Free Memorandum - 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 M. Fry - 020455 [email protected] Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a collective consisting of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS DEFENDANT'S OPENING MEMORANDUM ON THE DISCOVERABILITY OF THE NOTES OF BARBARA DAVIS, ESQ.

I.

THE CREATION OF THE NOTES AND THEIR DELIVERY TO THE BANK. On May 31, 2000, Lloyd Aubry, former Director of the California Department of

Industrial Relations, reported to Jay Price, an attorney with the Bank's Legal Department, by telephone, his observations regarding a one-day trip Mr. Price asked him to take to the State of Washington, in which he gathered information on the Client Manager job as performed in Washington.1 Barbara Davis and Linda Edwards,

The factual assertions in this memorandum are supported by the Affidavits of Jay Price and Charles Chester, attached hereto as Exhibits A and B.
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attorneys with Paul Hastings Janowski & Walker, joined the conversation from their office in Los Angeles. Ms. Davis took notes. At the time the notes were created, Ms. Davis and Ms. Edwards were retained by Bank of America to defend actions filed against it in the Superior Court of California. In the actions, the Bank was accused of violating the California Labor Code's overtime provisions by misclassifying Personal Bankers and Client Managers as exempt. No federal law claims were asserted. The notes remained in the files of Paul Hastings until January 7, 2002, when Deborah S. Weiser, another attorney with Paul Hastings, faxed to Sharon Fong, a Bank Legal Department employee, a copy of the notes and of a June 30, 2000 letter from Ms. Edwards to Mr. Price providing legal advice on the above mentioned actions. Plaintiff does not seek disclosure of the fax or the June 30, 2000 letter. Both are protected by the attorney-client privilege, in any event. II. THE ALLEGED RELEVANCE OF THE CONTENTS OF THE NOTES TO THIS ACTION. Plaintiff contends (and the Bank denies) that the Bank willfully misclassified Client Managers in Arizona as exempt from the Fair Labor Standards Act overtime provisions until March 1, 2002. She 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. Plaintiff assumes that Ms. Davis' notes include a contemporaneous recordation of what Mr. Aubry said to Mr. Price. Plaintiff

incorrectly asserts that the notes are the only contemporaneous recordation; Mr. Aubry made contemporaneous notes during the conversation and the notes were produced. III. THE CONTEXT IN WHICH THE NOTES WERE MADE. The information provided by Mr. Aubry on May 31, 2000, is the subject of his affidavit, which is attached to Defendant's Response to Plaintiff's Motion to Expand Conditional Certification of the Collective Action. As is clear from the affidavit, the information relates to Mr. Aubry's impressions gained during a one day visit by him
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with Bank employees in the State of Washington. The visit was made at the request of Mr. Price. The May 31, 2000 telephone conversation occurred while Mr. Aubry and Mr. Price were located in San Francisco, California. Because of their role as defense

counsel for the Bank in the above-mentioned cases, Ms. Davis and Ms. Edwards listened in from their office in Los Angeles, California. In this setting, Ms. Davis made her notes. We are unable to obtain Ms. Davis' recollection of what prompted her to make the notes or any portion of the notes because she is deceased. For the same reason, we do not know whose, if anyone's, comments Ms. Davis had in mind when she made any particular notation. It is respectfully submitted that the Court should conclude that the notations reflect Ms. Davis' mental impressions, conclusions or opinions because they were made when Ms. Davis was defending the Bank in California actions in which the plaintiffs contended state overtime law had been violated. IV. APPLICABLE GENERAL LAW. The notes of Ms. Davis were prepared by her at a time when she was the Bank's representative (attorney) in ongoing litigation. Therefore, the notes constitute work product. Yurick v. Liberty Mutual Ins. Co., 201 F.R.D. 465, 472-473 (D. Ariz. 2001). Since the notes are opinion work product, they are entitled to nearly absolute protection. Id. at 472. Even if the notes are ordinary work product, then under federal law they are subject to disclosure only upon a showing by Plaintiff of substantial need and Plaintiff's inability to obtain the requested information from any other source. Id.; Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003). V. ANALYSIS. A. Opinion Work Product Analysis.

Ms. Davis' notes are opinion work product. The work product doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy `with an eye toward litigation,' free from unnecessary intrusion by
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. . . adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2nd Cir 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-511, (1947)). An attorney's notes and interview memoranda of witnesses are protected by the work product doctrine. See Upjohn Co. v. U. S., 449 U.S. 383, 399, (1981) ("[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 U.S. 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."). Protection of such notes is warranted in that the notes "reveal an attorney's legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant." Baker v. General Motors Corp., 209 F. 3d 1051, 1054 (8th Cir. 2000). See also Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307-08 (D.C. Cir. 1997). As such, the presence in a memorandum of factual information conveyed by the witness does not remove the protection. Baker, 209 F.3d at 1054. Such information can be discovered "only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud." Id. See also U.S. S.E.C. v. Talbot, 2005 WL 1213797, *1 (C.D. Cal. 2005). No such rare circumstance is present here. The notes, needless to say, are not a statement taken from Mr. Aubry. In fact, there were three other parties to the conversation, Mr. Price, Ms. Edwards, and of course, Ms. Davis. There is no attribution of source as to any notation made. There are no notations in quotes. Thus, the notes can only fairly be interpreted as either

(a) Ms. Davis' impression of what was communicated by one of the other three participants, (b) Ms. Davis' impressions, whether verbalized by her or not, or (c) a combination of the two. As such, the notes are the mental impressions, conclusions or opinions of Ms. Davis, and entitled to nearly absolute protection. Plaintiff offers no rationale for disregarding that protection.
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B.

Ordinary Work Product Analysis.

Plaintiff contends incorrectly that in the May 31, 2000 telephone call Mr. Aubry opined that all Client Managers were non-exempt. Plaintiff then contends that given Mr. Aubry's stature and the fact that Client Managers were not made overtime eligible in Arizona until 22 months later, this "delay" is evidence of willfulness. Plaintiff then contends that because no written report was prepared by Mr. Aubry, the notes of Ms. Davis are the only written memorialization of what the Bank was told by Mr. Aubry. Thus, the information sought by Plaintiff is evidence of what Mr. Aubry said on May 31, 2000. The Ninth Circuit dealt with a virtually identical situation in Navajo Nation v. Norris, supra. There, the plaintiff sought evidence to challenge the declarations of the original attorney and the Becentis regarding the timing of the initial contact between the attorney and the Becentis. The Ninth Circuit did not decide if the notes were opinion work product or ordinary work product. Instead, the Ninth Circuit noted that the information was readily obtainable from the Becentis; therefore, the Navajo Nation could not have met even the minimal prerequisite to obtaining the discovery, i.e., that the information was not available from any other source. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003). As a result, the Ninth Circuit held the District Court did not commit reversible error by declining to order production of the notes in discovery. Here, the information sought, what Mr. Aubry told the Bank, is available from another source, Mr. Aubry (like the Becentis). He is listed as a witness and available for deposition and trial testimony. Therefore, Plaintiff cannot meet even the minimal prerequisite to obtaining discovery of Ms. Davis' notes, even if they are ordinary work product. Of equal importance, it is impossible to determine which, if any, of the notations reflect Ms. Davis' impressions of a comment by Mr. Aubry. Accordingly, no one can determine if a given notation meets Plaintiff's fundamental assumption, that the notation
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is a contemporaneous recordation of a comment of Mr. Aubry. For this additional reason, Plaintiff cannot meet her threshold burden for discovery of the notes. C. Federalism.

Certainly, federal law governs the forced production of Ms. Davis' notes. F.D.I.C. v. Fidelity & Deposit Co. of Maryland, 196 F.R.D 375, 381 (S.D. Cal. 2000). Yet concepts of federalism permit the Court to be mindful of the California law guiding Ms. Davis' (and other California attorneys') expectations regarding the confidentiality of her notes. As the Court will recall, attorney work product is absolutely privileged under California law. Cal.Code.Civ.Proc. § 2018.030(a); Rodriguez v. McDonnell Douglas Corp., 87 Cal. App. 3d 626, 648 (App. 1978); People v. Boehm, 270 Cal. App. 2d 12, 21-22 (App. 1969). It is respectfully submitted that few California attorneys would expect to see their notes exposed in other jurisdictions in unrelated actions. Further, once disclosed in a federal jurisdiction, are those notes, then, circuitously, available even in California courts? Under these circumstances it is appropriate to treat the notes as privileged, the state law providing guidance on their availability, barring extreme circumstances (which do not exist in this action) requiring this Court to trump the state privilege. A suggested approach consistent with concepts of federalism is to acknowledge that the discoverability of attorney work product adopts its character at the time of creation of the product and from the forum, in the case of then ongoing litigation, in which the attorney is appearing. A discoverability decision by the Court in a federal jurisdiction in a later case then would honor the originating jurisdiction's law if more stringent than federal law. In any event, Ms. Davis' spirit should not be shaken by disclosure of her notes, taken in a state proceeding with the belief they were privileged from disclosure.

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VI.

CONCLUSION AND REQUEST. For the foregoing reasons, Defendant requests that the Court decline to order

production of Ms. Davis' notes. DATED this 28th day of November, 2005. RYLEY CARLOCK & APPLEWHITE By s/Charles Chester Charles L. Chester John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

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I hereby certify that on November 28th, 2005, I electronically transmitted the attached Defendant's Opening 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 registrants: 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