Free Order on Motion to Expedite - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Bank of America, N.A., 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-02262-ROS Document 303 Filed 09/14/2006 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kaye K. Hutton, Plaintiff, vs.

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No. 03-2262-PHX-ROS ORDER

On April 5, 2006 a discovery dispute was held to address whether certain notes prepared by Barbara Davis, an attorney who is deceased, are discoverable. The Court agreed to consider additional evidence, including an affidavit from Linda Edwards who was party to the conversation from which the notes were taken, and conduct an in camera review of Ms. Davis' notes to determine whether the notes are, as Defendant contends, subject to the attorney work product privilege. Pursuant to the Court's Order, the parties submitted a Joint Status Report Re: In Camera Inspection of the Notes of Barbara Davis, Esq. (Doc. #272). For the reasons set forth below, the Court finds that the notes are covered by the work product privilege, but that the Plaintiff has established a substantial need for having them produced.

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I.

Background1 On May 31, 2000 a one-hour teleconference was held in which Defendant's then paid

consultant/expert, Lloyd Aubry, orally communicated the results of his study and observations regarding the exempt status and classification of client managers working in Seattle, Washington. The following individuals participated in the teleconference: (i) Jay Price, in-house counsel for Defendant Bank of America ("Defendant" or the "Bank"); (ii) Lloyd Aubry, the paid consultant/expert; (iii) Linda Edwards, outside counsel with the law firm of Paul, Hastings, Janofsky and Walker ("Paul Hastings") defending unpaid overtime cases filed against the Bank in California; and (iv) Barbara Davis, the author of the notes and outside counsel with Paul Hastings defending the Bank on those same cases. Neither Mr. Price nor Ms. Edwards prepared any notes during or after the call. Mr. Aubry made a few notations during the call, but the notes are of little use. (Doc. #272, Ex. A). The Bank reclassified the client manager position nationwide from exempt to non-exempt status in March 2002 and states it did so, at least in part, as a result of Mr. Aubry's study. Plaintiff contends that the Bank willfully misclassified client managers in Arizona as exempt from the Fair Labor Standards Act overtime provisions. She further contends that one piece of evidence of willfulness is the receipt and alleged disregard of information provided to the Bank by Mr. Aubry during the May 31, 2000 telephone call. II. Discussion A. Legal Standard The work product doctrine provides a qualified privilege for materials prepared in anticipation of litigation by a party, an attorney, or other representatives of the party. See Hickman v. Taylor, 329 U.S. 495 (1947). Pursuant to Fed. R. Civ. P. 26(b)(3), the following conditions must be satisfied in order to establish work product protection: (1) the material must be a document or tangible thing; (2) the material must be prepared in anticipation of

The following facts are taken from the Joint Statement Re: In Camera Inspection of the Notes of Barbara Davis submitted on April 26, 2006. -2Case 2:03-cv-02262-ROS Document 303 Filed 09/14/2006 Page 2 of 6

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litigation; and (3) the material must be prepared by or for a party, or by or for its representative. Tayler v. Travelers Inc. Co., 183 F.R.D. 67, 69 (N.D.N.Y. 1998) (citing Compagnie Francaise d'Assurance Pour leg Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 41 (S.D.N.Y. 1984); In re Grand Jury Subpoenas, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982). "[T]here is no work product [privilege] for documents prepared in the ordinary course of business prior to the commencement of litigation." Tayler, 183 F.R.D. at 70. There are two types of work product recognized, ordinary work product and opinion work product; generally, the latter is entitled to nearly absolute protection. Holmgren v. State Farm Mutual Auto. Inc. Co., 976 F. 2d 573, 477 (9th Cir. 1992) (opinion work product is entitled to nearly absolute protection with some limited exceptions). Ordinary work product, by contrast, is subject to disclosure upon a showing by the party seeking discovery of substantial need and an inability to obtain the materials by other means. See Upjohn Co. v. United States, 449 U.S. 383 (1981) (declining to decide whether opinion work product is entitled to absolute protection but recognizing that ordinary work product is discoverable upon a showing of substantial need and an inability to obtain materials without undue hardship). The burden of establishing alleged work product is on the proponent, and it must be specifically raised and demonstrated rather than asserted in a blanket fashion. See Shiner v. Am. Stock Exch., 28 F.R.D. 34, 35 (S.D.N.Y. 1961); Tayler, 183 F.R.D. at 69. B. Analysis Plaintiff contends that "the primary purpose of the May 31, 2000 call was for Mr. Aubry to report his factual observations and findings from his review of Bank documents and his study of the exempt status of client managers. Mr. Aubry delivered his factual observations and findings orally and only once." (Doc. #272). Plaintiff further contends that the results of the study were "apparently discussed in June 2000 correspondence from Ms. Edwards to Jay Price, but that correspondence has been withheld [] on the grounds of attorney-client privilege." (Id.). Mr. Aubry testified that the Bank was informed that: (1) it might want to reexamine the exempt/nonexempt status of the position; -3Case 2:03-cv-02262-ROS Document 303 Filed 09/14/2006 Page 3 of 6

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(2) it might want to make some changes to the exempt status; (3) the client managers might or might not be exempt; (4) it was an "open question" whether the client managers were or were not exempt;

(5) that even some of the more experienced client managers may have been performing the job in a nonexempt way. Plaintiff argues that the Bank has not and cannot demonstrate its burden of proof that the notes constitute work product, because they were not prepared by Ms. Davis in anticipation of this lawsuit. Alternatively, Plaintiff argues even if the Bank could

demonstrate the notes are work product, given that they are the only contemporaneous recording of what the Bank's attorneys knew or should have known as a result of Mr. Aubry's 2000 study, Plaintiff has demonstrated it has a substantial need for the notes, the equivalent of which cannot be obtained from the deceased author or from other sources. "[I]t is what the Bank knew or should have known in 2000 as a result of their paid consultant's findings that is precisely at the core of whether the Bank acted willfully by waiting until nearly two years before acting on his findings and reclassifying the client managers in 2002 as nonexempt." (Doc. #272). In its Joint Statement, Defendant directs the Court to portions of Mr. Aubry's deposition transcript, in which he testified about the context of his participation and what he recalls telling the parties to the May 31, 2000 teleconference. Defendant contends that Plaintiff has already been made aware of the general nature of Mr. Aubry's findings. Defendant further argues that although the parties are unable to ascertain Ms. Davis' recollection of what prompted her to make the notes, it is evident by the fact that she was a party to the conversation because of her role as defense counsel, and that the notations themselves contain Ms. Davis' mental impressions, conclusions or opinions because they were made while she was defending the Bank in California actions in which plaintiffs contended state overtime law had been violated. (Doc. #194).

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The Court agrees with Defendant that Ms. Davis' notes are covered by the work product doctrine. They were prepared in anticipation of litigation, albeit in California state court. Work product protection exists with respect to subsequent litigation, whether or not the later case is related to the original case for which the work product was prepared. See FTC v. Grolier, Inc., 462 U.S. 19, 30-31 (1983). It is impossible to determine which, if any, of the notations reflect Ms. Davis' impressions of Mr. Aubry's comments, or which is a contemporaneous recordation of a comment of Mr. Aubry or another party to the call. Based on this uncertainty, the Court will not order all the notes disclosed. See Upjohn, 449 U.S. at 399 ("[f]orcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes"), citing Hickman v. Taylor, 329 US. at 513; O'Connor v. Boeing North American, Inc., 216 F.R.D. 640, 643 (C.D. Cal. 2003) ("[n]otes and memoranda of an attorney . . . . from a witness interview are opinion work product entitled to almost absolute immunity."). Ms. Davis' notes are the only written memorialization of what the Bank was told by Mr. Aubry. Although Mr. Aubry took some notes after the meeting, those notes are not a contemporaneous recording of what occurred at the meeting. In addition, Ms. Davis is deceased, and Plaintiff would not be able to obtain the substantial equivalent of Ms. Davis' notes from the other participants on a call that occurred over five and one-half years ago. Because the Court is unable to decipher which portion of the notes are opinion versus ordinary work product, it cannot determine which part, if any, are absolutely privileged. Defendant will be required to submit in camera a statement taken under oath designating the portions of the notes it deems are covered by the opinion work product doctrine and subject to an absolute privilege.

Accordingly,

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IT IS ORDERED that Defendant shall submit in camera within 10 days a statement designating which portions of Barbara Davis' notes are ordinary work product or opinion work product. IT IS FURTHER ORDERED that Plaintiff's Motion For Expedited Consideration of the Matter Concerning the Discoverability of Barbara Davis' Notes (Doc. # 213) is denied as moot.

DATED this 14th day of September, 2006.

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