United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO COMPEL
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's motion to
compel (Dkt. No. 55). Having thoroughly considered the
parties' briefing and the relevant record, the Court
DENIES the motion for the reasons explained herein.
sought a tender for its Alaskan fishing operations. (Dkt. No.
33 at 2.) It engaged DNV Group, Germansicher Lloyd (USA),
Inc., Don Seymour, Phil Essex, and Moorsman Consulting Group,
LLC (collectively "Defendants") to advise in
purchasing the vessel and to assist in acquiring the tonnage
certificate needed for the endorsements necessary to operate
it as intended. (Dkt. No. 33 at 2-4.) Plaintiff also engaged
Kim Marine, not named as a defendant, to provide
documentation for the vessel. (Dkt. Nos. 55 at 2, 57 at 2.)
Based on Defendants' advice, Plaintiff acquired the
vessel and made certain modifications. (Id.) Despite
Defendants' assistance, Plaintiff has been unable to
acquire the required endorsements. (Id.) Plaintiff
brings suit for negligence and breach of contract. (Dkt. No.
33 at 4-5.)
listed Kim Marine's owner, Heung Kim as a fact witness in
its initial disclosures to Defendants. (Dkt. No. 56-1 at 3.)
Defendants subpoenaed Kim Marine's records and deposed
Kim. (Id.) At issue are five emails Plaintiffs
attorneys sent Kim. According to the privilege log that
Plaintiff produced, Plaintiff withheld them from production
on the basis of "[w]ork-product, attorney-client
privilege." (Dkt. No. 56-5 at 2.) Defendants believe no
privilege applies to these emails and asks the Court to
compel production. (Dkt. No. 55.)
asserts the emails are subject to both the attorney-client
and work-product privileges. (Dkt. No. 57 at 2.) As discussed
below, the Court finds that Plaintiff has met its burden in
establishing that the emails are
work-product. Therefore, the Court need not decide
whether the emails are also subject to the attorney-client
to Federal Rule of Civil Procedure 26(b)(3)(A), attorney
work-product need only be produced in limited circumstances.
The primary purpose of the rule is to "prevent
exploitation of a party's efforts in preparing for
litigation." Admiral Ins. Co. v. United States
District Court, 881 F.2d 1486, 1494 (9th Cir. 1989). But
the court will not allow a party to withhold "relevant
and non-privileged facts [that] remain hidden in an
attorney's file." Hickman v. Taylor, 329
U.S. 495, 511 (1947).
assert Plaintiff cannot claim work-product protections for
discussions between Plaintiffs attorney and Kim because
neither the facts known to Kim nor Kim's opinion are
covered by the work-product rule. (Dkt. Nos. 55 at 4, 61 at
3.) Defendants' argument misses the mark. Plaintiff
alleges the emails contain counsel's opinion,
not Kim's. (Dkt. No. 57 at 2.) This is protected
work-product. See Republic of Ecuador v. Mackay, 742
F.3d 860, 869 (9th Cir. 2014) (work-product containing
counsel's opinion receives the highest protections).
further assert that even if counsel's opinion would
normally be protected work-product, counsel waived any
protection when counsel disclosed thoughts and opinions to
Kim. (Dkt. No. 61 at 5.) The Court disagrees. Voluntary
disclosure of work-product to a third party does not waive
the work-product protection unless such disclosure enables an
adversary to gain access to the information. Wright, Miller,
Kane & Marcus, 8 Fed. Prac. & Proc. Civ. § 2024
(3d ed.).While the Ninth Circuit has not weighed in on this
issue, other courts have, and they agree that waiver requires
more than mere disclosure to a third party. See Sugar
Hill Music v. CBS Interactive Inc., CV 11-9437 DSF(JCX),
slip op. at *8 (CD. Cal. Sept. 5, 2014) (summarizing
decisions on the issue outside of the Ninth Circuit).
party resisting discovery bears the burden to show that its
documents are protected by privilege. Everest Indent.
Ins. Co. v. QBE Ins. Corp., 980 F.Supp.2d 1273, 1277
(W.D. Wash. 2013). Further, if the privilege at issue is
work-product, the party must also establish that the
documents at issue were prepared in anticipation of
litigation. See, e.g., Heath v. F/V ZOLOTOI, 221
F.R.D. 545, 549 (W.D. Wash. 2004); Kintera, Inc. v.
Convio, Inc., 219 F.R.D. 503, 507 (S.D. Cal. 2003).
Plaintiff asserts that Kim "possesses a significant
volume of information that effects [legal] strategy, creating
the necessity for Plaintiffs counsel to consult with him
regularly in prosecuting Plaintiffs claims. (Dkt. No. 57 at
2.) Moreover, Plaintiff points out that the emails at issue
all occurred around key litigation dates. Counsel sent the
first four emails in the two months leading up to Plaintiff
filing suit. (Id.) Counsel sent the fifth and final
email the day Plaintiff filed its Amended Complaint.
(Id.) Plaintiffs affirmative statements, coupled
with the nature of the communications at issue, are
sufficient for the Court to conclude Plaintiff has met its
burden in demonstrating that the emails in question contain
information related to this litigation.
foregoing reasons, Defendant's motion to compel ...