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Cintron v. Title Financial Corporation

United States District Court, D. Montana, Missoula Division

December 17, 2018




         On 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).

         Legal Standard

         Rulings 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. Fed.R.Civ.P. 26(b)(2)(c).

         A party 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. Cal. 2002).

         The 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.


         I. Plaintiffs Second Motion to Compel Production of Discovery

         In her 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.[1] The emails are responsive to Cintron's Request for Production 28, which reads:

         Please produce any and all records and administrative files kept by Insured Titles, LLC and/or Title Financial Corporation pertaining to:

(a) Any and all complaints by Linda Cintron against any Insured Titles, LLC and/or Title Financial Corporation employees;
(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.

         The 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 Order.

         However, 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).

         In a 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.

         Title 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).

         "[T]he 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).

         The 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.

         In most 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.

         However, 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 ...

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