United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS TO COMPEL
RICARDO S. MARTINEZ, District Judge.
This matter is before the Court upon Plaintiff's Motion to Compel Discovery (Dkt. # 37) as well as Defendants' Motion to Compel Documents Pursuant To Subpoena (Dkt. # 66). The Court previously ordered in camera production of and deferred decision on the disclosure of documents for which the parties have claimed attorney-client and/or work product privilege. See Dkt. # 101. Having critically reviewed the documents for which privilege is asserted, the parties' briefs, and the remainder of the record, the Court now grants in part and denies in part Plaintiff's motion to compel and denies in its entirety Defendants' motion to compel.
The facts of this case relevant to the instant Motions and the applicable legal standards are provided in the Court's prior Order directing the parties to produce materials for which attorney-client privilege is claimed for in camera review. See Dkt. # 101. The Court therein explained that while attorney-client privilege is always strictly construed, see U.S. v. Martin, 278 F.3d 988, 999 (9th Cir. 2002), extra scrutiny is required where in-house counsel is involved, as in-house counsel 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 379489, *4 (N.D. Cal. 2011). In light of the central role of Seattle Housing Authority ("SHA") in-house counsel in the decisions at issue in this case, 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 administrative in character. See Dkt. # 101, p. 5. As to application of work product doctrine, a document only qualifies for protection under Fed.R.Civ.P. 26(b)(3) if it was prepared (1) in anticipation of litigation or for trial, and (2) by or for another party or by or for that other party's representative. In re Grand Jury Subpoena (Mark Torf/Torf Environ. Mgmt ), 357 F.3d 900, 907 (9th Cir. 2003).
(A) Plaintiff's Motion to Compel
Plaintiff seeks to compel production of 52 documents that Defendants have withheld on the basis of attorney-client privilege and/or work product doctrine. Defendants contend that SHA in-house counsel, Defendant Fearn and Ms. Linda Brosell, were acting in their capacity as legal advisers for SHA when the communications were made, while Plaintiff contends that the communications primarily implicate Mr. Fearn's administrative role. Plaintiff also asserts that Defendants have failed to show that the communications at issue were prepared because of the prospect of litigation, and that the work product privilege therefore does not apply. Upon careful in camera review of the withheld documents, the Court finds and ORDERS as follows:
(1) Documents 1, 18-20, 24, 25
The Court finds that Documents 1, 18-20, 24, and 25 are not protected by either attorney-client privilege or the work product doctrine and shall be disclosed. These documents all concern requests for production of Varn Chandola's contract or files related to an unspecified hearing. These requests primarily implicate Mr. Fearn's administrative role at SHA and contain no indicia that they were made in anticipation of litigation.
(2) Documents 2-17
The Court finds that Documents 2-17 were properly withheld or redacted on the basis of attorney-client privilege. The undisclosed portions of these documents consist entirely of Mr. Fearn's mental impressions and legal analysis regarding the appeal of Ms. Nichols' case, provided by Mr. Fearn in his role as in-house counsel. As the primary purpose of these emails was to provide legal advice, these communications remain protected from disclosure. See Oracle, 2011 WL 3794892, *4 (providing that internal communications involving in-house counsel are privileged where the speaker made the communication for the purpose of providing legal advice).
(3) Document 21
Document 21 is similarly protected under attorney-client privilege. The document captures a communication from SHA employee Christopher Wright to Mr. Fearn, expressly seeking his legal advice as in-house counsel on the handling of the Nichols case. Defendants properly characterized the communication as one between an SHA client and its attorney, primarily implicating Mr. Fearn's legal rather than administrative role. This document shall accordingly remain withheld.
(4) Documents 22, 23
The Court finds that Documents 22 and 23 are not protected by either attorney-client privilege or the work product doctrine and shall be disclosed. These documents include a communication from Ms. Nichols' counsel, Northwest Justice Project attorney Allyson O'Malley-Jones, informing Mr. Fearn and Ms. Brosell of Ms. Nichols' intention to appeal SHA's ultimate decision to terminate her voucher. There can be no contention that this communication from counsel for a non-party adversary sought the legal advice of SHA's inhouse counsel. The remainder of the documents consists of an inquiry and response, purely factual in character, into the procedural status of the appeal. As attorney-client privilege extends only to protect ...