*1 This matter is before the court on Plaintiff's Motion to Compel the Production of Documents in Reponse [sic] to Plaintiff's Written Discovery (“Motion to Compel”) [#50, filed September 22, 2020] that was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated May 24, 2019 [#14], and the Memorandum dated September 23, 2020 [#51]. Upon review of the Motion to Compel [#50], the Response [#56], the Reply [#57], and the applicable case law, this court finds that oral argument will not materially assist in its resolution. For the reasons set forth below, this court respectfully GRANTS IN PART and DENIES IN PART the Motion to Compel.

Plaintiff Darren Markley (“Plaintiff” or “Mr. Markley”) initiated this action against Defendant U.S. Bank National Association d/b/a US Bank (“Defendant” or “US Bank”) on April 17, 2019, alleging that he was impermissibly terminated based on age discrimination. [#1]. Specifically, Mr. Markley claims that at the time of his termination on March 2, 2018, he was employed by Defendant as a Senior Vice Presiding, Managing Director of Private Wealth Management. [Id. at ¶¶ 11, 12]. In this role, he was responsible for verifying and approving the compensation for Private Wealth Management Consultants and Private Wealth Management Advisors, including but not limited to Robert Provencher (“Mr. Provencher”), a Private Wealth Management Advisor who was located in Colorado. [Id. at ¶¶ 15, 16]. In late 2017, Mr. Markley raised and reported actions taken by other members of US Bank's Private Wealth Management group that he believed violated the fiduciary duties owed to the particular client and the professional ethics to which Defendant's Wealth Management employees were bound. [Id. at ¶¶ 22–29]. Plaintiff contends this action engendered ill feelings against him and Mr. Provencher. [Id. at ¶ 30].

In or around late 2017 or early 2018, some type of internal complaint was lodged against Plaintiff and Mr. Provencher. [Id. at ¶ 33]. Around the same time, US Bank was purportedly reducing the number of Private Wealth Management Consultants. [Id. at ¶ 40]. Plaintiff alleges that he was terminated for cause on March 2, 2018, [id. at ¶ 44], presumably as a result of the investigation into the internal complaint, but such cause was simply pretext for age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). In his Complaint, Mr. Markley asserts two claims: (1) a violation of the ADEA (“Claim I”), and (2) wrongful discharge in violation of public policy (“Claim II”).

This court entered a Scheduling Order on June 24, 2019 [#24] that set February 28, 2020 as the deadline for discovery; March 27, 2020 as the deadline to file dispositive motions; and a Final Pretrial Conference on May 14, 2020. [#24, #25]. On January 13, 2020, based on an unexpected family tragedy experienced by defense counsel, Defendant moved for, and this court granted, an extension of time to pretrial deadlines. [#39, #41]. Then, on March 12, 2020, the Parties again moved for—and were granted—an extension of time with respect to pretrial deadlines, due to the impact of the COVID-19 pandemic and resulting travel restrictions. [#42, #44]. On July 29, 2020, the Parties sought to extend the pretrial deadlines a third time, again based on the COVID-19 pandemic and its impact upon discovery. [#46]. After a hearing, the court granted the requested extension of time but indicated that no further extensions would be granted absent extraordinary circumstances, and that the preference for taking depositions in person did not constitute extraordinary circumstances. [#49]. Thus, the discovery deadline was extended to November 30, 2020; the dispositive motions deadline was extended to January 13, 2021; and the Final Pretrial Conference was reset to occur in person on March 16, 2021 at 10:30 a.m. [Id. at 2].[1]

*2 On September 22, 2020, Plaintiff filed this instant Motion to Compel, seeking the production of certain documents Defendant has withheld on the basis of the work product doctrine. [#50]. In particular, Plaintiff claims that the documents for which Defendant claims work product protection could not have been prepared in anticipation of litigation because, based on the dates, there could have been no reasonable anticipation of litigation on March 1, 2018 or earlier. [Id. at 8–13]. In addition, Plaintiff contends that the “Suspicious Activity Reporting” Privilege, pursuant to 12 C.F.R. § 21.11(d), is inapplicable because “any supporting documentation which would not reveal either the fact that an SAR was filed or its contents cannot be shielded from otherwise appropriate discovery based solely on its connection to an SAR” and the allegations against Markley, i.e., his termination for alleged sales misconduct, would not have triggered a SAR filing. [Id. at 13–17 (emphasis omitted)]. Finally, Mr. Markley alleges that any “confidential supervisory privilege” does not apply and the privilege log provided by Defendant is incomplete. [Id. at 17–19].

In Response, Defendant contends that after conferral and further production, only twenty-five documents remain at issue that can be sorted into the following categories:

(1) Email communications made directly from Jana Bruder, US Bank's Vice President and Assistant General Counsel (“Ms. Bruder”) to the internal Fraud Investigations, HR, and management teams, relaying legal advice (protected by the Attorney-Client Communication and/or Attorney Work Product Privileges) (Exs. 3 and 4 to Ex. A [#56-1]) (“Category 1”);

(2) Email communications made by and amongst the internal Fraud Investigations, HR, and management teams, in which team members relay the verbal legal advice given by the legal department (protected by the Attorney-Client Communication and/or Attorney Work Product Privileges) (Exs. 1–2, 6, 14–17, and 19 to Ex. A [#56-1]) (“Category 2”);

(3) Spreadsheets and internal email communications concerning Suspicious Activity Reporting related to the Office of the Comptroller of Currency (“OCC”) (protected by the SAR Privilege) (Exs. 5, 7–13, and 18 of Ex. A [#56-1]) (“Category 3”);

(4) Portions of a PowerPoint presentation detailing activities by the OCC unrelated to Markley (protected by the Confidential Supervisory Information “CSI” Privilege) (Exs. 22 and 23 to Ex. A [#56-1]) (“Category 4”); and

(5) Portions of documents that did not appear on the privilege log, but that have been redacted to protect personally-identifying information (“PII”) (Exs. 20–21, 24–25 to Ex. A [#56-1]) (“Category 5”).

See [#56 at 2–3].

US Bank contends that its invocation of the various protections from disclosure is proper. See generally [id.]. With respect to documents in Categories 1 and 2 above, it argues that some of the documents are protected by the attorney-client privilege, which was not addressed by Plaintiff,[2] and the work product doctrine does not require that litigation be imminent to attach. [Id. at 4–10]. Defendant further contends that it has properly invoked protection under SAR privilege for Category 3, and the SAR privilege is waivable only by the OCC and not Defendant. [Id. at 10–12]. Defendant also argues that it has invoked the CSI privilege, also known as the bank examination privilege, and again, the redacted information belongs to the OCC and the Federal Reserve Board, and cannot be produced by US Bank, at least without first being sought through the administrative process. [Id. at 14].

On Reply, Plaintiff agrees that twenty-five documents remain at issue, and contends that the attorney-client privilege should be narrowly construed and neither the attorney-client privilege nor the work product doctrine applies to the withheld documents. [#57 at 2–5]. Mr. Markley further disagrees as to the standard for filing a SAR, and objects to the invocation of SAR confidentiality because the alleged misconduct by Plaintiff does not implicate SAR. [Id. at 5]. And while Plaintiff agrees that the standards and considerations set forth by US Bank as to Category 4, i.e., portions of a PowerPoint Presentation containing OCC information, it appears (though it is not entirely clear) that Plaintiff continues to seek the redacted material. [Id. at 6]. Finally, Mr. Markley does not challenge the redactions made for PII, but “seeks clarification” only as to USB_Markley_000029998 (Ex. 24 to US Bank's Ex. A) that appears to redact the name of the email recipient in addition to the recipient's email address. [Id. at 6].

I. Attorney-Client Privilege

*3 Here, because subject matter jurisdiction in this action arises from 28 U.S.C. § 1331, see [#1 at ¶ 6], federal common law governs the applicability of the attorney-client privilege. See In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1184 (10th Cir. 2006) (citing Fed. R. Evid. 501 (“The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege” in federal-question cases)). The attorney-client privilege “is the oldest of the privileges for confidential communications known to the common law” and “protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his capacity as a legal advisor.” In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010) (internal quotation marks omitted).

Under federal common law, the attorney-client privilege protects communications (1) where legal advice of any kind is sought; (2) from a professional legal advisor in her capacity as such; (3) the communications relate to that purpose; (4) made in confidence; (5) by the client; (6) are at her instance permanently protected; (7) from disclosure by herself or the legal advisor; (8) unless the protection is waived. Roe v. Catholic Health Initiatives Colorado, 281 F.R.D. 632, 636 (D. Colo. 2012). Federal courts strictly construe the privilege. See In re Grand Jury Subpoenas, 144 F.3d 653, 658 (10th Cir. 1998). Indeed, communications do not become privileged solely because they involve an attorney. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51 (10th Cir. 1995). Rather, there must be a connection between the subject of the communication and the rendering of legal advice, and legal advice must predominate for the communication to be protected. “[A]cts or services performed by an attorney during the course of representation are not within the privilege because they are not communications,” and “the subject matter of meetings with an attorney, the persons present, the location of the meetings, or the persons arranging the meetings are not protected by the privilege.” Coorstek, Inc. v. Reiber, No. CIVA08-CV-01133-KMT-CBS, 2010 WL 1332845, at *7 (D. Colo. Apr. 5, 2010) (citations omitted). And “[t]he party seeking to assert [the] privilege has the burden of establishing its applicability.” Motley, 71 F.3d at 1550.

II. Work Product Doctrine

In all federal cases, the work product doctrine is governed by a uniform federal standard embodied in Rule 26(b)(3) of the Federal Rules of Civil Procedure. Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 702 (10th Cir. 1998). Rule 26(b)(3) provides:

Fed. R. Civ. P. 26(b)(3).

III. SAR Privilege

The Annunzio–Wylie Anti–Money Laundering Act (“the AML”) of 1992, 31 U.S.C. § 5318(g) et seq., authorizes the Secretary of the Treasury to require banks to maintain appropriate procedures to guard against money laundering or other violations of law. Pursuant to the promulgating regulations, a bank is required to file a SAR whenever a financial institution detects “any known or suspected Federal criminal violation, or pattern of criminal violations, committed or attempted against the bank or involving a transaction or transactions conducted through the bank ... where the bank believes that it was either an actual or potential victim of a criminal violation, or series of criminal violations, or that the bank was used to facilitate a criminal transaction,” and (1) a bank insider was involved; (2) over $5,000 was involved, and the bank can identify a suspect; (3) over $25,000 was involved, but the bank cannot identify a suspect; or (4) over $5,000, as well as potential money laundering or violations of the Bank Secrecy Act, were involved. 12 C.F.R. § 21.11(c). To encourage disclosure, the AML and its implementing regulations provide immunity to financial institutions from liability arising from the act of reporting suspicious financial activity to federal, state, and local law enforcement authorities. 31 U.S.C. § 5318(g)(3). “The immunity applies regardless of whether the report was required or was voluntarily made; and regardless of whether the reported activity is ultimately discovered not to have been unlawful.” Urias v. Lolman, 15-cv-00794-MCA-GJF, 2016 WL 10543137, at *3 (D.N.M. Apr. 12, 2016) (citing 12 C.F.R. § 21.11(l)).

*4 Consistent with this principle, the regulations also make clear that:

12 C.F.R. § 21.11(k)(1). This privilege extends not only to the SAR itself, but also documents that have been prepared as part of a national bank's process for complying with federal reporting requirements and that would reveal the existence of a SAR, including “communications pertaining to a SAR or its contents; communications preceding the filing of a SAR and preparatory or preliminary to it; communications that follow the filing of a SAR and are explanations or follow-up discussions; or oral communications or suspected or possible violations that did not culminate into the filing of a SAR” Whitney Nat'l Bank v. Karam, 306 F. Supp. 2d 678, 682–83 (S.D. Tex. 2004). But documents that were generated or received in the ordinary course of a bank's business upon which a SAR is based are not included within the privilege. Li v. Walsh, Civ. No. 16-81871, 2020 WL 5887443, at *2 (S.D. Fla. Oct. 20, 2020) (citing 12 C.F.R. § 21.11(k)(ii)(2)). Courts have interpreted the SAR privilege as “an unqualified discovery and evidentiary privilege” that cannot be waived, and courts do not have authority to order the disclosure of documents protected under the privilege. Karam, 306 F. Supp. 2d at 682.

IV. CSI Privilege

The confidential supervisory information privilege, also known as the bank examination privilege, arises from Congress's delegation of the right to promulgate certain “housekeeping rules” to govern the disclosure of agency information. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Midland Bancor, Inc., 159 F.R.D. 562, 569 (D. Kan. 1994). “Any matter that is contained in or related to confidential supervisory information prepared by, on behalf of, or for the use of the [Federal Reserve] Board, any Federal Reserve Bank, or any Federal or state financial institution supervisory agency that deems such documents or information confidential.” 12 C.F.R. § 261.8(a)(2). Reports of examination and inspection, confidential operating and condition reports, and any information derived from, related to, or contained in them are included within the definition of confidential supervisory information. Id. at § 261.2(b). Confidential supervisory information remains property of the Board, and “[a]ny person in possession of such information shall not use or disclose such information for any purpose other than that authorized by the General Counsel of the Board without his or her prior written approval.” Id. at § 261.13(e).

V. PII Protection

Rule 5.2 of the Federal Rules of Civil Procedure provides for privacy protection for filings made by the court. Fed. R. Civ. P. 5.2. Specifically, Rule 5.2 requires redactions to an individual's personally-identifying information consisting of a social-security number, taxpayer-identification number, birthdate, the name of an individual known to be a minor, and a financial-account number. Id. The principles underlying protection of this type of PII is reflected in the Parties’ Stipulated Protective Order, which provides for the designation of certain non-public personal information as “Confidential.” [#24 at ¶ 4]. Finally, Rule 26(c) allows for a court to specify terms for discovery disclosures, including redactions when appropriate. Fed. R. Civ. P. 26(c).

I. Attorney-Client Privilege and Work Product Doctrine

*5 US Bank invokes the attorney-client privilege and work product doctrine with respect to Category 1 (Exs. 3 and 4 to Ex. A), reflecting communications between Ms. Bruder to the internal Fraud Investigations, HR, and management teams; and Category 2 (Exs. 1–2, 6, 14–17, and 19 to Ex. A), reflecting communications made by and amongst the internal Fraud Investigations, HR, and management teams which do not include Ms. Bruder. The court considers each in turn.

Category 1. As set forth above, the attorney-client privilege under federal common law generally applies to “communications made in confidence by a client and a client's employees to an attorney, acting as an attorney, for the purpose of obtaining legal advice.” Collardey v. All. for Sustainable Energy, LLC, 406 F. Supp. 3d 977, 980 (D. Colo. 2019). Unlike the work product doctrine, the attorney-client privilege is not limited by the reasonable anticipation of litigation or trial. Cf. Fed. R. Civ. P. 26(b)(3). Upon review of Exs. 3 and 4 to Ex. A, this court finds that they are communications reflecting advice by Ms. Bruder to internal US Bank employees involved in the investigation of Mr. Markley properly redacted under the attorney-client privilege. Because this court finds that the attorney-client privilege attaches to these communications, it does not consider whether the attorney work product doctrine would also prevent disclosure.[3]

Category 2. Courts in this District and within the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) have recognized that the attorney-client privilege may extend to communications between non-attorneys when the purpose of the confidential communication is to assist the attorney in rendering advice to the client. Collardey, 406 F. Supp. 3d at 980; Williams v. Sprint/United Mgmt. Co., 238 F.R.D. 633, 638 (D. Kan. 2006) (collecting cases). With this framework in mind, the court finds as follows:

Category 2 documents (Exs. 1, 2, 6, and 14–19 to Ex. A) are properly protected under the attorney-client privilege because they reflect the transmission of attorney advice for the purpose of apprising non-lawyer personnel of legal advice given by Defendant's in-house counsel. See Hayes v. SmithKline Beecham Corp., No. 07-CV-682 CVE-SAJ, 2008 WL 11381397, at *4 (N.D. Okla. Dec. 19, 2008) (holding that communications made for the purpose of apprising non-lawyer personnel of legal advice solicited from or given by in-house counsel may retain attorney-client privileged status). Ex. 16 is also properly redacted under the attorney-client privilege because it reflects communications made to assist in-house counsel in rendering advice to the client. See Collardey, 406 F. Supp. 3d at 980. Again, because this court finds that the attorney-client privilege properly attaches, it does not consider whether protection is separately proper pursuant to the work product doctrine.

II. SAR Confidentiality

*6 As an initial matter, this court addresses Plaintiff's argument that the SAR privilege only protects the filing of a SAR, and any documentation supporting a SAR is discoverable, so long as it does not disclose the existence or contents of a SAR. [#50 at 13]. Defendant contends that the SAR privilege extends to documentation that merely implicates or reveals not only the existence of a SAR, but also the lack of a SAR. [#56 at 10]. On Reply, Mr. Markley objects to US Bank's claim of SAR confidentiality because his alleged misconduct does not trigger any potential duty to file a SAR. [#57 at 5].

The AML requires that a national bank file a SAR when there is insider abuse involving any amount or violations aggregating $5,000 or more where a suspect can be identified. 12 C.F.R. § 21.11(c). As with all evidentiary privileges, the SAR privilege must be narrowly construed. See Pierce Cty., Wash. v. Guillen, 537 U.S. 129, 144, 123 S. Ct. 720, 730, 154 L. Ed. 2d 610 (2003) (citations omitted); Fed. Deposit Ins. Corp. v. Nason Yeager Gerson White & Lioce, P.A., No. 213CV208FTM38UAM, 2014 WL 12617802, at *1 (M.D. Fla. Jan. 17, 2014). Consistent with the comments made during the rulemaking process, the SAR privilege is properly construed to include “any information that would reveal the existence of a SAR,” and by extension, “any document stating that a SAR has not been filed.” Confidentiality of Suspicious Activity Reports, 75 FR 75576-01. However, any documents that identify suspicious activity, but do not reveal whether a SAR exists or was contemplated but not filed, should be considered as falling within the regulation's exemption of “underlying facts, transactions, and documents upon which a SAR is based, and need not be afforded confidentiality.” Id.

Against this framework, this court now turns to spreadsheets and internal email communications for which US Bank invoked the SAR privilege, i.e., Exs. 5, 7–13, and 18 of Ex. A [#56-1]. This court finds that Exs. 5 and 7–13 are all properly withheld under the SAR privilege. However, this court finds that Ex. 18 is not properly withheld, as it does not reveal any information of the existence of a SAR or whether one was contemplated for any particular activity. Rather, the document appears to be a form spreadsheet that does not reveal the existence or contemplation of a SAR, more akin to policies and procedures that courts have routinely found to be not protected by the SAR privilege. See, e.g., Ackner v. PNC Bank, Case No. 16–cv–81648–MARRA/MATTHEWMAN, 2017 WL 1383950, at *2 (S.D. Fla. Apr. 12, 2017). Accordingly, this court finds that Ex. 18 is not properly withheld and should be produced by Defendant by no later than January 8, 2021.

III. Confidential Supervisory Information Privilege

Portions of a PowerPoint presentation detailing activities by the OCC unrelated to Mr. Markley, Exs. 22 and 23 to Ex. A [#56-1], have been redacted by US Bank pursuant to the confidential supervisory information privilege. Mr. Markley argues that the redactions at issue, portions of the 2017 “Q4 Strategic Plan Scorecard” presentation, are not properly subject to the bank examination privilege. US Bank argues that the information and the privilege belong to the Board and thus, Mr. Markley must first seek the redacted material from the OCC.

Upon review of the redacted material, the court is not certain that all the redactions are proper invocations of the confidential supervisory information privilege, as they do not necessarily reflect the substance of any regulatory decision-making. However, this court will not compel further production because the information is simply not relevant or proportional to the claims and defenses in this action. Rule 26(b)(1) limits discovery to that which is “is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, ... [and] the importance of the discovery in resolving the issues[.]” Fed. R. Civ. P. 26(b)(1). The redacted material simply does not have the tendency to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. Accordingly, this court declines to compel further production related to Exs. 22 and 23 to Ex. A [#56-1].

IV. PII Protection

*7 Finally, this court turns its attention to the redactions reflected on USB_Markley_000029998 (Ex. 24 to US Bank's Ex. A). Upon its in camera review, this court confirms the withheld information reflects only email addresses appropriately categorized as PII.

For the foregoing reasons, IT IS ORDERED that: