Free Reply - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John Fry - 020455 [email protected] Attorneys for Bank of America, N.A. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE E. HUTTON, as an individual and representative of a class consisting of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS

REPLY MEMORANDUM ON THE DISCOVERABILITY OF THE NOTES OF BARBARA DAVIS, ESQ.

I.

THE NOTES ARE MS. DAVIS' WORK PRODUCT. A. The Notes Were Prepared in Anticipation of Litigation.

Plaintiff argues Ms. Davis' notes are not work product. While it is true that Ms. Davis has not provided an affidavit confirming her notes were prepared in anticipation of litigation, the omission is understandable; she is deceased. But for that fact, Ms. Davis could have defended her notes from Plaintiff's attack. However, the undisputed circumstantial evidence presented to the Court clearly proves that the notes were Ms. Davis' work product. When making the notes,

Ms. Davis was defending the Bank in pending state court litigation challenging the exempt status of client managers under California law. She was participating in a conversation with Mr. Aubry, who billed Ms. Davis' firm, Paul Hastings Janowsky & Walker, for his time (See Exhibit "C" to his affidavit) and the Bank's in-house counsel
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responsible for the state court litigation, Jay Price. Finally, Mr. Aubry was reporting his thoughts, having visited Bank client manager job sites in the State of Washington for a day.1 No logical reason exists to conclude anything other than that Ms. Davis' notes were prepared in anticipation of defending the Bank in the ongoing litigation Ms. Davis was retained to defend. B. The Necessary Nexus Exists.

Plaintiff argues that the "requisite nexus" is missing between Ms. Davis' notes and defense of the Bank in future litigation, including this action. Response, p. 3, lns. 16-22. Plaintiff cites this Court's decision in Southern Union Company v.

Southwest Gas Corporation, 205 F.R.D. 542 (D. Az. 2002) to support the existence of such a requirement. On the contrary, Southern Union imposes no such requirement. The nexus referred to as missing there was association of the attorney's drafts of a letter, and anticipated litigation. Rather, this Court found the letter was drafted for the Board of Directors, not drafted in anticipation of litigation. Ms. Davis' notes are drafted in anticipation of defending the California state court litigation she was retained to defend. As this Court knows, the Supreme Court has determined that work product protection exists with respect to subsequent litigation, such as this action, whether or not the later case is related to the original case for which the work product was prepared. FTC v. Grolier, Inc., 103 S.Ct, 2209, 2216, 462 U.S. 19, 30-31 (1983) ("The invasion of `[a]n attorney's thoughts heretofore inviolate,' and the resulting demoralizing effect on the profession, are as great when the invasion takes place later rather than sooner . . . . Any litigants who face litigation of a commonly recurring type . . . have an acute interest in keeping private the manner in which they
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It is ironic that Plaintiff has continually contended that all client managers have always done the same job, even seeking national certification, then when seeking Ms. Davis' notes, declares that because they were not in California, notes made during communications regarding the job performed by the Washington client managers were not made in anticipation of California litigation.
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conduct and settle their recurring legal disputes.") (Brennan J., concurring) For these reasons, the "requisite nexus" exists. C. No Waiver Has Occurred.

Plaintiff next speculates that waiver may have occurred. None did. First, Sharon Fong, the paralegal to whom the notes were forwarded from Paul Hastings was and is located in San Francisco, in the Bank's legal department, where she supports Mr. Price and other attorneys. Second, the notes were provided only to counsel defending a misclassification claim against the Bank in the State of Washington, perhaps, and to counsel undersigned. See Exhibit "A" hereto. Third, when the notes were received by counsel undersigned, he was defending this action. There has been no waiver. II. NO SUBSTANTIAL NEED FOR THE NOTES EXISTS. Mr. Aubry's affidavit reflects his observations made during the May 31, 2000 phone call. He is a witness in this action and available for deposition. He has provided 28 pages of notes he took while visiting with client managers in the State of Washington. In spite of this available resource, Plaintiff argues that Ms. Davis' notes are the only contemporaneous recording of the advice Mr. Aubry provided and of what the Bank should have known2 regarding the exempt status of the client manager position. Response, p. 6, lns. 6-11. Plaintiff then tries, but fails, to distinguish Navajo Nation v. Norris, 331 F.3d 1041 (9th Cir. 2003). First, Ms. Davis' notes attribute nothing to Mr. Aubry, or any other participant in the conversation. Pure speculation must be pursued to reach any other conclusion.3

The willfulness standard is not one of negligence. What the Bank "should have known" is not part of any claim or defense before this Court.
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Even if this Court declines to rely on the affidavit of counsel undersigned for this characterization, it is respectfully submitted that an in camera inspection by this Court is 27 not in order. This Court will hear a motion for summary judgment on the willfulness issue shortly. Whether the notes are favorable to the Bank or not, assuming 28 admissibility, it would be hard for the contents of the notes, if read by this Court, to be disregarded. Therefore, a magistrate should be used if in camera review is required, and Case 2:03-cv-02262-ROS Document 212 -3- Filed 12/29/2005 Page 3 of 8

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More fundamentally, Navajo Nation requires the conclusion that no substantial need has been, nor can it be, established by Plaintiff. The case is directly in point: D. Navajo Nation's Discovery Motion

Navajo Nation filed a motion to compel discovery of material in the possession of the Becentis' initial adoption attorney, who also represented the Norrises. The defendants objected to the requested discovery on the bases of attorneyclient and attorney work-product privileges. The district court did not rule on the motion to compel. . . . .

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Liberty Mutual Insurance Company, 201 F.R.D. 465 (D. Az. 2001), Plaintiff contends 25 that even if the notes are opinion work product, Ms. Davis' notes are discoverable. 26 27 28 report back to the Court on whether Ms. Davis attributes any notation to a particular speaker or to her own unvoiced thought.
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Consequently, we consider anew the merits of the motion to compel. . . . .

A party is entitled to discovery of attorney work-product only if the requesting party demonstrates that the requested information was not available from any other source. See Holmgren v. State th Farm Mutual Automobile Ins. Co., 976 F.2d 573, 576 (9 Cir. 1992). Navajo Nation sought discovery of evidence to challenge the attorney's and the Becentis' declarations regarding the timing of the initial contact between the attorney and the Becentis. However, this information was readily obtainable from the Becentis. Therefore, since Navajo Nation could not have met the prerequisite to obtain the discovery that was the subject of the motion to compel, the lack of a ruling on Navajo Nation's motion does not warrant reversal. Navajo Nation, 331 F.3d at 1045-46 (emphasis added). The information sought is readily obtainable from Mr. Aubry. Therefore, a fundamental prerequisite to

discovery of the notes is missing, regardless of whether they are ordinary or opinion work product. III. MS. DAVIS' MENTAL IMPRESSIONS ARE NOT AT ISSUE, NOR IS THE NEED FOR MS. DAVIS' NOTES COMPELLING. Relying on Alvarez v. IBP, Inc., 339 F. 3d 894 (9th Cir. 2003), and Yurich v.

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Plaintiff contends that the notes (a) bear directly on what the Bank should have known (b) bear directly on whether the Bank disregarded the possibility that the client manager position was misclassified, and (c) bear on whether, having heard the same information, the Bank acted reasonably in waiting over two years before implementing overtime compensation for client managers.4 First, Plaintiff misstates the willfulness standard stated in Alvarez. Plaintiff says Alvarez holds that the willfulness standard is met merely by showing the employer disregarded the possibility that it was violating the FLSA. The case holds no such thing. Alvarez notes that "the three-year term can apply where an employer disregarded the very `possibility' that it was violating the statute, although we will not presume that conduct was willful in the absence of evidence . . . To prove a particular FLSA violation willful under § 255, the Supreme Court has, in general, required evidence of an employer's `kn[owing] or [] reckless disregard for the matter of whether its conduct was prohibited by the statute'." Alvarez, 339 F. 3d 894, 908-9 (emphasis added). The Ninth Circuit then affirmed the district court's finding that IBP recklessly disregarded the possibility that it was violating the FLSA. Id. No wonder it did so, IBP had been held liable for the exact violation at a non-union plant and the liability was affirmed by the Tenth Circuit 5 years before the action at issue was even filed. Id., at 899-901. As expected, the case cited by Alvarez for the "possibility" concept does not support Plaintiff's claimed standard. In Herman v. RSR Sec. Services Ltd., 172 F.3d 132 (2nd Cir. 1999), at the page cited by Alvarez, the Second Circuit merely noted what the trial court had reasoned: "[A]lthough Portnoy may not have had actual knowledge of the violative practice, the proof demonstrated he recklessly disregarded the possibility that RSR was violating the FLSA." Herman, 172 F.3d at 141. Read in light of their It is interesting that Plaintiff's justification for production has evolved so much. Originally she argued their need because the notes supposedly memorialized Mr. Aubry's statements. Now Plaintiff de facto argues their need simply because they were made by a lawyer during a conversation with lawyers.
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facts and plain language, Alvarez and Herman both adopt the standard that willfulness is not presumed without evidence demonstrating a reckless disregard (not mere negligent disregard) of the possibility that the FLSA is being violated. In each case, the mental impression at issue is that of the employer/decision makers considering whether the employer is in compliance with the FLSA. Ms. Davis was not a Bank decision maker. Plaintiff nowhere claims that

Ms. Davis' notes reflect the mental impressions of any Bank decision maker. This is the factor which distinguishes Yurich. There, the attorney whose work product was sought was one of the key decision makers whose action was said to have furthered the alleged bad faith conduct of Liberty Mutual. This Court stressed this point by quoting from an earlier Ninth Circuit case which stated, "In a bad faith insurance claim settlement case, the `strategy, mental impressions and opinions of [the insurer's] agents concerning the handling of the claim are directly at issue." Yurich, 201 F.R.D. at 473. Only then did this Court order that the work product in question may be discoverable. It is noteworthy that Yurich required that the plaintiff, even in those circumstances, to demonstrate substantial need. Id. Again, Plaintiff in this action cannot do so for the reasons noted above, not to mention the fact that the Bank has listed a witness who will testify as to the reasoning leading to conversion to overtime eligibility. Plaintiff can depose that witness as well as Mr. Aubry. Finally, every lawyer's notes made when defending or prosecuting a claim reflect the lawyer's mental impressions about the facts, evidence, and/or law relevant to the case and, generally, reflect directly or indirectly the lawyer's conclusions drawn therefrom. To be able to point to this self evidence fact, then merely by declaring that the client should know as much, be able to force disclosure of the lawyer's notes, would destroy the work product doctrine in every case in which motive or intent is an issue. No court, certainly not this Court, in Yurich or elsewhere, has gone so far, and rightly so. Yet that is precisely what Plaintiff asks.

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IV.

FEDERALISM. The Bank has suggested an approach to resolution of the situation, as here, when

state procedure controlling the matter during which the attorney takes her notes, offers greater protection than federal procedure. Plaintiff really does not comment. Rather, Plaintiff suggests that a protective order will cure the problem. No protective order will, after forced disclosure, protect California attorneys' work product from disclosure, by definition. V. CONCLUSION. The harshest of all results would follow from adoption of Plaintiff's request. The law would have to be ignored to grant the request. In camera inspection is unnecessary because the threshold for disclosure, a showing of at least substantial need, cannot be met. Ms. Davis' notes should not be ordered disclosed. DATED: December 29th, 2005 RYLEY CARLOCK & APPLEWHITE

By s/Charles Chester Charles L. Chester John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorney for Defendants

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CERTIFICATE OF MAILING I hereby certify that on December 29, 2005, I electronically transmitted the attached Reply Memorandum on the Discoverability of the Notes of Barbara Davis, Esq. to the clerk's office using the CM/ECF system for filing and transmittal of a notice of electronic filing to the following CM/ECF registrant: Lydia A. Jones Rogers & Theobald LLP The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, AZ 85016 Attorney for Plaintiff By s/Bree Bellefeuille