Perez v. Wellfleet Communications

Filing 167

ORDER Re: In Camera Review re 134 Motion to Compel. Signed by Magistrate Judge George Foley, Jr on 9/7/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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R. ALEXANDER ACOSTA, Secretary of
Labor, United States Department of Labor

Case No. 2:16-cv-02353-GMN-GWF

Plaintiff,

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ORDER

v.
Re: In Camera Review Regarding Motion
to Compel (ECF No. 134)

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WELLFLEET COMMUNICATIONS, LLC,
et al.,

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Defendants.

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This matter is before the Court on Defendants Wellfleet Communications, LLC and Allen

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Roach’s Motion to Compel Production of Documents and for an Award of Fees and Costs (ECF

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No. 134), filed on April 25, 2018. On August 10, 2018, the Court ordered that the documents

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withheld by Plaintiff on privilege grounds be provided to the Court for in camera review. Order

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(ECF No. 156). Plaintiff’s counsel delivered the documents to the Court on or about August 23,

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2018. The Court has completed its in camera review of the documents and hereby enters its

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order regarding Plaintiff’s privilege assertions:

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1. Investigative File: Case Diaries (Exhibit A-7 to Defendants’ Motion to Compel).

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Plaintiff redacted entries in the case diaries based on the deliberative process privilege

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and the work-product doctrine. The Court finds that the deliberative process privilege and work

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product doctrine, as asserted, apply to the case diary entries. Plaintiff’s objections to production

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of the redacted entries based on privilege are therefore sustained.

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...

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...

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...
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2. Wage and Hour Division Investigator’s June 28, 2016 Narrative Report (Exhibit
A-9 to Defendants’ Motion to Compel).
Plaintiff redacted portions of the Wage and Hour Division Investigator’s June 28, 2016

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Narrative Report based on the deliberative process privilege and the attorney-client privilege.

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Plaintiff’s objection to production of portions of the Narrative Report based on the attorney-

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client privilege are overruled. As stated in Order (ECF No. 156) at 16, “[t]here is no indication

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that the narrative report was intended to be a confidential communication to Plaintiff’s counsel

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for purposes of legal advice” or “that the redacted portions of the narrative report contain

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information about confidential communications with Plaintiff’s attorneys in which legal advice

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was sought or given.” In camera review of the redacted portions of the Narrative Report confirm

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the lack of a basis for claiming the attorney-client privilege.

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The Court, however, upholds Plaintiff’s assertion of the deliberative process privilege to

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the redacted portions of the Narrative Report. The final redacted version of the Narrative Report

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(Defendant Exhibit A-9) contains very limited redactions. Plaintiff has redacted only statements

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that contain the investigator’s preliminary or pre-decisional legal conclusions based on her

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investigative factual findings. The redactions do not withhold factual information regarding the

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basis for those conclusions which is otherwise set forth in the Narrative Report.

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3. WHISARD Compliance Action Report. (Exhibit A-10 to Defendants’ Motion to
Compel).
Plaintiff redacted the information in the Conclusions & Recommendations section of the

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WHISARD Compliance Action Report. The Court upholds Plaintiff’s assertion of the

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deliberative process privilege to the redacted section of the report. The information redacted

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contains the investigator’s predecisional conclusions and recommendations. The factual

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information relating to those conclusions is contained in the unredacted parts of the report.

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4. Email Communications. (Exhibits A-12, A-16 to Defendants’ Motion to Compel).

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Court upholds Plaintiff’s privilege objections to redacted portions of email

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communications except as to the following emails:

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(a) A-12, March 17, 2016, 9:11 AM email from Alisa Ann to Higino Ramos.

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DOLO38415-416.
(b) A-16, December 30, 2015, 4:16 PM email from Alisa Ann to Higino Ramos. DOLO

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37961.
The Court has highlighted in yellow, the parts of the emails that are privileged and do not

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have to be disclosed. The remainder of the email communication should be produced to

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Defendants. These emails appear more than once in the submitted documents. Only one revised

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redacted version of the email needs to be produced. The Court’s revisions to the above emails

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are being mailed to Plaintiff’s counsel.

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IT IS SO ORDERED.

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DATED this 7th day of September, 2018.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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