United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
Robert S. Lasnik, United States District Judge.
matter comes before the Court on Plaintiff's motion to
compel discovery. Dkt. #20. Plaintiff claims that the
Defendant should be compelled to allow deposition questions
about group meetings with witnesses where defense counsel was
present. Dkt. #20 at 1. Plaintiff contends that these group
meetings do not fall under attorney-client privilege since
they are conversations between witnesses and because a
non-client was present. Dkt. #20 at 1-2. For the reasons set
forth below, the Defendant's motion to compel discovery
David Pallies was hired as a crane operator/hooktender by
Defendant Boeing Company in December 2010. Dkt. #20 at 2.
Plaintiff was diagnosed with Charcot Marie Tooth disorder in
June of 2014, a degenerative disorder which affects a
person's ability to use their extremities. Dkt. #20 at 2.
Plaintiff allegedly informed his managers immediately of his
diagnosis and asked to find a new, less physically demanding
position such as crane dispatch. Dkt. #1 at 2-3. When a
dispatch position opened up in June 2014, Plaintiff
successfully requested a transfer. Dkt. #1 at 3. In July, he
started working in dispatch, where he performed well. Dkt.
#20 at 2. That changed after another crane operator suffered
a heart attack and could no longer work in the presence of
electro-magnets. Dkt. #20 at 2-3. That crane operator took
Plaintiff's position in dispatch, and Plaintiff returned
to his old position. Dkt. #20 at 3. He was entered into
Boeing's disability reassignment process, but Boeing was
unable to locate a suitable position. Dkt. #20 at 3. In
January 2016, he was medically laid off. Dkt. #20 at 3.
managers denied in their depositions that Plaintiff mentioned
his medical condition before late 2014. Dkt. #20 at 3.
Plaintiff alleges that management was informed of his
disability in the summer of 2014, that he was informally
accommodated that time, and that Defendant's documents
confirm that fact. Dkt. #20 at 3. Plaintiff believes witness
testimony has been influenced by the statements of other
witnesses in group preparation to “get their stories
straight” and seeks to compel discovery of those group
preparations. Dkt. #20 at 3. Plaintiff contends that the
presence of Glenda Hubbard, an allegedly non-client witness
and former employee of Boeing, has waived any attorney client
privilege that could have existed between Boeing's
counsel and its current employees. Dkt. #20 at 9.
argues that the attorney-client privilege does not protect
deposition questions about the group meetings defense counsel
had with witnesses. He alleges that the witnesses spoke with
one another for a purpose other than to seek legal advice and
therefore their conversations are not privileged regardless
of counsel's presence. Dkt. #20 at 1. He further alleges that
there were non- clients present in the meeting who did not
retain defense counsel to represent them and so their
conversations cannot be privileged. Dkt. #20 at 2. Defendant
responds that all the witnesses present at the deposition
preparations were there to seek legal advice and to be
represented by Boeing's counsel as company employees, and
that they understood their conversations with counsel would
be privileged. Dkt. # 24 at 1. Defendant claims that all
witnesses present were clients represented by their attorneys
since they were either current or former Boeing employees and
therefore the attorney-client privilege extends to them. Dkt.
#24 at 6.
asserting the attorney-client privilege bears “the
burden of establishing the existence of an attorney-client
relationship and the privileged nature of the
communication.” United States v.
Graf, 610 F.3d 1148, 1156 (9th Cir. 2010). Since the
attorney-client privilege impedes full discovery of the
truth, it should be strictly construed. Id. The
Ninth Circuit has established an eight-factor test to
determine whether communications are covered by
attorney-client privilege and thereby immune from discovery:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection be waived.
In re Grand Jury Investigation, 974 F.2d 1068, 1071
n.2 (9th Cir. 1992). The party asserting the privilege must
prove each essential element of the test to justify the
attorney-client privilege. United States v.
Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000). Since it
withholds relevant information from the fact-finder, the
attorney-client privilege can only be extended to protect
disclosures that are necessary to obtain legal advice and
that might not have been made otherwise. Fisher v.
United States, 425 U.S. 391, 403 (1976).
Supreme Court has held that the attorney-client privilege
applies to communications between corporate employees and the
corporation's attorneys, no matter the employee's
position, as long as “the communications concerned
matters within the scope of the employees' corporate
duties, and the employees themselves were sufficiently aware
that they were being questioned in order that the corporation
could obtain legal advice.” Upjohn Co. v. United
States, 449 U.S. 383, 394 (1981). The Ninth Circuit has
further held that this attorney-client privilege extends to
former employees of a corporation as well as current ones, as
long as the information is relevant and needed for the
attorney to advise their client. Admiral Ins. Co. v. U.S.
Dist. Court for Dist. Of Arizona, 881 F.2d 1486, 1493
(9th Cir. 1989).
Witness Statements and Deposition Preparations
claims the attorney-client privilege does not apply to the
group deposition preparations between various witnesses and
Boeing's attorneys because statements between witnesses
were not made for the purpose of securing legal advice, but
were instead made to coordinate and influence witness
testimony. Dkt. #20 at 6. Plaintiff argues that he should be
allowed to depose witnesses regarding their communications
with each other in the group depositions preparation
meetings, but not with Boeing's counsel, since
Upjohn only protects the communications between
employees and counsel for the purpose of securing legal
advice and the group deposition preparations included
statements between witnesses that were not made to secure
legal advice but were instead made to coordinate and
influence witness testimony. Dkt. #20 at 6-7. However, this
argument is spurious since there is no evidence that any
communications between employees happened during group
deposition preparations that were not part of their attempts
to seek legal advice from Defendant's counsel. Each of
the deposed witnesses signed declarations stating that they
sought out Boeing's counsel for the purpose of being
represented by counsel and receiving legal advice regarding
depositions, advice considered confidential. Dkts. #25-32 at
2. Defendant's attorney, Jennifer Svanfeldt, also signed
a declaration stating that she represented each of the
various employees to prepare them for deposition and extended
the attorney-client privilege to them to the extent necessary
to give them legal advice. Dkt. #33 at 3. The eight-factor
test necessary to establish the attorney-client privilege has
been met here because all the witnesses (1) sought legal
advice (2) from Ms. Svanfeldt and ...