Mullins v. Department of Labor et al, No. 3:2008cv01422 - Document 103 (D.P.R. 2010)
Court Description: OPINION AND ORDER denying re 98 Motion In Compliance with Order and In Opposition to Production of Document Requested by Plaintiff filed by Rina Crespo, Angel Tanco, Lucila Vazquez-Inigo, Elvira M. Cancio, Department of Labor Signed by Chief Mag. Judge Justo Arenas on 9/27/2010.(nydi) (Main Document 103 replaced on 9/27/2010 - to correct name of plaintiff in case caption) (ni).
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Mullins v. Department of Labor et al 1 Doc. 103 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 BETTY ANN MULLINS, 5 Plaintiff 6 v. CIVIL 08-1422 (JA) 7 8 9 DEPARTMENT OF LABOR OF PUERTO RICO, et al., Defendants 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on motion in opposition to production of documents requested by plaintiff Betty Ann Mullins, filed by the defendant, the 15 16 Department of Labor of Puerto Rico on September 1, 2010. (Docket No. 98.) The 17 plaintiff responded to the defendant’s motion on September 13, 2010. (Docket 18 No. 99.) 19 For the reasons set forth below, the defendant’s motion is hereby DENIED. 20 I. Factual and Procedural Background 21 22 On August 19, 2010, during the discovery process, plaintiff requested an 23 internal investigation report from the defendant.1 (Id. at 1, ¶ 1.) The defendant 24 objected to the plaintiff’s request because the document was produced by their 25 26 27 28 Legal Affairs Division, citing attorney-client privilege. (Id. ¶ 2.) On August 23, 1 The request was made during the deposition of Ms. Lucila Vázquez-Iñigo. She is the Secretary of Legal Affairs and Norms for the defendant. Dockets.Justia.com 1 CIVIL 08-1422 (JA) 2 2 3 2010, both parties informed the court of this dispute via telephone conference. 4 5 6 7 8 (Id. ¶ 3.) At that point the court allowed for both parties to submit memoranda in support of their positions. (Docket No. 95.) On September 1, 2010, the defendant submitted a motion in opposition to production of document requested by plaintiff. (Docket No. 98.) In essence, the 9 10 defendant is claiming that the Internal Investigation Report, prepared by its Legal 11 Division, is privileged information as work product of attorneys and, as such 12 protected by attorney-client privilege. (Id. at 3.) Further, the defendant believes 13 that all communications between the Director of the Legal Affairs Division and the 14 15 Secretary of Labor, as well as their subordinates and employees, should also be 16 protected by attorney-client privilege because the communications are also part 17 of the work product of attorneys. (Id. at 3 & 7.) 18 On September 13, 2010, plaintiff opposed the defendant’s. (Docket No. 19 20 99.) Plaintiff claims that the document is not subject to attorney-client privilege 21 because it was not prepared in anticipation of litigation, but to ascertain who was 22 responsible for the incident that the report pertained to. (Id. at 3.) Thus, the 23 defendant believes that the document is discoverable. (Id.) 24 II. ANALYSIS 25 26 27 28 “In origin, the work product privilege derives from the Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), and focused at the 1 CIVIL 08-1422 (JA) 3 2 3 outset on the materials that lawyers typically prepare for the purpose of litigating 4 5 cases.” United States v. Textron Inc., 577 F.3d 21, 26 (1st Cir. 2009). Federal 6 Rule of Civil Procedure 26(b)(3) protects from discovery documents prepared “in 7 anticipation of litigation”.2 8 Commonwealth of P.R. v. SS Zoe Colocotroni, 61 F.R.D. 653, 658 (D.P.R 1975). If a document is determined to be protected by 9 10 the work product doctrine, the document is only discoverable if the opposing party 11 shows a “substantial need” for the document to prepare for its case and that the 12 party cannot, without “undue hardship,” secure a substantial equivalent. Fed. R. 13 Civ. P. 26(b)(3)(A)(ii). See Gerber v. Down E. Cmty. Hosp., 266 F.R.D. 29, 31 (D. 14 15 Me. 2010). Parties are protected by attorney-client privilege: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communication 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 advisor, (8) except protection be waived. 16 17 18 19 20 Rivera v. Kmark Corp., 190 F.R.D. 298, 302 (D.P.R. 2000). 21 22 The party asserting the privilege bears the burden of proof that privilege 23 applies to the contested document. United States v. Wilson, 798 F.2d 509, 512 24 (1st Cir. 1986). The privilege does not attach to all work product by an attorney, 25 26 27 28 2 Documents are not discoverable when they “are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). 1 CIVIL 08-1422 (JA) 4 2 3 but “attaches only when the attorney acts in that capacity.” Texaco P.R., Inc. v. 4 5 Dep’t of Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995) (Outside counsel 6 ceased to function in a legal capacity and functioned as regulators and could not 7 invoke attorney-client privilege). 8 “It is not enough to trigger work product protection that the subject matter of a document relates to a subject that might 9 10 conceivably be litigated.” United States v. Textron Inc., 577 F.3d at 29. Only 11 work done in anticipation of or for trial is protected. Id. at 30. “Even if prepared 12 by lawyers and reflecting legal thinking, ‘[m]aterials assembled in the ordinary 13 course of business, or pursuant to public requirements unrelated to litigation, or 14 15 for other nonlitigation purposes are not under the qualified immunity provided by 16 this subdivision.’” 17 (1970)). Documents or other work product will not be afforded protection from 18 Id. (quoting Fed. R. Civ. P. 26 advisory committee's note discovery when “prepared in the ordinary course of business or that would have 19 20 been created in essentially similar form irrespective of the litigation.” Id. (quoting 21 Maine v. United States Dep’t of Interior, 298 F.3d 60, 70 (1st Cir. 2002)). The 22 work product privilege also does not apply to documents independently required 23 by a statutory requirement. Id. at 26. To determine whether a document was 24 created “in anticipation of litigation” the appropriate standard is whether the 25 26 27 28 document was created “because of” existing or expected litigation and not whether litigation was the “primary factor” in the creation of the document a party 1 CIVIL 08-1422 (JA) 5 2 3 seeks to have produced for discovery.3 Maine v. United States Dep’t of Interior, 4 5 298 F.3d at 67-68. The policy reason for using the “because of” test is that the 6 “primary factor” test excludes documents containing analysis of expected 7 litigation, if their primary function is to assist in making a business decision. Id. 8 at 68. Thus, the “primary factor” test is at odds with the text and policy behind 9 10 Rule 26, because it implies that documents prepared with a dual purpose of 11 litigation and business do not fall within the protective scope of the Rule. Id. at 12 68 (citing United States v. Aldman, 134 F. 3d at 1198-02). Also, at minimum, an 13 agency must “explain why the work product privilege applies to all portions of the 14 15 document.” Church of Scientology Int’l v. United States Dep’t of Justice, 30 F.3d 16 224, 237 (1st Cir. 1994). Although “explanation requirements are not to be given 17 a hypertechnical construction, they can neither be brushed aside nor satisfied by 18 vague generalities.” Maine v. United States Dep’t of Interior, 298 F.3d at 69. 19 20 In this case, the defendant claims that the document in question, an 21 “internal investigation,” was produced by its legal division acting in its capacity as 22 “in house counsel” in anticipation of litigation. The defendant further states that 23 24 25 26 27 28 3 The “because of” test was enunciated in 1994 by Wright and Miller stating that documents are protected by the Rule when “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” United States v. Aldman, 134 F.3d 1194, 1202 (2d Cir. 1998) (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024, at 343 (1994)). 1 CIVIL 08-1422 (JA) 6 2 3 it is well established that in house counsel, including in house counsel’s 4 5 subordinates and employees are generally protected by attorney-client privilege. 6 Specifically, the defendant believes that all communication between the Director 7 of Legal Affairs Division of the Department of Labor and the Secretary of Labor are 8 part of the work product of attorneys and thus protected by the attorney-client 9 10 privilege. Defendant also claims that internal investigation reports, such as the 11 one the plaintiff would like them to produce, have never been produced in either 12 state or federal courts. The defendant alleges that to require production of the 13 investigative report would set a dreadful and burdensome precedent for the 14 15 16 17 18 Department of Labor and other agencies should this type of internal report be authorized for disclosure during discovery. The plaintiff, on the other hand, contends that the internal investigation report is discoverable because the report was not produced in anticipation of 19 20 litigation. The plaintiff claims that said report was only made to ascertain who 21 was responsible for the incident4 that the report relates to. As such, the plaintiff 22 believes that the document is discoverable because it was not prepared in 23 24 25 4 26 27 28 According to the plaintiff, the incident involved two-coworkers who assaulted the plaintiff and prevented her from leaving the Department of Labor premises. Management were allegedly present and the police were called. The plaintiff contends that she requested and received a protective order from the Court of First Instance of Carolina. 1 CIVIL 08-1422 (JA) 7 2 3 anticipation of litigation and should be provided to the plaintiff for appropriate 4 5 examination. 6 The defendant bears the burden of proving that the internal investigation 7 report is a privileged document, and in this case fails to do so. United States v. 8 Wilson, 798 F.2d at 512. In actuality, the defendant fails to show any evidence 9 10 or facts that would make the document in question privileged. It is well settled 11 that the work product privilege only attaches when an attorney is acting in his or 12 her capacity as an attorney. See Texaco P.R. v. Dep’t of Consumer Affairs, 60 13 F.3d at 884. In this case, the defendant does not make any demonstration that 14 15 the Legal Affairs Division of the Department of Labor was acting in a legal capacity 16 or was serving more of an administrative role in producing the report. To be 17 protected by work product privilege, the moving party would need to show that 18 the Legal Affairs Division was working in a legal capacity. Simply, the defendant 19 20 has not shown that this is the case. 21 The defendant also does not demonstrate that the document was prepared 22 in anticipation of litigation as opposed to being prepared in the ordinary course of 23 business. 24 There is no disagreement between the parties that work must be prepared in anticipation of litigation to be protected by the shield of work product 25 26 27 28 privilege. To be prepared in anticipation of litigation, a document need only be created “because of” existing or impending litigation. Maine v. United States Dep’t 1 CIVIL 08-1422 (JA) 8 2 3 of Interior, 298 F.3d at 67-68. However, the defendant does not provide any 4 5 information showing that this document was prepared because of impending or 6 existing litigation not prepared in the ordinary course of business. As the party 7 seeking protection from the privilege, it has only made conclusory statements that 8 the document was made in anticipation of litigation and has not offered facts, 9 10 evidence or any other proof to support its contention. Without such proof to 11 support its position, the defendant has not successfully carried its burden of proof 12 to show that privilege applies to the contested document. 13 Also, the defendant must “explain why the work product privilege applies to 14 15 all portions of the document.” Church of Scientology Int’l v. United States Dep’t 16 of Justice, 30 F.3d at 237. 17 construed very strictly, the moving party can not brush it aside or satisfy this 18 While the explanation requirement is not to be requirement with vague generalities. Maine v. United States Dep’t of Interior, 289 19 20 F.3d at 69. Unfortunately for the defendant, it has not offered any explanation 21 as to why the work product privilege applies to all portions of the document. The 22 defendant has offered reasons why producing the internal investigation report 23 would create a burdensome precedent for it, overlooking that its burden is to 24 show why the work product privilege does apply to the internal investigation 25 26 27 28 report. In doing so, the defendant claims that reports like the one in question have never been produced in any state or federal court. If true, the defendant 1 CIVIL 08-1422 (JA) 9 2 3 does not offer any evidence or caselaw that shows this to be the case. The 4 5 defendant also claims that “all communication” between the Director of the Legal 6 Affairs Division and the Secretary of Labor are protected by the attorney-client 7 privilege. This is an attempt to expand and distort the work product doctrine. For 8 example, a document shared between them not prepared in anticipation of actual 9 10 or expected litigation or prepared in the ordinary course of business would not be 11 protected. See United States v. Textron Inc., 577 F.3d at 29-30. Nor would a 12 document prepared pursuant to public requirements or a statute be protected 13 under the work privilege doctrine. See id. at 26. In fact, protecting “all 14 15 communications” between the Director of the Legal Affairs Division and the 16 Secretary of Labor would itself set a dangerous precedent, by providing a level of 17 protection inconsistent with Rule 26(b)(3). The reasons offered by the defendant 18 do not show why the document is worthy of the protective shield of the work 19 20 product privilege. The defendant’s position is not supported by legal precedent 21 and is not persuasive. Most importantly, the defendant does not explain why the 22 work product privilege does apply to all portions of the internal investigation 23 report. 24 III. CONCLUSION 25 26 27 28 For the reasons set forth above, defendant’s motion in opposition of the production of a document is hereby DENIED. 1 CIVIL 08-1422 (JA) 10 2 3 At San Juan, Puerto Rico, this 27th day of September, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge
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