*1 This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Defendant Duluth Public Schools Academy d/b/a Duluth Edison Charter Schools’ (hereinafter “Defendant”) Motion to Compel, [Docket No. 20], and Plaintiff's Motion to Compel. [Docket No. 28]. After the parties completed a Court ordered supplemental meet and confer, the Court took the parties’ Motions under advisement on the written submissions of the parties. (Order [Docket No. 45]).

For the reasons discussed below, Defendant's Motion to Compel, [Docket No. 20], is GRANTED in part and DENIED in part, and Plaintiff's Motion to Compel, [Docket No. 28], is DENIED.

I. Background

Plaintiff was formerly employed by Defendant as an “African-American Cultural Liaison.” (Compl., [Docket No. 1], at 1). In her Complaint, she alleges that shortly after she was hired by Defendant in August 2016, she became aware that Defendant's students of color were being regularly subjected to racial taunting and physical assaults from both students and staff. (Id.). She further alleges that she made repeated complaints to the administration, including reports of racial bullying, disparate discipling of students of color, and retaliation against students of color for reporting racial discrimination. (Id. at 2, 5–14).

Plaintiff alleges that in March 2018, she requested a reasonable accommodation in connection with physical disabilities resulting from a prior car accident, but that she was only partially accommodated. (Id. at 12). She further alleges that on March 16, 2018, she was given a letter of reprimand for simply doing the actions described in her job description. (Id.). Plaintiff attempted to discuss this reprimand with school officials, but those efforts were rebuffed. (Id. at 12–13).

On June 5, 2018, school officials provided Plaintiff with a performance evaluation without discussing the evaluation with her. (Id. at 14). On June 8, 2018, she provided a response that reiterated her complaints of mistreatment based on race. (Id. at 15). Shortly thereafter she was terminated. (Id.).

On the basis of the allegations in her Complaint, Plaintiff asserts seven causes of action. Count I of her Complaint raises a claim asserting Reprisal in Violation of Title VII of the Civil Rights Act of 1964 based on the allegations that Defendant discharged her based on her reporting and opposing race discrimination and harassment. (Id. at 16–17). In Count II, Plaintiff alleges Reprisal in Violation of the Minnesota Human Rights Act. (Id. at 17). In Count III and Count IV, respectively, Plaintiff alleges counts of racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act. (Id. at 18–19). In Count V, Plaintiff raises a claim of Wrongful Termination in violation of 42 U.S.C. § 1981. (Id. at 19–20). In Count VI and Count VII, respectively, Plaintiff asserts a claim of Retaliation in violation of 42 U.S.C. § 1981 and the Minnesota Whistleblower Act. (Id. at 20–22).

*2 In Counts I, III, V, and VI of her Complaint, Plaintiff alleges that she “has suffered and will continue to suffer injuries, including the loss of past, present, and future income and benefits; mental anguish, emotional distress, humiliation, embarrassment, loss of reputation; and other injuries.” (Id. at 16, 18, 20–21). In Counts II and IV, Plaintiff alleges that she “has suffered and continues to suffer loss of income, mental anguish and suffering, emotional distress, and other damages.” (Id. at 17, 19). In Count VII, Plaintiff alleges that she “has suffered loss of income, mental anguish and emotional distress, humiliation, loss of reputation and other damages.” (Id. at 22).

On November 3, 2020, Defendant filed its Motion to Compel. [Docket No. 20]. Plaintiff also filed her Motion to Compel, [Docket No. 28], on November 3, 2020. The parties thereafter responded to one another's cross-Motion to Compel.

Based on the Court's initial review of Defendant's Motion to Compel, [Docket No. 20]; the documents submitted in support thereof; and the documents submitted in opposition thereto, the Court determined that the parties had not engaged in a proper, substantive meet and confer conference as required by Local Rule 7.1(a). (Order [Docket No. 42]). At that time, it was unclear what issues, if any, remained in dispute. Therefore, the Court ordered the parties to participate in a supplemental meet and confer regarding specific issues raised by the Defendant's Motion, and the parties were further ordered to inform the Court of each discovery issue which remained in dispute following the supplemental meet and confer. (Id.).

Thereafter, the parties filed their joint letter, [Docket No. 43], informing the Court of the issues which remained in dispute in Defendant's Motion to Compel, [Docket No. 20], following the Court ordered supplemental meet and confer. According to the parties’ joint letter, [Docket No. 43], there are four issues remaining in dispute in Defendant's Motion to Compel: “Plaintiffs Medical Records and Treating Providers (Interrogatory No. 15 and Request for Production No. 10)”; “Plaintiff's Employment History (Interrogatory No. 4 and Request for Production Nos. [sic] 13)”; “[d]ocuments withheld on the basis of claimed privilege (Request for Production No. 4)”; and “[u]nanswered questions during Plaintiff's deposition.” (Letter [Docket No. 43]).

II. Defendant's Motion to Compel. [Docket No. 20].

A. Standard of Review

Federal Rule of Civil Procedure 26(b)(1) states:

However, “discovery may not be had on matters irrelevant to the subject matter involved in the pending action.” Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). The party seeking discovery bears the initial responsibility for making the threshold showing of relevance before the production of information is required. See, e.g., Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). If that threshold showing is meet, the party resisting production then bears the burden of establishing a lack of relevancy or undue burden. See, Mallak v. Aitkin County, No. 13-cv-2119 (DWF/LIB), 2016 WL 9088760, at *5 (D. Minn. Dec. 22, 2016).

*3 Federal Rule of Civil Procedure 37(a)(3) provides for various motions to compel disclosure or compel discovery depending on the nature of the failure by the other party. Specifically, the Court may compel a discovery response if “a party fails to answer an interrogatory submitted under Rule 33,” or if “a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)–(iv).

B. Analysis

As narrowed by the parties’ supplemental meet and confer, Defendant's Motion to Compel seeks an Order of this Court (1) compelling Plaintiff to provide an executed medical authorization for each medical provider consulted within the last ten years; (2) compelling Plaintiff to provide an executed employment record release authorization for each and every one of Plaintiff's employers for the last ten years; and (3) compelling Plaintiff to produce certain documents which Plaintiff has withheld on the basis of the attorney client privilege. (Letter [Docket No. 43]).[1] Defendant also seeks an Order of this Court permitting a second deposition of Plaintiff at which Plaintiff is compelled to answer questions she refused to answer at her first deposition.

Defendant seeks an Order of this Court compelling Plaintiff to provide an executed medical records release authorization for every medical provider with which she has consulted in the past ten years, as well as, an executed employment records release authorization for every employer Plaintiff has had in the past ten years. (Letter [Docket No. 43]). Defendant asserts that these authorizations are necessary to respond to its Request for Production Nos. 10 and 13.

Defendant's Request for Production Nos. 10 and 13 read as follows:

(Def.’s Req. for Production [Docket No. 23-2]).[3] Plaintiff objected to each of these Requests for Production arguing, in relevant part, that she is not required to produce such authorizations under Rule 34 of the Federal Rules of Civil Procedure. (Letter, [Docket No. 43], at 2–3). Plaintiff has, however, produced documents related to both her mental health condition and her employment history for the past five years. (Id.).

*4 As relevant to the present Motion, Rule 34 provides that “[a] party may serve on any other party a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... any designated documents or electronically stored information ... stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Fed. R. Civ. P. 34(a). In response to such a request, a responding party may execute an appropriate authorization giving the requesting party access to the documents sought. See, gen., R.S. by & through S.S. v. Minnewaska Area Sch. Dist. No. 2149, No. 12-cv-588 (MJD/LIB), 2013 WL 12149247, at *9 (D. Minn. Oct. 1, 2013).

Rule 34 does not have any provision by which a Court may require a party to sign a release or authorization where the requesting party has not requested the underlying documents before seeking the blanket release authorization. See, Fed. R. Civ. P. 34. Other Courts, including Courts in this District, have reached this same conclusion: Rule 34 does not contain a provision requiring a responding party to sign a release authorization so that the requesting party may contain all records from a non-party. See, e.g., Afremov v. Sulloway & Hollis, P.L.LC., No. 9-cv-3678 (PJS/JSM), 2011 WL 13199154, at *3 (D. Minn. Dec. 2, 2011) (“In addition, Rule 34 contains no provision requiring a party to sign a release or authorization so that the requesting party may obtain documents from a non-party.”); Klugel v. Clough, 252 F.R.D. 53, 55 (D.D.C. 2008) (“Upon consideration of these authorities, this court now holds that a request for production of documents pursuant to Rule 34 of the Federal Rules of Civil Procedure cannot be utilized as a vehicle by which to compel a party to sign an authorization for the release of medical records.”).[4]

Simply put, under the circumstances of the present case, the Court is without authority to require Plaintiff to execute record release authorizations for either medical records or employment records. Plaintiff has offered to produce the relevant, underlying documents rather than record release authorizations, and Defendant has repeatedly rejected that offer. Therefore, to the extent Defendant's Motion seeks an Order of this Court compelling Plaintiff to mandatorily produce executed authorizations in response to Request for Production Nos. 10 and 13, Defendant's Motion to Compel, [Docket No. 20], is DENIED.[5]

*5 Defendant also seeks a list of every employer for which Plaintiff has been employed in the past fifteen years. Defendant asserts that this would be properly responsive to Interrogatory No. 4 which reads as follows:

(Def.’s Interrogatories [Docket No. 23-1]).

In response to Interrogatory No. 4, Plaintiff objected to the Interrogatory as overly broad and seeking irrelevant information, however, Plaintiff identified “her employers, her position, her dates of employment, her supervisors, and her salaries during the past five years,” except for her current employer. (Plf.’s Resp. [Docket No. 23-3]; Letter, [Docket No. 43], at 3). After the Court ordered supplemental meet and confer, Plaintiff also agreed to produce all “pay stubs from her current employer, which will reveal to Defendant her employer's identity.” (Letter, [Docket No. 43], at 3).

As observed above, discovery is permitted only on matters relevant to the claims and defense in the case at issue. See, e.g., Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The party seeking discovery, here Defendant, is responsible for making the threshold showing of relevance before production of information is required. See, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).

In the present case, Defendant offers neither any specific argument as to the relevancy of the discovery sought by Interrogatory No. 4 over the course of the past fifteen years nor any specific argument as to why fifteen years is an appropriate temporal scope. (See, Def.’s Mem. [Docket No. 22]; Letter [Docket No. 43]).[6] Instead, Defendant's arguments focus on the production of documents from past and current employers, and the relevancy of those underlying documents. (See, e.g., Def.’s Mem., [Docket No. 22], at 9–11). Even those arguments focus largely on cases where the employment records at issue were from after the plaintiff's termination by the defendant. (See, Letter, [Docket No. 43], at 3) (citing Gacek v. Owens & Minor Distribution, No. 9-cv-3202 (PAM/LIB), 2010 WL 11534503, at *5 (D. Minn. Oct. 21, 2010) (discussing employment records from after the allegedly unlawful termination of employment)); (Def.’s Mem., [Docket No. 22], at 9–11) (citing Gacek v. Owens & Minor Distribution, No. 9-cv-3202 (PAM/LIB), 2010 WL 11534503, at *5 (D. Minn. Oct. 21, 2010); Holter v. Wells Fargo and Co., 281 F.R.D. 370 (D. Minn. 2011) (limiting employment record production to after plaintiff's departure from defendant); Schaadt v. St. Jude Medical S.C., 2006 WL 7090866, at *7–9 (D. Minn. Apr. 4, 2006) (discussing records from plaintiff's “current” employer after her termination from defendant)). Defendant simply fails to offer any persuasive argument as to how the past employment historical information sought by Interrogatory No. 4 over the fifteen-year retroactive temporal scope contemplated by Interrogatory No. 4 is relevant to the claims or defense going forward in the present case.[7]

*6 Defendant does assert that “former and subsequent employment records are relevant and discoverable” because one of Plaintiff's mental health care providers indicated that she was treating Plaintiff because “ongoing issues of Racial Discrimination in her current employment and past employment continue to impact her mental state.” (Def.’s Mem., [Docket No. 22], at 10) (emphasis in original). Defendant appears to argue that the information sought by Interrogatory No. 4 is relevant because this “past employment” referred to by Plaintiff's mental health care provider could demonstrate that any alleged damages “were caused by another actor or actors.” (Id.). The Court finds this argument to be unpersuasive.

As Defendant acknowledges, this statement by Plaintiff's mental health care provider was made after Plaintiff's employment with Defendant had been terminated “for nearly two years.” (See, Id.). Thus, this “past employment” is as very likely Defendant rather than any other employer. Defendant has failed to offer any assertion to the contrary. Moreover, Defendant fails to articulate how this single statement necessitates information regarding Plaintiff's past employment over the course of fifteen (15) years.

Interrogatory No. 4 as drafted is overbroad in temporal scope and has not been shown to be relevant to the claims and defenses at issue here. However, Defendant has been invited by Plaintiff to limit the scope of Interrogatory No. 4, but Defendant has declined to do so. It is Defendant's obligation to establish relevancy under Federal Rule of Civil Procedure 26(b)(1). See, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). The Court will not endeavor to redline Defendant's discovery request to a point where it seeks only temporally reasonable and relevant information.

Therefore, to the extent Defendant's Motion seeks an Order of this Court compelling Plaintiff to fully respond to Interrogatory No. 4, Defendant's Motion to Compel, [Docket No. 20], is DENIED.

Defendant next seeks the identity of every medical provider with which Plaintiff has consulted in the past ten years. Defendant refers to its Interrogatory No. 15, which reads as follows:

(Def.’s Interrogatories [Docket No. 23-1]).

In response to Interrogatory No. 15, Plaintiff objected to the Interrogatory as overbroad and seeking irrelevant information; however, Plaintiff did identify Bob Lyman with Sand Creek Workplace Wellness and Petronellah Thomas-Shanobi at Flame Lily LLC. (Plf.’s Resp. [Docket No. 23-3]). In the parties’ joint letter following their supplemental meet and confer, Plaintiff asserted that she “had provided or is providing all records related to her emotional health,” including her “complete records from her therapists” and “all records from Dr. Penning, the family medicine doctor that Plaintiff recently testified had diagnosed her with a mental health condition.” (Letter, [Docket No. 43], at 2).

It appears that Plaintiff has identified her mental health providers. The issue, however, is whether or not Plaintiff is required to identify all other physical health medical providers from the past decade. Plaintiff argues that her past medical providers related exclusively to physical health are not relevant to the present action.

*7 Defendant fails to offer any argument specific to the relevancy of the identification of ten (10) years worth of past medical providers. Defendant's arguments are instead here focused on the production of medical records rather than the identification of medical providers as was the subject of Interrogatory No. 15. Other than including Interrogatory No. 15 in one of the headers of the parties’ joint letter, Defendant fails to mention Interrogatory No. 15 or the identification of medical providers in its present arguments. Nonetheless, in support of document production, Defendant argues that “[p]re-existing conditions, both physical and mental, generally bear upon Plaintiff's enjoyment of life and Plaintiff should not be able to allege that discrimination by Defendant was the sole source of her claimed emotional distress.” (Letter, [Docket No. 43], at 1) (citing R.S. by and through S.S. v. Minnewasaka Area Dist. No. 2149, No. 12-cv-588 (MJD/LIB), 2013 WL 12149247, at *8–9 (D. Minn. Oct. 1, 2013); In re Nat'l Hockey League Players’ Concussion Injury Litig., No. 14-cv-2551 (SRN/JSM), 2016 WL 7201340, at *2 (D. Minn. Mar. 29, 2016)). Neither of the cases cited by Defendant support its contention that records from the Plaintiff's medical providers over the past ten (10) years related exclusively to physical health are relevant to the damages claims related to mental anguish and distress in the present action.

In fact, R.S. by and through S.S. v. Minnewasaka Area Dist. No. 2149, No. 12-cv-588 (MJD/LIB), 2013 WL 12149247, at *8–9 (D. Minn. Oct. 1, 2013), supports denying Defendant's present Motion. In R.S., the defendant sought discovery related to plaintiff's physical and mental health conditions and treatment thereof. See, Id. at *8. The Court found that because plaintiff there had not put her physical health at issue, she was not required to produce discovery related to her physical health. Id. She had only placed at issue her mental health, and therefore, she was required to produce only discovery related to her mental health. The Court concluded that information related to her physical health was “not relevant to any claim or defense, and therefore, [was] not discoverable.” See, Id. The same result is appropriate in the present case.

The parties agree that Plaintiff has placed into controversy her mental health. (See, Letter [Docket No. 43]). There is no indication on the record, however, that Plaintiff has placed her physical health into controversy. Indeed, Defendant does not actually argue or assert that Plaintiff has placed her physical health into controversy.

Defendant's Interrogatory No. 15 clearly seeks identification of medical providers related solely to Plaintiff's physical health. Defendant has failed to articulate how that information is relevant to the claims and defenses in the present case. It is Defendant's obligation to do so. See, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). Defendant has also declined to limit its Interrogatory No. 15 to mental health related medical providers; instead, it maintains its all or nothing approach as to all medical providers over the past ten (10) years. The Court will not now attempt to redline Defendant's discovery request to a point where it seeks only relevant information.[9]

Therefore, to the extent Defendant's Motion seeks an Order of this Court compelling Plaintiff to fully respond to Interrogatory No. 15, Defendant's Motion to Compel, [Docket No. 20], is DENIED.

Defendant also seeks an Order of this Court requiring Plaintiff to produce for in camera review eleven identified documents involving communications with non-parties withheld pursuant to claimed privilege and compelling production of unredacted copies of these communications. (Def.’s Mot. [Docket No. 46]). In support of this request, Defendant argues that Plaintiff has waived any previously attached attorney client privilege relative to these identified documents because they were disclosed to third parties.[10]

*8 Plaintiff does not refute that these communications are responsive to Defendant's discovery requests. Rather, Plaintiff argues that the communications are protected by the attorney client privilege. Plaintiff classifies the at issue documents into two categories: “(1) communications among herself, other prospective or actual clients of Nichols Kaster [Plaintiff's counsel], and Nichols Kaster attorneys; and (2) communications between herself and prospective or actual clients of Nichols Kaster about communications that they have had or will have with Nichols Kaster attorneys.” (Letter, [Docket No. 43], at 4) (emphasis in original).[11] Specifically, Plaintiff argues that “[t]he communications in category (1) are protected because where two or more clients consult an attorney together about matters of common interest their communications remain privileged,” and “the communications in category (2) are protected because where a privilege-holder disclose privileged information to a third party with which it shares a common interest, the privilege is not waived.” (Id.).

The other actual clients of Nichols Kaster to which Plaintiff refers are the plaintiffs in K.R. v. Duluth Public Schools Academy, 19-cv-999 (DWF/LIB) (hereinafter the “K.R. action”, in which the minor plaintiffs there assert separate discrimination and retaliation claims based on racial discrimination they are alleged to have suffered while they attended Defendant's schools. The plaintiffs in that separate case are four “elementary and middle-school aged” students of Defendant who are “African American or biracial” and who have described themselves in their Complaint as “students of color.” The plaintiffs in the separate K.R. action are all minors identified as K.R., G.H., P.K., and L.G.,[12] and they are represented by Nichols Kaster in that separate action who also represents Plaintiff in the present action. The prospective clients of Nichols Kaster to which Plaintiff refers are the guardians of other minor students who did not ultimately join as plaintiffs in the K.R. action.

The minor plaintiffs in the separate K.R. action allege that they experienced pervasive race discrimination and harassment at Defendant's schools by both staff and students. They further allege that despite Defendant being aware of the pervasive racial discrimination and abuse in its schools, Defendant has failed to take any meaningful steps to stop the harassment and ensure the safety of the minor plaintiffs; ignored complaints of the pervasive race discrimination; encouraged racial hostility by disproportionally disciplining students of color; and punished those persons who attempted to report racial harassment.

On the basis of the factual allegations in their complaint, plaintiffs in their separate action raise various causes of action. They collectively allege, through 42 U.S.C. § 1983, that Defendant maintains unconstitutional customs, policies, and practices which give rise to claims of Denial of Equal Protection, Race Discrimination, and Failure to Train. They also collectively assert a claim of Racial Discrimination under Title VI based on the allegedly pervasive racial harassment experienced at both campuses of which Defendant was allegedly aware. The minor plaintiffs collectively assert a claim of Racial Discrimination under the Minnesota Human Rights Act based on Defendant's alleged discriminatory conduct, customs, policies, and practices. The minor plaintiffs G.H. and L.G. also each separately raise a Retaliation claim under Title VI, as well as, a Reprisal claim under the Minnesota Human Rights Act.

*9 In the present case, Plaintiff, on the asserted basis of attorney client privilege, has withheld eleven identified entries on Plaintiff's Second Amended Privilege Log which are now at issue. (Plf.’s Second Amended Privilege Log [Docket No. 43]).[13]

The documents reflected as lines 38 and 55 of Plaintiff's Second Amended Privilege Log are emails from Katelyn Hansen to Kate Fisher and the email address “cgrotech@hotmail.com.” (Plf.’s Second Amended Privilege Log, [Docket No. 43], at 9, 12). Plaintiff asserts that Ms. Hansen is the parent of a plaintiff in the K.R. action, and Kate Fisher is an attorney at Nichols Kaster, although she is not an attorney of record in the present case. Plaintiff has failed to identify the person associated with the “cgrotech” email address. The documents found at lines 43, 44, and 47 are separate text message exchanges between Plaintiff and the parent of two different prospective clients of Nichols Kaster in the K.R. action. (Plf.’s Second Amended Privilege Log, [Docket No. 43], at 10–11). The documents found at line 45, 54, 52, and 53 are text message communications between Plaintiff and “Parent Kaitlan” who is the parent and legal guardian of one of the plaintiffs in the K.R. action. (Plf.’s Second Amended Privilege Log, [Docket No. 43], at 10, 12). The documents reflected as line 46 and 49 are text message communications between Plaintiff and Desmond Gilbert who is the parent and legal guardian of another of the plaintiffs in the K.R. action. (Plf.’s Second Amended Privilege Log, [Docket No. 43], at 11). For all of these at issue entries, Plaintiff's “Privilege Designation” is “Attorney Client Communication; Common Interest Privilege; Joint Representation Privilege.”

“Generally, it is well established under common law that confidential communications between an attorney and a client are privileged and not subject to disclosure absent consent of the client.” United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984). “Attorney-client privilege is a ‘long established rule that confidential communications between an attorney and his [or her] client are absolutely privileged from disclosure against the will of the client.’ ” Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 527 (D. Minn. 2002) (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601 (8th Cir. 1977)). The attorney client privilege “is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). It exists “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. “It is ‘perhaps, the most sacred of all legally recognized privileges, and its preservation is essential to the just and orderly operation of our legal system.’ ” N. Dakota v. United States, 64 F. Supp. 3d 1314, 1330 (D.N.D. 2014) (quoting United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997)).

*10 The federal common law of attorney client privilege applies to cases based on federal question jurisdiction. See, E.E.O.C. v. Woodmen of the World Life Ins. Soc'y, No. 8:3-cv-165, 2007 WL 1544772, at *1–2 (D. Neb. Mar. 23, 2007). This includes cases, like the present case, based on federal question jurisdiction in which the Court is asserting supplemental jurisdiction over the plaintiff's state law claims and the information sought is not exclusively relevant to the state law claims. See, Lykken v. Brady, No. 7-cv-4020 (KES), 2008 WL 2077937, at *4 n.3 (D.S.D. May 14, 2008) (discussing In re Bieter, 16 F.3d 929, 935 (8th Cir. 1994)); Heilman v. Waldron, 287 F.R.D. 467, 473 (D. Minn. 2012).

“A party asserting the attorney-client privilege ... has the burden to provide a factual basis for the privilege or protection.” In re Zurn Pex Plumbing Prods. Liab. Litig., No. 8-cv-1958 (ADM/RLE), 2009 WL 1178588, at *1 (D. Minn. May 1, 2009). The attorney client communication protects a communication that is (1) confidential; (2) between an attorney and client; and (3) for the purpose of obtaining legal services or advice. See, Inline Packaging, LLC v. Graphic Packaging International, No. 15-cv-3183 (ADM/LIB), 2017 WL 9325027, at *4 (D. Minn. May 5, 2017).

This privilege may be waived if the client discloses the confidential communication to a third party. See, Id.; Shukh v. Seagate Tech., 872 F. Supp. 2d 851, 855 (D. Minn. 2012). This waiver is not always absolute. Disclosure to another party may not waive the attorney client privilege under the circumstance falling into the joint representation doctrine or the common interest doctrine. Although the joint representation doctrine and the common interest doctrine are similar and at times intermingled by the Courts, they are distinct doctrines applicable to different situations. See, Shukh v. Seagate Tech., 872 F. Supp. 2d 851, 855–56 (D. Minn. 2012).

“If two or more persons are jointly represented by the same lawyer in a matter, a communication of either co-client that otherwise qualifies as privileged ... and relates to matters of common interest is privileged as against third persons, and any co-client may invoke the privilege, unless it has been waived by the client who made the communication.” Supreme Forest Products v. Kennedy, No. 3:16-cv-54 (JAM), 2017 WL 120644, at *2 (D. Conn. Jan. 12, 2017) (ellipses in original) (citing Restatement (Third) of Law Governing Lawyers § 75). This is colloquially referred to as the joint representation doctrine. See, Shukh v. Seagate Tech., 872 F. Supp. 2d 851, 855 (D. Minn. 2012). “[I]n order to implicate the joint representation privilege, two or more clients must consult an attorney on matters of common interest; the communications between the clients and the attorney are privileged as against third parties, but not among the joint clients.” Id.

Another exception to the waiver doctrine is the common interest doctrine which is an expansion of the attorney client privilege which covers certain communications made between a client or attorney and a third party. See, Grupo Petrotemex, S.A. de C.V. v. Polymetrix, AG, No. 16-cv-2401 (SRN/HB), 2020 WL 1227715, at *3 (D. Minn. Mar. 13, 2020).

*11 Id. (quoting In re Grand Jury Subpoena Duces Tecum, 112 F.2d 910, 922 (8th Cir. 1997). “The nature of the parties’ common interest must be ‘identical, not similar, and be legal ....’ ” Grupo Petrotemex, 2020 WL 1227715, at *3 (quoting In re Regents of the Univ. of Cal., 101 F.3d 1386, 1390 (Fed. Cir. 1996)).

In the present case, Plaintiff argues the at issue communications in this case involving the actual and prospective plaintiffs in the separate K.R. action are protected from disclosure by the attorney client privilege through the joint representation and/or common interest doctrines. (Letter, [Docket No. 43], at 4). The Court disagrees.

Communications in this case between Plaintiff and prospective or actual plaintiffs in the K.R. action are not protected by the joint representation doctrine because Plaintiff in this case and plaintiffs in the K.R. action are not “jointly represented by the same lawyer in a matter.” See, Supreme Forest Products v. Kennedy, 2017 WL 120644, at *2 (emphasis added). Plaintiff here and the plaintiffs in the K.R. action may be represented by the same counsel, but they are represented by said counsel in two separate and distinct actions.[14] For the joint representation doctrine to apply, the parties involved in the at issue communication must be represented by the same legal counsel in the same action. See, Id. This is the critical distinction here for purposes of the Court's decision, infra.

Likewise, communications between Plaintiff and prospective or actual plaintiffs in the K.R. action are not protected by the common interest doctrine because their common interest is neither “identical” nor even “substantially identical.” See, Grupo Petrotemex, 2020 WL 1227715, at *3–5; In re Regents of the Univ. of Cal., 101 F.3d 1386, 1390 (Fed. Cir. 1996). Although both actions are against the same Defendant and both actions allege that Defendant perpetrated a hostile, racially discriminatory environment, Plaintiff's action here substantively differs from plaintiffs’ claims in the separate K.R. action.

Plaintiff alleges Title VII claims that Defendant as her employer improperly discharged her for the reporting of and opposition to discriminatory behavior, and she further alleges that she was discharged on the basis of her race. (See, Compl. [Docket No. 1]). The minor plaintiffs in the K.R. action allege § 1983 and Title VI theories that while they were students at Defendant's schools they were discriminated against on the basis of their race, and plaintiffs G.H. and L.G. allege that Defendant retaliated against them when they opposed Defendant's discriminatory conduct. See, K.R. v. Duluth Public Schools Academy, 19-cv-999 (DWF/LIB) Amended Complaint [Docket No. 12] (D. Minn. June 11, 2019). Plaintiff here and the minor plaintiffs in the K.R. action do not have identical legal interests.

*12 Although Plaintiff relies on several cases in support of her assertion that communications involving prospective and actual plaintiffs in the K.R. action should be protected by the attorney client privilege through either the joint representation doctrine or the common interest doctrine here, those cases are substantive different from the present action, and Plaintiff's reliance is therefore misplaced. For example, in Supreme Forest Products v. Kennedy, No. 3:16-cv-54 (JAM), 2017 WL 120644 (D. Conn. Jan. 12, 2017), the two parties asserting a common interest were two defendants who had previously asserted the same claim against the same employer based on the same underlying facts. Id. at *2. Plaintiff also relies on Sandoval v. American Building Maintenance Industries, 267 F.R.D. 257 (D. Minn. 2007), which involved plaintiffs who simultaneously met with the same attorney regarding sexual harassment they were all experiencing at the same workplace. Id. at 273. Each of these cases, as well as, the other cases relied upon by Plaintiff are substantively distinguishable from the present case.

Having determined that Plaintiff's communications in this case involving potential or actual plaintiffs in the K.R. action would not fall under either the joint representation doctrine or the common interest doctrine, the Court must evaluate each of the eleven at issue entries on Plaintiff's privilege log to determine whether or not each entry is itself protected by the attorney client privilege. As discussed above, the attorney client communication protects a communication that is (1) confidential; (2) between an attorney and client; and (3) for the purpose of obtaining legal services or advice. See, Inline Packaging, LLC v. Graphic Packaging International, No. 15-cv-3183 (ADM/LIB), 2017 WL 9325027, at *4 (D. Minn. May 5, 2017). The disclosure in this case of any communication or information to a prospective or actual plaintiff in the K.R. action would be a disclosure to a third-party which would waive any attorney client privilege which may have previously attached to said communication or information.

As noted, the emails reflected as lines 38 and 55 of Plaintiff's Second Amended Privilege Log are emails “Katelyn Hansen,” the parent of one of the minor plaintiffs in the K.R. action, sent to “Kate Fisher” and an email address identified as “cgrotech@hotmail.com.” Plaintiff has not identified the person associated with this “cgrotech” email address. Even assuming solely for the sake of argument that these emails contained information which originally had attached to it some attorney client privilege belonging to Ms. Hansen, her disclosure of that information to an unidentified third party, “cgrotech”, waived any attorney client privilege which was previously attached to said information. Notably, Plaintiff, herself a third party in possession of emails sent by Ms. Hansen, fails to articulate how she possesses any attorney client privilege over information derived from Ms. Hansen. Further, even assuming solely for the sake of argument that the unidentified “cgrotech” email address may have also belonged to a prospective plaintiff in the K.R. action, the disclosure of said information to Plaintiff, who is now in possession of the information, waived any attorney client privilege on behalf of Ms. Hansen which may have previously attached to the information.

Accordingly, the emails found at lines 38 and 55 of Plaintiff's Second Amended Privilege Log are discoverable.

The same is true for the remainder of the at issue documents. The text messages reflected as lines 43, 44, 45, 46, 47, 49, 51, 52, and 53 on Plaintiff's Second Amended Privilege Log are each strings of text message communications between Plaintiff and third parties who happen to be the guardians of prospective or actual plaintiffs in the K.R. action. Even assuming solely for the sake of argument that these text messages contained information originally obtained from Plaintiff's counsel, the subsequent disclosure of said information by Plaintiff to the non-party guardians of potential and actual plaintiffs in the K.R. action waived any attorney client privilege on behalf of Plaintiff which may have previously attached to said information.

*13 There is even less basis to support an assertion of attorney client privilege by Plaintiff for text messages the non-party guardians of prospective and potential plaintiffs in the K.R. action sent Plaintiff here. First, Plaintiff has no standing to assert any claim of attorney client privilege derivatively on behalf of those non-party guardians. And, even assuming solely for the sake of argument that some attorney client privilege belonging to the guardians of prospective and actual plaintiffs in the K.R. action previously attached to the information in the text messages, that privilege was waived by them when they shared that information with Plaintiff here who in relation to the K.R. guardians is herself a non-party. Thus, those text messages are also discoverable in the present action.

Accordingly, the text message communications found at lines 43, 44, 45, 46, 47, 49, 51, 52, and 53 on Plaintiff's Second Amended Privilege Log are discoverable.

Therefore, to the extent Defendant's Motion seeks an Order of this Court compelling production of unredacted copies of the documents reflected as lines 38, 43, 44, 45, 46, 47, 49, 51, 52, 53, and 55 on Plaintiff's Second Amended Privilege Log, as provided to the Court,[15] Defendant's Motion to Compel, [Docket No. 20], is GRANTED. Plaintiff shall produce those documents as soon as practicable and in any event by no later than fourteen days from the date of this Order.

Defendant also seeks an Order of this Court permitting the “continued deposition of Plaintiff” during which Defendant seeks to ask Plaintiff questions she refused to answer during her deposition on October 31, 2020. Specifically, Defendant seeks to ask Plaintiff questions regarding her current address; the length of time she has lived there; the name of her current supervisor; and the contents of certain meetings at which Plaintiff, prospective and actual plaintiffs in the K.R. action, and Plaintiff's counsel were present. (See, Def. Mem., [Docket No. 22], at 17–18) (discussing Depo. Transcript, [Docket No. 23-6], at 1, 2, 7, 9–10).[16]

Defendant's counsel also asked Plaintiff about the monetary amount of a “settlement” into which Plaintiff entered to resolve certain previous legal claims. (Id. at 5–6).[17] Plaintiff's counsel objected to the question seeking the dollar amount of the settlement noting that it could be confidential; however, Plaintiff's counsel instructed her to answer if she knew the settlement to be non-confidential. (Depo. Transcript, [Docket No. 23-6], at 5–6). Plaintiff noted that she was unaware if the settlement was confidential, and she refused to answer the question. (Id.).

At her deposition, Plaintiff was also asked questions regarding meetings at which she, her counsel, and prospective plaintiffs in the K.R. action were present. (Id. at 15–19). Plaintiff did not answer these questions based on the instructions of her counsel who objected on the basis that the contents of the meetings were protected by the attorney client privilege. (Id.). From Plaintiff's deposition testimony, it appears that attorneys from Nichols Kaster invited Plaintiff and certain parents of students who attended Defendant's school to a meeting at a hotel conference room. (Id.). Plaintiff stated that she introduced those parents to her attorneys. Some of the parents invited were the parents of the students who would ultimately become the plaintiffs in the K.R. action. It appears that a first meeting took place before the K.R. action was filed, and that a second meeting took place after the K.R. action was filed. (Id.).

*14 Defendant now seeks an Order of this Court compelling a second deposition of Plaintiff limited to seeking her to answer the above questions.

Rule 30 provides that “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” Fed. R. Civ. P. 30(a)(1). Depositions conducted pursuant to Rule 30 are required to comply with the relevancy requirements of Rule 26. See, e.g., Fed. R. Civ. P. 26; Elsherif v. Mayo Clinic, No. 18-cv-299 (DWF/KMM), 2020 WL 5015825, at *2 (D. Minn. Aug. 25, 2020) (prohibiting deposition testimony on topics seeking to inquire into information which was not relevant to the claim and defenses in that case); Insignia Sys., Inc. v. News Corp., No. 19-cv-1820 (MJD/BRT), 2020 WL 3046539, at *6 (D. Minn. June 8, 2020) (granting protective order to prohibit deposition testimony on topic seeking “information that is not sufficiently relevant or proportional to the needs of the case”); Webb v. Ethicon Endo-Surgery, Inc., No. 13-cv-1947 (JRT/JJG), 2014 WL 7685527, at *3 (D. Minn. Aug. 8, 2014), (discussing scope of deposition inside relevancy limitations) aff'd, 2015 WL 317215 (D. Minn. Jan. 26, 2015).

As discussed above, Rule 26 provides that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). “[D]iscovery may not be had on matters irrelevant to the subject matter involved in the pending action.” Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The party seeking discovery bears the initial responsibility for making the threshold showing of relevance before the production of information is required. See, e.g., Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). If that threshold showing is met, the party resisting production then bears the burden of establishing a lack of relevancy or undue burden. See, Mallak v. Aitkin County, No. 13-cv-2119 (DWF/LIB), 2016 WL 9088760, at *5 (D. Minn. Dec. 22, 2016).

In the present case, Defendant has failed to offer any specific argument as to the relevancy of the questions Plaintiff refused to answer. Defendant merely refers to the questions generically as “discoverable questions.” (Def.’s Mem., [Docket No. 22], at 17).

It is Defendant's burden to establish some threshold showing of relevancy before the Court will compel information to be produced.

Moreover, the Court finds, on the face of the at issue questions Defendant seeks to ask Plaintiff in a second deposition, they do not seek information relevant to the claims or defenses in the present case. For example, the Court fails to see how Plaintiff's current address or the length of time she has lived at said address could be relevant to the parties’ claims and defenses in the present case. Similarly, there is no indication that the monetary amount of an earlier personal injury settlement Plaintiff entered into as a result of an unrelated motor vehicle accident could have any relevance on the claims and defenses in the present case.

*15 Likewise, there is no indication in the record on Defendant's Motion that the contents of the two meetings referenced in Plaintiff's deposition are relevant to the parties’ claims and defenses here. The mere fact that Plaintiff was present at those meetings and that at one meeting she introduced her attorneys to the guardians of possibly prospective plaintiffs in the K.R. action fails to establish on that basis alone that the contents of those meetings would be relevant to the claims and defense in the Plaintiff's present action.[18] Federal Rule of Civil Procedure 26(b)(1) requires the party seeking discovery to first make this threshold showing of relevance.

Therefore, to the extent Defendant's Motion seeks an Order of this Court permitting Defendant to convene a second deposition of Plaintiff and compelling Plaintiff to respond to questions she previously declined to answer at her first deposition, Defendant's Motion to Compel, [Docket No. 20], is DENIED.

III. Plaintiff's Motion to Compel. [Docket No. 28].

Plaintiff seeks an Order of this Court compelling Defendant to disclose “the student name improperly withheld at [Defendant's] counsel's instruction during the July 22, 2020 deposition of Sean Moore.” (Plf.’s Mot. [Docket No. 28]). Plaintiff also seeks an Order of this Court “prohibiting Defendant's counsel from instructing witnesses not to disclose student identities in future depositions.” (Id.).

Sean Moore is the current Cultural Liaison at Defendant's schools. (Moore Depo, [Docket No. 31-1], at 3). Plaintiff's counsel deposed Mr. Moore on July 22, 2020. (Id. at 2). During that deposition, Mr. Moore testified regarding a student who approached him because the student was “enraged and wanted to host a kind of protest” in response to Defendant's procedures which the student perceived to be “exclusionary.” (Id. at 3). Plaintiff's counsel asked for the identity of the student. (Id.). Defendant's counsel instructed Mr. Moore not to answer the question regarding the identity of the student. (Id. at 3–8). Defendant's counsel asserted that the student's identity was an “educational record” protected from disclosure by the Family Educational Rights and Privacy Act. (Id.).

As discussed more fully above, “discovery may not be had on matters irrelevant to the subject matter involved in the pending action,” and it is the party seeking discovery which bears the initial responsibility for making the threshold showing of relevance before the production of information is required. See, e.g., Hofer, 981 F.2d at 380; Miscellaneous Docket Matter #1, 197 F.3d at 925; Oppenheimer Fund, 437 U.S. at 351. If that threshold showing is meet, the party resisting production then bears the burden of establishing a lack of relevancy or undue burden. See, Mallak, 2016 WL 9088760, at *5.

In the present case, Plaintiff asserts that the identity of the student discussed in Mr. Moore's deposition is relevant to her claims “[d]ue to the systemic nature of Plaintiff's allegations,” and because “the fact that Mr. Moore testified to a student's potentially discriminatory experiences outside of Plaintiff's time at the school may actually make the student's identity more relevant, not less.” (Plf.’s Mem., [Docket No. 30], at 7). Plaintiff conclusorily asserts that the “student likely has knowledge of the allegations in Plaintiff's complaint and is important to establishing the presence of the exact sort of educational discrimination Plaintiff was terminated for opposing.” (Id.).

*16 Based on the record now before the Court, the undersigned finds that Plaintiff has failed to make a threshold showing that this particular student's identity is relevant to the claims or defenses in the present case. While Plaintiff conclusorily asserts that the “student likely has knowledge of the allegations in” Plaintiff's Complaint, there is no indication on the record now before the Court to support Plaintiff's assertion. Mr. Moore's deposition testimony indicates that Mr. Moore worked with the student after Plaintiff's employment with Defendant was terminated. Student actions after Plaintiff's employment was terminated are not likely relevant, without more than a generic assertion by counsel to the contrary, to the claims and defenses in the present case which regard Defendant's actions during the period Defendant employed Plaintiff and the circumstances at the time of her termination. Although Plaintiff describes her Complaint as alleging the “systemic nature” of Defendant's allegedly unlawful conduct, Plaintiff's Complaint still only relates to the portion of time she was employed by and proceeding her termination by Defendant.[19]

Therefore, to the extent Plaintiff's Motion seeks an Order of this Court compelling Defendant to identify the student discussed during the July 22, 2020, deposition of Sean Moore, Plaintiff's Motion to Compel, [Docket No. 28], is DENIED.

Plaintiff also seeks an Order of this Court “prohibiting Defendant's counsel from instructing witnesses not to disclose student identities in future depositions” on the basis that the identifies are protected by the Family Educational Rights and Privacy Act (hereinafter the “FERPA”). (Plf.’s Mot. [Docket No. 28]). Plaintiff argues that student identities are not protected by the FERPA because the FERPA does not create an independent privilege. (Plf.’s Mem., [Docket No. 30], at 8–10). Plaintiff further argues that a student's name would not be protected from disclosure if it was learned through personal knowledge or observation rather than from an educational record. (Id. at 10–12).

Defendant argues that student identities are protected from disclosure by the FERPA. Defendant further argues that the United States Department of Education has issued guidance providing that information gained through personal knowledge is not an exception to FERPA if “that knowledge was obtained through an official role in making a determination about a student that is maintained in educational records about the student.” (Def.’s Mem., [Docket No. 37], at 11).

The Court does not, and need not, here decide the issue of whether or not the identities of students are discoverable in any future discovery process in the present case. As the parties both acknowledge, the applicability of the FERPA to the disclosure of a student's identity is a fact specific determination. The Court will not engage in speculation regarding the various potential circumstances under which student identities might arise in the discovery process.

Therefore, to the extent Plaintiff's Motion seeks an Order of this Court precluding Defendant from raising any objection to the disclosure of student identities at any time in the future during the discovery process of the present case, Plaintiff's Motion to Compel, [Docket No. 28], is DENIED.

IV. Conclusion

For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

In its original memorandum, Defendant also moved the Court for an award of attorney's fees for bringing the present Motion. (Def.’s Mem., [Docket No. 22], at 18–19). The circumstances of the present case would make such an award unjust, and therefore, to the extent Defendant continues in that request, Defendant's request for attorney's fees is DENIED.

During the parties Court ordered supplemental meet and confer, Defendant offered, “[w]ith respect to all former employers except” Plaintiff's current employer, “to limit the scope of signed authorizations to then past 10 years and to all employment records related to wage information, performance concerns, performance reviews, discipline, and claims of discrimination asserted by Plaintiff.” (Letter, [Docket No. 43], at 2). “With respect to Plaintiff's current employer, Defendant is willing to accept an authorization limited to dates of employment and wage information, as well as a supplemental response to Interrogatory No. 4 containing the name and address to the employer, Plaintiff's job title, supervisor(s), rate of pay, and any disciplinary actions against Plaintiff.” (Id. at 2–3).

Although Defendant's Requests for Production state that blank record release authorizations are attached to the discovery requests, there are no such record release authorizations attached to the copy of the discovery requests Defendant produced to this Court.

This does not mean the Court is without the authority to order a party to sign record release authorizations under any circumstance. For example, if a party improperly refused to produce certain documents in response to a request for documents under Rule 33, then the Court has the authority under Rule 37 to require a party to executed record releases. See, Fed. R. Civ. P. 37. The critical difference in the present case is that Defendant sought blanket record releases in the first instance; Defendant did not first request relevant underlying documents from Plaintiff.

The Court notes that much of the Defendant's discussion surrounding the present Requests for Production regards Defendant's perceived insufficiency in Plaintiff's production of medical records and employment records. Defendant has not, however, properly brought before this Court a dispute regarding a Request for Production actually seeking production of relevant medical records or employment records, as opposed to incorrectly solely seeking only executed record release authorizations. Thus, any such dispute is neither properly before this Court nor ripe for this Court's consideration.

Although Defendant offered to limit Request for Production No. 13 regarding Plaintiff's past employers to a temporal scope of ten years, the record now before the Court does not indicate that Defendant has agreed to such a limitation regarding Interrogatory No. 4. Instead, in its moving papers, Defendant appears to maintain its request for discovery from Interrogatory No. 4 for the “last fifteen (15) years.”

The Court notes that several of the cases upon which Defendant relies predate the 2015 amendments to the Federal Rules of Civil Procedure, and Defendant relies on the proposition that certain information from Plaintiff's previous employers is “reasonably calculated to lead to admissible evidence.” (See, Def.’s Mem., [Docket No. 22], at 9). This is, however, not the standard set forth in Rule 26 of the Federal Rules of Civil Procedure, and this Court is of the mind that even before the 2015 amendments to the Rules, this was not the proper standard. In any event, it is beyond dispute that the language upon which Defendant relies is no longer in Rule 26. The “reasonably calculated to lead to admissible evidence” standard is not the current standard governing discovery in this Court.

Defendant's Interrogatories define “medical provider” as referring “to any hospital, clinic, treatment facility, physician, dietician, chiropractor, doctor, surgeon, therapist, counselor, psychologist, psychiatrist, social worker, medial practitioner, pharmacist, nurse, home health care professional, occupational or educational therapist, other health care practitioner, or any other mental or physical health care provider.” (Def.’s Interrogatories [Docket No. 23-1]).

Nevertheless, to the extent Defendant's Interrogatory No. 15 also seeks the identification of medical providers related to Plaintiff's mental health, Plaintiff has asserted that those records have all been provided or will be provided as they are received by Plaintiff. (See, Letter, [Docket No. 43], at 2). This includes Plaintiff's family medicine doctor who appears to have treated Plaintiff in both a physical and mental health capacity.

To the extent Defendant's Motion seeks in camera review of the at issue documents, Defendant's Motion to Compel, [Docket No. 20], is DENIED. The Court finds Plaintiff's Second Amended Privilege Log a sufficient basis to determine the applicability of any attorney client privilege to the at issue documents in the present case.

Plaintiff fails to articulate which at issue documents she believes falls into each category.

K.R. is a former student of Defendant who attended school at the Raleigh campus for kindergarten, first grade, and part of second grade. At the time they initiated the K.R. action, G.H. was a current student of Defendant who had attended school at the Raleigh campus since kindergarten in 2014, and P.K. was a current student of Defendant who had attended school at the North Star campus since kindergarten in 2012. L.G. is a former student of Defendant who attended kindergarten and part of first grade at the North Star campus.

These entries are found on lines 38, 43, 44, 45, 46, 47, 49, 51, 52, 53, and 55 of Plaintiff's Second Amened Privilege Log. (Plf.’s Second Amended Priv. Log, [Docket No. 43], at 7–13). Only five of these eleven entries have associated bates numbers. It ostensibly appears that these five entries were produced with the allegedly privileged portions redacted, and the other six entries have not been produced.

Plaintiff's counsel references meeting, occurring before the initiation of the K.R. action, at which counsel was present with Plaintiff and prospective plaintiffs in the K.R. action, and counsel highlights the fact that every person present at that meeting was either a client or prospective client of Nichols Kaster; however, this does nothing to negate the fact that Plaintiff's action here is distinct from the action of any client or potential client in the separate K.R. case.

See, Docket No. 43.

Defendant also sought to ask Plaintiff the identity of her current employer because, at her deposition, Plaintiff refused to answer a question seeking the identity of her current employer. This request is now moot because in the parties’ joint letter to the Court Plaintiff asserts that she is providing Defendant with all of her “pay stubs from her current employer, which will reveal to Defendant her employer's identity.” (Letter, [Docket No. 43], at 3).

On the record now before the Court, it appears that in 2014, Plaintiff was involved in an earlier automobile accident which resulted in her pursuing legal action. (Plf.’s Mem., [Docket No. 39], at 5). As a result of that action, Plaintiff entered into a “personal injury settlement.” (Id.).

The Court's conclusion here is not based on any potential argument of attorney client privilege under a joint representation or common interest theory. See, supra.

Plaintiff also conclusorily asserts that the student discussed in Mr. Moore's deposition is “likely to have been a student during [Plaintiff's] time in the position.” However, other than the speculation of her counsel, Plaintiff fails to highlight any evidence in the record supporting this assertion. The Court finds that Plaintiff has failed to demonstrate a threshold showing of relevancy regarding the name of this student.