Canamar v. McMillin Texas Management Services, LLC et al

Filing 61

ORDER DENYING 53 Sealed Motion; DENYING AS MOOT 58 Motion for Leave to File Sealed Document Signed by Judge Nancy Stein Nowak. (ep, )

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION

M A R K CANAMAR, P la in t if f , v. M C M IL L IN TEXAS MANAGEMENT S E R V IC E S , LLC and M C M IL L IN TEXAS HOMES, LLC, D ef en d a n t s.

§ § § § § § § § § §

C IV IL ACTION NO. S A -0 8 -C V -0 5 1 6 FB (NN)

O R D E R DENYING MOTION TO CLASSIFY DOCUMENT AS NON-PRIVILEGED AND T O REOPEN DEPOSITION (DOCKET ENTRY # 53) T h is order addresses the plaintiff's motion requesting that a document unintentionally p ro d u ced by the defendants be classified as non-privileged, and to reopen a deposition to question th e affiant/deponent about the document.1 I have jurisdiction to resolve the motion because it is n o n d isp o sitiv e and because the district judge referred pretrial motions to me.2 After considering th e motion, the response, and the reply, I deny the motion. Background of the motion. Plaintiff Mark Canamar is a member of the Texas Air N atio n al Guard and a former employee of defendants McMillin Texas Management Services, LLC an d McMillin Texas Homes, LLC (together, McMillin). Canamar alleges McMillin harassed him th ro u gh o u t his employment and ultimately terminated him because of his military service.3 C an am ar sued McMillin alleging violations of the Uniformed Services Employment and

1

D o ck et entry # 53. D o ck et entry # 32. D o ck et entry # 27.

2

3

Reemployment Rights Act of 1994 (USERRA), a statute prohibiting employers from d iscrim in atin g against employees because of military affiliation.4 D u rin g discovery, McMillin produced a memo written by David Keeland-- Canamar's su p erv iso r and Vice-President of McMillin Texas Homes--memorializing interactions between K eelan d and Canamar (the Keeland memo). Four months after producing the Keeland memo, M cM illin determined that the document contained privileged information and sought to retrieve the K eelan d memo under Federal Rule of Civil Procedure 26(b)(5)(B).5 In his motion, Canamar argu es that the Keeland memo should not be considered privileged material and asks to reopen K eelan d 's deposition to question Keeland about the memo.6 W h eth er the Keeland memo is privileged. McMillin maintains the Keeland memo is p riv ileged because it was prepared in anticipation of litigation.7 Ordinarily, a party cannot discover a document or other tangible thing that is prepared in anticipation of litigation by a party or a p arty's representative.8 If the "primary motivating purpose behind the creation of the document

S ee 38 U.S.C. § 4311(a) ("A person who is a member of . . . a uniformed service shall not b e denied initial employment, reemployment, retention in employment, promotion, or any benefit o f employment by an employer on the basis of that membership. . . .").
5

4

D o ck et entry # 54, exh. D.

D o ck et entry #53, p. 2-3. Canamar seeks to question Keeland about the memo in a new d ep o sitio n because Keeland was instructed not to answer questions about the memo during his o rigin al deposition.
7

6

D o ck et entry #54, p. 5-7.

F ed . R. Civ. P. 26(b)(3). See Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th C ir. 1991) ("Work product only protects documents produced by or for an attorney preparing litig a tio n " ) .

8

2

was to aid in possible future litigation" the document is entitled to protection.9 As the party assertin g the privilege, McMillin bears the burden of proving entitlement to the privilege.10 T o show that the Keeland memo was prepared in anticipation of litigation, McMillin p resen ted an affidavit by Ed Berlanga--Keeland's supervisor--stating that Arthur C. Nicholson III-- M cM illin 's attorney--instructed him to prepare a memo memorializing interactions between C an am ar and Keeland.11 Berlanga explained that Nicholson was retained to advise the company on a separation agreement for Canamar because Canamar was going to be laid off.12 Berlanga stated th at Canamar refused to sign a separation agreement.13 Berlanga then met with Nicholson, Patty E llis-- M cM illin 's Human Resources and Payroll Administrator--and Linda Gutierrez--ViceP resid en t of Human Resources of McMillin's parent company.14 Berlanga attested that during the m eetin g Nicholson asked him to obtain a written statement from Keeland documenting his in teractio n s with Canamar.15 Berlanga stated that he complied with Nicholson's request.16
9

In re Kaiser Aluminum and Chem. Co., 214 F.3d 586, 592 (5th Cir. 2000) (citing United S ta tes v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982). See also United States v. Davis, 636 F.2d 1 0 2 8 , 1040 (5th Cir. 1981) ("We conclude that litigation need not necessarily be imminent . . . as lo n g as the primary motivating purpose behind the creation of the document was to aid in possible fu tu re litigation.") (citations omitted). F ed . R. Civ. P. 26(b)(3)(A)(i); Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 7 2 1 (5th Cir. 1985) ("The burden of establishing that a document is work product is on the party w h o asserts the claim. . . .").
11 10

D o ck et entry # 54, exh. A. Id. Id. Id. Id. Id.

12

13

14

15

16

3

McMillin also submitted an affidavit from Nicholson in which Nicholson discussed why he ask ed Berlanga for the memo. Nicholson stated that after he learned Canamar refused to sign the sep aratio n agreement, he asked Berlanga to obtain a memo from Keeland because he believed C an am ar would serve McMillin with a lawsuit or other legal action based on his military leave.17 N ich o lso n explained that he needed to better understand and evaluate McMillin's position with regard to plaintiff's complaints, and events leading up to the termination.18 In response, Canamar argued that the Keeland memo should not be considered privileged in fo rm atio n because Keeland was not asked directly by a lawyer to prepare the document.19 C an am ar also contended the memo is most appropriately characterized as a routine memo prepared in the ordinary course of business. He argued that because the memo is similar to other memos w ritten by Keeland in the course of Canamar's employment it is outside the scope of the workp ro d u ct privilege.20 N eith er of these arguments is dispositive in determining whether a document is considered p riv ileged information. McMillin's affidavits show that the Keeland memo was prepared after C an am ar refused to sign the separation documents and after Nicholson learned that several weeks b efo re his termination Canamar connected his military status and possible separation. There was

17

D o ck et entry # 54, exh. B. Id.

18

D o ck et entry # 53, p. 7. Keeland testified in his deposition that he did not remember sp ecific conversations with an attorney about the Keeland memo and admitted that the person who ask ed him to write the memo was probably Berlanga. See docket entry # 53, exh. B, p. 130-31. D o ck et entry # 53, p. 6-7. Canamar also asked that certain statements in McMillin's resp o n se be stricken. Because I did not rely on the objected-to statements, ruling on the objections is unnecessary.
20

19

4

no need for Nicholson to ask Keeland to memorialize his recollections of events preceding C an am ar's termination so long as the lay-off was an ordinary separation situation. McMillin's affid av its adequately show that the primary motivation behind the creation of the Keeland memo w as to aid in possible future litigation. Whether McMillin waived its privilege. Canamar also argued that McMillin waived its p riv ilege as to the Keeland memo because McMillin failed to take reasonable steps to prevent the d isclo su re and omitted the Keeland memo from its privilege log.21 However, after McMillin asserted the work-product privilege and attempted to call-back the document, Canamar waited five m o n th s before seeking the court's assistance. Although the procedural rules anticipate situations lik e this one,22 Canamar did not promptly present the information to the court for determination of th e claim of privilege. McMillin sought to pull back the McMillin memo on January 21, 2009; C an am ar waited until June 8, 2009--after Keeland's deposition--to challenge the privilege assertio n . Considering the conduct of both parties, I conclude that the interests of justice warrant a fin d in g that McMillin's delay in asserting the privilege does not constitute a waiver of same. W h eth er Canamar has shown a substantial need for the Keeland memo. Even if a d o cu m en t is privileged, it may nevertheless be discoverable, but the burden of proof shifts to the p arty seeking production of the privileged material.23 A party seeking discovery of a privileged

21

D o ck et entry # 59, p. 13-14.

S ee Fed. R. Civ. Proc. 26(b)(5) (B) ("After being notified, a party must promptly return, seq u ester, or destroy the specified information and any copies it has; must not use or disclose the in fo rm atio n until the claim is resolved; must take reasonable steps to retrieve the information if the p arty disclosed it before being notified; and may promptly present the information to the court u n d er seal for a determination of the claim."). H o d g es, 768 F.2d at 721 ("[T]he burden of showing that the materials that constitute w o rk product should none the less be disclosed is on the party who seeks their production.").
23

22

5

document may obtain the document by showing that the facts within the document are substantially n ecessary to the case and that there is no other way to obtain similar information without undue h ard sh ip on the party seeking discovery.24 If the material is classified as an opinion work product, a party is held to a higher burden.25 Because the Keeland memo relates to events preceding C an am ar's termination and does not contain an attorney's mental impressions or opinions, C an am ar must meet the burden of proof for fact-based work product.26 Canamar asserted that he has a substantial need for the Keeland memo because it is a co n tem p o ran eo u s explanation showing Keeland's discriminatory intent when making the decision to terminate Canamar's employment.27 Canamar maintained the Keeland memo shows that C an am ar's military service annoyed Keeland.28 Canamar argued that he cannot obtain substantially eq u iv alen t evidence through other means without undue hardship, and insisted that he has no way to obtain Keeland's mental thought process at the time of the termination except through the ch allen ged memo.29 C an am ar's arguments fail for two reasons. First, the Keeland memo does not contain K eelan d 's mental thought process at the time of Canamar's termination nor does it suggest a

24

F ed . R. Civ. P. 26(b)(3)(A). F ed . R. Civ. P. 26(b)(3)(B).

25

S ee In Re Int'l Sys. & Controls Cor. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982) (" S in ce these documents are not `opinion work product,' the plaintiffs do not have to make the ev en higher showing required.").
27

26

D o ck et entry # 53, p. 9. Id. Id.

28

29

6

discriminatory motive. Instead, the memo merely memorialized interactions between Keeland and C an am ar.30 Second, Canamar had an opportunity at Keeland's deposition to examine Keeland's th o u gh t processes. Had Canamar promptly requested a ruling from the court on the privilege claim as Rule 26(b)(5)(B) suggests, plaintiff could have developed additional deposition questions for K eelan d relevant to his thought processes independent of the Keeland memo. Because plaintiff has failed to show that the information in the Keeland memo is substantially necessary to his case or th at there is no other way to obtain similar information without undue hardship, the claim of p riv ilege is upheld. C o u rt's order. For the reasons discussed in this order, I DENY Canamar's request that th e Keeland memo be classified as non-privileged and the request to reopen Keeland's deposition (d o ck et entry #5 3). Canamar is directed to return or destroy the Keeland memo and any copies w ith in five days of this order. McMillin's motion to file a sur-response to Canamar's reply (docket en try # 58) is DENIED as moot. SIGNED on July 17, 2009.

_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

30

Id ., pp. 3, 7-8.

7