Acosta v. Wellfleet Commc'ns, LLC
Acosta v. Wellfleet Commc'ns, LLC
2018 WL 11409850 (D. Nev. 2018)
August 10, 2018
Foley Jr., George, United States Magistrate Judge
Summary
The court found that the plaintiff had properly invoked the government informer's privilege to protect the identity of confidential informants and the information they provided. The court also ordered an in camera review of documents allegedly protected by the law enforcement privilege, the deliberative process privilege, the attorney-client privilege, and the work product doctrine, and gave the plaintiff the option of amending his privilege logs or providing the documents to the court for review.
Additional Decisions
R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor Plaintiff,
v.
WELLFLEET COMMUNICATIONS, LLC, et al., Defendants
v.
WELLFLEET COMMUNICATIONS, LLC, et al., Defendants
Case No. 2:16-cv-02353-GMN-GWF
United States District Court, D. Nevada
Filed August 10, 2018
Counsel
Marc Anthony Pilotin, David Edeli, Katherine Kasameyer, Tara Elizabeth Stearns, Laura Bremer, U.S. Department of Labor/Office of the Solicitor Office of the Solicitor, San Francisco, CA, Patrick A. Rose, U.S. Attorney's Office, Las Vegas, NV, for Plaintiff Secretary of Labor R. Alexander Acosta.Anthony B. Golden, Whitney J. Selert, Garg Golden Law Firm, Henderson, NV, for Defendants Wellfleet Communications, Allen Roach, Lighthouse Communications, LLC, New Choice Communications, Inc., Ryan Roach.
Foley Jr., George, United States Magistrate Judge
ORDER
*1 This matter is before the Court on Defendants Wellfleet Communications, LLC and Allen Roach's Motion to Compel Production of Documents and for an Award of Fees and Costs (ECF No. 134), filed on April 25, 2018. The Plaintiff filed his Opposition (ECF No. 140) on May 9, 2018, and Defendants filed their Reply (ECF No. 141) on May 16, 2018. The Court conducted a hearing in this matter on June 5, 2018.
BACKGROUND
Plaintiff, the Secretary of Labor, seeks to recover unpaid minimum wages that Defendants allegedly owed to more than 1,500 call center workers who were employed by them from October 2012 to February 2016. Prior to February 1, 2016, Defendants treated the call center workers as independent contractors and paid them commissions that were not tied to the hours actually worked. Plaintiff alleges that the call center workers were employees and should have been paid minimum wages in accordance with the Fair Labor Standards Act (“FLSA”). Following an investigation by Plaintiff's Wage and Hour Division (“WHD”), Defendants Wellfleet and Allen Roach agreed to reclassify the call center workers as employees, effective February 1, 2016. Plaintiff filed its complaint to recover unpaid wages owed to the call center workers on October 7, 2016.
Defendants requested that Plaintiff produce the following information and documents: (1) the identity of every person with whom Plaintiff has communicated regarding the allegations in the Complaint; (2) the identity of every person from whom Plaintiff has obtained a written statement; (3) all documents generated by Plaintiff's investigator; (4) all case diary entries for this case; (5) all statements written by any individual or person; (6) all documents of interviews of any person and all notes of interviews of any person; (7) all notes regarding Defendants; (8) all documents relating to witness or employee interviews conducted in relation to the allegations raised by Plaintiff in the Complaint; (9) all documents relating to complaints, charges or claims regarding wages and hours submitted by independent contractors or employees of Defendants to Plaintiff; (10) all narrative reports; (11) all notes regarding informant interviews; (12) all notes regarding witness interviews; and (13) outlines of informant interviews. Motion to Compel (ECF No. 134) at 3-7. Plaintiff objected to these requests on the grounds that they are irrelevant, vague or overbroad, and based on the government informer's privilege, the deliberative process privilege, the privilege for investigative files and techniques, the attorney-client privilege, and the work product doctrine. Defendants argue that Plaintiff has failed to properly assert these privileges, and, in any event, that the requested information and documents are not protected by the privileges.
1. Whether Plaintiff Has Properly Invoked the Governmental Privileges.
In order for the government to properly invoke the governmental privileges, “there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege.” United States v. Reynolds, 345 U.S.1, 8, 73 S.Ct. 528, 532 (1953). “ ‘Requiring the agency head to claim the privilege assures the court, which must make the ultimate decision, that executive privilege has not been lightly invoked by the agency, Reynolds, supra, and that in the considered judgment of the individual with an overall responsibility for the administration of the agency, the documents withheld are indeed thought to be privileged.’ ” United States v. Rozet, 183 F.R.D. 662, 665 (N.D.Cal. 1998) (quoting Coastal Corp. v. Duncan, 86 F.R.D. 514, 518 (D.Del. 1980)). “Thus, courts have not permitted staff attorneys, especially those participating in the pending litigation to assert the privilege on behalf of the agency.” Id. (citing Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 43-44 (N.D.Tex. 1981) and Pierson v. U.S., 428 F.Supp. 384, 395 (D.Del. 1977)).
*2 Plaintiff submitted with his Opposition to Defendants’ Motion to Compel (ECF No. 140) the Declaration in Support of Formal Claim of Privilege (“Declaration”) executed by Bryan Jarrett, Acting Administrator of the Wage and Hour Division of the Department of Labor. Defendants argue that the declaration should have been served with Plaintiff's objections to the discovery requests, and, therefore, Plaintiff's formal invocation of the privileges is untimely. Defendants cite Centeno v. City of Fresno, 2016 WL 7491634, at *13 (E.D.Cal. Dec. 29, 2016) and Nehad v. Browder, 2016 WL 2745411, at *3 (S.D.Cal. May 10, 2016), both of which rely on Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D.Cal. 1987). Kelly, in turn, cited Kerr v. United States District Court, 511 F.2d 192, 198 (9th Cir. 1975). In Kerr, the Ninth Circuit discussed the requirements for formally invoking the official or state secrets privilege. The court did not reach the issue of whether the privilege applied in that case because “[n]either the Chairman of the Authority nor the Director of Corrections nor any official of these agencies asserted, in person or in writing, any privilege in the district court.” Id. at 198. Kerr did not specifically state that the privilege must be formally invoked at the time the agency serves its discovery responses, although that is a possible inference from the decision.
Plaintiff relies on In re Sealed Case, 121 F.3d 729, 741 (D.C.Cir. 1997) and Solis v. New China Buffet No. 8, Inc., 2011 WL 2610296, at *2 (M.D.Ga. July 1, 2011) which state that the privileges may be formally invoked with the agency's response to a motion to compel. See also Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 134 n. 13 (D.D.C. 2005) and Huntleigh USA Corp. v. United States, 71 Fed. Cl. 726, 727 (2006). In Perez v. Kazu Construction, LLC, 2017 WL 628455, at *4 (D.Haw. Feb. 15, 2017), the court stated that the Secretary's formal invocation of the privilege appeared to be untimely because the affidavit of the administrator of the Wage and Hour Division was not submitted until the filing of the Secretary's opposition to the motion to compel. Because of the conflict in the case law and because defendants were able to assert their challenges to the invoked privileges, however, the court declined to find that the privileges had been waived and, instead, considered them on the merits. Id.
Reasonable arguments can be made for either timing rule. Requiring the agency head to formally invoke the privilege at the time the discovery objections are served ensures that the privilege is only asserted, in the first instance, after the agency head has exercised his or her considered judgment. On the other hand, privilege objections may be resolved during the meet and confer process between the parties, obviating the need for a motion to compel or for a protective order. Permitting the agency head to formally invoke the privilege once the parties have reached an impasse lessens the burden on the agency head to review and decide every instance in which a privilege is initially asserted. The Ninth Circuit has refrained from adopting a strict rule of waiver governing when a privilege log must be served. Instead, the determination whether a privilege has been waived by failure to timely serve a privilege log is based on a consideration of all relevant circumstances. See Burlington Nort. & Santa Fe Ry. v. District Court, 408 F.3d 1142, 1149 (9th Cir. 2005). Similar balancing can be applied in deciding whether a governmental agency has acted timely in formally invoking its privileges.[1] Given the conflict in the cases as to when the privilege must be formally invoked, this Court will follow Perez v. Kazu Construction, LLC and consider the assertions of the governmental privileges on their merits so long as Plaintiff has otherwise satisfied the requirements for invoking the privileges.
*3 The privileges have been formally invoked by the Deputy Administrator/Acting Administrator of the Wage and Hour Division, who has been delegated that responsibility by the Secretary of Labor. Declaration, at ¶ 9. The general rule is that an agency head may delegate to a high-ranking subordinate responsibility for invoking qualified privileges such as the informer's and deliberative process privileges. Chao v. Westside Drywall, Inc., 254 F.R.D. at 657 (citing Marriot Intern. Resorts, L.P. v. United States, 437 F.3d 1302, 1306-08 (Fed.Cir. 2006)). “[D]elegation promotes both efficiency in judicial administration and actual personal involvement in the complex process of invoking the privilege.” Marriot, 437 F.3d at 1307 (citing Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1134 (D.C.Cir. 2000)). In Solis v. New China Buffet No. 8, 2011 WL 2610296, at *2, n. 2, the court found that the privileges were properly invoked by the acting administrator of the Wage and Hour Division, whose declaration stated that the Secretary of Labor had specifically delegated the authority to invoke the privilege to the administrator or acting administrator.
Mr. Jarrett states that he has personally reviewed the documents withheld under the privileges. Declaration, at ¶ 13. He describes the documents and information that has been withheld on the basis of the informer's privilege, the deliberative process privilege and the government privilege for investigative files and procedures. Id. at ¶¶ 14-19. Although there may be a suspicion that an agency head has simply ratified a lower level employee's or attorney's privilege assertions, the Court has no basis to question the good faith of Mr. Jarrett's statements that he has personally reviewed the documents and information and made the considered determination that the privileges should be invoked. The Court therefore finds that Plaintiff has satisfied the formal requirements for invoking the governmental privileges.
2. Informer's Privilege.
The Department of Labor's Wage & Hour Division interviewed and obtained statements from approximately 20-30 call center workers employed by Defendants. Plaintiff intends to call some of these workers as witnesses at trial. Plaintiff has refused to provide the identities of these individuals to Defendants based on the informer's privilege. Plaintiff has produced copies of their written or recorded statements, but has redacted their names and other information, including hours worked or pay received, which he contends could be used to determine their identities. Defendants seek both the workers’ identities and their unredacted statements.
The informer's privilege protects “ ‘the identity of persons who furnish information of violations of law to officers charged with enforcement of that law’ from ‘those who would have cause to resent the communication.’ ” In re Perez, 749 F.3d 849, 855 (9th Cir. 2014) (quoting Roviaro v. United States, 353 U.S. 53, 59-60, 77 S.Ct. 623 (1957)). The purpose of the privilege is to promote effective law enforcement. Id. The privilege must give way where the disclosure of the informer's identity, or the contents of his communication, is relevant and helpful to the defense or is essential to the fair determination of a cause. Id. at 855-56 (citing Roviaro, 353 U.S. at 60-61). The party seeking disclosure has the burden of showing that its need for the information outweighs the government's interest in nondisclosure. The proper balancing of these competing interests lies within the discretion of the district court, after considering the particular circumstances of each case. Id. at 858 (citing United States v. Prueitt, 540 F.2d 995, 1003-04 (9th Cir. 1976); and Roviaro, 353 U.S. at 62).
Enforcement of the FLSA depends “on information and complaints received from employees seeking to vindicate rights claimed to have been denied.” In re Perez, 749 F.3d at 856 (citing Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S.Ct. 1325, 1333 (2011)). It may be necessary to promise employees anonymity, to the extent possible, in order to obtain their cooperation in an investigation. In Perez, the defendant sought the identities of employees who had provided information to the Department of Labor regarding its alleged refusal to pay overtime pay. The plaintiff provided the identities and statements of 150 employees who had given permission for their identities to be disclosed. It withheld the identities of another 250 employees who wished to remain anonymous, but produced their statements except for information that would reveal their identities. The court noted that under the “burden-shifting scheme” established by Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187 (1946), the Secretary may prove a FLSA violation by evidence consisting of “fairly representative testimony” from a sample of employees. If the Secretary meets his burden, then the burden shifts to the employer to come forward with evidence of the precise amount of work performed or to negate the reasonableness of the inference to be drawn from the Secretary's evidence. Id. at 853. The court noted that the Secretary's case would depend on the 150 employees whose identities and statements had been fully disclosed. Id. at 858. The defendant therefore failed to show that disclosure of the other 250 employees’ identities was essential to its defense.
*4 Courts generally provide protection against early and potentially unnecessary disclosure of employee-informants’ identities. As trial approaches, however, the balance shifts in favor of disclosing the employee-witnesses’ identities to the defendant. Perez v. Sunshine Motel Inn, LLC, 2016 WL 10586147, at *3 (E.D.Wash. Sept. 12, 2016) (citing United States v. Hemphill, 369 F.2d 539, 542 (4th Cir. 1966); Brock v. J.R. Sousa & Sons, Inc., 113 F.R.D. 545, 546 (D.Mass. 1986); Perez v. Guardian Roofing, LLC, 2016 WL 1408027, at *3 (W.D.Wash. April 11, 2016); and Perez v. L & J Farm Picking, Inc., 2013 WL 5446625, at *3 (S.D.Fla. Sept. 30, 2013)). It is not uncommon for labor cases to resolve prior to trial, however, and premature disclosure of the informants’ identities may unnecessarily place them at risk for retaliation. Id.
In Perez v. L & J Farm Picking, Inc., the Secretary sued to recover back wages and liquidated damages on behalf of 300 farm workers. The defendant propounded discovery seeking the identities of the farm workers whom plaintiff intended to call as trial witnesses. The court noted that while it had the authority to order the disclosure of informers’ identities during discovery, absent a strong showing of a need for earlier disclosure, it was appropriate to order the plaintiff to identify his trial witnesses 30 days before trial pursuant to Fed.R.Civ.P. 26(a)(3). Id., 2013 WL5446625, at *3 (citing Brock v. R.J. Auto Parts and Service, Inc., 864 F.2d 677, 679-80 (10th Cir. 1988)). The court rejected defendants’ argument that they needed the employee-informants’ identities to determine the number of hours the employees worked and the amount of pay they received. The court stated that defendants could obtain the same information by deposing some of the 300 workers, and not just those workers from whom plaintiff had obtained statements and who it intended to call as trial witnesses. Id. at *3. The defendants had not attempted to depose any of the workers; nor had they demonstrated that they could not obtain the information through other means.
The informer's privilege protects current and former employees from retaliation which can take many forms, including informing prospective or subsequent employers that an employee filed a complaint with the Department of Labor or cooperated in an investigation against the former employer. Perez v. Sunshine Motel Inn, LLC, 2016 WL 10586147, at *4 (citing Chao v. Westside Drywall, Inc., 254 F.R.D. at 656, and Singh v. Julia & C.D. & R's Oil, Inc., 214 F.Supp.2d 1056, 1059 (N.D.Cal. 2002)). Defendants Wellfleet and Allen Roach argue that there is no risk of retaliation in this case because Wellfleet ceased operations in 2016 and Allen Roach is no longer involved in the telemarketing business. Plaintiff points out, however, that Wellfleet's assets and operations were transferred to Defendant New Choice which is owned by and under the control of Allen Roach's nephew, Ryan Roach, who was also an owner of Wellfleet. It is unknown whether any of the call center workers who provided information to Plaintiff are employed by New Choice or Lighthouse. The Court cannot ascertain the likelihood that Defendants will actually retaliate against the employee-informants. The potential for retaliation, however, is a sufficient reason to protect the employee-informants from premature and potentially unnecessary disclosure of their identities.
Defendants argue that Plaintiff has unnecessarily redacted information from the employee-informants’ statements regarding the hours they worked or the pay they received. Defendants argue that they will not be able to identify the employee-witnesses because they did not maintain records on the hours worked and it would be impossible to identify the employee-informants by wading through the pay records of 1,500 plus call center workers.[2] Defendants’ argument begs the question why they need early disclosure of this information if there is nothing they can do to confirm or refute it. Some of the statements, as produced, contain information about the average hours worked and pay received by the call center workers. See Plaintiff's Opposition (ECF No. 140), Exhibit A-11. Defendants appear able to present evidence regarding the average hours worked by call center workers based on their schedules, and to prove the amounts they were paid in commissions. Defendants have not demonstrated that they need the identities of the employee-informants or specific information about the dates they worked or the pay they received in order to prepare their defense. The identities of the call center workers whom Defendants intend to call at trial and their unredacted statements should be disclosed when the joint pretrial order is filed. Defendants’ motion for earlier disclosure of this information is denied.
3. Law Enforcement Privilege.
*5 Plaintiff asserts the governmental privilege for “investigative files” to a portion of Investigator Ann's Narrative Report. He has also asserted this privilege to portions of the emails between Plaintiff's employees. Plaintiff argues that he has sparingly invoked this privilege to protect a very limited number of pieces of information. Opposition (ECF No. 140), at 13.
District courts within the Ninth Circuit acknowledge the existence of a law enforcement privilege. Roy v. County of Los Angeles, 2018 WL 91773, at *12 (C.D.Cal. Feb. 7, 2018) (citing United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Ariz. 2012); Doyle v. Gonzalez, 2011 WL 3925045 (E.D. Cal. Sept. 6, 2011); and Ibrahim v. Dep't of Homeland Sec., No. C 06–00545, 2009 U.S. Dist. LEXIS 122598, 2009 WL 5069133 (N.D. Cal. Dec. 17, 2009)). While the Court of Appeals for the Ninth Circuit has not adopted a standard governing the law enforcement privilege, district courts within this circuit have borrowed standards from other circuits. Id. (citing Ibrahim, 2009 U.S. Dist. LEXIS, 122598 at *41–42, 2009 WL 5069133). The privilege has been given different names, including (1) the “official information privilege,” (2) the “law enforcement privilege,” and, (3) a type of “executive privilege.” Id. (citing Doyle, 2011 WL 3925045 (internal citations omitted).[3] The purpose of the privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and to otherwise prevent interference with an investigation. Id. (citing Doyle, at *11.) It is a qualified privilege that requires balancing “the public interest in nondisclosure against the need of the particular litigant for access to the privileged information.” Id. (citing Ibrahim, 2009 WL 5069133, at *15). When the records are relevant and essential to the presentation of the case on the merits, the need for disclosure outweighs the need for secrecy, and the privilege is overcome. Id. (citing Ibrahim, 2009 WL 5069133, at *15).
In Perez v. Guardian Roofing LLC, 2015 WL 1408027, at *4, the court rejected the Secretary's invocation of the privilege to prevent disclosure of the Department of Labor's investigative techniques that could “ ‘threaten future investigations by revealing internal agency procedures and analysis[.]’ ” The court found that this general statement was not sufficient to show that the privilege should apply. It did not appear that the plaintiff was still investigating the defendant, and no specifics were provided as to how disclosure would harm future investigations in other cases. The court also stated that the information could be produced under a protective order which precluded disclosure of the information to third persons.
Plaintiff's brief descriptions of the withheld information are also insufficient to show that the law enforcement privilege should apply. In several instances, the assertion of this privilege overlaps with Plaintiff's assertion of the deliberative process privilege. As discussed hereinafter, the Court will conduct in camera review of the documents claimed to be protected by the deliberative process privilege and the law enforcement privilege. Given the qualified nature of the law enforcement privilege, in camera review is the most reliable method for determining whether the withheld information is within the scope of the privilege, and, if so, whether the Plaintiff's interest in secrecy outweighs the Defendants’ need for the information.
4. Deliberative Process Privilege.
*6 Plaintiff has asserted the deliberative process privilege which “permits the government to withhold documents that ‘reflect[ ] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” Hongsermeier v. C.I.R., 621 F.3d 890, 904 (9th Cir. 2010) (quoting NLRB v. Sear, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504 (1975)). Documents must be both predecisional and deliberative to qualify for the privilege. A documents is predecisional if it was prepared to assist an agency decisionmaker in arriving at his decision. It is deliberative if its release would expose the agency's decision making process so as to discourage candid discussion within the agency and undermine the agency's ability to perform its functions. Id. (citing Carter v. U.S. Dep't of Commerce, 307 F.3d 1084, 1089 (9th Cir. 1992) and Assembly of Cal. v. U.S. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)).
Purely factual material that does not reflect the deliberative processes is not protected by the privilege. A government agency, however, is not required to produce factual information that “is interwoven with and demonstrative of the deliberative process.” F.T.C. v. AMG Services, Inc., 291 F.R.D. 544, 560 (D.Nev. 2013) (quoting Binion v. U.S. Dep't of Justice, 695 F.2d 1189, 1192 (9th Cir. 1983)). The distinction between fact and opinion should not be employed mechanically. Rather, the relevant inquiry is whether revealing the information exposes the agency's deliberative process. In re McKesson Govern. Entities Average Wholesale, 264 F.R.D. 595, 601 (N.D.Cal. 2009) (citing Assembly of Cal. v. U.S. Dep't of Commerce, 968 F.2d at 921-922). Because it is also a qualified privilege, a litigant may obtain deliberative materials if his or her need for them and the need for accurate fact-finding outweighs the government's interest in non-disclosure. F.T.C. v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Among the factors to be considered in making this determination are: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” Id. The privilege must be strictly confined within the narrowest possible limits consistent with the logic of its principles. In re McKesson, 264 F.R.D. at 601 (citing K.L. v. Edgar, 964 F.Supp. 1206, 1208 (N.D.Ill. 1997) and United States Rozet, 183 F.R.D. at 665).
Plaintiff has asserted the deliberative process privilege in regard to (1) case diary notes between 1/20/16 and 9/30/16; (2) the Investigator's Narrative Report; (3) page 2 of the Compliance Action Report; and (4) emails between the Wage and Hour Division investigator, her supervisors, and attorneys from the Solicitor's Office. Motion to Compel (ECF No. 134) at 7-8; and Opposition (ECF No. 140) at 3-5 (setting forth portions of the Plaintiff's privilege log). Plaintiff states that the documents withheld pursuant to the deliberative process privilege “are predecisional because they were prepared as part of the agency's process of determining whether to initiate litigation against Wellfleet and Allen Roach.” Opposition (ECF No. 140) at 10 (citing Declaration, ¶¶ 11, 16-17). The redacted material includes Wage and Hour Division Investigator Alisa Ann's opinions and recommendations about the case which the Department's officials considered in deciding whether to initiate litigation. It also includes “related and antecedent discussions about how to compute back wages, whether to assess liquidated damages, settlement negotiations, whether to refer the case for litigation and what the allegations of the complaint should be. Id. (citing Declaration, ¶¶ 16, 17).
*7 Plaintiff argues that the withheld material is also plainly deliberative because it is made up of the Wage and Hour investigator's questions to her supervisor, ADD Ramos, and her opinions and recommendations as to whether and to what extent the Defendants violated the FLSA and what quantity of back-wages and liquidated damages were owed. The material also includes similar deliberative information that ADD Ramos directed to his superior, District Director Gaspar Montanez, and to his attorneys in the Office of the Solicitor. Plaintiff states that responses from the supervisor to subordinates “would reveal the nature of the question or suggestion posed or where the response itself is of an advisory nature.” Opposition (ECF No. 140) at 10.
Plaintiff has withheld a few emails that the investigator sent to herself, which contain notes or partial drafts of her back wage computations. He argues that these notes and drafts are also protected by the deliberative process privilege. Id. at 11. Plaintiff relies on Zinker v. Doty, 637 F.Supp. 138, 140-41 (D.Conn. 1986) in which the court held that contemporaneous notes made by a hearing officer during a hearing were protected by the deliberative process privilege, and U.S. E.E.O.C. v. Hotspur Resorts Nevada, 2012 WL 2415541, at *4 (D.Nev. June 26, 2012) which held that the investigator's handwritten notes regarding his efforts to contact an individual, although not containing significant evaluative content, were protected by the privilege.
Plaintiff states that he has redacted only a handful of the case diary entries that reflect the content of communications between the investigator and her supervisor. Plaintiff produced “most of the material in the FLSA Narrative, withholding only a few sentences on each page where they contained the impressions of the investigator as to legal conclusions that were undecided and recommendations as to subsequent courses of action.... In limited places where the Secretary has withheld factual material, it is material that would expose the deliberative process and therefore should be protected. For example, the Secretary withheld the investigator's earlier drafts of the FLSA Narrative, which, if compared to the final draft, would reveal her mental processes.... The investigator's draft back-pay computations were withheld for the same reasons.” Opposition (ECF No. 140) at 11. Plaintiff relies on Nevada v. U.S. Dept. of Energy, 517 F.Supp.2d 1245, 1264 (D.Nev. 2007), in which the court stated that “[i]n some circumstances, the mere editing of factual material may constitute a policy-making process which is deliberative and therefore privileged.” The court also stated that the editorial selection of facts may be part of the process with which the privilege is centrally concerned. Id. (citing Mapother v. Dep't. of Justice, 3 F.3d 1533, 1539 (D.C.Cir. 1993)).
Plaintiff has made a sufficient showing that the deliberative process privilege applies to the documents he has withheld or redacted such that the Court finds no basis to reject the assertions of the privilege on their face. As discussed hereinafter, however, the Court will review the documents in camera to determine whether the privilege should apply.
5. Attorney-Client Privilege and Work-Product Doctrine.
Plaintiff has also asserted the attorney-client privilege and work product doctrine in regard to certain documents for which the deliberative process privilege is claimed.[4] The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as the attorney's advice in response to the disclosures. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). An eight-part test determines whether information is covered by the attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a professional legal advisor 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 advisor, (8) unless the protection is waived. Id. (citing In re Grand Jury Investigation, 974 F.2d at 1071 n. 2). The party asserting the privilege bears the burden of proving each essential element. Id. at 608.
*8 The work production doctrine protects from disclosure materials prepared in anticipation of litigation. Fed.R.Civ.P. 26(b)(3). The party claiming work product protection also has the burden of proving the applicability of the doctrine. Kandel v. Brother Intern. Corp., 683 F.Supp.2d 1076, 1083-84 (C.D Cal. 2006) (citing A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 192 (C.D. Cal. 2006)). Rule 26(b)(3) distinguishes between ordinary work product and opinion work product. Ordinary work product consists of factual information gathered in anticipation of litigation, and is discoverable if the requesting party shows a “substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Moe v. System Transport, Inc., 270 F.R.D. 613, 626-27 (D.Mont. 2010) (quoting Rule 26(b)(3)(A)(ii)). “Opinion work product” consists of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representatives concerning the litigation. A party seeking to discover opinion work product must show that the opposing attorney's mental impressions are directly at issue in a case and the need for the materials is compelling. Id. at 627 (citing Dion v. Nationwide Mut. Ins. Co., 185 F.R.D. 288, 282 (D. Mont. 1998)). See also Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013). Plaintiff's privilege logs do not specify which type of work product he seeks to protect. Because the assertion of the work product doctrine is coupled with the deliberative process privilege, and sometimes also with the attorney-client privilege, however, it appears that Plaintiff seeks to protect opinion work product.
6. Defendants’ Request for In Camera Review.
Defendants generally dispute whether the withheld materials are protected by the law enforcement privilege, the deliberative process privilege, the attorney-client privilege or the work product doctrine. They argue that the Court should review the documents in camera to determine whether the privileges apply. Defendants rely on Perez v. Kazu Construction, LLC, 2017 WL 628455, at *7, in which the court granted the defendants’ request for in camera review without discussing the standards for determining whether such review is appropriate.
The standard for conducting in camera review of documents allegedly protected by the deliberative process privilege or the law enforcement privilege is fairly lenient. Courts have ordered in camera review when the privilege log does not provide sufficient information to determine whether the documents are within the scope of the privilege, and where the “content-specific nature of the inquiry” makes it unlikely that a more specific privilege log would aid the court's review. Lahr v. National Transportation Board, 569 F.3d 964, 982, n. 16 (9th Cir. 2009) (discussing deliberative process privilege in the context of Exemption 5 to the Freedom of Information Act). In Andrus v. U.S. Dept. of Energy, 200 F.Supp.3d 1093, 1106 (D.Idaho 2016), the court held that in camera review was necessary because the agency's privilege log (Vaughn index) and affidavits were conclusory and insufficiently detailed. In N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 307 (D.D.C. 2009), the court stated that an inadequate privilege log can be remedied by permitting the party to submit a more detailed log, (2) deeming the privilege waived, or (3) by conducting in camera review of the withheld documents, or a select sample thereof. The court opted for in camera review, but stated that it is not always appropriate.
The standard for granting in camera review of documents allegedly protected by the attorney-client privilege is somewhat more stringent. The court is required to apply a two-part test to determine whether in camera review is appropriate. First, the party opposing the privilege must make a threshold showing to support a reasonable good faith belief that in camera review may reveal evidence that information in the materials is not privileged. If that threshold is met, then the court exercises its discretion as to whether to conduct in camera review. The court considers the amount of material it has been asked to review, the relevance of the alleged privileged material to the case, and the likelihood that in camera review will establish that the materials are not privileged. In re Grand Jury Investigation, 974 F.2d 1068 1074-75 (9th Cir. 1992) (citing United States v. Zolin, 491 U.S. 554, 472, 109 S.Ct. 2619, 2630 (1989)). The Supreme Court, however, rejected a blanket rule allowing in camera review because it “would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk. There is also reason to be concerned about possible due process implications of routine use of in camera proceedings.” Zolin, 491 U.S. at 571, 109 S.Ct. at 2630. There is no clearly established rule for conducting in camera review of allegedly protected opinion work product. Given the high level of protection afforded to this information, the same showing required for in camera review of allegedly privileged attorney-client communications should apply.
*9 The court has the option of requiring the party asserting the privilege to provide a more detailed privilege log before the court decides whether to grant in camera review. In Friends of Hope Valley v. Frederick Company, 268 F.R.D. 643, 651-52 (E.D.Cal. 2010), for example, the court required the plaintiff to provide an amended privilege log that revealed the identity and position of all senders/creators and addressees/recipients. The plaintiff was also required to provide a description of each communication or document withheld with sufficient detail that the defendant could readily assess the claim of privilege. Although the plaintiff was not required to provide information about “strategy” or the detailed substance of the subject communications, it was required to provide a description of the general topic that was detailed enough so that defendant could ascertain whether the communication was truly privileged. This was especially important in regard to communications between non-attorneys, and where existing descriptions were entirely unclear as to whether the communications were in furtherance of an attorney-client communication or in response to a query by plaintiff's attorney.
Plaintiff has asserted the attorney-client privilege with respect to the June 28, 2016 narrative report prepared by WHD investigator Alisa Ann, which is marked as Exhibit A-9. There is no indication that the narrative report was intended to be a confidential communication to Plaintiff's counsel for purposes of obtaining legal advice. There is also no clear indication that the redacted portions of the narrative report contain information about confidential communications with Plaintiff's attorneys in which legal advice was sought or given. Given the substantial doubt whether the attorney-client privilege applies to this report, the standard for conducting in camera review under the test set forth in Zolin and In re Grand Jury Investigation is satisfied. The Court will, therefore, order that the complete, unredacted report be submitted to the Court for in camera review. For the same reason, the Court orders that the preliminary draft of the narrative report, Exhibit A-12, be submitted for in camera review.
Plaintiff has redacted one investigative case diary and several emails between Plaintiff's employees and/or counsel on the basis of the attorney-client privilege. Plaintiff's privilege logs with respect to these documents, by and large, provide the required information to show the basis on which the privilege is claimed. The privilege logs, however, do not provide sufficient detail about the subject matter of the communication to readily assess the validity of the privilege assertion. See Friends of Hope Valley, supra. The same is true with regard to the assertions of opinion work product. It can, of course, be difficult to provide a description that the other party will accept as sufficient, and which does not disclose the privileged content of the communication. Ongoing disputes as to whether the privilege logs are sufficiently detailed can also unduly delay the determination of privilege. The Court will, therefore, give Plaintiff the option of amending his privilege logs for the case diary and emails withheld on the attorney-client privilege grounds[5] to provide a more detailed description of the withheld materials. Alternatively, Plaintiff may provide the documents to the Court for in camera review. The amount of withheld material is not substantial such as to render in camera review unduly burdensome.
The Court finds that the parties’ arguments in support of their respective positions are reasonable and have been made in good faith such that an award of expenses to either party pursuant to Fed.R.Civ.P. 37(a)(5) is not justified. Accordingly,
*10 IT IS HEREBY ORDERED that Defendants Wellfleet Communications, LLC and Allen Roach's Motion to Compel Production of Documents and for an Award of Fees and Costs (ECF No. 134) is granted, in part, and denied, in part, as follows:
1. Defendants motion to compel Plaintiff to disclose the identities of all employee-informants and to produce their complete, unredacted statements is denied. Plaintiff shall identify his trial witnesses at the time of the preparation/filing of the joint-pretrial order and shall produce the complete, unredacted statements of those witnesses at that time.
2. Within fourteen (14) days of the filing of this order, Plaintiffs shall deliver to the Court for in camera review the unredacted documents or portions of documents withheld on the basis of the law enforcement privilege, the deliberative process privilege, and the work product doctrine.
3. Within fourteen (14) days of the filing of this order, Plaintiffs shall deliver to the Court for in camera review the portions of the narrative report that Plaintiff has withheld on the basis of the attorney-client privilege.
4. Within fourteen (14) days of the filing of this order, Plaintiff shall serve and file an amended privilege log as to the case diary entries and email communications withheld on the basis of the attorney-client privilege. In the alternative, Plaintiff shall deliver the complete, unredacted, case diary entries and email communications to the Court for in camera review.
5. Following the review of the documents submitted pursuant to this order, the Court will enter a further order regarding Plaintiff's privilege assertions.
DATED this 10th day of August, 2018.
Footnotes
The privilege should be formally invoked, however, no later than when the agency files its opposition to a motion to compel or files a motion for protective order. See Chao v. Westside Drywall, Inc., 254 F.R.D. at 658.
Plaintiff contends that Defendants may, in fact, have records regarding the dates and times worked by the call center workers which they have refused to produce.
For the sake of brevity and uniformity, the Court will refer to the privilege as the “law enforcement privilege.” This title is also arguably the most apt since Plaintiff's asserted reason for invoking the privilege is to protect law enforcement or investigative techniques.
Plaintiff's counsel stated at the hearing that the Court can decide the motion on the basis of the governmental privileges, without reaching the issues of the attorney-client privilege or work product doctrine. Plaintiff, however, did not actually waive the latter privileges.
In most, if not all instances, Plaintiff asserts the deliberative process privilege and the work product doctrine for the same document. These privileges are similar in that they both involve evaluative, as opposed to factual information. Thus, in camera review of the work product documents is appropriate given the assertion of the deliberative process privilege.