Simmons v. Morgan Stanley Smith Barney, LLC et al, No. 3:2011cv02889 - Document 67 (S.D. Cal. 2013)
Court Description: ORDER granting in part and denying in part 58 Joint MOTION for Discovery Dispute Regarding Defendant's Request for Production of Plaintiff's Investigator's Reports. As provided herein, the Botts interview reports of Mr. Fields and M s. Dixon are to be produced, as agreed by Plaintiff, no later than ten days from today. Plaintiff is precluded from presenting any testimony from any witness relied upon by Mr. Botts in sentences two and three of paragraph 8 of his declaration filed in support of Plaintiff regarding this motion unless such witnesses are disclosed in conformance with Rule 26(a)(1)(A)(i) and (e). Signed by Magistrate Judge Mitchell D. Dembin on 3/8/13. (Dembin, Mitchell)
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Simmons v. Morgan Stanley Smith Barney, LLC et al Doc. 67 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN SIMMONS, Plaintiff, 12 13 Case No. 11cv2889-WQH (MDD) vs. 14 15 16 17 MORGAN STANLEY SMITH BARNEY, LLC, Defendant. ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE: GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S INVESTIGATOR’S REPORTS [ECF NO. 58] 18 19 Before the Court is the joint motion of the parties to determine a 20 discovery dispute. The motion was filed February 25, 2013, and is 21 predicated upon Defendant’s belief that Plaintiff must produce reports of 22 witness interviews prepared by his investigator. (ECF No. 58). Plaintiff 23 asserts that his investigator’s reports are protected from disclosure as 24 work-product. Defendant claims that any such protection has been 25 waived. (See id.) The Court held a hearing on the motion on March 5, 26 2013. For the following reasons, the motion is GRANTED IN PART 27 AND DENIED IN PART. 28 -1- 11cv2889-WQH (MDD) Dockets.Justia.com Background 1 2 For a detailed exposition of the background facts of this litigation, 3 see the Order issued by the Hon. William Q. Hayes on May 24, 2012, 4 granting in part and denying in part Defendant’s motion to compel 5 arbitration. (ECF No. 37). As a consequence of that Order, the only 6 claims pending before the Court at this time are Plaintiff’s claims for 7 employment discrimination in violation of 42 U.S.C. § 2000e and 8 Cal.Govt.Code § 12940(a). 9 against by Defendant in his employment based upon his membership in 10 Plaintiff asserts that he was discriminated the Church of Jesus Christ of Latter Day Saints. 11 Legal Standard 12 The Federal Rules of Civil Procedure generally allow for broad 13 discovery, authorizing parties to obtain discovery regarding “any 14 nonprivileged matter that is relevant to any party’s claim or defense.” 15 Fed.R.Civ.P. 26(b)(1). Ordinarily, however, “a party may not discover 16 documents . . . that are prepared in anticipation of litigation or for trial 17 by or for another party or its representative.” Fed.R.Civ.P. 26(b)(3). 18 The work product doctrine does not protect facts from discovery. 19 “[B]ecause the work product doctrine is intended only to guard against 20 the divulging of attorney’s strategies and legal impressions, it does not 21 protect facts concerning the creation of work product or facts contained 22 within the work product.” Garcia v. City of El Centro, 214 F.R.D. 587, 23 591 (S.D. Cal. 2003)(citations omitted). “Only when a party seeking 24 discovery attempts to ascertain facts, ‘which inherently reveal the 25 attorney's mental impression,’ does the work product protection extend to 26 the underlying facts.” Id. Consequently, the identity of witnesses 27 interviewed can reveal “which witnesses counsel considers important, 28 revealing mental impressions and trial strategy.'" Plumbers & -2- 11cv2889-WQH (MDD) 1 Pipefitters Local 572 Pension Fund v. Cisco Systems, Inc., 2005 U.S. Dist. 2 LEXIS 43648, *16 (N.D. Cal. 2005), quoting In re MTI Tech. Corp. Sec. 3 Litig. II, 2002 U.S. Dist. LEXIS 13015, *8 (C.D. Cal. 2002); Gen-Probe v. 4 Becton, Dickinson & Co., 2011 U.S. Dist. LEXIS 27961, *7 (S.D. Cal. 5 2011) (Stormes, J.) (denying request to produce supplemental contact 6 information for witnesses because it “would transform the information 7 from the type where the identity of witnesses interviewed is not 8 disclosed into the type where such disclosure can be inferred”); In re 9 Ashworth, Inc. Securities Litigation, 213 F.R.D. 385 (S.D. Cal. 2002) 10 (work product privilege protected information as to whether investigator 11 had interviewed a particular witness). Discussion 12 13 This dispute initially arose as a consequence of another discovery 14 dispute. On January 11, 2013, Defendant moved to quash a deposition 15 subpoena served by Plaintiff upon David Fields. (ECF No. 51). In 16 connection with his response, Plaintiff submitted the declaration of 17 Arnold Botts, an investigator employed by Plaintiff’s attorneys in 18 connection with this case. (ECF No. 56-2). In his declaration, Mr. Botts 19 relayed the substance of an interview he conducted with Mr. Fields to 20 support Plaintiff’s claim that Mr. Fields could provide relevant 21 testimony. The same declaration also contains a single three-sentence 22 paragraph reporting information attributed to other, unnamed 23 witnesses. Apart from the declaration, statements allegedly made to 24 Mr. Botts by another witness, Susan Dixon, were used by Plaintiff in 25 cross-examining her. 26 Defendant asserts that any work-product protection that attended 27 to any witness reports prepared by Mr. Botts in connection with this case 28 has been waived. Plaintiff disagrees but has offered to produce the -3- 11cv2889-WQH (MDD) 1 2 reports of Mr. Botts’ interviews with Mr. Fields and Ms. Dixon. Work product protection is waived with respect to matters used in 3 testimony. Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010), 4 citing United States v. Nobles, 422 U.S. 225, 239-240 (1975). The Botts 5 declaration was filed by Plaintiff in response to a motion to quash 6 brought on behalf of Mr. Fields. Plaintiff argues that this disclosure was 7 compelled when Defendant sought to quash the deposition subpoena for 8 Mr. Fields. Plaintiff contends this limited disclosure, for the purpose of 9 opposing a motion, should not be used as a basis for waiver. On the 10 other hand, as noted by the Court in its ruling on the Fields dispute, the 11 Fields dispute may have been prompted by Plaintiff’s counsel. (See ECF 12 No. 57 at 4-5). Plaintiff’s counsel, at the hearing on this motion, 13 reiterated his offer to produce the report of Mr. Botts regarding his 14 interview of Mr. Fields to Defendant. The Court finds that production of 15 that report is justified and ORDERS Plaintiff to produce the report of 16 Mr. Botts’ interview with Mr. Fields. 17 The issue regarding using statements allegedly made to Mr. Botts 18 to cross-examine Ms. Dixon poses a thornier issue regarding whether the 19 use of those statements is “testimonial.” As Plaintiff generously has 20 offered to produce the report of Mr. Botts’ interview of Ms. Dixon, the 21 Court will not reach that issue but endorses the decision to produce the 22 report. 23 24 25 26 27 28 In paragraph 8 of his declaration submitted in connection with the Fields dispute, Mr. Botts said: Other witnesses I have interviewed have indicated that Mr. Simmons uniformly refused to drink alcoholic beverages; as such use is violitive [sic] of a basic tenant [sic] of his Mormon religion. I have also learned that his abstinence was a constant source of tension with Mr. Kentfield, his direct supervisor. I have also learned that Mr. Kentfield made disparaging comments directly to Mr. Simmons about his religion. -4- 11cv2889-WQH (MDD) 1 (ECF. No. 56-2). Defendant asserts that any reports of Mr. Botts’ 2 interviews with these unnamed witnesses is now subject to disclosure. 3 The Botts declaration, which was relied upon by the Court in ruling 4 upon the Fields dispute contained three paragraphs reporting statements 5 allegedly made to Mr. Botts by Mr. Fields. (Id. at ¶¶ 5-7). Paragraph 8, 6 by contrast, appears to have been included to provide some corroboration 7 for statements allegedly made by Mr. Fields. The Court is loathe to find 8 that work product protection is completely waived based upon these 9 conclusory statements which were of negligible value in deciding the 10 motion. 11 As to the first sentence, the Court finds that whether or not 12 witnesses believe that Plaintiff does or does not consume alcohol is not 13 relevant. The identity of those witnesses and their statements need not 14 be disclosed. Sentence two reports that Mr. Botts “learned” that 15 Plaintiff’s abstinence was a source of tension between him and his 16 supervisor. It may be relevant to Plaintiff’s claim of religious 17 discrimination that his religion-based abstinence was a source of friction 18 with his supervisor. In sentence three, Mr. Botts reported that he 19 “learned” that Mr. Kentfield made disparaging comments directly to 20 Plaintiff about his religion. 21 The Court finds that Mr. Botts’ statements in sentences two and 22 three of paragraph 8 are testimonial and may qualify as a limited waiver. 23 Rather than require the production of the identity or statements of these 24 witnesses, which is more invasive than the Court believes necessary 25 under the circumstances, the Court instead ORDERS that Plaintiff is 26 PRECLUDED from presenting any testimony from any witness relied 27 upon by Mr. Botts in sentences two and three unless the witness has 28 been disclosed in conformance with Fed.R.Civ.P. Rule 26(a)(1)(A)(i). -5- 11cv2889-WQH (MDD) 1 To the extent that Defendant asserts that all protection has been 2 waived for all of Mr. Botts’ reports, the Court rejects that view and finds 3 to the contrary. Conclusion 4 5 For the foregoing reasons, Defendant’s motion to compel production 6 of the reports of Mr. Botts is GRANTED IN PART AND DENIED IN 7 PART. The reports of interviews by Mr. Botts of Mr. Fields and Ms. 8 Dixon are to be produced to Defendant within ten days of the filing of this 9 Order. To the extent that Plaintiff must amend his disclosures under 10 Rule 26(a)(1)(A)(i), such amendments also must be made within ten days 11 of the filing of this Order. See Rule 26(e)(1)(B). 12 IT IS SO ORDERED. 13 14 DATED: March 8, 2013 15 16 Hon. Mitchell D. Dembin U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 -6- 11cv2889-WQH (MDD)
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