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Pallies v. The Boeing Co.

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

September 6, 2017

DAVID PALLIES, an individual, Plaintiff,
v.
THE BOEING COMPANY, a Delaware corporation, Defendant,

          ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY

          A Robert S. Lasnik, United States District Judge.

         I. INTRODUCTION

         This 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 is DENIED.

         II. BACKGROUND

         Plaintiff 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.

         Defendant's 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.

         III. ANALYSIS

         Plaintiff 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.[1] 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.

         A party 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).

         The 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).

         1. Witness Statements and Deposition Preparations

         Plaintiff 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 ...


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