Northrop v. Safeway Inc

Filing 59

MINUTE ORDER denying Plaintiff's 46 Motion to Compel Discovery. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LORAN G. NORTHROP,
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Plaintiff,
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C16-350 TSZ
v.

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MINUTE ORDER
SAFEWAY INC,

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Defendant.
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The following Minute Order is made by direction of the Court, the Honorable
13 Thomas S. Zilly, United States District Judge:
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Plaintiff’s motion to compel discovery, docket no. 46, is DENIED. The
Settlement Investigation and creation of the “Chronology of Events” documents were
undertaken at the express direction of Safeway’s in-house counsel, William Harris, in
direct response to a demand letter from Mr. Northrop’s former attorney that explicitly
threatened litigation. As such, documents connected to the Settlement Investigation, such
as the Chronology of Events and investigation notes sought here, as well as Ms. Roldan’s
oral testimony concerning the details of that investigation are protected by the workproduct doctrine. See O’Conner v. Boeing North American, Inc., 216 F.R.D. 640, 644
(C.D. Cal. 2003) (holding that notes and oral testimony concerning witness interviews
conducted by a private investigator on behalf of plaintiffs’ counsel were protected by the
work-product doctrine and granting a protective order precluding the deposition of the
investigator); see also United States v. Nobles, 422 U.S. 225, 238-39 (1975) (“It is
therefore necessary that the [work-product] doctrine protect material prepared by agents
for the attorney as well as those prepared by the attorney himself.”); Appeal of Hughes,
633 F.2d 282, 290 (3d Cir. 1980) (holding that a request for a private investigator’s oral
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1 testimony regarding witness interviews goes to “the core of the work product of an agent
of the attorney.”).1
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Moreover, contrary to plaintiff’s arguments, Safeway has not waived work3 product protection of the Settlement Investigation by virtue of its assertion of a
Faragher-Ellerth defense because Safeway does not rely upon the Settlement
4 Investigation in support of that defense. See Mendez v. Saint Alphonsus Regional
Medical Center, Inc., 2014 WL 3406015, at *4 (D. Idaho 2014) (“[T]he attorney-client
5 privilege and work product protection are not waived if the defendant does not rely on an
investigation in support of either its Ellerth-Faragher defense or any other defense in the
6 case.”). None of Safeway’s defenses are premised on the Settlement Investigation and
plaintiff has failed to articulate any other “substantial need for the materials” sufficient to
7 overcome work-product protection. See Fed. R. Civ. P. 26(b)(3). There is simply no
evidence in the record to support a conclusion that plaintiff was unable to procure the
8 facts underlying the Settlement Investigation by resort to alternative sources or that resort
to such alternative sources would be unduly burdensome. Accordingly, the “Chronology
9 of Events,” any investigation notes, and Ms. Roldan’s oral testimony concerning the
details of the investigation are subject to work-product protection that has not been
10 waived and are therefore not discoverable. See Hughes, 633 F.2d at 290 (granting motion
to quash the government’s subpoena of an attorney’s private investigator where the
11 government “made no showing that the same information could not be obtained easily by
resort to alternative sources”); see also Baker v. General Motors Corp., 209 F.3d 1051,
12 1054 (8th Cir. 2000) (“Discovery of a witness statement to an attorney is generally not
allowed if that witness is available to the other party.”).
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Plaintiff contends that Safeway’s harassment and discrimination policy demonstrates
that Safeway would have conducted an investigation and created the “Chronology of Events” (or
a similar document) in the ordinary course of business irrespective of whether litigation was
anticipated. See U.S. v. Fidelity & Guaranty Co. v. Braspetro Oil Services, Co., 2000 WL
744369, at *8 (S.D.N.Y. June 8, 2000) (“[D]ocuments that are prepared in the ordinary course of
business or that would have been created in essentially similar form irrespective of the litigation
are not protected [by the work-product doctrine].”). But the fact that Safeway’s general policy
requires prompt investigation of reports of discrimination, Second Dec. of Susan Mindenbergs,
docket no. 53, Ex. 7 at 5, provides little, if any, support for plaintiff’s contention that Safeway
would have undertaken the Settlement Investigation, and created the “Chronology of Events” or
any investigation notes, absent an explicit threat of litigation by plaintiff’s former representative.
When Safeway received the demand letter from plaintiff’s former attorney, it had already
conducted an investigation of the events surrounding plaintiff’s termination in response to a
union grievance filed by Mr. Northrop. See Decl. of Sue Bonnet, docket no. 41, ¶¶ 8-11
(investigation conducted in May 2014); Decl. of Jennifer Sheffield, docket no. 34, Ex. 2 (Harris
Decl. at ¶ 2 & Ex. A) (Demand letter dated September 3, 2014). Based on the results of that
investigation, Safeway filed a grievance response denying Mr. Northrop’s allegations and the
Union ultimately withdrew the grievance. Bonnet Decl., ¶ 15 and Ex. D.
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record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

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Dated this 4th day of April, 2017.
William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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