Clopton et al v. Animal Health International, Inc.

Filing 46

ORDER DENYING 39 Motion for Protective Order. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SUANNE M. CLOPTON and
DAWN M. McGURY,
v.
ANIMAL HEALTH INTERNATIONAL,
INC. f/k/a LEXTRON

§
§
§
§
§
§
§

A-13-CV-205-LY

ORDER
Before the Court are Defendant’s Motion for Protective Order (Dkt. No. 39); and Plaintiffs’
Response (Dkt. No. 42). Having considered the motion, response, and the entire case file, the Court
enters the following Order.
I. BACKGROUND
This is a sexual harassment, gender discrimination and retaliation suit. Plaintiffs Suanne
Clopton (“Clopton”) and Dawn McGury (“McGury”)1 are former employees of Animal Health
International (“Animal Health”).2 Animal Health is a distributor of animal health products,
including vaccines and pharmaceuticals. Clopton worked as a sales in representative in Animal
Health’s Lago Vista, Texas office from February 2008 until she resigned on June 9, 2011. Dkt. No.
1 at 3. She complains that she was sexually harassed by the warehouse staff and that she was
retaliated against after the manager of the warehouse was fired based upon her complaints. McGury
worked as a purchasing manager in Animal Health’s Lago Vista, Texas office from July 7, 2007,
until she resigned on March 11, 2011. Id. McGury alleges that she was sexually harassed while
employed at Animal Health and that she reported this harassment to various managers, but nothing

1

McGury’s claims are addressed in a Report and Recommendation filed November 13, 2014.

2

Animal Health was known as Lextron until it changed its name In June 2011.

was done. McGury alleges she ultimately resigned from Animal Health because of the ongoing
harassment. Id.
Animal Health now seeks an order compelling Plaintiffs to return a document that it claims
was inadvertently produced in the course of discovery and seeks to strike certain portions of the
deposition of Human Resources Manager Jonathan Ewert referring to that document. Animal Health
asserts that the document is protected by the work product privilege. Plaintiffs respond that the
document is not privileged and even if privileged, Animal Health has waived the privilege.
On May 6, 2014, Defendant produced, among other documents, a two-page email marked
AHI 000071-000072. See Dkt. No. 39-4. The e-mail was dated May 25, 2011, and was sent by a
human resources employee, Jonathan Ewert, to Clopton’s supervisor. Three other company
employees—none of whom are attorneys—were copied on the email. The e-mail was entitled
“Suanne Clopton’s Performance Meeting,” and was included in a series of emails regarding Suanne
Clopton’s work performance. Dkt. No. 42-1. The e-mail generally states what needs to be done by
Clopton’s supervisors to document Clopton’s work performance. The e-mail states in part:
In talking with the attorneys they have recommended that we address specific
concerns that Melissa has with Suanne’s performance in the shared territory – I’ll
help you prep for this before we talk to her. . . .Ultimately the fear is that no matter
what is done, Suanne will attempt to sue for retaliation. And, as we have no real
written performance documentation in file, we need to create the file with what we
have.
Dkt. No. 39-4.
For over five months after the document was disclosed, Animal Health never claimed it was
inadvertently disclosed. Then, on October, 22, 2014, Plaintiffs deposed Jonathan Ewert (who is no
longer employed by Animal Health). During the deposition, Plaintiffs’ counsel sought to examine
Ewert regarding the e-mail. When the e-mail was identified as an exhibit to the deposition, Animal
2

Health’s counsel objected to the use of the document as privileged, asserted that it was inadvertently
produced, and requested its return pursuant to the Federal Rules of Civil Procedure. It now seeks
a Protective Order on those same bases.
II. ANALYSIS
The federal work product doctrine, as codified in Rule 26(b)(3), provides for the qualified
protection of documents and tangible things prepared by or for a party or that party’s representative
“in anticipation of litigation or for trial.” FED. R. CIV. P. 26(b)(3). Determining whether a document
is prepared in anticipation of litigation is a “slippery task.” Minis v. Dallas County, 230 F.R.D. 479,
483 (N.D. Tex. 2005) (citing United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982), cert.
denied, 466 U.S. 944 (1984)). A document need not be generated in the course of an ongoing
lawsuit to qualify for work product protection. Id. However, “the primary motivating purpose”
behind the creation of the document must be to aid in possible future litigation. In re Kaiser
Aluminum & Chemical Co., 214 F.3d 586, 593 (5th Cir. 2000), cert. denied, 532 U.S. 919 (2001).
As the advisory committee notes to Rule 26(b)(3) make clear, “[m]aterials assembled in the ordinary
course of business, or pursuant to public requirements unrelated to litigation, or for other
nonlitigation purposes are not under the qualified immunity provided by this subdivision.” FED. R.
CIV. P. 26, advisory committee’s note to 1970 amendment; see also El Paso Co., 682 F.2d at 542.
It is not, however, dispositive that the documents were prepared by plaintiffs and not by attorneys,
as the rule protects documents prepared by or for a party, as long as they are prepared in anticipation
of litigation. United States v. Nobles, 422 U.S. 225, 238–39 (1975).
The e-mail in issue was not prepared in anticipation of litigation. The primary motivating
purpose of the e-mail was to discuss how best to document Clopton’s poor work performance and

3

how to approach her performance issues. The author of the email, Jonathan Ewert, testified
explicitly that the primary purpose of the email was to discuss Ms. Clopton’s performances issues
and her supervisor’s frustration. Ewert Deposition, Dkt. No. 42-2 at 111:20-112:1. The email is
entitled “Suanne Clopton’s Performance Meeting.” Dkt. No. 42-1. The email was generated only
a week after Clopton’s primary harasser was terminated and while Clopton was still an employee
of the company. The email was sent to her direct supervisor, and copied on the email were: (1)
Ewert’s human resources supervisor, (2) Clopton’s supervisor’s supervisor, and (3) the head
manager of the location where Clopton worked. Id. It appears that this document was created for
a business purpose other than litigation. Documents created for a business purpose are not covered
by the work-product protection. See Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473
(N.D. Tex. 2004) (documents created for a business purpose are not protected even though the
“information developed … may be helpful in legal proceedings”).
Because the e-mail is not privileged under the work product doctrine, Defendant’s Motion
for Protective Order (Dkt. No. 39) IS DENIED.
SIGNED this 8th day of December, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

4