The opinion
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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RICHARD BREES, CASE NO. 3:18-cv-05691-RJB
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Plaintiff,
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ORDER ON PLAINTIFF’S
13 HMS GLOBAL MARITIME INC, et al., MOTION TO COMPEL
DISCOVERY
14 Defendants.
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THIS MATTER comes before the Court on Plaintiff’s Motion to Compel Discovery. Dkt.
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85. The Court is familiar with the record and all materials filed in support of and in opposition to
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the motion, and it is fully advised. For the reasons set forth below, the Court should deny
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Plaintiff’s Motion to Compel Discovery (Dkt. 85).
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I. BACKGROUND & PROCEDURAL HISTORY
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A. BACKGROUND
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On July 3, 2019, Defendant Thomas Ripa (“Mr. Ripa”), an employee of HMS Ferries Inc.
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and/or HMS Global Maritime Inc., responded to Plaintiff’s First Set of Interrogatories and
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Requests for Production. Dkt. 100. Interrogatory No. 6 asked Mr. Ripa, “At any time, have you
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1 spoken with Steve Caputo, or the law offices of Harrigan Leyh Farmer Thomsen LLP regarding
2 your witness statement? If so, please describe the/those conversation(s).” Dkt. 100, at 2. Mr.
3 Ripa objected and responded as follows:
4 Subject to and without waiving any objection, Steven Caputo
requested I write a statement regarding the events I witnessed on
5 May 18, 2018 involving the plaintiff and I discussed the events
described in my statement with Michelle Buhler and Charles
6 Jordan. []Subject to and without waiving any objection, a 6/27/18
email from Steve Caputo to Thomas Ripa is an associated
7 document.”
8 Dkt. 100, at 2.
9 On July 17, 2019, Plaintiff served a request for production on Mr. Ripa for “[a]n email
10 dated 6/27/18 from Steven Caputo to Thomas Ripa, otherwise described in Mr. Ripa’s
11 interrogatory response as an ‘associated document.’” Dkt. 100, at 2. Mr. Ripa objected to
12 producing the email insofar as it also contained a January 26, 2019 email between Mr. Ripa and
13 associate counsel for HMS Global Maritime, Justin Walker (“Mr. Walker”). Dkt. 100, at 2. Mr.
14 Ripa produced the email in redacted form with a privilege log. Dkts. 85, at 7; and 100, at 2, 12–
15 13. Mr. Ripa claimed that the email between he and Mr. Walker was redacted “not only because
16 it was not the subject of plaintiff’s discovery request, but also because it was protected from
17 disclosure pursuant to the attorney-client privilege and the work product doctrine, as per the
18 privilege log produced with the document.” Dkt. 100, at 2–3.
19 The parties met and conferred and apparently agreed to partially unredact the email only
20 as to the date of the email and the identities of Mr. Walker and Mr. Ripa. Dkt. 100, at 3. The
21 parties disagree as to whether they ever agreed to produce the email fully unredacted. Dkt. 100,
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1 The partially unredacted email on file shows a June 27, 2018 email correspondence from
2 Steve Caputo to Mr. Ripa with the following message: “I won’t have the date until tomorrow.
3 The statement can wait until then. Please let Dom know. []Thanks,[] Steven Caputo.” Dkt. 100,
4 at 12. The email shows that it was sent from Mr. Ripa to Mr. Walker on January 25, 2019, and
5 several lines of text are redacted, including, apparently, Steven Caputo’s cell phone number. Dkt.
6 100, at 23. The attached privilege log refers to the email, which is described as “[e]mail re:
7 5/18/18 witness statement” and “privilege[d]” as “[w]ork product, attorney-client.” Dkt. 100, at
8 15 (emphasis removed).
9 B. PROCEDURAL HISTORY
10 Plaintiff filed the instant Motion to Compel Discovery. Dkt. 85. Defendants HMS Global
11 Maritime Inc., HMS Ferries Inc., Steve Caputo, Dominick De Lango, Mylinda Miller, Thomas
12 Ripa Tara Reynolds, and Derick F. Leenstra (collectively “HMS Defendants”) filed an
13 oppositional response. Dkt. 99. Plaintiff filed a reply in support of the motion. Dkt. 105. The
14 motion was renoted for consideration on November 1, 2019. Dkt. 108.
15 II. DISCUSSION
16 A. STANDARD ON DISCOVERY GENERALLY
17 Fed. R. Civ. P. 26 (b)(1) provides:
18 Unless otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
19 nonprivileged matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
20 importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the
21 parties' resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
22 discovery outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to be
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1 “The court should and ordinarily does interpret ‘relevant’ very broadly to mean matter that is
2 relevant to anything that is or may become an issue in the litigation.” Oppenheimer Fund, Inc. v.
3 Sanders, 437 U.S. 340, 351, n.12 (1978) (quoting 4 J. Moore, Federal Practice ¶ 26.56 [1], p. 26-
4 131 n. 34 (2d ed. 1976)).
5 B. STANDARDS FOR ATTORNEY CLIENT PRIVILIEGE, WORK-PRODUCT
DOCTRINE, AND MOTION TO COMPEL
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Where, as here, there are federal question claims and pendent state law claims, federal
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common law governs claims of privilege. Agster v. Maricopa County, 422 F.3d 836, 839 (9th
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Cir. 2005); Fed. R. Evidence 501.
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1. Attorney-Client Privilege Standard
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“The attorney-client privilege protects confidential communications between attorneys
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and clients, which are made for the purpose of giving legal advice.” United States v. Richey, 632
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F.3d 559, 566 (9th Cir. 2011). The privilege exists where:
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(1) legal advice of any kind is sought (2) from a professional legal
14 adviser in his capacity as such, (3) the communications relating to
that purpose, (4) made in confidence (5) by the client, (6) are at his
15 instance permanently protected (7) from disclosure by himself or
by the legal adviser, (8) unless the protection be waived.
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Id.
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The party asserting the “privilege has the burden of establishing the relationship and
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privileged nature of the communication.” Id.
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The purpose of the attorney-client privilege is to “encourage full and frank
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communication between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383,
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389 (1981). “[T]he Upjohn Court held that the attorney-client privilege extended to
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communications with counsel made by all employees, not just upper-echelon management,
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concerning matters within the scope of their respective corporate duties, supplied for the purpose
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1 of the corporation obtaining legal advice, and treated in a confidential manner.” Davis v. City of
2 Seattle, No. C06-1659Z, 2007 WL 4166154, at *3 (W.D. Wash. Nov. 20, 2007).
3 “[C]ommunications between employees of a subsidiary corporation and counsel for the parent
4 corporation . . . [are] privileged if the employee possesses information critical to the
5 representation of the parent company and the communications concern matters within the scope
6 of employment.” Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1494
7 n.6 (9th Cir. 1989).
8 2. Work-Product Standard
9 “The work-product doctrine protects from discovery documents and tangible things
10 prepared by a party or his representative in anticipation of litigation.” Richey, at 567 (internal
11 quotation marks and citation omitted). “To qualify for work-product protection, documents
12 must: (1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another
13 party or by or for that other party’s representative.” Id. “The work-product doctrine’s
14 protections are waivable.” Id.
15 “The work-product rule is not a privilege but a qualified immunity protecting from
16 discovery documents and tangible things prepared by a party or his representative in anticipation
17 of litigation.” Admiral Ins. Co., 881 F.2d at 1494.
18 The principal difference between the attorney-client privilege and
the work product doctrine, in terms of the protections each
19 provides, is that the privilege cannot be overcome by a showing of
need, whereas a showing of need may justify discovery of an
20 attorney's work product.
21 Id. Under Rule 26(b)(3)(A), “ordinarily, a party may not discover documents . . . that are
22 prepared in anticipation of litigation,” but those materials may be discoverable if the party
23 seeking them “shows that it has substantial need for the materials to prepare its case and cannot,
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1 without undue hardship, obtain their substantial equivalent by other means.” The Rule
2 continues, providing that “[i]f the court orders discovery of those materials, it must protect
3 against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s
4 attorney.” Rule 26(b)(3)(B).
5 3. Motion to Compel Standard
6 Rule 37(a)(1) provides:
7 On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
8 must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
9 make disclosure or discovery in an effort to obtain it without court
action.
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4. Meet and Confer Requirements
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Plaintiff has certified that the parties met and conferred but were unable to resolve this
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dispute. Dkt. 85, at 1. Therefore, Plaintiff’s motion satisfies the applicable meet and confer
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requirements.
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5. Plaintiff’s Motion to Compel Discovery
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Plaintiff’s Motion to Compel Discovery is without merit. The communication sought by
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Plaintiff is not the subject of Plaintiff’s discovery request, which apparently requested only the
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email from Steven Caputo to Thomas Ripa. See Dkt. 100, at 2. Moreover, it appears that the
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redacted portions of the email produced by Mr. Ripa are properly subject to the attorney-client
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privilege, as shown by HMS Defendants. See Davis v. City of Seattle, No. C06-1659Z, 2007 WL
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4166154, at *3 (“attorney-client privilege extend[s] to communications with counsel made by all
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employees … concerning matters within the scope of their respective corporate duties, supplied
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for the purpose of the corporation obtaining legal advice, and treated in a confidential manner”);
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Dkt. 99, at 4 (The “communication between HMS Goblal in-house counsel Justin Walker and
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1 Mr. Ripa is clearly privileged. Mr. Ripa was a witness to the alleged May 18, 2018 incident
2 while working within the scope of his duties as an HMS Ferries crewmember and provided
3 information to Mr. Walker to enable Mr. Walker to prepare HMS Global’s defense to Plaintiff’s
4 claims.”). Additionally, to the extent Plaintiff seeks unredaction of Steven Caputo’s cell phone
5 number in the email, that information is irrelevant and not at all at issue in this litigation.
6 Therefore, the Court should deny Plaintiff’s Motion to Compel Discovery (Dkt. 85).
7 6. Work-Product Protection
8 Although Mr. Ripa had apparently previously claimed work-product protection (e.g., Dkt.
9 100, at 2), the response brief filed in opposition to the instant motion does not discuss or assert
10 work-product protection. See Dkt. 99. Regardless, the Court will deny Plaintiff’s Motion to
11 Compel Discovery for the reasons discussed above and need not rule as to whether work-product
12 protections apply.
13 III. ORDER
14 Therefore, it is hereby ORDERED that:
15 • Plaintiff’s Motion to Compel Discovery (Dkt. 85) is DENIED
16 The Clerk is directed to send uncertified copies of this Order to all counsel of record and
17 to any party appearing pro se at said party’s last known address.
18 Dated this 12th day of November, 2019.
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ROBERT J. BRYAN
United States District Judge
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