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Olson v. Uehara

United States District Court, W.D. Washington, Seattle

September 16, 2014

W. GARY OLSON, Plaintiff,
v.
EDWINA S. UEHARA, et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PRODUCTION OF EMAIL

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendants' Motion to Compel the production of certain emails. (Dkt. #92). This Court previously requested that Plaintiff provide it with unredacted copies of the email in question for an in camera review. (Dkt. # 137). The Court has since received and reviewed the emails. For the reasons set forth below, the Court GRANTS Defendants' Motion to Compel and directs Plaintiff to produce the emails in their entirety to Defendants no later than five (5) days from the date of this Order.

II. BACKGROUND

The relevant background to this matter is set forth in the Court's prior Order granting Defendants' Motion for Partial Summary Judgment and Denying Plaintiff's Cross-Motion for Partial Summary Judgment, and is incorporated by reference herein. See Dkt. #133.

III. DISCUSSION

Defendants have moved this Court for an Order compelling Plaintiff to produce 19 emails between Plaintiff and his former colleague and friend, Dr. Miceal Vaughan. Plaintiff asserts the email is protected by the attorney work product privilege. The Court disagrees.

The work product doctrine protects from discovery materials prepared by an attorney in anticipation of litigation. See generally Hickman v. Taylor, 329 U.S. 495, 511, 91 L.Ed. 451, 67 S.Ct. 385 (1947). The privilege is intended to allow an attorney to "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Id. Materials that contain the impressions, conclusions or theories of counsel constitute work product. See id. To qualify for work-product protection, materials 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) (citation and quotation marks omitted). When a document was not prepared exclusively for litigation, it will receive protection if "in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation." Id. at 568 (citation and quotation marks omitted). This analysis requires the court to examine the totality of the circumstances and determine whether the document was prepared in anticipation of litigation and "would not have been created in substantially similar form but for the prospect of litigation." Id. (citation and quotation marks omitted).

In this case, Plaintiff insists that the email correspondence at issue contains the mental theories and impressions of his attorney, and was created for the purpose of litigation. However, much of what has been redacted by Plaintiff does not constitute work product. In fact:

1. the redacted portion of the email numbered 8, simply relays that Plaintiff is inclined to decline an interview with King 5 News;
2. part of the redacted portion of the email numbered 9 references a statement and an exhibit, without specifics, neither of which are attached to the email. The other part of the redaction merely states that Plaintiff will ask his attorney about applying for a job;
3. the redacted portions of the emails numbered 10-16 reference notes created by someone at the University of Washington as part of the audit, including the interview of Mr. Vaughan during the audit, and ask Mr. Vaughan to review them for accuracy;
4. other redacted portions of the emails numbered 10-16 reference an attempt to schedule a meeting with Plaintiff, Mr. Vaughan and his lawyer;
5. other redacted portions of the emails numbered 10-16 redact a reference to a bar to which Plaintiff and Mr. Vaughan apparently want to take Plaintiff's significant ...

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