Vandenberg v. University of Saint Thomas

UNITED STATES DISTRICT COURT July 16, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

KELLY VANDENBERG, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:18-CV-379

§

UNIVERSITY OF SAINT THOMAS; aka §

UNIVERSITY OF ST. THOMAS §

(HOUSTON), §

§

Defendants. §

ORDER

Before the Court is Defendant University of St. Thomas’s Motion to Compel. Dkt.

85. After reviewing the motion, response, reply, all relevant submissions, and the

applicable law, the Court finds that the motion should be GRANTED IN PART AND

DENIED IN PART.

I. Background

Plaintiff Kelly Vandenberg asserts that St. Thomas unlawfully terminated and

retaliated against her based on her race. St. Thomas moved for summary judgment. Dkt.

30. In response, Vandenberg submitted the affidavit of her former colleague, Pamela

Love (née Hodges), who attested that she also experienced racial discrimination by her

former employer, St. Thomas. Dkt. 68-5. St. Thomas had previously served discovery

requests on Vandenberg for her communications with Love, to which Vandenberg

objected. After summary judgment briefing, the parties submitted a joint discovery letter

outlining the dispute, and the Court ordered further briefing. Dkt. 79. St. Thomas now

asks the Court to compel Vandenberg to produce “unredacted copies of any documents

and communications with Love regarding: (1) Vandenberg’s allegations in this lawsuit,

(2) Love’s declaration, and (3) Love’s EEOC charge.” Dkt. 85 at 1. The Court ordered

Vandenberg to submit the withheld documents for in camera review (Dkt. 93), which

Vandenberg did (see Dkt. 94), and the Court has reviewed the documents.

II. Applicable Legal Standards

a. Attorney-Client Privilege

Attorney-client privilege protects only those disclosures necessary to obtain

informed legal advice which might not have been made absent the privilege. Fisher v.

United States, 425 U.S. 391, 403 (1976). Only communications made “for the purpose of

securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in

some legal proceeding” are privileged. United States v. Harrelson, 754 F.2d 1153, 1167

(5th Cir. 1985).

b. Work-Product Doctrine

The work product doctrine exists to promote the adversary system by enabling

attorneys to prepare cases without fear that their work product will be used against their

clients. Hickman v. Taylor, 329 U.S. 495, 510–11 (1947). The privilege extends qualified

immunity to 1) “documents and tangible things,” 2) “prepared in anticipation of litigation

or for trial,” 3) “by or for another party or by or for that other party’s representative.”

Fed. R. Civ. P. 26(b)(3); see also United States v. Noble, 422 U.S. 225, 239 (1975). The

work product immunity is “qualified” because material prepared in anticipation of

litigation is nonetheless discoverable if the requesting party establishes that it has a

substantial need for information and that it cannot obtain substantially equivalent

information from other sources without undue hardship. Fed. R. Civ. P. 26(b)(3).

III. Analysis

a. Vandenberg’s communications with Love are not privileged.

Vandenberg asserts that, under the “common legal interest” doctrine, the attorney-

client privilege protects her communications with Love.

The Fifth Circuit has held that only “two types of communications” are protected

under the common legal interest privilege: “(1) communications between co-defendants

in actual litigation and their counsel,” and “(2) communications between potential co-

defendants and their counsel.” In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir.

2001) (emphasis in original). The Fifth Circuit “has not expressly held that the privilege

is inapplicable to co-plaintiffs.” BCR Safeguard Holding, L.L.C. v. Morgan Stanley Real

Estate Advisor, Inc., 614 F. App’x 690, 703 (5th Cir. 2015). However,

“[c]ommunications may be protected by the common legal interest privilege only if those

communications ‘further a joint or common interest.’” Id. (emphasis in original).

Regardless whether the Fifth Circuit recognizes a common legal interest privilege

applicable to co-plaintiffs, the Court finds that Vandenberg’s text messages with Love are

not privileged because they do not further a joint or common interest. Having reviewed

the text messages in camera, the Court finds that these text messages do not indicate that

the parties communicated with each other at the direction of counsel or for a clear

litigation-related objective. They appear to be the social conversation of two friends

keeping each other updated about life developments, which happened to include their

legal action against St. Thomas. Cf. United States v. Krug, 868 F.3d 82, 87 (2d Cir. 2017)

(“Ultimately, what is vital to the privilege is that the communication be made in

confidence for the purpose of obtaining legal advice from the lawyer.” (internal

quotations, brackets, and emphases omitted)). The Court finds that the privilege does not

extend so far as to encompass such communications between two plaintiffs merely

because they are suing the same defendant.

Vandenberg’s objections to requests for production that seek these documents are

OVERRULED. As to these communications, St. Thomas’s motion to compel is

GRANTED.

b. Emails between Vandenberg’s counsel and Love are protected from

disclosure.

Vandenberg’s counsel exchanged emails with Love concerning (1) prospective

legal representation in Love’s lawsuit and (2) Love’s testimony in this case.

Having reviewed the emails in camera, the Court finds that the attorney-client

privilege was properly asserted as to the first category of emails because these

communications were made to secure legal services or assistance in legal proceedings.

See, e.g., Harrelson, 754 F.2d at 1167.

The Court also finds that the second category of emails, about Love’s testimony,

are protected by the work-product doctrine because they contain the “mental impressions,

conclusions, opinions or legal theories of an attorney.” Fed. R. Civ. P. 26(b)(3).

St. Thomas asserts that even documents protected by the work product doctrine

should be produced because St. Thomas has substantial need for the materials and cannot

obtain the materials by other means without undue hardship. St. Thomas argues that

substantial need arises because Vandenberg seeks to support her claims by introducing

Love’s allegations, and that obtaining the documents by other means is unduly difficult

because it would require St. Thomas to conduct discovery on two witnesses. The Court

finds that St. Thomas has not identified a need for the documents substantial enough to

override the work product protection, and that St. Thomas could obtain the discovery

sought by other means without hardship burdensome enough to override work product

protection. King v. Odeco Inc., 106 F.3d 396 (5th Cir. 1997) (affirming district court

decision not to order party to produce photographs because of other readily available

sources, including deposition testimony).

Finally, St. Thomas argues that Vandenberg has waived the attorney-client

privilege and the work product protection by placing these communications at issue in

this lawsuit. The Court finds that Vandenberg has not waived the protection. Vandenberg

has put at issue in this case only Love’s allegations that St. Thomas discriminated against

her. She has not put at issue her counsel’s work product or privileged communications

with Love regarding those allegations. Of course, the attorney-client “privilege only

protects disclosure of communications; it does not protect disclosure of the underlying

facts by those who communicated with the attorney.” Upjohn Co. v. United States, 449

U.S. 383, 395 (1981).

Vandenberg’s objections to requests for production that seek these documents are

SUSTAINED. As to these documents, St. Thomas’s motion is DENIED.

IV. Conclusion

For the foregoing reasons, St. Thomas’s motion to compel (Dkt. 85) is

GRANTED IN PART AND DENIED IN PART. The Court finds that sanctions are not

warranted and DENIES St. Thomas’s motion for sanctions.

SIGNED at Houston, Texas, this 16th day of July, 2020.

GEORGE HANKS, JR.

UNITED STATES DISTRICT JUDGE

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