Briggs et al v. Adel et al, No. 2:2018cv02684 - Document 262 (D. Ariz. 2021)
Court Description: ORDER granting in part and denying in part 220 Motion to Quash Defendant TASC's Subpoena to Slepian Smith, PLLC. IT IS HEREBY ORDERED: Granting Plaintiffs' Motion to Quash as to subpoena categories 2, 3, 4, 5, 6, 9, and 10. Denying Pla intiffs' Motion to Quash as to categories 7, 8, and 11. Defendant TASC may draft a new subpoena to Slepian Smith as to categories 2, 3, 4, 5, 6, 9, and 10 that is narrower in scope and reasonably calculated to lead to the discovery of admissible evidence. Signed by Magistrate Judge Eric J Markovich on 3/30/21. (MYE)
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Briggs et al v. Adel et al 1 Doc. 262 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Deshawn Briggs, et al., 10 Plaintiffs, 11 v. 12 County of Maricopa, et al., 13 No. CV-18-02684-PHX-EJM ORDER Defendants. 14 15 Pending before the Court is Plaintiffs’ Motion to Quash Defendant TASC’s 16 Subpoena to Slepian Smith, PLLC. (Doc. 220). TASC filed a Response (Doc. 230), and 17 Plaintiffs filed a Reply (Doc. 235). The Court finds this matter suitable for decision 18 without oral argument. For the reasons explained below, the undersigned will grant 19 Plaintiffs’ motion in part. I. 20 FACTUAL AND PROCEDURAL BACKGROUND 21 Named Plaintiffs Antonio Pascale,1 Deshawn Briggs, and Lucia Soria2 filed this 22 class action lawsuit on behalf of themselves and other similarly situated individuals 23 against Defendants Maricopa County, Allister Adel in her official capacity as Maricopa 24 County Attorney,3 and Treatment Assessment Screening Center, Inc. (“TASC”). (Doc. 25 1 26 27 28 The original named plaintiff, Mark Pascale, is now deceased. Upon motion by Plaintiffs, the Court ordered the substitution of Mark Pascale’s son, Antonio Pascale, as the named party and personal representative of Mark Pascale’s estate. (Doc. 171). 2 This action also originally included as named plaintiffs Taja Collier and McKenna Stephens. (Doc. 110 ¶¶ 320–457). Upon stipulation by the parties, Collier and McKenna were dismissed with prejudice. (Docs. 137, 138). 3 Allister Adel was substituted as successor for former Maricopa County Attorney William Montgomery. (Doc. 115). Dockets.Justia.com 1 110). Plaintiffs filed their initial complaint on August 23, 2018, alleging claims under § 2 1983 for wealth-based discrimination in violation of Plaintiffs’ Fourteenth Amendment 3 rights, (Doc. 1 ¶¶ 351–56, 363–70), and unreasonable search and seizure in violation of 4 Plaintiffs’ Fourth and Fourteenth Amendment rights, id. ¶¶ 357–62. Defendants 5 conducted the Marijuana Deferred Prosecution Program (“MDPP”) in which Plaintiffs 6 were enrolled. (Doc. 110 ¶ 1). Plaintiffs allege that their participation in the program was 7 involuntarily extended solely because they were too poor to pay required program fees, 8 thus violating their constitutional rights. Id. ¶¶ 487–522. This case is now proceeding on 9 the second amended complaint filed by Plaintiffs on September 23, 2019. (Doc. 110). 10 Plaintiffs are seeking compensatory damages, punitive damages, damages for pain and 11 suffering, and declaratory and injunctive relief. Id. ¶¶ 489–90, 514–15. 12 Plaintiff Soria is a 38-year-old resident of Maricopa County. (Doc. 110 at 31). As 13 stated in Plaintiffs’ complaint, Soria is “unemployed and without income because her 14 ability to work is severely limited by her medical conditions, which include diabetes and 15 neuropathy.” Id. In November 2018, Soria’s doctor advised her to stop working because 16 of her medical conditions, and she ended her employment as an assistant manager at 17 Dollar Tree. Id. On December 28, 2018, Soria filed an application for Social Security 18 disability insurance benefits. (Doc. 235-4). 19 In December 2018, Soria was pulled over by a police officer who alleged that he 20 found marijuana in her car. (Doc. 110 at 31.). She chose to be placed in TASC’s MDPP 21 rather than face a fine or prison sentence. Id. at 32. In March 2019, Soria told the TASC 22 employee facilitating the program orientation class that she had no income and could not 23 afford the $950 program fee and $15 for each drug and alcohol test. Id. at 32–33. Soria’s 24 caseworker stated that her anticipated MDPP completion date was July 29, 2019, if she 25 had a zero balance. Id. at 33. However, by July 29, 2019, Soria could still not pay the 26 program fees and remained in MDPP. Id. at 34. Soria received her certificate of 27 completion from TASC on September 4, 2019. (Doc. 230 Ex. 7). 28 On December 11, 2020, TASC served Plaintiffs’ counsel with a Notice of Intent to -2- 1 Serve a Subpoena on Slepian Smith, PLLC, the law firm representing Soria in her 2 application for Social Security disability insurance benefits. (Doc. 220-1 at 1). The 3 subpoena requests 11 categories of documents: 1. Soria’s application for Social Security Disability Insurance benefits filed on December 28, 2018. . . . 4 5 6 2. All communications related to Soria’s application for Social Security Disability Insurance benefits. 7 3. All documents relating to Soria’s application for Social Security Disability Insurance benefits. 8 4. All communications relating to any hearing relating to Soria’s application for Social Security Disability Insurance benefits. 9 10 5. All documents related to any hearing relating to Soria’s application for Social Security Disability Insurance benefits. 11 12 6. All communications you had with the Social Security Administration relating to Soria. 13 14 7. All communications you had with medical personnel regarding any medical or health condition that affected Soria’s ability to work. 15 16 8. All communications you had with any current, former, or prospective employer for Soria relating to Soria’s ability to work. 17 18 9. All documents relating to Soria’s ability to work. 19 10. All communications you had with Soria’s attorneys in this Action relating to Soria’s application for Social Security Disability Insurance benefits. 20 21 11. All communications you had with Soria’s attorney in this Action relating to Soria’s ability to work. 22 23 24 25 26 27 28 Id. at 9–10. On December 29, 2020, Plaintiffs filed their motion to quash TASC’s subpoena to Slepian Smith. (Doc. 220). Plaintiffs contend that the subpoenaed documents are confidential and that Soria has a privacy interest in them. Plaintiffs further argue that the subpoena is overbroad, that it seeks information protected by the attorney work product doctrine, and that it seeks information protected by the attorney-client privilege. -3- 1 TASC contends that: (1) the documents sought by the subpoena are relevant and 2 Soria has placed them in issue; (2) Plaintiffs have not met their burden to demonstrate 3 that either the attorney-client privilege or the work product doctrine apply to protect any 4 of the documents or communications at issue; (3) even if Plaintiffs had met their burden, 5 documents transmitted between Slepian Smith and the SSA are not protected by the 6 attorney-client privilege or the work product doctrine; (4) Soria has placed her disability 7 status and ability to work at issue such that any privilege or protection that might have 8 applied is waived; and (5) any confidential or otherwise private documents can be 9 disclosed pursuant to the Court’s protective order. (Doc. 230). 10 II. STANDARD OF REVIEW 11 As an initial matter, “[t]he general rule is that a party has no standing to quash a 12 subpoena served upon a third party, except as to claims of privilege relating to the 13 documents being sought.” Orthoflex, Inc. v. Thermotek, Inc., 2012 WL 1038801, at *1 14 (D. Ariz. Mar. 28, 2012) (citation omitted); see also Ocean Garden Prod. Inc. v. 15 Blessings Inc., 2020 WL 4933646, at *2 (D. Ariz. Aug. 24, 2020) (“A party normally 16 does not have standing to seek to quash a subpoena issued to a nonparty unless it has 17 some personal right or privilege with regard to the documents sought.” (internal 18 quotations and citations omitted)). “Standing exists, however, if a party claims privilege 19 or a privacy interest in the documents being sought.” Id. 20 “On timely motion, the court for the district where compliance is required must 21 quash or modify a subpoena that . . . requires disclosure of privileged or other protected 22 matter, if no exception or waiver applies . . . .” Fed. R. Civ. P. 45(d)(3)(A)(iii). “A person 23 withholding subpoenaed information under a claim that it is privileged or subject to 24 protection as trial-preparation material must: (i) expressly make the claim; and (ii) 25 describe the nature of the withheld documents [or] communications . . . in a manner that, 26 without revealing information itself privileged or protected, will enable the parties to 27 assess the claim.” Fed. R. Civ. P. 45(e)(2)(A). “The party seeking quashal bears the 28 burden of persuasion.” BBK Tobacco & Foods LLP v. Skunk Inc., 2020 WL 2395104, at -4- 1 *2 (D. Ariz. May 12, 2020). 2 Finally, it is within the district court’s discretion whether to quash or modify an 3 overly broad subpoena. See, e.g., Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 4 1994 (“Though modification of an overbroad subpoena might be preferable to quashing, 5 courts are not required to use that lesser remedy first.”). 6 7 III. DISCUSSION A. Relevancy and Overbreadth 8 Although Rule 45 does not list relevancy or overbreadth as reasons to quash a 9 subpoena, the scope of discovery allowed by a subpoena is identical to the scope of 10 discovery under Rule 26. Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005) 11 (“courts have incorporated relevance as a factor when determining motions to quash a 12 subpoena”); see also Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 779 (9th 13 Cir. 1994) (applying both Rule 45 and Rule 26 standards to rule on a motion to quash a 14 subpoena). Rule 26(b) allows discovery of: 15 20 [A]ny nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 21 Fed. R. Civ. P. 26(b)(1). Thus, the Court may quash a subpoena as overbroad if the 22 documents requested are not relevant to the underlying action. Gonzales v. Google, Inc., 23 234 F.R.D. 674, 680 (N.D. Cal. 2006) (“Overbroad subpoenas seeking irrelevant 24 information may be quashed or modified”); Singletary v. Sterling Transp. Co., 289 25 F.R.D. 237, 241 (E.D. Va. 2012) (finding subpoenas that were overbroad and not tailored 26 to a particular purpose imposed an undue burden); In re Subpoena Duces Tecum to AOL, 27 LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008). 16 17 18 19 28 “The limitations set forth in Rule 26(b)(2)(C) apply to discovery served on non- -5- 1 parties.” Evanston Ins. Co. v. Murphy, 2020 WL 6869292, at *2 (D. Ariz. Nov. 23, 2020). 2 “In the third-party subpoena context, however, courts have often demanded a stronger- 3 than-usual showing of relevance, requiring the requesting party to demonstrate that its 4 need for discovery outweighs the nonparty’s interest in nondisclosure.” BBK Tobacco, 5 2020 WL 2395104 at *2 (internal quotations and citation omitted). 6 When a claim involves the plaintiff’s alleged disability and ability to work, a 7 social security disability application and supporting documentation may be relevant. 8 Morris v. Sequa Corp., 275 F.R.D. 562, 570 (N.D. Ala. 2011). In Morris, the plaintiff 9 sued his former employer after being terminated for taking prescribed medication and 10 alleged that he was eligible for benefits under his employer’s short-term and long-term 11 disability policy. The employer sought the plaintiff’s social security disability file, which 12 the plaintiff opposed as containing personal and private information that was largely 13 irrelevant to the case. The employer argued that the plaintiff’s application for DIB 14 benefits and sworn statements as to the extent of his disability and alleged onset date 15 were relevant to determining his eligibility for benefits under the employer’s policy and 16 his claim for past and future wages. The court agreed and found that the file was relevant 17 and discoverable, and therefore denied the plaintiff’s motion to quash the subpoena. Id.; 18 see also Nyanjom v. Hawker Beechcraft, Inc., 2014 WL 782740, at *1 (D. Kan. Feb. 25, 19 2014) (denying a motion to quash a subpoena for social security disability application 20 records where the plaintiff’s ability to work was at issue); Meade v. Parsley, 2010 WL 21 1506970, at *3 (S.D. W.Va. Apr. 14, 2010) (denying motion to quash subpoena where 22 social security disability records were reasonably related to claims and defenses at issue). 23 However, where only some of the information contained in a file is relevant to the 24 action, the court may find that the subpoena is overly broad. Singletary, 289 F.R.D. at 25 241. In Singletary, a breach of contract and Fair Labor Standards Act dispute between a 26 truck driver and his former employer, the employer sought the plaintiff’s complete 27 employment files from four of the plaintiff’s previous employers. The subpoena requests 28 included the employment “application, evaluations, payroll records, correspondence, -6- 1 notes, [and] records, omitting nothing.” Id. at 239. In holding the subpoenas to be 2 overbroad, the court recognized that the requested files “could lead to the production of 3 medical information, social security numbers, payroll information, income tax 4 information, information about family members, and other documents completely 5 extraneous to this litigation,” and were therefore not sufficiently tailored to seek only 6 documents relevant to the plaintiff’s compensation and contract claims before the court. 7 Id. at 241; see also Lewin v. Nackard Bottling Co., 2010 WL 4607402, at *1 (D. Ariz. 8 Nov. 4, 2010) (“defendant’s request to obtain plaintiff’s entire personnel file from five 9 former employers is, on its face, overbroad and not reasonably calculated to lead to the 10 discovery of admissible evidence”). 11 Finally, while use of the phrases “regarding” or “relating to” may indicate 12 overbreadth, the use of such phrases alone does not automatically make a subpoena 13 overly broad. Stewart v. Mitchell Transp., 2002 WL 1558210, at *4 (D. Kan. July 11, 14 2002). Rather, whether a subpoena containing these phrases is overbroad is again 15 determined if the documents sought are relevant and proportional to a claim or defense. 16 See Gonzales, 234 F.R.D. at 680. In other words, what follows “regarding” or “relating 17 to” is more important than those specific words. Where the court finds that the use of 18 such phrases is overly broad, the court is not required to quash the entire subpoena and 19 may instead modify the subpoena. Stewart, 2002 WL 1558210 at *4. In Stewart, the 20 subpoenas at issue sought “all records, documents, and information in your possession 21 regarding Larry G. Ramsey, including, but not limited to, your complete personnel file, 22 job applications, job description and performance evaluations.” Id. The court found that 23 “use of the term ‘regarding’ makes this request overly broad on its face[,]” noting that 24 “[t]he use of such omnibus phrases as 25 answering party ‘to engage in mental gymnastics to determine what information may or 26 may not be remotely responsive.’” Id. (citation omitted). However, the court also found 27 that use of “regarding” did not invalidate the entire subpoena as overbroad because 28 specific documents were also listed. The court thus allowed discovery of the personnel ‘regarding’ or ‘pertaining to’ requires the -7- 1 file, job application, job description, and performance evaluations. Id.; see also Richards 2 v. Covergys Corp., 2007 WL 474012, *4 (D. Utah Feb. 7, 2007) (quashing subpoenas as 3 overly broad that requested “all documents in your possession or control regarding the 4 employment of [plaintiff]” but allowing the requesting party to “redraft subpoenas which 5 are narrower in scope and reasonably calculated to lead to the discovery of admissible 6 evidence”); Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 255–56 (S.D. 7 Ohio 2011) (quashing as overly broad subpoenas seeking “any and all personnel 8 documents” because although the subpoenas sought relevant information, “compliance 9 with the subpoenas will result in defendants receiving a plethora of documents, the vast 10 majority of which would be completely unrelated to any possible issue in this case[,]” 11 and stating “defendants must draft a far more narrow set of subpoenas” if they desire 12 relevant information from plaintiffs’ employers ). 13 Here, the Court must determine whether the information sought by the subpoena is 14 relevant to the underlying action and whether the requests are sufficiently tailored to 15 identify and produce responsive information. As an initial matter, whether Soria had the 16 ability to work is relevant to her claims and TASC’s defenses. In a wealth discrimination 17 claim, the question of whether a person made “sufficient bona fide efforts legally to 18 acquire the resources to pay” is critical to the claim. Bearden v. Georgia, 461 U.S. 660, 19 672 (1983). Thus, whether Soria had the ability to earn income to pay TASC’s fees is 20 relevant to this action. However, the pertinent inquiry is much more nuanced: The 21 question in this case is not just whether Soria was disabled during the time period that she 22 was enrolled in MDPP and therefore unable to work, but also whether she made any other 23 efforts to pay TASC’s fees, such as using money in savings or borrowing from family 24 members. Further, this Court adjudicates many social security disability appeals and is 25 intimately familiar with SSA standards and processes. Whether the SSA ultimately 26 determines Soria to be disabled or not does not necessarily correlate with whether Soria 27 was physically able to work and earn money to pay TASC’s fees during the relevant time 28 period, or whether Soria was reasonable in her belief that she was unable to work due to -8- 1 her medical conditions. The present case is thus distinguishable from Morris, where the 2 plaintiff’s social security disability file was central to resolving his claim for benefits 3 under his employer’s short-term and long-term disability policies. 4 While some of the documents TASC seeks potentially help to answer the question 5 of whether Soria was able work and earn money while enrolled in MDPP and are thus 6 relevant to this action, the subpoena also seeks broad categories of information such as 7 “all communications related to” and “all documents relating to” Soria’s application for 8 Social Security DIB, “all communications relating to” and “all documents related to” any 9 hearing on Soria’s application for DIB, “all communications” Slepian Smith had with the 10 SSA “relating to” Soria, “all documents relating to Soria’s ability to work,” 4 and “all 11 communications” Slepian Smith had with Soria’s attorneys in the present action “relating 12 to” Soria’s application for DIB. (See categories 2, 3, 4, 5, 6, 9, and 10). The Court finds 13 that these requests are overly broad and not sufficiently tailored to request specific 14 documents or communications, thus requiring Slepian Smith “to engage in mental 15 gymnastics to determine what information may or may not be remotely responsive.” 16 Stewart, 2002 WL 1558210 at *4. Here, as in Singletary, TASC essentially seeks Soria’s 17 complete social security disability file. Vague requests such as “all communications 18 related to” and “all documents relating to” Soria’s application for Social Security DIB 19 may yield some information pertinent to the claims and defenses at issue, but will also 20 lead to the production of medical information and other sensitive documents that are 21 largely irrelevant to answering the question of whether Soria made sufficient bona fide 22 efforts to pay TASC’s fees.5 TASC may not simply ask for everything falling into the 23 4 24 25 26 27 28 The Court notes that category 9 fails to narrow the request to any specific party and places no limitations on the scope of the documents sought. Further, it is redundant, as other categories already request communications from specific parties relating to Soria’s ability to work. 5 The Court notes that to the extent medical and other sensitive documents requested by the subpoena are relevant to this action, Soria cannot object simply because the documents are of a private and confidential nature, as the documents may still be properly disclosed pursuant to the protective order entered in this case. See Ocean Garden Prod. Inc., 2020 WL 4933646 at *3 (“Assuming further that Defendants have standing to challenge the third-party subpoenas on the grounds that they seek personal, confidential information, the Court finds that any privacy concerns are adequately addressed by the Court’s protective order.”); see also Stewart, 2002 WL 1558210 at *5 -9- 1 social security disability file basket and then peruse the documents at its leisure in hopes 2 of finding something relevant. 3 To be clear, the Court does find that categories 1, 7, 8, and 11 are relevant and 4 sufficiently tailored to produce relevant information. These categories request documents 5 and communications that specifically address the question of whether Soria’s medical 6 conditions affected her ability to work and earn money to pay TASC’s fees. Because 7 these requests lay out a clear subject of the communications and specific recipients, they 8 are not overbroad. 9 Plaintiffs aver that they “have already produced evidence substantiating that 10 [Soria] applied for disability benefits shortly before she began diversion supervision, as 11 well as voluminous medical records documenting the medical conditions that led her to 12 do so.” (Doc. 220 at 7).6 TASC contends that discovery conducted to date fails to 13 substantiate Soria’s claims, and further notes several apparent contradictions in the 14 medical records that have already been provided. (Doc. 230 at 4–5).7 In an attempt to 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“a party may not rely on the confidential nature of documents as a basis for refusing to produce them, because ‘[c]onfidentiality does not equate to privilege’” (citation omitted)); Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979) (“there is no absolute privilege for . . . confidential information”). 6 Plaintiffs state that they have produced approximately 650 pages of Soria’s medical records, including a “Medical Assessment of Ability to Do Work-Related Physical Activities” form completed by Dr. Kahlon opining that Soria’s impairments “preclude an 8 hour work day.” (Doc. 220 at 3; Doc. 235 at 4). Plaintiffs also produced a letter dated October 9, 2020 from Slepian Smith stating that Soria applied for DIB on December 28, 2018, that a request for hearing was made on August 26, 2019, and that it generally takes 14–18 months for a decision to be made. (Doc. 220 Ex. A at 33).). At her deposition on November 13, 2020, Soria testified that her DIB application was still in process and that she had not received a denial of benefits. (Doc. 230 Ex. 4 at 86:1–10). 7 TASC asserts that “certain discovery has revealed that Ms. Soria’s claim that she is unable to work due to a disability may be false[,]” noting that the records do not actually contain the doctor’s statements advising Soria to quit her job. (Doc. 230 at 4). TASC also notes that the SSA sent Soria paperwork for physical therapy, perhaps suggesting that the SSA has determined that she is not disabled because her condition can be managed by PT. Id. TASC also notes contradictory answers on various forms completed by Soria asking whether she was unable to work due to a disability, and a PT note stating that Soria was “actively seeking employment.” Id. at 5. This Court has presided over numerous social security disability appeals and has yet to come across a doctor’s note specifically advising a patient to quit their job due to their medical conditions. Indeed, at her deposition on November 13, 2020, Soria testified that Dr. Kahlon did not give her anything in writing stating that she should stop working; it was just verbal. (Doc. 230 Ex. 4 at 116:19–24). Though none of the examples TASC points to are necessarily dispositive to the - 10 - 1 resolve the parties’ dispute, Plaintiffs previously offered to withdraw their objections to 2 several of the subpoena categories and produce documents responsive to the issues TASC 3 raised in its response to Plaintiffs’ motion to quash. (Doc. 235 at 1–2). Though TASC 4 rejected this offer, Plaintiffs are willing to provide Soria’s application for social security 5 DIB, documentation of Soria’s efforts to schedule a hearing on her disability claim (to 6 confirm that it remains pending), and any additional medical records that Soria submitted 7 to the SSA that have not already been provided to TASC. Id. at 2–3. The Court finds that 8 disclosure of these materials is appropriate and the Court will order Plaintiffs to provide 9 the relevant documents to TASC. 10 Accordingly, the Court will next consider whether any of the documents or 11 communications in the categories that the Court finds are relevant and not overly broad 12 are protected by the attorney-client privilege or the work product doctrine.8 13 B. Attorney-Client Privilege 14 The attorney-client privilege protects confidential communications between 15 attorneys and clients that are made for the purpose of obtaining legal advice. Upjohn Co. 16 v. United States, 449 U.S. 383, 389 (1981). “Because it impedes full and free discovery 17 of the truth, [this privilege] is strictly construed.” United States v. Ruehle, 583 F.3d 600, 18 607 (9th Cir. 2009). Attorney-client privilege exists: 19 20 21 22 23 24 25 26 27 28 (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. Id. The party asserting the privilege bears the burden to establish the privileged nature of SSA’s ultimate disability determination, they do shed additional light on the question of whether Soria made sufficient bona fide efforts to obtain funds to pay TASC’s fees. Thus, while it is valid for TASC to subpoena documents to help determine Soria’s disability status and her ability to work (or whether Soria “was reasonable in her purported understanding that she could not work due to her medical status” (Doc. 230 at 5)), the subpoena requests must still be tailored and specific. 8 The Court notes that although Plaintiffs originally disputed the timeframe of the subpoena requests, the parties have since agreed to limit the timeframe from December 2018 to September 2019. (Doc. 230 Ex. 1 at 2). - 11 - 1 the communications sought. Id.; United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2 2011). “Further, the proponent has the obligation of establishing for each and every 3 communication all the elements of the privilege. There is no blanket claim of the 4 privilege.” S. Union Co. v. Sw. Gas Corp., 205 F.R.D. 542, 551 (D. Ariz. 2002); Clarke v. 5 Am. Com. Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (“blanket assertions of the 6 privilege are extremely disfavored [and t]he privilege must ordinarily be raised as to each 7 record sought to allow the court to rule with specificity” (internal quotations and citation 8 omitted)). 9 “A person withholding subpoenaed information under a claim that it is privileged . 10 . . must expressly make the claim and ‘describe the nature of the withheld documents, 11 communications, or tangible things in a manner that, without revealing information itself 12 privileged or protected, will enable the parties to assess the claim.’” Games2U, Inc. v. 13 Game Truck Licensing, LLC, 2013 WL 4046655, at *5 (D. Ariz. Aug. 9, 2013) (quoting 14 Fed. R. Civ. P. 45(d)(2)(A)); see also Fed. R. Civ. P. 26(b)(5)(A). As this Court noted in 15 Games2U, Inc., 16 17 18 19 20 21 22 23 24 25 26 27 28 In In re Grand Jury Investigation, the Ninth Circuit held that a party met its burden to demonstrate the applicability of the protections by providing a privilege log that identified the following: (1) the attorney and client involved; (2) the nature of the document (i.e., letter, memorandum); (3) all persons or entities shown on the document to have received or sent the document; (4) the date the document was generated, prepared, or dated; and (5) information on the subject matter of each document. 2013 WL 4046655, at *5 (citing In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992)). The Court further stated that, “[a]lthough sufficient, this list of identifiers are neither exhaustive nor necessary to carry the burden to describe the nature of the withheld documents and enable the parties to assess the claim of privilege.” Id. “Attorney-client communications ‘made in the presence of, or shared with, thirdparties destroys the confidentiality of the communications and the privilege protection that is dependent upon that confidentiality.’” Regents of Univ. of California v. Affymetrix, Inc., 326 F.R.D. 275, 279 (S.D. Cal. 2018) (citation omitted); see also United States v. - 12 - 1 Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (“voluntarily disclosing privileged 2 documents to third parties will generally destroy the privilege” (citation omitted)); 3 Richey, 632 F.3d at 566 (“Voluntary disclosure of privileged communications constitutes 4 waiver of the privilege for all other communications on the same subject.”); S. Union Co., 5 205 F.R.D. at 548 (“Because the attorney-client privilege is based on the idea of 6 encouraging open communications between the attorney and the client, the 7 confidentiality of the communications must be maintained. Accordingly, if the documents 8 containing confidential communications are disclosed to third parties, the privileged 9 status of the communications within the documents is lost.” (citations omitted)). “The 10 reason behind this rule is that, [i]f clients themselves divulge such information to third 11 parties, chances are that they would also have divulged it to their attorneys, even without 12 the protection of the privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 (9th 13 Cir. 2012) (internal quotations and citation omitted). Thus, “[a]ny exception to this rule 14 must be construed narrowly to avoid ‘creating an entirely new privilege.’” Regents of 15 Univ. of California, 326 F.R.D. at 279 (quoting In re Pac. Pictures Corp., 679 F.3d 1121, 16 1128 (9th Cir. 2012)). For example, in Pac. Pictures Corp., the court held that a party’s 17 disclosure of documents to the U.S. Attorney waived the attorney-client privilege. 679 18 F.3d at 1127–28. In rejecting the petitioners’ theory of selective waiver and refusing to 19 grant the privilege to these communications, the court reasoned that voluntary disclosure 20 of the documents, whether to a civil litigant or the government, breaches confidentiality 21 and undermines the intended purpose of the privilege. Id.; see also In re Horn, 976 F.2d 22 1314, 1316 (9th Cir. 1992) (“The purpose of the attorney-client privilege is to protect 23 every person’s right to confide in counsel free from apprehension of disclosure of 24 confidential communications.” (citation omitted)). Accordingly, “the proponent of the 25 privilege must establish that it has not been waived.” S. Union Co., 205 F.R.D. at 551. 26 Here, Plaintiffs have failed to meet their burden to establish the privileged nature 27 of the communications sought. While Plaintiffs’ opposition to the subpoena is based 28 primarily on relevancy and overbreadth, to the extent that Plaintiffs contend any of the - 13 - 1 requested items are protected by the attorney-client privilege, it is Plaintiffs’ burden to 2 establish the privilege by providing a privilege log or affidavit describing the nature of 3 the withheld documents. Yet Plaintiffs have not produced anything, instead stating that 4 they “need not submit a privilege log in response to an overly broad request.” (Doc. 235 5 at 9).9 Without some kind of evidence, the Court is unable to assess whether the privilege 6 applies to any specific document, just as TASC is unable to properly challenge the 7 propriety of Plaintiffs’ privilege claims. See Ruehle, 583 F.3d at 609 (Ruehle “made no 8 effort to identify with particularity which of his communications to the Irell attorneys are 9 within his claim of privilege” and “failure to define the scope of his claim of privilege 10 weighs in favor of disclosure”); see also In re Horn, 976 F.2d at 1318 (“Blanket 11 assertions of attorney-client privilege in response to a subpoena duces tecum are strongly 12 disfavored.”); McCormick v. United States, 2006 WL 8440318, at *3 (D. Ariz. Feb. 6, 13 2006) (“Failure to provide sufficient information may constitute a waiver of the 14 privilege.”). Because the Court finds that categories 1, 7, 8, and 11 are relevant and not 15 overly broad, Plaintiffs would need to submit a privilege log or other documentation to 16 establish the privileged nature of the communications sought. Furthermore, because 17 categories 7, 8, and 11 involve communications with third parties and do not specifically 18 request confidential communications between Soria and her attorneys at Slepian Smith, to 19 the extent that the attorney-client privilege applies, it is waived.10 20 9 21 22 23 24 25 26 27 28 Plaintiffs note that they have offered to consult with Slepian Smith about the creation of a privilege log, limited to the time period of when Soria submitted her application for DIB and when she completed MDPP. (Doc. 235 at 10). 10 The Court further notes that Soria’s statements to her attorneys at Slepian Smith were not “made in confidence,” but rather for the purpose of disclosure to the SSA in her efforts to obtain DIB benefits. See Ruehle, 583 F.3d at 611 (“The salient point from a privilege perspective is that Ruehle readily admits his understanding that all factual information would be communicated to third parties, which undermines his claim of confidentiality to support invoking the privilege.”) . Further, “[t]he privilege which protects attorney-client communications may not be used both as a sword and a shield . . . [and w]here a party raises a claim which in fairness requires disclosure of the protected communication, the privilege may be implicitly waived.” Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992); see also Solito v. Direct Capital Corp., 2018 WL 2283410, at *4 (N.H. Super. May 17, 2018) (“Ultimately, the issue is one of fairness; privilege is implicitly waived when a party uses an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion.” (internal quotations and citation omitted)). - 14 - 1 C. Work Product Doctrine 2 “In contrast to the attorney-client privilege, the work-product doctrine can protect 3 documents and tangible things that are both non-privileged and relevant if prepared in 4 anticipation of litigation by or for another party or its representative.” Games2U, Inc., 5 2013 WL 4046655 at *5; In re Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 6 F.3d 900, 906 (9th Cir. 2004); see also Fed. R. Civ. P. 26(b)(3). This doctrine, “like other 7 privilege rules, [is] narrowly construed because its application can derogate from the 8 search for the truth.” U.S. v. 22.80 Acres of Land, 107 F.R.D. 20, 22 (N.D. Cal. 1985). 9 Like the attorney-client privilege, “[t]he burden of establishing protection of materials as 10 work product is on the proponent, and it must be specifically raised and demonstrated 11 rather than asserted in a blanket fashion.” S. Union Co., 205 F.R.D. at 549; see also 12 Games2U, Inc., 2013 WL 4046655 at *5 (“A person withholding subpoenaed information 13 under a claim that it is . . . subject to protection as trial preparation material must 14 expressly make the claim . . . [and] may make a prima facie showing that the . . . work- 15 product doctrine protects information by providing a ‘privilege log’ . . . .”); see also 16 Evanston Ins. Co., 2020 WL 4429022 at *3 (citing the lack of affidavit or other 17 supporting document to prove attorney work product); Callwave Commc’ns, LLC v. 18 Wavemarket, Inc., 2015 WL 831539, at *3 (N.D. Cal. Feb. 23, 2015) (using a privilege 19 log to determine whether the work product burden had been met). If the party seeking 20 protection meets its initial burden, the “documents may only be ordered produced upon 21 an adverse party’s demonstration of ‘substantial need [for] the materials’ and ‘undue 22 hardship [in obtaining] the substantial equivalent of the materials by other means.’” In re 23 Grand Jury Subpoena, 357 F.3d at 906 (quoting Fed. R. Civ. P. 26(b)(3)). 24 Here, Plaintiffs did not submit a privilege log, affidavit, or other documentation to 25 support their argument that the documents sought are protected by the attorney work 26 product doctrine.11 Rather, Plaintiffs assert that the attorney work product doctrine 27 applies because the documents sought by the subpoena were prepared for litigation. (Doc. 28 11 See infra n. 9 - 15 - 1 220 at 8). But “[c]onclusory statements of privilege, without affidavits or other competent 2 support, are not enough for the Court to find privilege.” Evanston Ins. Co., 2020 WL 3 4429022 at *3 (rejecting claim that work product doctrine applied where defendant had 4 “not provided any affidavits from knowledgeable parties, any supporting case law, or any 5 other competent indication that the materials were created ‘because of’ anticipated 6 litigation and would not have otherwise been created, in substantially similar form, in 7 anticipation of settlement between the adverse parties in the Underlying Action”). 8 Further, not every legal matter constitutes litigation. An attorney’s work drafting a 9 contract or preparing an individual’s tax return is not litigious in nature. While Slepian 10 Smith represents Soria in her efforts to obtain social security disability benefits, it is 11 questionable whether documents prepared in the course of this representation would be 12 considered “in preparation for litigation” when benefits may be granted or denied without 13 an administrative hearing. See In re Grand Jury Subpoena, 357 F.3d at 907 (adopting the 14 “because of” standard, which “states that a document should be deemed prepared ‘in 15 anticipation of litigation’ and thus eligible for work product protection under Rule 16 26(b)(3) if ‘in light of the nature of the document and the factual situation in the 17 particular case, the document can be fairly said to have been prepared or obtained 18 because of the prospect of litigation.’” (quoting Charles Alan Wright, Arthur R. Miller, 19 and Richard L. Marcus, 8 Federal Practice & Procedure § 2024 (2d ed. 1994)); 22.80 20 Acres of Land, 107 F.R.D. at 25 (the doctrine “was designed to offer limited protection to 21 materials that are prepared because litigation is anticipated and for the purpose of helping 22 a party prepare to effectively litigate its side of a lawsuit”).12 Nor does either party 23 12 24 25 26 27 28 As the court explained in 22.80 Acres of Land, The work product doctrine was developed in order to discourage counsel for one side from taking advantage of the trial preparation undertaken by opposing counsel, and thus both to protect the morale of the profession and to encourage both sides to a dispute to conduct thorough, independent investigations in preparation for trial. These purposes would not be advanced by extending the protection of the work product doctrine to materials that are prepared in the ordinary course of business or primarily for a purpose other than use in - 16 - 1 provide case law stating whether documents prepared for DIB proceedings are, or are not, 2 “work product” prepared “in preparation of litigation.” Regardless, the only category that 3 this objection applies to is category 1, Soria’s application for social security disability 4 insurance benefits, which Plaintiffs have already offered to disclose, making this point 5 moot.13 6 IV. 7 In sum, the Court finds that categories 1, 7, 8, and 11 are not overly broad. To the 8 extent that Plaintiffs argue any of the requests in categories 1, 7, 8, and 11 are protected 9 by the attorney-client privilege or the work product doctrine, Plaintiffs have failed to 10 meet their burden to establish the privileged nature of the documents or communications 11 sought. The Court further finds that categories 2, 3, 4, 5, 6, 9, and 10 are overly broad and 12 not sufficiently tailored to the issues at hand. Accordingly, CONCLUSION 13 IT IS HEREBY ORDERED: 14 1. Granting Plaintiffs’ Motion to Quash as to subpoena categories 2, 3, 4, 5, 6, 9, 15 and 10. 16 2. Denying Plaintiffs’ Motion to Quash as to categories 7, 8, and 11. 17 3. Plaintiffs’ objection to category 1 is moot, as Plaintiffs have offered to disclose 18 Soria’s application for Social Security DIB. 19 4. Within ten (10) days of the date of this Order, Plaintiffs shall disclose to 20 TASC: (a) Soria’s application for Social Security DIB; (b) documentation of 21 Soria’s efforts to schedule a hearing on her disability claim (to confirm that it 22 remains pending); and (c) any additional medical records that Soria submitted 23 24 25 26 27 28 litigation. Thus, in determining whether given documents ought to be protected by this doctrine, it is important to ask whether they would have been prepared in the normal course of events, even if there were no meaningful prospect of litigation. 107 F.R.D. at 24 (internal citation omitted). 13 The attorney work product doctrine would not protect the communications at issue in categories 7, 8, or 11. The Court has determined the remaining categories to be overly broad and it is thus unnecessary to consider whether any privilege applies. - 17 - 1 to the SSA that have not already been provided to TASC. 2 5. Defendant TASC may draft a new subpoena to Slepian Smith as to categories 3 2, 3, 4, 5, 6, 9, and 10 that is narrower in scope and reasonably calculated to 4 lead to the discovery of admissible evidence. 5 Dated this 30th day of March, 2021. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -
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