Williford v. Interstate Truckers Ltd.

VALERIE WILLIFORD, Plaintiff, v. INTERSTATE TRUCKERS LTD. ASSISTANCE ADMINISTRATION, Defendant

CIV-20-186-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

December 8, 2020

ORDER

Before the Court is Plaintiff's Motion to Compel (Doc. No. 17). Defendant responded in opposition to the motion. (Doc. No. 20). In the motion Plaintiff argues that Defendant waived the attorney-client privilege by failing to timely provide a privilege log. Plaintiff further argues the documents sought are not privileged and requests that the Court order "Defendant to produce all email communications between Defendant and its investigators regarding Plaintiff's complaint(s) and investigations thereof." (Doc. No. 17, p. 4). The Court ordered Defendant to produce the emails identified by Plaintiff in her motion to the Court for in camera review. Upon consideration of the parties' submissions and having conducted an in camera review of the documents, the Court finds as follows.

Rule 26(b)(5)(A) provides:

When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i)expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

Defendant concedes that its privilege log was not provided to Plaintiff at the same time it responded to Plaintiff's discovery requests, that is, on June 4, 2020. Rather, Defendant finally submitted its privilege log to Plaintiff on September 9, 2020. Plaintiff contends that this delay resulted in waiver of the privilege, a conclusion with which Defendant disagrees.

The Court finds that, although the privilege log was not provided by Defendant to Plaintiff at the same time as its June 4, 2020 discovery responses, Defendant did not waive the attorney-client privilege. Defendant provided a privilege log without inordinate delay, and Plaintiff does not complain about the sufficiency of the privilege log.

Plaintiff next contends that Defendant cannot avoid production of the requested documents by claiming privilege for communications between attorney and client and simultaneously relying on the Faragher/Ellerth defense.¹ Defendant contends that, because counsel did not perform the investigation into Plaintiff's Title VII allegations, it is entitled to assert the attorney-client privilege with regard to the documents at issue herein.

Although Plaintiff requests that the Court compel Defendant to produce all email communications between Defendant and its investigators, Plaintiff does not identify any emails in the privilege log that indicate such a communication.² Additionally, the casescited by Plaintiff regarding the inability to rely on attorney-client privilege in circumstances where the attorney conducts the investigation into allegations of harassment or discrimination are inapposite in this case, where the investigation was conducted by an outside party.³ The Court's in camera review of the documents reveals no communications between Defendant and the outside investigators withheld on the basis of the attorney-client privilege.

[I]n the Tenth Circuit, "[t]he attorney-client privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his capacity as a legal advisor." In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010) (internal quotation marks omitted) (citation omitted). "[T]he mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege." Id. (quoting Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51 (10th Cir.1995)). Rather, the "communication between a lawyer and client must relate to legal advice or strategy sought by the client." Id. (internal quotation marks omitted) (citation omitted).

Entrata, Inc. v. Yardi Sys., Inc., No. 2:15-CV-00102, 2018 WL 4146605, at *2 (D. Utah Aug. 30, 2018).⁴ Under this standard, the Court finds that the communications identifiedby Plaintiff in her Motion to Compel and provided by Defendant to the Court for in camera review are subject to the attorney-client privilege.⁵ The relevant emails indicate that information is being conveyed by the client, Interstate Trucking, Ltd., to the attorney, Paul Ross, for purposes of obtaining legal advice, or communications by Mr. Ross to his client conveying legal advice. Although certain of the information contained in the emails is subject to discovery via alternative methods, Plaintiff is not entitled to the documents reviewed.

For the reasons set forth above, Plaintiff's Motion to Compel is DENIED.

IT IS SO ORDERED this 8^th day of December 2020.

/s/_________

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

1.The Faragher/Ellerth defense allows an employer to escape some Title VII liability if it can prove "two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Kramer v. Wasatch Cnty. Sheriff's Office, 743 F.3d 726, 745 (10th Cir. 2014) (internal quotation marks omitted).

Chavez v. Bd. of Cty. Commissioners of Lake Cty., Colorado, 423 F. Supp. 3d 1106, 1109 (D. Colo. 2019).

2. Notably, the Motion to Compel does not provide the Court with any context for the emails for which she seeks production—specifically Plaintiff does not identify the role of the participants in the various emails. The Court's review of Defendant's discovery requests, attached to Defendant's Response as Exhibit 5, assisted the...