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Mischler v. Novagraaf Group BV

United States District Court, District of Columbia

November 19, 2019

JOSEPH MISCHLER, individually and on behalf of those similarly situated, Plaintiff,
v.
NOVAGRAAF GROUP BV, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

         This dispute concerning documents over which Defendants have claimed attorney-client privilege and work-product protection was first raised in a motion to compel filed in July 2019. Since then, the Court has twice ordered the parties to confer to narrow the issues in dispute, with some success: the approximately 140 documents originally at issue have been whittled down to fewer than fifteen. Based on the briefing and the Court's in camera review of the documents at issue, Plaintiff's motion is granted in part and denied in part.[1]

         I. BACKGROUND

         In this case, Plaintiff Joseph Mischler claims, among other things, that Defendants Novagraaf Group BV (“Novagraaf”), a Dutch patent and trademark consultancy with operations in the District of Columbia, and its Chief Executive Officer (“CEO”), Lutgarde Liezenberg, failed to pay Plaintiff wages and retaliated against him both for complaining about that failure and for filing this lawsuit. ECF No. 1-2 at 1. Defendants have counterclaimed, alleging that Plaintiff misrepresented to them the amount of business he generated for Novagraaf. ECF No. 18 at 5.

         Plaintiff's previous motion to compel production of material that Defendants had withheld as privileged, filed on July 29, 2019, challenged 139 documents reflected on the privilege log Defendants had provided in April 2019 (the “April Privilege Log”), among other things. ECF No. 39-1 at 1-6; ECF No. 39-3. By the time Plaintiff filed that motion, Defendants had produced an updated privilege log (the “July Privilege Log”) on July 18; however, “the new privilege log did not correlate to the initial privilege log.” ECF No. 39-1 at 5. For example, the July Privilege Log had fewer entries, in part because some documents had been recently produced, but also allegedly as a result of the omission of duplicate documents that were inadvertently entered on the April Privilege Log; the July Privilege Log disclosed different document descriptions for some communications than did the April Privilege Log; and the July Privilege Log listed a different basis for withholding certain documents than that listed on the April Privilege Log. ECF No. 41 at 3-4, 10-12; ECF No. 48 at 4-7.

         Because of the confusion created by the two privilege logs, which made it difficult to determine which documents were still at issue and on what basis, on September 5, 2019, the Court ordered Defendants to produce a new, clarified privilege log (the “September 5 Order”). The new privilege log was to

list all of the documents included on the April Privilege Log, along with the original information included in the “date, ” “from”, “to, ” “cc, ” “general description” and “basis of privilege” columns of the April Privilege Log. For each entry, it shall also include (1) whether Plaintiff sought production of the document in his highlighted version of the April Privilege Log, (2) whether the document has been produced either before or after the promulgation of the April Privilege Log, and (3) whether the entry is a duplicate that was inadvertently included on the April Privilege Log and therefore not included on the July Privilege Log. Further, the September Privilege Log shall make clear all changes to the general description of the document and to the basis for withholding the document between the April Privilege Log and the July Privilege Log.

ECF No. 57 at 2-3. In addition, the September 5 Order required the parties to file a joint status report by September 19, 2019, updating the Court on whether the new privilege log had “contracted the universe of disputed documents or otherwise narrowed the issues related to Plaintiff's motion to compel, ” and to identify any documents still at issue and the bases for Plaintiff's challenges to withholding those documents. Id. at 3. Defendants timely filed an updated privilege log that complied with the September 5 Order (the “September Privilege Log”).[2] ECF No. 59-1.

         On September 19, 2019, the parties failed to file a joint status report; instead they filed dueling submissions that made clear that they had not attempted to “contract[] the universe of disputed document or otherwise narrow[] the issues” presented to the Court. ECF No. 57 at 3; see ECF Nos. 64-65. The Court therefore issued an Order requiring the parties to “meet and confer to attempt to resolve or at least narrow this dispute over privilege, ” denying the pending motion to compel without prejudice, and setting a date by which Plaintiff should file a “motion to compel elucidating the remaining disputes.” ECF No. 70 at 3-4.

         Plaintiff filed this motion to compel, which ultimately identifies twelve documents reflected on the September Privilege Log that he believes have been improperly withheld.[3] ECF No. 74-1 at 2. According to the September Privilege Log, each of those documents has been withheld on the basis of work-product protection.[4] ECF No. 59-1 at 1-3. Defendants' opposition claims that some of those twelve documents are shielded from discovery by attorney-client privilege and some by work-product protection. ECF No. 75. After Plaintiff filed his reply (ECF No. 79), the Court noted that Defendants had failed to submit competent evidence to support their explanations as to why attorney-client privilege or work product protection covered the emails at issue-such as, for example, a declaration from an attorney asserting that she had reviewed the withheld emails and could attest to the accuracy of the descriptions of the content of those emails included in the opposition, or an affidavit from one or more participants in the email chains “describing the confidential nature of the documents, ” AT&T Corp. v. Microsoft Corp., No. 02-0164 MHP (JL), 2003 WL 21212614, at *2 (N.D. Cal. Apr. 18, 2003). Although failure to establish a privilege or other protection with competent evidence is a sufficient reason to grant a motion to compel, see, e.g., In re Veiga, 746 F.Supp.2d 27, 38, 41-42 (D.D.C. 2010), a court may instead allow the proponent of the privilege or protection to submit evidence in the form of the documents themselves for in camera review, see, e.g., Alexander v. FBI, 192 F.R.D. 42, 45-46 (D.D.C. 2000) (noting that, after the court determined that the proponent of the privilege had failed to establish it by competent evidence, the court reviewed the documents at issue in camera to determine if they were privileged). Therefore, in light of the facts that Plaintiff had previously asked the Court to review the documents in camera and that the number of documents at issue had shrunk to twelve, the Court ordered Defendants to lodge the withheld emails with Chambers for ex parte, in camera review. (ECF No. 77).

         II. LEGAL STANDARD

         A party seeking discovery may move under Rule 37 of the Federal Rules of Civil Procedure for an order “compelling an answer, designation, production or inspection” from a party who fails to produce documents requested pursuant to the Federal Rules. Fed.R.Civ.P. 37(a)(3). Generally, “[t]he party moving to compel discovery has the burden of proving that the opposing party's answers were incomplete.” Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007). “However, a party asserting a privilege or work-product protection bears the burden to establish that the privilege applies.” United States v. All Assets Held at Julius Baer & Co., 169 F.Supp.3d 54, 56 (D.D.C. 2015). A party meets that burden by “‘adduc[ing] competent evidence in support of its claims,' something beyond ‘conclusory statements, generalized assertions, and unsworn averments of its counsel.'” FTC v. Boehringer Ingelheim Pharm., Inc., 180 F.Supp.3d 1, 16 (D.D.C. 2016) (quoting In re Veiga, 746 F.Supp.2d at 33-34; see also, e.g., United States v. ISS Marine Servs., Inc., 905 F.Supp.2d 121, 127 (D.D.C. 2012) (quoting Veiga, 746 F.Supp.2d at 33-34); Alexander, 192 F.R.D. at 45 (“[T]he party asserting the attorney-client privilege . . . must demonstrate ‘the applicability of the privilege by way of affidavits or other competent evidence.'” (quoting Alexander v. FBI, 186 F.R.D. 102, 111 (D.D.C. 1998))).

         A. Work-Product Protection

         The work-product doctrine “protect[s] the mental processes and opinions of the drafter of the document in question, ” as well as “factual material that is bound up with the drafter's opinions and recommendations.” All Assets, 169 F.Supp.3d at 57. Under Rule 26(b)(3)(A), which “codified in substantial part” the federal work-product doctrine, “a party generally may not discover ‘documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.'” FTC v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (quoting Fed.R.Civ.P. 26(b)(3)(A)). That is, it is not necessary for documents to have been prepared by an attorney or under the direction of an attorney, “so long as they were clearly prepared in anticipation of litigation” by a party's representative. Hertzberg v. Veneman, 273 F.Supp.2d 67, 77 (D.D.C. 2003) (collecting cases); see also Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977) (“While the ‘work product' may be, and often is, that of an attorney, the concept of “work product” is not confined to information or materials gathered or assembled by a lawyer.”); In re Copper Market Antitrust Litig., 200 F.R.D. 213, 221 (S.D.N.Y. 2001) (“[D]ocuments prepared in anticipation of litigation need not be created at the request of an attorney.”); Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., No. 95 Civ. 4856, 1996 WL 490710, at *2 (S.D.N.Y. Aug. 27, 1996) (same).

         In this Circuit, material is generated in anticipation of litigation if, “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. All Assets Held at Bank Julius Baer & Co., Ltd., 315 F.R.D. 103, 108-09 (D.D.C. 2016) (emphasis added) (quoting Boehringer Ingelheim, 778 F.3d at 149). The litigation “need not be actual or imminent; it need only be ‘fairly foreseeable.'” Hertzberg, 273 F.Supp.2d at 78 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)). Importantly, the D.C. Circuit's “because of” test does not require that “anticipation of litigation be the ‘primary motivating purpose' behind the document's creation”; rather “a document can contain protected work-product material even though it serves multiple purposes, so long as the protected material was prepared because of the prospect of litigation.” United States v. Deloitte LLP, 610 F.3d 129, 136-138 (D.C. Cir. 2010) (rejecting the “more demanding” primary motivating purpose test in favor of the “more lenient ‘because of' test”). However, “[w]here a document would have been created ‘in substantially similar form' regardless of the litigation, work product protection is not available.” Boehringer Ingelheim, 778 F.3d at 149 (quoting Deloitte, 610 F.3d at 138).

         Moreover, “the work product privilege is a qualified privilege which may be overridden by a showing of substantial need by the requesting party.” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1302 (D.C. Cir. 1980). More specifically, so-called “fact work product, ” which is material prepared in anticipation of litigation that does not “reveal ‘the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation, '” is discoverable where “the party seeking disclosure ‘has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.'” All Assets, 315 F.R.D. at 109 (first quoting Fed.R.Civ.P. 26(b)(3)(B), then quoting Fed.R.Civ.P. 26(b)(3)(A)(ii)). On the other hand, opinion work product-that is, material that does reveal the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative-is “virtually undiscoverable.” Id. (quoting Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir.1997)). Although material created by non-attorneys may be protected as opinion work product, in order to be so protected, it must be closely intertwined with legal analyses, such as by “necessarily reflect[ing] a focus chosen by [a] lawyer.” United States ex rel. Landis v. Tailwind Sports Corp., 303 F.R.D. 429, 432 (D.D.C. 2014) (quoting United States v. Clemens, 793 F.Supp.2d 236, 252 (D.D.C. 2011)); Deloitte, 610 F.3d at 139 (remanding case to district court to view documents in camera to determine whether analyses by non-attorneys were “so intertwined with the legal analysis as to warrant protection under the work-product doctrine”).

         B. Attorney-Client Privilege

         “The attorney-client privilege protects confidential communications between clients and their attorneys made for the purpose of securing legal advice or services.” FTC v. Boehringer Ingelheim Pharm., Inc., 180 F.Supp.3d 1, 16 (D.D.C. 2016), aff'd, 892 F.3d 1264 (D.C. Cir. 2018). The D.C. Circuit has “rejected a strict ‘but for' requirement under which a communication could not be privileged if there was any purpose behind it other than seeking or providing legal advice”; instead, a communication is entitled to attorney-client privilege if “‘one of the significant purposes' of the communication was to obtain or give legal advice.” Id. (quoting In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757-60 (D.C. Cir. 2014)). Although the underlying facts on which an attorney-client communication rests are generally not privileged, purely factual exchanges can be protected when, among other things, they are provided at the request of an attorney for the purpose of enabling legal advice. Id. Indeed, even communications among corporate employees who are not attorneys are entitled to protection if the purpose of those communications was to marshal facts for counsel to use in rendering legal advice. Id. at 34; see also AT & T, 2003 WL 21212614, at *3 (‚ÄúCommunications between non-lawyer employees ...


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