Michael J. Murray, M.D. (“Plaintiff”), brought this action against Mayo Clinic, Mayo Clinic Arizona, Wyatt Decker, Lois Krahn, Terrence Trentman, William Stone, David Rosenfeld, and Roshanak Didehban (collectively, “Defendants”) alleging that he was wrongfully terminated due to his military status and obligations. (Doc. 14 at 2.) Plaintiff was terminated after an incident in the operating room that occurred shortly after he returned from a military deployment. (Doc. 14 at 2.) On February 19, 2014, Plaintiff allegedly shoved and screamed at another anesthesiologist while a patient was on the table and was later terminated because of this altercation. (Doc. 167 at 1; see also Doc. 14 at 10-11.) After his recent deployment, Plaintiff reportedly experienced symptoms of Post-Traumatic Stress Disorder, and other service-related ailments. (Doc. 14 at 2.) Plaintiff claims his termination was in violation of the Uniformed Services Employment and Reemployment Act, the Family Medical Leave Act, and the Americans with Disabilities Act. (Doc. 14 at 2.)

Presently, the parties are engaged in a discovery dispute regarding emails that involve Defendants and their in-house counsel. (Docs. 158, 167.) Specifically, Defendants copied Nancy Cummings, their internal legal counsel, on their email chains through which they discussed Plaintiff's altercation and the events that followed. (Id.) Plaintiff requests that Defendants be compelled to disclose the following entries from their privilege log: 54-55, 57, 76-77, 112, 115, 157, 173-74, 226, 230-31, 244-46, 248-52, 254, 258-59, 267, 271-74, 276, 280, 326, 337, 362, 376-79, 384-87, 407-08, 425, 430, 433, 435, 452-55, 457-58, 465-66, 494-95, 501-02, 504, 506-07, 509, 517-19, 528-29, 536-37, 543-44, 549-50, 554-55, 571-74, 579-81, 586-87, 650-52, and 666-67. (Doc. 158 at 5-6.)

Plaintiff believes the above emails are relevant to their case and should be turned over. (Doc. 158 at 7.) Defendants argue that the emails should be protected by attorney-client and work-product privileges because the purpose of all of the correspondence was to seek legal counsel. (Doc. 167 at 5.) Defendants contend that their in-house attorney was copied on the majority of the emails, and many of the emails reveal the substance of privileged communications. (Doc. 167 at 5.) In addition, Defendants assert that all of the disputed documents, except for Item 267, were prepared in anticipation of litigation and are protected under the work-product doctrine as well as attorney-client privilege. (Doc. 167 at 10.) For the aforementioned reasons, Defendants request that Plaintiff's motion be denied. (Doc. 167 at 5.)

*2 In general, pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), a party is required to provide the other litigant with certain information, including electronically stored information. If a party intends to withhold that information due to attorney-client privilege, that party must expressly make the claim and must describe all the communications that they are withholding. Fed. R. Civ. P. 26(b)(5). Under Federal Rule of Evidence 502(g), attorney-client privilege is defined as “the protection that applicable law provides for confidential attorney-client communications.” Fed. R. Evid. 502(g).

“The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, ... as well as an attorney's advice in response to such disclosures.” United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996) (emphasis omitted). The purpose of the attorney-client privilege is to foster honest and productive communications between clients and their attorneys. Admirals Ins. Co. v. United States Dist. Ct. for the Dist. of Ariz., 881 F.2d 1486, 1492 (9th Cir. 1989). Attorney-client privilege allows the party to withhold certain correspondence, but there is no protection of the underlying facts. Upjohn v. United States, 449 U.S. 383, 395 (1981). The privilege applies to communication by any corporate employee when it regards matters within the scope of the employee's corporate responsibilities, and the employee knows that the information allows the attorney to provide legal assistance to the corporation. SeeUpjohn, 449 U.S. at 394-396. The party seeking the benefits of attorney-client privilege has the burden to prove that the communications being withheld meet the elements of the eight-part test[1]. In addition, parties that believe certain information is protected are obligated to specifically identify which communications they claim are entitled to the privilege. United States v. Ruehle, 583 F.3d 600,607 (9th Cir. 2009).

Under Federal Rule of Evidence 502(g), the work-product doctrine is defined as “the protection that applicable law provides for tangible materials (or its intangible equivalent) prepared in anticipation of litigation or for trial.” Fed. R. Evid. 502(g). Generally, a party cannot discover documents that were “prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3).

“The question of entitlement to work-product protection cannot be decided simply by looking at one motive that contributed to a document's preparation. The circumstances surrounding the document's preparation must also be considered.” In re Grand Jury Subpoena, Mark Torf/Torf Envtl. Mgmt. (Torf), 357 F.3d 900, 908 (9th Cir. 2004). The “because of” test for the work-product doctrine is used in situations where a document was not exclusively prepared for litigation and serves a dual purpose. United States v. Richey, 632 F.3d 559, 568 (9th Cir. 2011). Documents that have a dual purpose are considered to be produced “because of” litigation if, “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Id. (citing Torf, 357 F.3d at 907). When determining if the work-product doctrine applies using the “because of” standard, courts must take into account the totality of the circumstances and decide if the “document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.” Id. (citation omitted).

*3 “The fact that a person is a lawyer does not make all communications with that person privileged.” United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (citing Chen, 99 F.3d at 1501). Further, communications “do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer.” United States v. Robinson, 121 F.3d 971 (5th Cir. 1997); see also Miller UK, Ltd. v. Caterpillar, Inc., 2015 U.S. Dist. LEXIS 16418, *3 (N.D. Ill. 2015) (“[C]ommunicating with, mentioning, or copying a lawyer on an otherwise non-privileged communication, will not transform the non-privileged communication or attachment into a privileged one, even if the otherwise non-privileged communication was at the behest of the lawyer.”). Simply “cc-ing” an attorney on an email is not sufficient to invoke the privilege, and each of the eight attorney-client privilege elements discussed in Ruehle must be met when determining if emails that copy legal counsel are privileged. Ruehle, 583 F.3d at 607.

Routine business dealings are not protected under attorney-client privilege, and labeling a communication as privileged does not automatically protect it. Miller UK, 2015 U.S. Dist. LEXIS 16418, *10-16. In Miller UK, the majority of the disputed documents that in-house counsel were copied on involved mundane business communications, and were not created with the intent to seek legal advice. Id. The court reasoned that documents do not magically become privileged merely because an attorney touches them. Id. The court also stated that emails labeled as “privileged and confidential, attorney-client communication, attorney work-product” were not protected simply because of their designation as such. Id. As a result, any documents that contained mundane business dealings and did not seek or provide confidential legal advice were deemed discoverable, even if an attorney had been copied. See generally id.

These two emails, one written by Dr. Terrence Trentman and the other by Dr. Lois Krahn, are responding to an email from Ms. Cummings' assistant discussing the need to schedule a meeting. These two emails are not protected by attorney-client privilege simply because they are responding to an email that was privileged or because the attorney was copied on them. These emails do not satisfy the eight elements of attorney-client privilege and do not qualify under the work-product doctrine; therefore, they are discoverable.

The first email is from Dr. Krahn. It contains a file attachment of notes from an interview with Plaintiff and states that she included Ms. Cummings on the email in order to benefit from attorney-client privilege. The other email is a response by Dr. Trentman describing some additions and edits to the interview notes, and recounting an interaction he had with Plaintiff. Merely copying the attorney on the email does not make the communications privileged. Both Dr. Krahn's email and Dr. Trentman's response are discoverable because they do not contain a request for legal advice and do not reveal confidential information. In addition, the emails do not satisfy the work-product standard because there is no indication that these emails were sent because of the prospect of litigation.

This email chain involves Nichelle Baker (Director of Human Resources), as well as Audrey Rogness (employee in Mayo's Legal Department), and Roshanak Didenban (Operations Administrator/Anesthesiology). Ms. Cummings is also copied on the emails. The content of Ms. Baker's email is administrative in nature, and concerns normal business practices associated with terminating an employee. The additional emails are responses that contain mundane business dealings. The emails are discoverable because they lack requests for legal advice and do not contain confidential information. Further, none of these emails are documents created because of a possibility of litigation, and therefore are not covered under the work-product doctrine.

*4 These two emails, one from Ms. Baker and one from Dr. Krahn, are labelled ACP (attorney-client privilege) and copy Ms. Cummings on the chain. Simply stating that an email is privileged and copying a lawyer on that email does not automatically create privilege. These emails discuss scheduling a time to meet regarding Plaintiff and outline the topics that would be addressed at the meeting. The emails do not contain any requests for legal counsel or confidential content. In addition, these emails were not created because of potential litigation. As a result, they are all discoverable.

This email chain involves four emails, and Ms. Cummings is copied on all of them. In the emails, Defendants discuss routine business. At no point do any of the emails seek legal advice from Ms. Cummings, nor do they reveal any privileged communication. These emails merely discuss the best way to update Plaintiff on Defendants' decision-making process on an issue unrelated to this litigation. Because these emails do not elicit legal advice and were not created in anticipation of litigation, they are discoverable.

These two emails, one from Ms. Didehban and one from Ms. Baker, involve an attachment of notes that have already been disclosed by Defendants. Again, these emails are simply mundane business communications and although Ms. Cummings is copied on the emails, they do not contain requests for legal advice or confidential information. There is no indication that these emails were generated because of potential litigation. Accordingly, these emails are discoverable.

Item 112 is an email from Jennifer Boudreau that was sent directly to Ms. Cummings along with a number of other people. This email does impliedly request legal advice[2] and reveals private attorney-client communications. As a result, it is protected. Similarly, Items 173-174 elicit advice from Ms. Cummings and contain confidential information. As a result, they are privileged. In Items 326/362, Dr. Krahn does not seek legal advice, or reveal confidential information, and therefore this email is discoverable. Items 430, 433 and 435 contain two emails, both of which were about Dr. Trentman setting up a meeting time with Plaintiff. Again, because these communications were routine business, and do not reveal any confidential information or requests for legal advice, they are discoverable.

Items 55, 76, 455, and 457 are protected by attorney-client privilege because they contain confidential communications, and seek legal advice from Ms. Cummings. The content of Items 54, 57, 77, and 458 does not reveal confidential information and does not seek legal advice, and therefore those items are discoverable. The email was also not created in anticipation of litigation, so it does not qualify as work product.

Item 157 is a routine, business email from Mr. Decker and is not protected under attorney-client or work-product privilege and is discoverable. In Item 408, Ms. Baker makes a direct request for Ms. Cummings legal services and this email is protected. Item 407 is Dr. Krahn's response to Ms. Baker's email. This email is not privileged because it lacks a request for legal advice and does not reveal confidential information. Item 407 also fails under work-product protection because the email was not created because of anticipated litigation. Items 452 and 453 also do not request legal advice or reveal any confidential communication, and were not created because of potential litigation. As a result, these emails are discoverable. Item 454 is an email from Dr. Krahn in which she asks Ms. Cummings to act in her legal capacity. Because Dr. Krahn directly elicits the legal assistance of Ms. Cummings, this email would reveal confidential information that is protected by attorney-client privilege and is not discoverable.

*5 Communications “between non-attorneys within a corporation for the purpose of obtaining or relaying legal advice are protected by the attorney-client privilege.” Applied Medical Resources Corp. v. Ethicon, Inc., 2005 WL 6567355 *2 (C.D. Cal. May 23, 2005). However, “in the absence of any attorney linked to certain of the documents or a more thorough description of the legal advice involved, Plaintiff has met the minimal threshold required to show that the privilege may not apply.” Id.

Items 115 and 280 do not have Ms. Cummings copied on them; however, they are a continuation of a conversation that she was a party to. Items 115 and 280 do not reveal confidential, privileged communications, and do not contain any requests for legal advice. Further, they were not created in anticipation of litigation. Therefore, they are discoverable.

Items 245-46, 248-50, and 258-59 contain communications involving Dr. Krahn, Josh Murphy (Chief Legal Officer of Mayo Clinic), Dr. John Noseworthy, and Jeffrey Bolton (both senior-most executive officers), and other senior corporate employees. Item 246 contains confidential communications and is privileged. Items 245, 248, and 258-59 are all emails discussing routine business dealings and do not contain any protected requests for legal advice or confidential communications. They are all discoverable. Items 249-50 do reveal privileged information and are covered by attorney-client privilege.

Item 244 is a communication from Mayo Clinic Arizona Chief Administrative Officer, Paula Menkosky, forwarding an email from Ms. Cummings to other employees. The additional emails from Items 251-52, and 254 contain responses from the various executives thanking Ms. Menkosky for the information. The text of Ms. Menkosky's email does not reveal any confidential information and does not seek advice from an attorney. In addition, the responsive emails do not qualify under attorney-client or work-product privilege. These emails are discoverable.

Many of the senior-level employees are the recipients of this email from Charles Oligmueller (CRNA). There is no content provided for this email, and therefore, the Court needs additional information in order to make a determination on this Item.

Item 267 is an email from Dr. Trentman to himself in which he outlines the information that he discussed, and the advice he received, during a meeting with Ms. Cummings. Because this email contains legal advice Dr. Trentman received during a meeting with a lawyer, the contents of the email are privileged and are not discoverable.

Defendants seek the following discovery from Plaintiff: (1) Dr. Murray's unredacted renewal applications to the Arizona Medical Board (“AMB”); and (2) the Court's assistance in resolving a sensitive matter.

Defendants obtained, pursuant to a public records request, redacted versions of Dr. Murray's renewal applications to the AMB. Plaintiff argues that he does not possess the documents because the documents were submitted online. However, Rule 34(a)(1) requires parties to produce items in its “possession, custody, or control[.]” “Control is defined as the legal right to obtain documents upon demand.” United States v. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). While the renewal applications may not be in Plaintiff's possession or custody, they are under his control. Plaintiff is required to produce an unredacted copy of his 2013 AMB renewal application; however, Plaintiff's 2015 renewal application is not relevant to this case and need not be produced.

*6 As to the second matter brought before the Court, the parties acknowledge the existence and the terms of the Protective Order issued in December 2015. (Doc. 48.) No party challenges that the information is properly designated as “Confidential Information.” The parties have agreed that “[a]ny and all Confidential Information will be kept confidential and shall be used by the parties only for the purpose of the litigation of this action and not for other purposes unrelated to this action.” (Doc. 48 at 2.) Plaintiff reasonably relied on the Protective Order in producing sensitive information. See Madanes v. Madanes, 199 F.R.D. 135, 141 (S.D.N.Y. 2001) (“once a party has relied on a protective order, a court should make every effort to preserve the confidentiality of the evidence produced as a result; otherwise, future litigants have no incentive to make production under such an order.”) Nevertheless, Defendants argue that, regardless of the existence of the Protective Order, they now have an independent duty to disclose certain information to a third party. The Court finds that the parties are bound by the Protective Order. Defendants retain the option to approach the third party with any information they possess that was not obtained pursuant to the Protective Order. Accordingly,

IT IS ORDERED:

1. That the Joint Motion for Discovery Dispute Resolution (Doc. 153) is granted in part;

2. That Defendants shall produce Items 54, 57, 77, 115, 157, 230-31, 244, 245, 248, 251-52, 254, 258-59, 271-74, 276, 280, 326, 337, 362, 376-79, 384-87, 407, 425, 430, 433, 435, 452, 453, 458, 465-66, 494-95, 501-02, 504, 506-07, 509, 51-19, 528-29, 536-37, 543-44, 549-50, 554-55, 571-74, 579-81, 586-87, 650-52, and 666-67 because these Items do not contain requests for legal advice or confidential information, and were not generated in anticipation of litigation;

3. That Defendants shall not be compelled to produce Items 55, 76, 112, 173-74, 246, 249-50, 267, 408, 454-55, and 457 because these Items contain requests for legal advice or reveal confidential information; and

4. That the Court will not rule on Item 226 without additional information;

5. That the parties' Joint Motion for Discovery Dispute Resolution (Doc. 175) is granted in part;

6. That Plaintiff must provide an unredacted copy of his 2013 renewal application to Defendants, but need not provide a copy of his 2015 renewal application; and

7. That any information received under the Protective Order must not be disclosed beyond the terms of the Protective Order.

“(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.” United States v. Ruehle, 583 F.3d 600,607 (9th Cir. 2009) (citation omitted).

Client communications intended to keep the attorney informed of business matters may be protected if they contain “an implied request for legal advice based thereon.” Simon v. C.D. Searle & Co., 816 F.2d 397, 404 (8th Cir. 1987).