United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE
December 6, 2018, the Court held a hearing on six of the
parties' pending motions, listed in the order in which
they were addressed at the hearing and will be discussed in
this Order: (1) Plaintiffs Second Motion to Compel Production
of Discovery (Doc. 44); (2) Plaintiffs Third Motion to Compel
Discovery (Doc. 62); (3) Defendants' Motion for Rule 37
Sanctions (Doc. 65); (4) Plaintiffs Motion to Quash
Defendants' Subpoenas (Doc. 50); (5) Defendants'
Motion to Exclude Plaintiffs Treating Providers from Offering
Testimony at Trial or, Alternatively, Limit Testimony to
Medical Records (Doc. 38); and (6) Plaintiffs Motion to
Extend Scheduling Order (Doc. 47).
on discovery issues, including relevance, fall within the
Court's broad discretion over case management. Little
v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).
The scope of discovery generally extends to all
"nonprivileged matter[s] that [are] relevant to any
party's claim or defense." Fed.R.Civ.P. 26(b)(1).
For purposes of discovery, relevance is fairly expansive,
"encompass[ing] any matter that bears on, or that
reasonably could lead to other matter[s] that could bear on,
any issue that is or may be in the case." Moe v.
Sys. Transp., Inc., 270 F.R.D. 613, 618 (D. Mont. 2010).
"If the information sought might reasonably assist a
party in evaluating the case, preparing for trial, or
facilitating settlement, it is relevant to the subject matter
involved in the pending action." Id. The
information "need not be admissible at trial if the
discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed.R.Civ.P.
26(b)(1). A court may act to limit unreasonably cumulative,
overbroad, unduly burdensome, or irrelevant discovery.
that has been unable to obtain requested information absent
court involvement may move to compel disclosure. Fed. R Civ.
P. 37(a)(2)(A). The moving party bears the burden of showing
that the discovery sought is "relevant" as defined
above, and the party resisting discovery bears the burden of
showing that nondisclosure is appropriate. Soto v. City
of Concord, 162 F.RD. 603, 610 (N.D. Cal. 1995);
DIRECT TV, Inc. v. Trone, 209 F.R.D. 455, 458 (CD.
Court takes an expansive view regarding relevance for
purposes of discovery. At risk of stating the obvious,
subject matter or documents may be relevant, as defined in
the preceding paragraphs, for purposes of discovery, but will
not meet the more stringent standard of relevance to
constitute admissible evidence at trial. The Court views the
pending discovery motions with this broader standard in mind.
Plaintiffs Second Motion to Compel Production of
second motion to compel production, Plaintiff Linda Cintron
asks the Court to order Defendants Title Financial
Corporation and Insured Titles, LLC (collectively,
"Title Financial") to produce various emails that
Title Financial has withheld as privileged attorney-client
communications or work product. The emails are responsive to
Cintron's Request for Production 28, which reads:
produce any and all records and administrative files kept by
Insured Titles, LLC and/or Title Financial Corporation
(a) Any and all complaints by Linda Cintron against any
Insured Titles, LLC and/or Title Financial Corporation
(b) Any and all complaints made against Linda Cintron;
(c) Linda Cintron's performance;
(d) Any investigations conducted during or after Ms.
Cintron's employment that were initiated by any
complaints by or against Ms. Cintron.
Court has read the documents which were produced for in
camera review (Docs. 105-1 & 114), and it concludes that
certain of the emails are discoverable and must be produced.
To facilitate review, the in camera documents which the Court
concludes are discoverable are filed as an attachment to this
the Court finds that Title Financial's nondisclosure was
"substantially justified," and it will not order
Title Financial to pay Cintron's expenses incurred to
obtain these documents. Fed.R.Civ.P. 37(a)(5)(A)(ii).
civil case, such as this, "state law governs privilege
regarding a claim or defense for which state law supplies the
rule of decision." Fed.R.Evid. 501. However, in the
absence of federal authority to the contrary, "[t]he
common law-as interpreted by United States courts in the
light of reason and experience-governs a claim of
privilege" as to federal claims. Id. In this
instance, the Plaintiffs have brought both federal and state
law claims, and the withheld documents may be relevant to
both types of claims. It is unclear whether federal or state
privilege law applies in circumstances such as these. See
Jaffee v. Redmond, 518 U.S. 1, 17 n.15 (1996)
("expressing] no opinion" on "the proper rule
in cases such as this in which both federal and state claims
are asserted in federal court. .."); In re Sealed
Case (Med. Records), 381 F.3d 1205, 1212-13 (D.C. Cir.
2004); Piper v. Alaska Airlines, Inc., 34 F.3d 1073
(9th Cir. 1994) (Table); 23 A Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice &
Procedure § 5434 (1st ed. Supp. 2018). Here,
because both parties cite exclusively to federal law, the
Court deems any argument in favor of the application of state
law waived, and it follows the parties in looking to
decisions of other federal courts.
Financial asserts both attorney-client privilege and work
product doctrine. The attorney-client privilege protects
confidential communications between an attorney and client
made for the purpose of securing the attorney's legal
advice. United States v. Chen, 99 F.3d 1495, 1501
(9th Cir. 1996). "That a person is a lawyer does not,
ipso facto, make all communications with that person
privileged. The privilege applies only when legal advice is
sought from a professional legal advisor in his capacity
as such." Id. at 1501 (citation and internal
quotation marks omitted). Generally, it is presumed that
communications between an attorney and her client are
privileged, but that presumption "does not extend to
communications with in-house counsel" because those
communications "might well pertain to business rather
than legal matters," and "[t]he privilege does not
protect an attorney's business advice." United
States v. Chevron Texaco Corp, 241 F.Supp.2d 1065, 1076
(N.D. Cal. 2002); accord Dewitt v. Walgreen Co.,
2012 WL 3837764, at *3 (D. Idaho Sept. 4, 2012).
work-product doctrine is distinct from and broader than the
attorney-client privilege." United States v.
Nobles, 422 U.S. 225, 238 n. 11 (1975). "To qualify
for work-product protection, documents must: (1) be
'prepared in anticipation of litigation or for trial'
and (2) be prepared 'by or for another party or by or for
that other party's representative.'" United
States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011)
(quoting In re Grand Jury Subpoena (Mark Torf/Torf Envtl.
Mgmt), 357 F.3d 900, 907 (9th Cir. 2004)); see
Fed. R. Civ. P. 26(b)(3).
Court finds that some of the withheld communications are
discoverable and that others are not. All of the withheld
communications were sent to or from in-house and/or outside
counsel, and the discoverability of the withheld materials
hinges on whether counsel was acting as a legal or a business
advisor. See Chevron Texaco, 241 F.Supp. at 1076.
of the emails, both in-house and outside counsel were acting
as legal advisors, with Title Financial and its employees
soliciting legal opinions in order to protect Title Financial
from legal exposure. These emails fall squarely within both
the attorney-client privilege and the work-product doctrine.
Each of the three emails discussed in the parties' briefs
regarding Cintron's second motion to compel are
protected, as are the clear majority of the emails withheld
from Title Financial's production of November 15, 2018.
a small handful of the emails are discoverable even though
general and/or outside counsel were cc'ed. These
materials involve discussions about: (1) the business
decisions that were and should be made in response to a
workplace conflict involving Cintron and a coworker, (2) the
effectiveness of those decisions, and (3) Title
Financial's general employment policies and ...