United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS TO COMPEL
RICARDO S. MARTINEZ, District Judge.
This matter comes before the Court upon Motion to Compel Discovery (Dkt. # 37) and Motion to Compel Deposition Answers (Dkt. # 51) by Plaintiff as well as Motion to Compel Documents Pursuant To Subpoena (Dkt. # 66) by Defendants. Having considered the parties' motions and materials filed in support and opposition thereto, the balance of the record, and the applicable law, the Court grants in part Plaintiff's Motion to Compel Deposition Answers and defers ruling on the remaining discovery motions pending in camera review.
The facts of this case are set out in detail in the Court's prior Order on Defendants' motion to dismiss. Dkt. # 23. As relevant to the instant motions, Plaintiff, Varn Chandola, was employed as a Hearing Officer for Defendant Seattle Housing Authority ("SHA"), in which role he presided over hearings to determine if clients of the Section 8 Housing Choice Voucher Program ("voucherholders") would be terminated from the program. Defendant James Fearn, SHA General Counsel, was in charge of assigning cases to and supervising Hearing Officers and for paying them for work performed. In June of 2010, Plaintiff presided over a termination hearing to review voucherholder Jacquelyn Nichols for potential termination from the program. After Plaintiff found in favor of Ms. Nichols, Defendant Fearn wrote to Ms. Nichols that Plaintiff's decision would be disregarded as outside the scope of his authority and that Plaintiff would be expected to revise his decision accordingly. Plaintiff's refusal to rewrite his decision culminated in the reassignment of the Nichols case to another Hearing Officer, forfeiture of compensation for work Plaintiff performed on the case, and Plaintiff's removal from the pool of Hearing Officers used by SHA. Plaintiff filed this case in King County Superior Court on February 21, 2013, alleging constitutional and state law violations, and Defendants removed it to this Court on the basis of its federal question jurisdiction.
Presently before the Court are three motions seeking to compel production of documents and testimony withheld on the basis of attorney-client privilege and work product. Plaintiff's first motion to compel concerns 52 documents created between February 2010 and December 2012, which contain communications from Mr. Fearn and his deputy, Linda Brosell and were either withheld or redacted by Defendants in response to Plaintiff's Interrogatories and Requests for Production. Dkt. # 37. Plaintiff's second motion seeks to compel SHA to answer questions that Mr. Fearn, as SHA's Rule 30(b)(6) designee, was instructed not to answer on attorney-client privilege and work product grounds. Dkt. # 51. Defendants, in turn, move to compel production of documents from Northwest Justice Project attorney, Eric Dunn, pursuant to third-party subpoena served by Defendants. Dkt. # 66. Mr. Dunn objected to the production of documents containing communications between him and Plaintiff's attorneys in this case, which he and Plaintiff contend are privileged. The Court considers each motion in turn.
A. Legal Standard
While the scope of permissible discovery in a civil action is broad, it is not without limit. "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) (emphasis added); Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). In federal question cases, such as the instant matter, the court looks to federal law to determine whether a privilege applies. Kerr v. United States District Court of Northern California, 511 F.2d 192, 197 (9th Cir. 1975). Among the common law privileges recognized under Federal Rule of Evidence 501, "[t]he attorney-client privilege is the oldest and arguably most fundamental." In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007), abrogated on other grounds by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009). The attorney-client privilege protects confidential disclosures between attorneys and clients made for the purpose of giving and receiving legal advice. U.S. v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009).
The party asserting the privilege bears the burden to prove each of the following eight elements:
"(1) When legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are, at the client's instance, permanently protected (7) from the disclosure by the client or by the legal adviser (8) unless the protection be waived."
U.S. v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (internal citation omitted); see United States v. Bergonzi, 216 F.R.D. 487, 493 (N.D. Cal. 2003) (holding that the party asserting privilege "must make a prima facie showing" that the privilege applies) (citing In re Grand Jury Invest., 974 F.2d 1068, 1071 (9th Cir. 1992)). "Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." Martin, 278 F.3d at 999. The "party claiming the privilege must identify specific communications and the grounds supporting the privilege as to each piece of evidence over which privilege is asserted." Id. "Blanket assertions are extremely disfavored.'" Id. (quoting Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992)).
Though the attorney-client privilege is essential to facilitating open attorney-client communications, it is at the same time not absolute. In re Napster, Inc. , 4798 F.3d at 1090. Courts have imposed limits to ensure that the privilege is not used to cloak decisions and transactions in secrecy through the mere presence of an attorney. See Matter of Fischel, 557 F.2d 209, 212 (9th Cir. 1977). "The fact that a person is a lawyer does not make all communications with that person privileged." U.S. v. Martin, 278 F.3d at 999. For instance, the privilege extends only to protect the "disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney." Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). Further, the communication must be between the client and his or her lawyer "for the purpose of obtaining legal advice." U.S. v. Martin, 278 F.3d at 100.
Extra scrutiny is required where in-house counsel is involved, as they often act in both a legal and non-legal business capacity, and communications made in this latter capacity are not privileged. See, e.g., Oracle America, Inc. v. Google, Inc., 2011 WL 3794892, *4 (N.D. Cal. 2011); Devlyne v. Lassen Mun. Utility Dist. 2011 WL 4905672 (E.D. Cal. 2011). "When attempting to demonstrate than an internal communication involving in-house counsel deserves privileged status, a party therefore must make a clear showing that the speaker made the communication for the purpose of obtaining or providing legal advice." Oracle, 2011 WL 3794892 at *4 (internal citations omitted) (emphasis in original). Where legal and business considerations are intertwined, courts have looked to see whether the "primary purpose" of the communication related to seeking legal advice. See, e.g., North Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1128 (N.D. Cal. 2003) (citing cases). The Court finds this analysis to be proper in the instant case, particularly in light of Mr. Fearn's central role in the decisions at issue and the important constitutional interests at stake. Defendants thus bear the burden to show that the primary purpose of communications with and in the presence of SHA legal counsel was to seek or receive legal advice rather than for administrative or business purposes.
Without destroying the privileged nature of communications, the district court may, in its discretion, require that the withheld documents be produced for in camera review where the party contesting the privilege shows that the intrusion is justified. In re Grand Jury Invest., 974 F.2d at 1074-75; see also Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) ("A district court may conduct an in camera inspection of alleged confidential communications to determine whether the attorney-client privilege applies."). In order to establish justification for in camera review, the opposing party "need only show a factual basis sufficient to support a ...