a Protective Order (Dkt. 25 ) is DENIED. Defendant's Motion to Seal (Dkt. 28 ) is GRANTED. The following documents shall remain UNDER SEAL: Declaration of Sara E. Van Genderen and Exhibits (Dkt. 27 ). Exhibit A to Declaration of Amanda E. Ulrich (Dkt. 31 ). Signed by Judge B. Lynn Winmill. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HANNAH SMITH, AMY FEIK, AND
SIERRA DIVINE,
Plaintiffs,

Case No. 4:16-cv-00296-BLW
MEMORANDUM DECISION AND
ORDER

v.
BEST BUY STORES, L.P., a Virginia
limited partnership,
Defendant.

INTRODUCTION
Pending before the Court are Defendant’s Motion to Claw Back Certain Work
Product Material Produced During Discovery and For Entry of a Protective Order (Dkt.
25) and accompanying Motion to Seal (Dkt. 28). The Motions are fully briefed and at
issue. For the reasons stated below, the Court will deny the Motion to Claw Back but
grant the Motion to Seal.
BACKGROUND
Plaintiffs filed this lawsuit in U.S. District Court for the District of Idaho on June
30, 2016, alleging Best Buy discriminated against Plaintiffs based on their gender,
retaliated against them, and subjected them to harassment and a hostile work

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environment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and
the Idaho Human Rights Act (“IHRA”). Compl., Dkt. 1.
In July 2016, Best Buy hired Attorney Sara E. Van Genderen from the law firm of
Geittmann Larson Swift LLP to investigate Plaintiffs’ allegations in their lawsuit against
Best Buy. See Van Genderen Decl. ¶ 5. On August 8, 9 and 18, 2016, Attorney Van
Genderen met or spoke with numerous employees from Best Buy’s Idaho Falls Store
#944 regarding the allegations in this lawsuit. Id. ¶¶ 6, 7. Ms. Van Genderen conducted
the investigation in her capacity as an attorney and prepared witness summaries based on
the information provided during the investigation. Id. ¶ 8. After she completed the
internal investigation, she provided the witness summaries to Best Buy. Id. ¶ 10; Van
Genderen Decl. Ex. 1. At the time she prepared them and provided copies to Best Buy,
Attorney Van Genderen understood her witness summaries were covered by the work
product doctrine. Id. ¶ 11.
Plaintiffs served Best Buy with a Summons and the Complaint on August 29,
2016. Dkt. 4. On October 20, 2016, the Parties entered into a Stipulated Discovery Plan,
containing the following language regarding the production of privileged or work product
material:
Clawback: Pursuant to Fed. R. Evid. 502(d), the parties request the Court to enter
an Order that production of a privileged or work-product-protected document,
whether inadvertent or otherwise, is not a waiver of privilege or work-product
protection in this case or in any other federal or state proceeding.
Dkt. 15 at ¶ VI.a.

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On October 27, 2016, the Court entered a Case Management Order stating “All
discovery is subject to the Federal Rules of Civil Procedure, the Local Civil Rules for the
District of Idaho, and the parties’ joint discovery plan, which is incorporated by
reference.” Dkt. 16 at ¶ 4. The case was reassigned from Judge Ronald E. Bush to District
Judge B. Lynn Winmill on November 28, 2016. The undersigned thereafter entered an
Amended Case Management Order containing the same language. Dkt. 19 at ¶ 4.
On October 27, 2016, Best Buy served Plaintiffs with its initial disclosures and
roughly 600 pages of documents. See Ex. A. Attorney Van Genderen’s August 2016
witness interview summaries were included in Best Buy’s initial disclosures. See Van
Genderen Decl. Ex. 1; Ex. A.
In or around March 2017, Best Buy hired Attorneys Thomas Deer and Katherine
Manuel from the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., to work
with Best Buy’s current counsel, Moffatt Thomas. On April 6, 2017, Best Buy’s counsel
notified Plaintiffs’ counsel by telephone and e-mail that work product material had been
included in Best Buy’s initial production and requested that the material be returned. See
Ex. B. Best Buy’s counsel followed up with Plaintiffs’ counsel on April 18, 2017. See Ex.
C. On April 20, 2017, Plaintiffs’ counsel refused to return the materials. See Ex. D. On
May 16, 2017, Best Buy’s counsel again contacted Plaintiffs’ counsel about the witness
summaries. See Ex. E. Plaintiffs maintained their objections and refused to return the
witness summaries.

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On May 1, 2017, Best Buy’s counsel circulated a draft protective order for
Plaintiffs’ review and consideration. See Ex. F. On May 26, 2017, Plaintiffs circulated
their proposed revisions. See Ex. H. Best Buy accepted all revisions, except those made
to the Inadvertent Disclosure section. See Ex. I. Specifically, Plaintiffs’ revision striking
the language “Production of a privileged or work product document, whether inadvertent
or otherwise, is not a waiver of privilege or work product protection in this case or in any
other federal or state proceeding.” Id. at 6. Notably, this language mirrors the language in
the Parties’ Stipulated Discovery Plan. See Dkt. 15 at ¶ VI.a. Plaintiffs removed this
language, claiming a protective order is not the proper place to address waiver of the
work product privilege. See Ex. J.
After an unsuccessful meet and confer, and informal mediation with the Court,
Best Buy filed the present discovery motion. Best Buy seeks an Order allowing it to claw
back the witness interview summaries and entry of its Proposed Protective Order.
ANALYSIS
1.

Motion to Claw Back Witness Interview Summaries
In determining whether Best Buy is entitled to claw back of the witness interview

summaries, the Court must determine (1) whether the materials are protected by the work
product doctrine and (2) whether the protection, if applicable, has been waived.
A.

Materials Constitute Privileged Work Product

“The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3),
protects ‘from discovery documents and tangible things that are prepared in anticipation

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of litigation or for trial by or for another party or its representative.’” See In re Grand
Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004) (quoting Admiral Ins. Co. v. United
States District Court, 881 F.2d 1486, 1494 (9th Cir.1989).
“[T]o qualify for protection against discovery under [Federal Rule 26(b)(3)],
documents must have two characteristics: (1) they must be ‘prepared in anticipation of
litigation or for trial,’ and (2) they must be prepared ‘by or for another party or by or for
that other party’s representative.’” In re California Pub. Utils. Comm’n, 892 F.2d 778,
780–81 (9th Cir. 1989) (quoting Fed. R. Civ. P. 26(b)(3)). The Supreme Court has held
that the work product doctrine applies to documents created by investigators working for
attorneys, provided they were created “in anticipation of litigation.” United States v.
Nobles, 422 U.S. 225, 238–39 (1975).
The witness interview summaries clearly qualify as protected work product. The
documents were prepared after Plaintiffs filed this lawsuit, as part of an investigation into
the allegations in the Complaint by an investigator hired by the defendant’s attorney.
Accordingly, the Court finds that the witness materials are protected work product.
B.

Best Buy Waived the Work Product Protections

To support its clawback request, Best Buy must next establish that its disclosure
did not constitute a waiver of the work product protections. This question is governed by
Federal Rule of Evidence 502(b), unless the parties have agreed to a clawback provision.
Therefore, the Court begins by addressing whether the disclosure was covered by an
enforceable clawback order, and if so, the extent of that agreement.

MEMORANDUM DECISION AND ORDER - 5

(i)

Best Buy’s Disclosure Was Not Subject to a Clawback Order

Best Buy argues that the parties agreed, by way of clawback language contained in
their Stipulated Discovery Plan, that disclosure of privileged materials would not
constitute waiver. Plaintiffs disagree that the Stipulated Discovery Plan constitutes such
an agreement and that any such agreement supplants the analysis under Rule 502(b).
The relevant portion of the Stipulated Discovery Plan provides:
Clawback: Pursuant to Fed. R. Evid. 502(d), the parties request the Court to enter
an Order that production of a privileged or work-product-protected document,
whether inadvertent or otherwise, is not a waiver of privilege or work-product
protection in this case or in any other federal or state proceeding.
Federal Rule of Evidence 502(d), by comparison, provides that “[a] federal court may
order that the privilege or protection is not waived by disclosure connected with the
litigation pending before the court—in which event the disclosure is also not a waiver in
any other federal or state proceeding.”
The Court finds that the above-quoted language from the Discovery Plan is
nothing more than a stipulation for the Court to enter a Rule 502(d) order. While the
parties invoked Rule 502(d), no proposed order was submitted to the Court for its
consideration, pursuant to general practice in this district. Therefore, no Rule 502(d)
order ever issued. It is true, as Best Buy points out, that the Original and Amended Case
Management Orders state that “[A]ll discovery is subject to . . . the parties’ joint
discovery plan, which is incorporated by reference.” However, that language does
nothing more than bind the parties to the stipulations in their Discovery Plan, including

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their stipulation for entry of a Rule 502(d) Order. It does not, as Best Buy suggests, turn
the Case Management Order itself into a Rule 502(d) order.
To the extent that Best Buy argues that this claw back language should be
enforceable as an agreement between the parties, the Court also disagrees. The provision
expressly invokes Rule 502(d) and not Rule 502(e), the provision governing clawback
agreements between parties. The provision is also most naturally read as a request of the
Court, as opposed to a binding agreement between the parties.
Therefore, the Court concludes that the clawback language in the Stipulated
Discovery Plan does not constitute a Rule 502(d) order or Rule 502(e) agreement
between the parties.
(ii)

Best Buy’s Disclosure Falls Outside the Scope of Any Purported
Claw Back Order

The enforceability of the parties’ clawback language is rendered largely moot by
the Court’s determination, below, that Best Buy’s disclosure was intentional. Typically, a
clawback arrangement permits recovery of inadvertently produced documents, regardless
of the care taken by the disclosing party. Moreover, the parties’ bare clawback language
does not indicate a clear desire to protect intentional disclosures. Cf. Def. Mem. at 7, Dkt.
26 (“[T]he Stipulated Discovery Plan clearly contemplates that the only challenge
available to a party receiving inadvertently produced information is whether the
information is privileged in the first instance – if privileged, the information must be
returned without resort to analysis under Rule 502(b).”) (emphasis added).

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The Court also has serious reservations about the enforceability of a clawback
order extending to intentional disclosures. As the United States Court of Federal Claims
persuasively concluded in a 2012 case,
although FRE 502(d) is not expressly limited to unintentional disclosures, the
context of the Rule as a whole makes clear that this provision exists to “close the
loop” on the protections that the Rule extends to [inadvertent] disclosures . . . .
Further, . . . under the plain language of FRE 502(d), the other-forum protection
offered by a court order pursuant to this provision is expressly limited to
disclosures which have not resulted in waivers of privilege for the purpose of the
current proceeding—which simply cannot be the case with any intentional waivers
made in the course of, for example, an advice-of-counsel defense. See FRE 502(d)
. . . . This reading of FRE 502(d) is, moreover, further supported by unambiguous
statements . . . from both Congress and the Advisory Committee, to the effect that
FRE 502 does not alter any aspect of the substantive doctrines regarding privilege
and waiver. . . . Lastly, nothing in . . . any of the exemplary protective orders
issued by this Court in other cases, and cited by Plaintiff, indicate[s] that this
Court has ever extended the reach of FRE 502 [to intentional disclosures].
Potomac Elec. Power Co. & Subsidiaries v. United States, 107 Fed. Cl. 725, 731–32
(2012). The Potomac court also noted that protecting intentional disclosures would
eviscerate the long-standing doctrine regarding selective privilege waivers and Rule
502’s stated purpose. Id. (citing 154 Cong. Rec. 18017 (2008) (“[T]his subdivision does
not provide a basis for a court to enable parties to agree to a selective waiver of the
privilege . . . while preserving the privilege as against other parties seeking the
information.”). Allowing a party to intentionally and tactically disclose protected
materials during litigation, while preserving the ability to assert privilege when such
tactics change and again parties not privy to the Rule 502(d) Order, would stretch
attorney-client and work product protections far beyond their intended purpose.

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In sum, the Court concludes that the clawback language in the Stipulated
Discovery Plan is not enforceable as a Rule 502(d) order or Rule 502(e) agreement
between the parties. Even if it was, Defendant’s intentional disclosure would not be
entitled to protection. Thus, the Court must turn to the default rules regarding clawback
of privileged materials under Rule 502(b).
C.

Best Buy’s Disclosure Constitutes a Waiver under Rule 502

Rule 502 addresses the consequences that flow from the disclosure of privileged
materials, absent an agreement or order to the contrary. Under Rule 502(b), disclosure
does not operate as a waiver of privilege if: “(1) the disclosure is inadvertent; (2) the
holder of the privilege took reasonable steps to prevent disclosure; and (3) the holder
promptly took reasonable steps to rectify the error, including (if applicable) following
Federal Rule of Civil Procedure 26(b)(5)(B).”
The Court concludes that Best Buy’s disclosure was intentional and thus fails the
first requirement of Rule 502(b). To begin, the witness interview summaries were labeled
with the file name “DEF000243-DEF000264 Independent Investigation” and were
specifically identified in Best Buy’s Initial Disclosures as “Independent investigation by
Mullikin, Larson & Swift, LLC.” See Ulrich Decl., Ex. A, Ex. C, Dkts. 30-2, 30-3. The
Rule 26 production consisted of only 700 pages of documents. Therefore, this is not a
case where the materials were produced based upon their mistaken identity or because
they were lost in the shuffle of voluminous discovery. The failure to cure the disclosure
for some six months lends additional support to an inference of intentional disclosure.

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Moreover, Counsel for Plaintiffs attests that the clawback request was originally made
not on grounds of inadvertent production but because new defense counsel wished to
employ a different case strategy. See Ulrich Decl. ¶ 7. Defense counsel does not deny that
its predecessors intended to produce the witness interview summaries.
All evidence before the Court suggests that Best Buy intentionally produced the
witness interview summaries. Having found that the disclosure was not inadvertent, the
Court need not proceed to address Best Buy’s efforts to avoid or rectify the disclosure.
Any work product protections associated with these witness interview summaries has
been waived.1 The Court will therefore deny Defendant’s Motion to Claw Back these
materials.
2.

Best Buy’s Request for Entry of Protective Order
Best Buy also requests that the Court enter a protective order including the

following clawback provision: “Production of a privileged or work product document,
whether inadvertent or otherwise, is not a waiver of privilege or work product protection
in this case or in any other federal or state proceeding.” Id. at 6. This clawback provision
mirrors the request in the Parties’ Stipulated Discovery Plan. See Dkt. 15 at ¶ VI.a.
Because the parties previously stipulated to the Court’s issuance of a Rule 502(b)
order, the Court will deny the request to include this language in a separate protective
order. Instead, the parties shall meet and confer for the purpose of drafting and submitting

1

This Order does not address the scope of any waiver, insofar as it may extend beyond the work
product materials actually produced.

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a proposed Rule 502(d) order for the Court’s consideration. The proposed language
should be clearly limited to inadvertent production. It should also address, in greater
detail, the parties’ obligations in the event of inadvertent disclosure.
The parties appear to have agreed on all other terms of a protective order. They
may separately file their stipulated protective order, exclusive of a clawback provision,
for the Court’s consideration.
3.

Best Buy’s Motion to Seal
Best Buy also requests that this Court file the Declaration of Sara E. Van

Genderen and Exhibit 1 thereto (the witness interview summaries) under seal. A party
seeking to seal documents attached to a non-dispositive motion has the burden of
demonstrating “good cause” that outweighs the strong presumption of public access to
judicial files and records. Kamakana v. City and County of Honolulu, 447 F.3d 1172,
1178 (9th Cir. 2006). The witness interview summaries contain significant personal
details about non-party employees of Best Buy along with identifying information, and
thus good cause exists for filing the documents under seal. Moreover, the Court finds no
significant public interest in the disclosure of the documents. The Motion to Seal will be
granted. Plaintiffs filed a separate copy of the witness interview summaries, see Ulrich
Decl., Ex. A (Dkt. 31), which shall also remain under seal.

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ORDER
IT IS ORDERED:
1.

Defendant’s Motion to Claw Back Certain Work Product Material
Produced During Discovery and for Entry of a Protective Order (Dkt. 25) is
DENIED.

2.

Defendant’s Motion to Seal (Dkt. 28) is GRANTED. The following
documents shall remain UNDER SEAL:
a.

Declaration of Sara E. Van Genderen and Exhibits (Dkt. 27).

b.

Exhibit A to Declaration of Amanda E. Ulrich (Dkt. 31).

DATED: August 14, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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