Grano v. Sodexo, Inc.

1

2

3 UNITED STATES DISTRICT COURT

4 SOUTHERN DISTRICT OF CALIFORNIA

5

Case Nos.: 18cv1818-TWR(BLM)

6 VINCENT GRANO, et al.,

7 Plaintiffs, ORDER GRANTING IN PART AND

DENYING IN PART CARGILL’S MOTION

8 v. TO COMPEL

9 SODEXO MANAGEMENT, INC., et al.,

[ECF Nos. 375, 377]

10 Defendants.

11 ____________________________________

12

AND RELATED CASES

13

14 Currently before the Court are letter briefs dated September 29, 2021, from Plaintiffs and

15 Defendant Cargill Meat Solutions Corp. ECF Nos. 377 (“Pl.s’ Mot.”), 375 (“Cargill Mot.”). For

16 the reasons set forth below, Cargill’s request to compel further response from Plaintiffs is

17 GRANTED IN PART AND DENIED IN PART.

18 RELEVANT BACKGROUND

19 On July 19, 2021, Cargill filed a motion in limine to exclude a preliminary CDC report and

20 a related case-control study. ECF No. 337. Plaintiffs opposed the motion on September 21,

21 2021. ECF No. 364. The exhibits to the opposition include declarations from Amelia Keaton,

22 M.D., Medical Officer at the CDC, who was part of the 2017 CDC outbreak investigation and co-

23 authored the preliminary CDC trip report [see ECF No. 364-2] and Captain Jennifer Espiritu, a

24 Navy physician who assisted the CDC with its 2017 outbreak investigation [see ECF No. 364-5].

25 Cargill Mot. at 2-3. The declarations provide additional information about the investigations of

26 the outbreak and their involvement in those investigations. Id.; see also ECF No. 377-2.

27 On December 18, 2020, Cargill served Plaintiffs with its First Set of Interrogatories and

1 You received or obtained related to this litigation in response to Your requests to third parties,

2 whether via subpoena, Freedom of Information Request, letter request, or any other formal or

3 informal request” and “REQUEST NO. 4: All documents and communications related to any

4 governmental or private organization’s investigation into the source of the E. coli Outbreak.”

5 Cargill’s Mot. at 3; see also ECF No. 377-3 at 1. Plaintiffs responded to the requests and later

6 supplemented those responses. Cargill’s Mot. at 3-4. On September 22, 2021, Cargill wrote to

7 Plaintiffs’ counsel and requested that they further supplement their responses to RFP Nos. 3 and

8 4 with underlying communications related to the declarations obtained from Drs. Keaton and

9 Espiritu. Id. at 4. Plaintiffs declined to do so and after meeting and conferring on the issue the

10 parties were unable to come to a resolution.

11 On September 24, 2021, counsel for Defendant Cargill, Mr. Bylund and Ms. Akalaonu, and

12 counsel for Plaintiffs, Mr. Falkenstein, jointly contacted the Court regarding this discovery

13 dispute. ECF No. 371. That same day, the Court ordered the parties to file letter briefs not to

14 exceed ten (10) pages in length by close of business on September 29, 2021. Id. The parties

15 timely filed their briefs in accordance with the Court’s order. Pl.s’ Mot., Cargill Mot.

16 LEGAL STANDARD

17 The scope of discovery under the Federal Rules of Civil Procedure is defined as follows:

18

Parties may obtain discovery regarding any nonprivileged matter that is relevant

19 to any party’s claim or defense and proportional to the needs of the case,

considering the importance of the issues at stake in the action, the amount in

20 controversy, the parties’ relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the issues, and whether

21

the burden or expense of the proposed discovery outweighs its likely benefit.

22 Information within this scope of discovery need not be admissible in evidence to

be discoverable.

23

24 Fed. R. Civ. P. 26(b)(1). District courts have broad discretion to determine relevancy for

25 discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts

26 also have broad discretion to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2)

27 (instructing that courts must limit discovery where the party seeking the discovery “has had

1 discovery is “unreasonably cumulative or duplicative,” “obtain[able] from some other source that

2 is more convenient, less burdensome, or less expensive,” or where it “is outside the scope

3 permitted by Rule 26(b)(1)”).

4 CARGILL’S POSITION

5 Cargill seeks an order from the Court requiring Plaintiffs to supplement their production

6 of documents. Cargill Mot. at 1. Specifically, Cargill seeks

7 1) Plaintiffs’ written emails, requests, and correspondence to the CDC and to the

8 Navy seeking testimony and declarations from Keaton and Espiritu, as well as the

written responses they received from these agencies as to those requests;

9

2) All emails, correspondence, and written communications between Plaintiffs’

10

counsel and the CDC, the Navy, Keaton, and/or Espiritu related to the drafting,

11 revising, editing, finalizing, and signing of the Keaton declaration and the Espiritu

12 declaration including any drafts, notes, comments, etc.;

13 3) Plaintiffs’ emails and written correspondence (this includes Plaintiffs’ counsel

and Plaintiffs’ representatives, including any of their experts, which includes Dr.

14

Kirk Smith) with the CDC, including the Office of General Counsel, the Director

15 (or her representative), and Dr. Keaton related to this litigation, and

16 4) Plaintiffs’ emails and written correspondence (this includes Plaintiffs’ counsel

17 and Plaintiffs’ representatives, including any of their experts) with the Navy,

including with Rob Anselm (Legal Counsel – Naval Medical Forces Atlantic),

18

Office of the Judge Advocate General, the General Litigation Division (including

19 with Ann T. Oakes, Nathaniel A. Bosiak, and/or Virginia Hinton, the Director of the

20 General Litigation Division (or his representative), and Captain Espiritu.

21 Id. at 10.

22 Cargill argues that Plaintiffs’ underlying communications with the CDC and the Navy are

23 subject to the Freedom of Information Act (“FOIA”) and are not protected by the attorney work-

24 product doctrine. Id. at 5. Cargill also argues that even if attorney work-product applied, it has

25 been waived. Id. at 6-7. Finally, Cargill argues that it has a substantial need for the underlying

26 communications and cannot obtain the communications by other means without undue

27 hardship. Id. at 7-8.

1 PLAINTIFFS’ POSITION

2 Plaintiffs contend that the information Cargill seeks is not responsive to the overbroad

3 requests contained in RFP Nos. 3 and 4. Pl.s’ Mot. at 3-4. Plaintiffs further contend that (1) the

4 materials Cargill seeks “are squarely within the work-product privilege[;]” (2) Cargill has not

5 established the requisite need to overcome the privilege since Cargill has the same access to

6 the information and witnesses; (3) the requested information is not relevant to the pending

7 litigation; and (4) Drs. Keaton and Espiritu’s status as federal employees does not change the

8 analysis. Id. at 4-9. Plaintiffs also note that they have not sought and received the same

9 information from Cargill, and they are not attempting to delay the case to prevent Cargill from

10 using the requested materials in their reply briefs on the pending dispositive motions Id.

11 DISCUSSION

12 A. Applicable Law

13 As an initial matter, the parties disagree about whether California state law or Federal

14 law governs this dispute. Cargill argues that “[g]iven that issues concerning the work-product

15 doctrine are procedural, the discovery dispute here is governed by the Federal Rule of Civil

16 Procedure 26(b)(3).” Cargill Mot. at 6 (citing Great Am. Assur. Co. v. Liberty Surplus Ins. Corp.,

17 669 F. Supp. 2d 1084, 1090 (N.D. Cal. 2009) (citing Bozzuto v. Cox, 255 F.R.D. 673, 677

18 (C.D.Cal.2009)). Plaintiffs contend that the state of California’s work-product doctrine governs

19 the dispute, but also assert that the result is the same whether the Court uses the federal

20 framework for discovery or California’s. Pl.s’ Mot. at 5.

21 “Federal law governs the application of the work product doctrine.” United Specialty

22 Insurance Company v. Dorn Homes Inc., 334 F.R.D. 542, 544 (D. Ariz. 2020); see also Anderson

23 v. SeaWorld Parks and Entertainment, Inc., 329 F.R.D. 628, 635 (N.D. Cal. 2019) (“Unlike the

24 attorney-client privilege, the application of the work product doctrine in diversity of citizenship

25 cases is determined under federal law.”) (quoting Kandel v. Brother Int'l Corp., 683 F.Supp.2d

26 1076, 1083 (C.D. Cal. 2010)) and McKenzie Law Firm, P.A. v. Ruby Receptionists, Inc., 333

27 F.R.D. 638, 641 (D. Or. 2019) (“In federal court, the work-product doctrine is governed by

1 product claims under federal law.

2 The work-product doctrine is codified in Fed. R. Civ. P. 26(b)(3)(A). The work-product

3 doctrine “is not a privilege but a qualified immunity protecting from discovery documents and

4 tangible things prepared by a party or his representative in anticipation of litigation.” Id.

5 (quoting Admiral Ins. Co. v. United States Dist. Court for the Dist. of Arizona, 881 F.2d 1486,

6 1494 (9th Cir. 1989) (citing Fed. R. Civ. P. 26(b)(3))). “[A] party may not discover documents

7 and tangible things that are prepared in anticipation of litigation or for trial by or for another

8 party or its representative (including the other party's attorney, consultant, surety, indemnitor,

9 insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). Nevertheless, those materials may be

10 discovered if “(i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows

11 that it has substantial need for the materials to prepare its case and cannot, without undue

12 hardship, obtain their substantial equivalent by other means.” Id. However, even when

13 substantial need for work product has been shown, the court must still “protect against

14 disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney

15 or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). Mental

16 impressions, conclusions, opinions, and legal theories of a party's attorney or other

17 representative are known as opinion work product which is discoverable only if it is “ in

18 the case and the need for the material is compelling.” S.E.C. v. Roberts, 254 F.R.D. 371, 375

19 (N.D. Cal. 2008) (citing Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.

20 1992) (“[a] party seeking opinion work product must make a showing beyond the substantial

21 need/undue hardship test required under Rule 26(b)(3) for non-opinion work product.”)

22 (emphasis in original).

23 The work product doctrine does not protect materials assembled in the ordinary course

24 of business. Rather, the primary motivating purpose behind the creation of the materials must

25 be as an aid in possible future litigation. See Griffith v. Davis, 161 F.R.D. 687, 698-699 (C.D.

26 Cal. 1995) (citations omitted). That is, work product protection applies only to material “that

27 would not have been generated but for the pendency or imminence of litigation.” See id. (citing

1 the work product rule applies is insufficient to invoke its protection.” Medina v. County of San

2 Diego, 2014 WL 4793026, *17 (S.D. Cal., Sept. 25, 2014) (citation omitted).

3 B. Requests for Production Nos. 3 and 4

4 Since the discovery period has ended, the first inquiry is whether the documents Cargill

5 seeks are covered by a prior discovery request. Cargill asserts that all of the requests are

6 covered by RFP Nos. 3 and 4. The Court disagrees.

7 RFP No. 3 seeks “[a]ll documents You received or obtained related to this litigation in

8 response to Your requests to third parties, whether via subpoena, Freedom of Information

9 Request, letter request, or any other formal or informal request.” Cargill’s Mot. at 3. The four

10 categories of documents Cargill currently seeks to compel focus on emails, correspondence, and

11 written communications. Id. at 10. RFP No. 3 does not seek emails or correspondence and

12 instead, specifically seeks . Plaintiffs state that they

13 already have produced all documents received in response to their FOIA requests and

14 subpoenas. Pl.s’ Mot. at 3. As a result, the Court finds that the materials described in Cargill’s

15 four categories are not covered by RFP No. 3.

16 The information Cargill seeks is partially responsive to RFP No. 4 which seeks “[a]ll

17 documents and communications related to any governmental or private organization’s

18 investigation into the source of the E. coli Outbreak.” Cargill Mot. at 3. To the extent the

19 declarations and testimony Cargill is seeking in the first two categories of documents relate to

20 the investigation into the source of the outbreak, they are responsive to RFP No. 4. The

21 documents and communications described in categories three and four are overbroad and not

22 limited to the investigation into the source of the outbreak. Request three seeks information

23 related to “this litigation” and request four seeks all communications, unlimited in any way. Id.

24 at 10. As a result, these requests are not covered by RFP No. 4.

25 C. Relevance

26 Plaintiffs assert that their “communications arranging meetings and requesting

27 permission” are not relevant to any party’s claims or defenses and are not proportional to the

1 at 4. Cargill responds that the requested communications are relevant, but their argument

2 focuses on communications related to the drafting of the declarations, not coordination

3 communications. Cargill Mot. at 8-9. Cargill explains that Plaintiffs’ counsel drafted the

4 declarations and Plaintiffs are relying on the declarations to support critical arguments so all

5 correspondence and drafts relating to the creation of the final declarations, including what

6 documents and information were shared with the declarants, are relevant to the pending

7 motions. Id.

8 The Court finds that communications regarding logistics, such as arranging meetings, are

9 not relevant to the current dispute. On the other hand, requests for testimony, declarations

10 and/or documents and the responses thereto, any limitations placed on the testimony or

11 cooperation of the declarants, and communications relating to the information and documents

12 provided to the declarants and the drafting of the declarations are relevant. As discussed in

13 section B, the Court also finds that Cargill’s third and fourth requests are overbroad and seek

14 irrelevant information as they seek all communications between Plaintiffs, Plaintiffs’ counsel, and

15 Plaintiffs’ experts with the CDC related to this litigation and with the Navy on any topic.

16 D. Attorney Work Product

17 Plaintiffs assert that all of the requested information and communications are protected

18 by the attorney work product privilege. Pl.s’ Mot. at 4-7. Cargill counters that the information

19 is not protected and, even if it was, the protection has been waived and/or Cargill has a

20 substantial need for the information. Cargill Mot. at 5-9.

21 The first category of information Cargill seeks includes Plaintiffs’ written emails, requests,

22 and correspondence to the CDC and to the Navy seeking testimony and declarations from Drs.

23 Keaton and Espiritu and the written responses they received. Cargill Mot. at 10. To the extent

24 this category seeks communications requesting permission to obtain documents, a declaration

25 and/or testimony from Drs. Keaton or Espiritu and the responses to those requests, such as any

26 limitations placed on the scope of the declarations and/or testimony, the category does not seek

27 information protected under attorney work-product doctrine. Even if the information is

1 have waived that protection. To the extent the first request seeks correspondence regarding

2 the drafting or content of the declarations, the request must be analyzed with the requests set

3 forth in the remaining categories of documents.

4 The second, third and fourth categories of information seek correspondence (1) related

5 to the “drafting, revising, editing, finalizing, and signing of the Keaton declaration and the

6 Espiritu declaration” along with any notes, drafts, or comments, (2) between Plaintiffs and the

7 CDC related to this litigation, and (3) between Plaintiffs and the Navy. Cargill Mot. at 10. To

8 the extent these categories are not overbroad and seek relevant information, they seek attorney

9 work product. Draft affidavits and communications with counsel about those affidavits are

10 attorney work product. See Schoenmann v. Federal Deposit Ins. Corp., 7 F.Supp.3d 1009, 1014

11 (N.D. Cal. 2014) (“With respect to the email communications between Ms. Ho and the Trustee

12 and Ms. Ho and the Trustee's attorney, as well as the draft declarations attached and exchanged

13 during those such communications, the Court finds that these materials constitute work product

14 and are protected from disclosure.”) (citing Inst. for Dev. of Earth Awareness v. PETA, 272

15 F.R.D. 124, 125 (S.D. N.Y. 2011) (finding that draft affidavits of non-party witnesses prepared

16 by defense counsel were work product and denying the plaintiff's motion to compel production

17 of the drafts); In re Convergent Tech. Second Half 1984 Sec. Litig., 122 F.R.D. 555, 559–64

18 (N.D. Cal. 1988); Tuttle v. Tyco Eelc. Installation Servs., Inc., 207 WL 4561530, at *2 (S.D. Ohio

19 Dec. 21, 2007) (“[T]he work product doctrine does protect information relevant to the evolution

20 of an affidavit, including but not limited to communications with counsel relating to the affidavit,

21 prior drafts of the affidavit, and any notes made by counsel while engaging in the process of

22 drafting the affidavit.”) and Randleman v. Fidelity Nat'l Title Ins. Co., 251 F.R.D. 281, 285 (N.D.

23 Ohio 2008) (finding draft affidavits and counsel correspondence are protected work product).1

24

25 1 See also Domingo v. Donahoe, 2013 WL 4040091, at *7 (N.D. Cal., Aug. 7, 2013) (“a draft

declaration is likely to contain an attorney's mental impressions and legal strategies.”) (citing

26

Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 608 (D. Nev. 2005)); see Wright & Miller,

27 Federal Practice & Procedure § 2024 n. 23 (“Recent cases have generally held that draft

affidavits, and communications with counsel relating to affidavits, are covered by the work-

1 The attorney work product protection extends to counsel’s communications and the responses

2 from Drs. Keaton and Espiritu regarding the litigation and draft declarations. See Gerber v.

3 Down East Community Hosp., 266 F.R.D. 29, 33 (D. Me. 2010) (“I conclude that the attorney

4 work-product privilege extends to the e-mail correspondence between Plaintiffs' counsel and

5 potential witnesses because, like a short-hand or stenographic recording of a witness statement

6 or interview, the e-mail interview was produced by counsel for litigation purposes and the

7 participation by a witness in an e-mail interview is comparable to participation by a witness in a

8 recorded oral interview or the creation of a written statement. The fact that the witness authors

9 a portion of the e-mail correspondence chain and likely retains a copy of the correspondence

10 does not undermine the privilege.”). In addition, Plaintiffs’ counsels’ notes and comments are

11 opinion work product as they contain counsels’ mental impressions, conclusions, opinions, or

12 legal theories. See Christensen v. Goodman Distribution Inc., 2020 WL 4042938, at *3 (E.D.

13 Cal., July 17, 2020) (“Interview notes and summaries or memorandum of witness statements

14 drafted by counsel are considered protected opinion work product.”) (citing Hatamian v.

15 Advanced Micro Devices, Inc., 2016 WL 2606830, at *2-3 (N.D. Cal. May 6, 2016) (citing Upjohn

16 Co. v. United States, 449 U.S. 383, 400 (1981)); see also S.E.C. v. Berry, 2011 WL 825742, at

17 *3 (N.D. Cal., Mar. 7, 2011) (“it is also quite clear that an attorney's notes or memoranda of an

18 interview are often considered to be “classic attorney work product.”) (citations omitted).

19 Notably, Cargill does not provide any legal authority for its position that the draft declarations

20 and communications regarding the same are not protected by the attorney work product.2 See

21 Cargill Mot.

22 E. Waiver

23 The protection afforded by the attorney work product doctrine is not absolute. See United

24

25

26

2 Cargill argues, without persuasive legal authority, that the correspondence and drafts are not

27 protected by the attorney work product doctrine because they are discoverable from the Navy

and CDC via the FOIA process. Cargill Mot. at 5-6. If Cargill’s argument is correct, Cargill will

1 States v. Sanmina Corporation, 968 F.3d 1107, 1119 (9th Cir. 2020) (citing United States v.

2 Nobles, 422 U.S. 225, 237–38 (1975)). Because it is a qualified privilege, it may be waived. Id.

3 Since the Court has found that the information sought by Cargill in categories two through four3

4 are protected by the attorney work product doctrine, the Court must now determine whether

5 Plaintiffs have waived that protection. Cargill bears the burden of showing that Plaintiffs have

6 waived the attorney work product protection. See McKenzie Law Firm, P.A. v. Ruby

7 Receptionists, Inc., 333 F.R.D. 638, 641 (D. Or. 2019) (holding that “the party asserting waiver

8 of work-product protection bears the burden of demonstrating that a waiver of that protection

9 has occurred” and noting that the question of who bears the burden of proving waiver or non-

10 waiver has not been decided by the Ninth Circuit, but that the Fifth Circuit and “other out-of-

11 circuit district courts have placed the burden on the party asserting waiver of work-product

12 protection”4).

13 To satisfy its burden, Cargill argues that by engaging in communications with federal

14 agencies that are subject to FOIA requests, Plaintiffs have “substantially increased the

15 opportunity for Cargill, an adverse party, to obtain the content and information within these

16 communications.” Cargill’s Mot. at 7. Cargill emphasizes that Plaintiffs used the protected

17 materials as evidence to support their opposition to Cargill’s motion in limine and in Plaintiffs’

18 withdrawn motion to reopen and extend expert deadlines. Id. Cargill argues that Plaintiffs’ use

19

20

3 As discussed in section D, the first category potentially includes correspondence regarding the

21 drafting or content of the declarations and that correspondence is protected by the attorney

work product doctrine and included in this this analysis.

22

4 Citing Pipeline Productions, Inc. v. The Madison Companies, LLC, 2019 WL 3973955, *4 (D.

23

Kan. Aug. 22, 2019) (“Once the party objecting to discovery establishes that the materials are

24 protected work product, the burden shifts to the party asserting waiver to establish that a waiver

has occurred.”); Towne Place Condo. Ass'n v. Philadelphia Indem. Ins. Co., 284 F. Supp. 3d 889,

25 899 (N.D. Ill. 2018) (“Where work product is claimed, the party asserting waiver has the burden

to show that a waiver occurred.”); United States Sec. & Exch. Comm'n v. Herrera, 324 F.R.D.

26

258, 262 (S.D. Fla. 2017) (stating that after the party asserting work-product protection meets

27 its initial burden, “the burden shifts to the party asserting waiver”); Mir v. L-3 Commc'ns

Integrated Sys., L.P., 315 F.R.D. 460, 467 (N.D. Tex. 2016) (“Unlike the attorney-client privilege,

1 of the protected materials “to try and gain a tactical advantage in the litigation” constitutes

2 waiver. Id.

3 With respect to the first category of information Cargill seeks, any protection afforded by

4 the attorney work product doctrine has been waived by Plaintiffs. “Work-product protection is

5 typically waived by a party’s voluntary disclosure of the information.” Citizens Development

6 Corporation, Inc. v. County of San Diego, 2019 WL 172469, at *12 (S.D. Cal., Jan. 11, 2019)

7 (citing Nobles, 422 U.S. at 230). However, “disclosure of attorney work product to a third party

8 does not waive protection ‘unless it has substantially increased the opportunity for the adverse

9 party to obtain the information.’” McKenzie Law Firm, P.A., 333 F.R.D. at 647 (quoting Anderson,

10 2019 WL 131841 at *4). Here, Plaintiffs disclosed at least some of their correspondence with

11 the Navy seeking testimony and declarations from Dr. Espiritu as well as the written response

12 they received from the Navy as to those requests. ECF No. 350. Specifically, as part of their

13 since withdrawn motion to extend expert deadlines, Plaintiffs discussed their correspondence on

14 this topic and attached copies of the correspondence as exhibits to the motion. Id. at 4-5, Exhs.

15 D-H. By disclosing this information on the docket, Plaintiffs “substantially increased the

16 opportunity for [Cargill] to obtain the information.”5 McKenzie Law Firm, 333 F.R.D. at 647.

17 With respect to the remaining three categories of information, Cargill has not satisfied its

18 burden of demonstrating waiver and the Court finds that Plaintiffs have not waived the attorney

19 work product protection. Cargill argues, again without persuasive legal authority, that by

20 engaging in communications with government agencies subject to FOIA, Plaintiffs waived any

21 work product protection because they “substantially increased the opportunity for Cargill, an

22 adverse party, to obtain the content and information within these communications through FOIA

23 requests.” Cargill’s Mot. at 7. Simply stating that the desired materials are subject to FOIA and

24 will be produced is not sufficient for the Court to find that Plaintiffs have waived the work product

25 protection, especially since Cargill voluntarily (and perhaps tactically) delayed its own efforts to

26

27 5 It is unclear if there is additional correspondence between the Navy and Plaintiffs seeking

testimony from Dr. Espiritu, but in any event, the correspondence is discoverable because, as

1 obtain interviews from Drs. Keaton and Espiritu. The current record does not support Cargill’s

2 position that all of the requested information is obtainable via a FOIA request and that, therefore,

3 Plaintiffs’ communications substantially increased the opportunity for Cargill to obtain the

4 information. In any event, if Cargill is correct, it will obtain the requested information in the

5 near future pursuant to its own FOIA requests.

6 Finally, the fact that Plaintiffs filed the declarations in support of various pleadings does

7 not automatically waive the attorney work product protection for the drafts and correspondence

8 leading up to the final declaration. See In re Intuitive Surgical Securities Litigation, 2017 WL

9 5054404, at *3 (N.D. Cal., Apr. 10, 2017) (“To the extent defendants suggest that the

10 submission of the investigators' declarations and memos in court filings effected a broad subject

11 matter waiver of any work product protection applicable to communications with Endweiss, their

12 argument is rejected. The determination whether there has been any waiver is rooted in

13 principles of fairness.”); see also Huguely v. Clarke, 2021 WL 537238, at *3 n1. (W.D. Va., Feb.

14 15, 2021, No. 7:20CV30021) (“The court also finds that Huguely has not waived work-product

15 protection for the earlier declaration by submitting and relying upon a final version in the habeas

16 proceedings.”) (citing ePlus Inc. v. ;Lawson Software, Inc., 2012 WL 6562735, *6 (E.D. Va. Dec.

17 12. 2021) (“Of course, the production of the final draft of the document waives work product

18 protection as to that draft. Nevertheless, this does not lead to waiver of work product protection

19 for earlier drafts.”); Inst. for Dev. of Earth Awareness, 272 F.R.D. at 125 (“The lawyer's drafts,

20 which have not been adopted or executed by the non-party witness, do not lose their character

21 as work product because a final executed version has been affirmatively used in the litigation.”);

22 and Randleman, 251 F.R.D. at 286 (“Fidelity's filing of the affidavits with the court did not waive

23 the work product doctrine's protection of earlier material.”). Here, the Court finds that Plaintiffs

24 have not waived the attorney work product protection as to drafts of the Keaton and Espiritu

25 declarations and related communications by filing the final version of the declarations.

26 F. Discoverability Despite Attorney Work Product Protection & Lack of Waiver

27 Fact (non-opinion) work product may be discovered if “(i) [it is] otherwise discoverable

1 prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other

2 means.” Fed. R. Civ. P. 26(b)(3)(A). Here, Cargill has not satisfied the second part of that test.

3 Throughout this case, Cargill had the same opportunity to engage with the CDC and Navy to

4 obtain documents and interviews as Plaintiffs. Cargill’s decision to forego the interview process

5 until now does not create a substantial need. See Schoenmann, 7 F.Supp.3d at 1014 (denying

6 defendant’s motion to compel email communications and draft declarations between plaintiff,

7 her lawyer, and a non-party witness and finding that “[t]he Trustee identified Ms. Ho in her

8 initial disclosures and the FDIC–Receiver had the opportunity to depose Ms. Ho to investigate

9 any relevant information she may possess with respect to the Trustee's claims or its defenses.

10 Its decision not to pursue such discovery does not create substantial need under Rule

11 26(b)(3)(A)(ii)”). Additionally, Cargill has not shown undue hardship in obtaining the information

12 it seeks as the FOIA requests have already been submitted [see Cargill Mot. at 9], the reply

13 deadlines set by Judge Robinson have been continued [see ECF No. 374], and Cargill currently

14 is “going through the same CDC witness interview process that Plaintiffs did.” Pl.s’ Mot. at 7.

15 Opinion work product is treated differently. “[T]he work-product doctrine affords special

16 or heightened protection to materials that reveal an attorney's mental impressions or opinions.”

17 McKenzie Law Firm, P.A., 333 F.R.D. at 641. While fact work product is discoverable upon a

18 showing of substantial need and undue hardship, opinion work product “is discoverable only

19 ‘when mental impressions are at issue in a case and the need for the material is compelling.’”

20 Id. (quoting Holmgren, 976 F.2d at 577; see also U.S. ex rel. Bagley v. TRW, Inc., 212 F.R.D.

21 554, 559 (C.D. Cal. 2003) (“[a]bsent a waiver, opinion work product enjoys nearly absolute

22 protection and is discoverable only in ‘rare and extraordinary circumstances,’ while ordinary work

23 product is discoverable upon a showing of “substantial need’ and ‘undue hardship.’”) (quoting

24 United States ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 683–684 (S.D. Cal. 1996)).

25 Cargill has not demonstrated that the heightened protection given to opinion work product

26 should be set aside. Cargill argues that the materials it seeks are relevant and discoverable and

27 that it has a substantial need for the materials that it cannot obtain without undue hardship, but

1 material is compelling. Cargill Mot. For the same reasons Cargill has failed to demonstrate a

2 substantial need and undue hardship for Plaintiffs’ fact work product, Cargill has failed to

3 ||demonstrate a compelling need for Plaintiffs’ opinion work product. Cargill’s reply deadlines to

4 || the motions pending in front of Judge Robinson have been continued to November 22, 2021.

5 ||ECF No. 374. Cargill submitted its FOIA request to the CDC on September 21, 2021, and was

6 the process of preparing one for the Navy as of the filing of its letter brief on September 29,

7 |{2021. Cargill’s Mot. at 9. If as Cargill argues, the desired information will be obtained via its

8 || FOIA requests, there is no compelling need for the information from Plaintiffs.

9 CONCLUSION

10 Cargill’s motion to compel further response from Plaintiffs is GRANTED IN PART AND

11 || DENIED IN PART as follows:

12 1. Cargill’s motion to compel “Plaintiffs’ written emails, requests, and correspondence

13 ||to the CDC and to the Navy seeking testimony and declarations from Keaton and Espiritu, as

14 || well as the written responses they received from these agencies as to those requests” is

15 || GRANTED to the extent the emails, requests, and correspondence are not merely procedural

16 || (arranging meetings) and do not include drafts of the declarations. Plaintiffs must produce the

17 || requested information to Cargill on or before October 19, 2021.

18 2. Cargill’s motion to compel further response to categories 2-4 [see Cargill’s Mot. at

19 is DENIED. Requests 3 and 4 are overbroad and seek irrelevant information. To the extent

20 || requests 2-4 seek relevant information, the information and correspondence is protected by the

21 || attorney work product doctrine and Cargill has not established waiver, substantial need and

22 |} undue hardship, or compelling need.

23 IT IS SO ORDERED.

24 ||Dated: 10/12/2021 lobe Mager

25 Hon. Barbara L. Major

United States Maqistrate Judde

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