CANDY W. DALE, District Judge.
Pending before the Court are two motions. First, Plaintiff Deborah Westmoreland filed a Motion for Relief from Protective Order, seeking an order directing Defendant Wells Fargo Bank to re-designate certain personnel documents designated "Attorney's Eyes Only" to "Confidential."(Dkt. 21.) Second, Wells Fargo Bank filed a Motion to Compel Westmoreland to produce social media postings, communications from a joint e-mail account Westmoreland shares with her husband, and a company issued laptop in Westmoreland's possession. (Dkt. 26.)
The Court heard oral argument from the parties on October 18, 2016. After review of the record, consideration of the parties' arguments and relevant legal authorities, and otherwise being fully advised, the Court issues the following memorandum decision and order granting Westmoreland's motion, and granting in part and denying in part Wells Fargo Bank's motion.
On August 10, 2015, Deborah Westmoreland filed a Complaint against Wells Fargo Bank asserting claims for sex discrimination, age discrimination, and retaliation in violation of state and federal law. (Dkt. 1.) Westmoreland alleges her direct supervisor, Don Melendez, discriminatorily harassed and retaliated against her, resulting in her receiving multiple "corrective actions," and forcing her to take a constructive demotion outside Idaho to salvage her career. Wells Fargo Bank denies the allegations and contends Westmoreland chose to leave her position in Idaho, and that her various corrective actions were non-discriminatory, non-retaliatory, and justified due to her lack of leadership and inadequate job performance.
Wells Fargo Bank produced numerous personnel documents in this action, at least 222 of which were designated by Wells Fargo Bank as "Confidential/Attorney's Eye's Only" (AEO), pursuant to a stipulated protective order. (Dkt. 15.) Westmoreland objects to this designation on the 222 personnel documents, and seeks an order directing Wells Fargo Bank to re-designate the AEO documents to "Confidential," because the AEO designation hinders Westmoreland's counsel's ability and obligation to adequately and fully advise his client, and to prepare for depositions and other litigation activities. Specifically, Westmoreland's counsel contends re-designation is essential because he needs the assistance of and insight from Westmoreland to: (1) fully understand the documents' information in the context of the culture and practices of Wells Fargo Bank; (2) properly assess damages; and (3) determine what information can be used as potential evidence at trial, or whether there is a need for further discovery.
Wells Fargo Bank is willing to consider re-designating some of the personnel documents marked as AEO, but only if Westmoreland's counsel first identifies the specific documents or portions of the documents he seeks re-designation, and explains why he needs to reveal the personnel documents to Westmoreland. In support of the AEO designation, Wells Fargo Bank asserts Westmoreland's review of the documents at issue would be unduly invasive, harassing, and unnecessary because Westmoreland is still a Wells Fargo Bank employee. The Bank contends also that Plaintiff's counsel did not meet and confer with Wells Fargo Bank before filing the current motion. However, Wells Fargo Bank did agree to re-designate some, but not all of the documents marked AEO, after e-mail communications were exchanged among counsel.
The Court finds Plaintiff's counsel fully satisfied the threshold requirement to meet and confer when he e-mailed Wells Fargo's counsel, requesting they re-designate the documents. (Dkt. 22-1 at 2.) Counsel for the Bank indicated she was expecting further discussion with opposing counsel regarding which documents were still at issue and the reason Westmoreland needed to review them before the motion was filed. However, the Court finds further discussion demanded by Wells Fargo Bank, in this context, would likely require Westmoreland's counsel to reveal attorney work product, which is of course, not the purpose of the meet and confer. In addition, the Court finds nothing precluded counsel for Wells Fargo from extending this offer during the nearly three months between the time the motion was filed and before the hearing conducted on the same by the Court.
Turning to the substance of the motion, the Court finds also that Wells Fargo Bank failed to meet its burden for the AEO designation on the personnel documents produced. The disclosure of confidential information on an "attorneys' eyes only" basis is typically "`a routine feature of civil litigation involving trade secrets.'" MWI Veterinary Supply Co. v. Wotton, 2012 WL 2872770, at *1 (D. Idaho July 12, 2012) (quoting In re The City of New York, 607 F.3d 923, 936 (2nd Cir.2010)); see also Gillespie v. Charter Commc'ns, 133 F.Supp.3d 1195, 1202 (E.D. Mo. 2015) ("Generally, an `attorneys' eyes only' designation is an appropriate only in cases involving trade secrets."). To protect the confidentiality of such disclosure, the Court has authority pursuant to Fed. R. Civ. P. 26(c) to issue an order that limits its disclosure. Fed. R. Civ. P. 26(c)(1)(G)("The court may, for good cause, issue an order to protect a party or a person requiring that a trade secret or other confidential research, development, or commercial information not be revealed only in a specified way.").
The Court has "broad discretion...to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). However, the Court must be careful in issuing orders which allow for AEO designations, "because at least until trial, the opposing party itself cannot see the most crucial evidence in the case." MWI Veterinary Supply Co., 2012 WL 2872770, at *2 (internal quotations omitted). Thus, in its determination as to whether an AEO designation is appropriate, "there must be solid grounds for keeping such material from a party, and there must be protections to allow that party to fully prepare for trial despite being unable to see the material." Id.
"While courts generally make a finding of good cause before issuing a protective order, a court need not do so where...the parties stipulate to such an order." In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011). In situations like here, where the parties stipulated to a protective order without making a good cause showing, "the burden of proof...remain[s] with the party seeking protection." Id.(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 n. 1 (9th Cir. 2002). "If a party takes steps to release documents subject to a stipulated order, the party opposing disclosure has the burden of establishing that there is good cause to continue the protection of the discovery material." Id.
Here, Wells Fargo Bank is mistaken as to who bears the burden of establishing good cause to maintain the AEO designation to the personnel documents at issue—Wells Fargo Bank carries the burden, not Westmoreland. The Bank has not shown an AEO designation is necessary to protect the confidentiality of the personnel documents at issue, given production as "Confidential" would ensure the necessary protection— Westmoreland cannot publish or otherwise use the personnel documents outside the scope of this litigation. Wells Fargo Bank fails to demonstrate why a "Confidential" designation would be insufficient to protect the personnel documents, other than by alleging that Westmoreland's review of these documents would be unduly invasive, harassing, and unnecessary because she is still employed by Wells Fargo Bank. This argument is neither persuasive nor sufficient to establish good cause to maintain the AEO designation. Therefore, the Court will order Wells Fargo Bank to re-designate the personnel documents at issue as "Confidential."
Wells Fargo Bank seeks an order compelling: (1) an additional-third review of Westmoreland's Facebook account by a paralegal; (2) production of any and all e-mails sent by Westmoreland's counsel to an e-mail account shared by Westmoreland and her husband during the period of legal representation to the present; and (3) the return of the company issued laptop in Westmoreland's possession to obtain the contents of the laptop. For the following reasons, the Court will deny the motion to compel the Facebook and e-mails, and will grant, in part, Wells Fargo Bank's request as it relates to the laptop computer.
Federal Rule of Civil Procedure 26(b)(1), as amended December 1, 2015, allows parties to obtain discovery:
Further, "[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that ... the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C)(iii).
If the answering party fails to adequately respond to discovery requests or fails to make a disclosure required by Fed. R. Civ. P. 26(a), the propounding party can move for an order compelling discovery under Fed. R. Civ. P. 37(a). Generally, a court should deny a motion to compel only if the information requested falls outside the scope of discovery (or if it is disproportionate, etc.). See Nugget Hydroelectric, L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992); cert. denied, 508 U.S. 908 (1993). In other words, a motion to compel "should be granted if questions are relevant and proper...." Charles A. Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE § 2286 (1994).
Wells Fargo Bank seeks an order compelling a paralegal within the law office of Plaintiff's counsel to conduct a third search of Westmoreland's Facebook account.
The requests for production at issue here include the following:
Although these requests are overbroad regarding the scope of time and in other regards, and social media is not specifically included in them, Facebook messages reasonably fall within these communication requests and are addressed by the duces tecum. The Court finds, however, Westmoreland's production to date of her Facebook messages is satisfactory. Although the Facebook messages were not initially disclosed,
With regard to Westmoreland's Facebook postings and photographs, the Court is not convinced a third review of the account is proportional to the needs of this litigation. See E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010) ("Although ... the contours of social communications relevant to a claimant's mental and emotional health are difficult to define, that does not mean that everything must be disclosed.") see also Ye v. Cliff Veissman, Inc., No. 14-CV-01531, 2016 WL 950948, at *3 (N.D. Ill. 2016) ("Although almost everything that is posted on social media can reflect a person's emotional state of mind, that does not mean that Defendants can inquire into every conversation and interaction the decedent and her next of kin ever had with anyone in the world.").
Both Westmoreland and her counsel have testified (through declaration) they each spent several hours reviewing Westmoreland's Facebook account for any information "remotely relevant" to Wells Fargo Bank's requests. And, at the conclusion of their searches, counsel produced approximately eight pages of postings after the Razzeto messages were produced, to Wells Fargo Bank. No explanation is offered by the Bank to support a contention that an additional third search would result in the identification or production of additional responsive information. Seeing no basis for the time or costs of a third search of Westmoreland's Facebook account, the Court will deny Wells Fargo Bank's request.
Wells Fargo Bank seeks to compel the production of all e-mail communications sent by Westmoreland's counsel to an e-mail account ("Saxman") shared by Deborah and David Westmoreland
Federal law governs attorney client privilege in nondiversity actions.
The e-mail communications sent by Westmoreland's counsel to the shared Saxman account were intended, unless otherwise indicated, for his client, Mrs. Westmoreland.
The Court finds the Bank has not sufficiently demonstrated that Mrs. Westmoreland waived any privilege to her communications with her counsel by asking her counsel to send communications to the shared Saxman e-mail address. The Saxman e-mail account is a private account, in which only Mr. and Mrs. Westmoreland have access. Accordingly, Mrs. Westmoreland and her husband have some expectation of privacy in messages that are sent to and from that account. But cf. Alamar Ranch, LLC v. Cty. of Boise, 2009 WL 3669741, at *4 (D. Idaho Nov. 2, 2009) (client waived attorney-client privilege for e-mails sent to her attorney using her work computer and work e-mail address, when put on notice her employers could access her accounts at any time); see also Thygeson v. Bancorp, 2004 WL 2066746 at *21 (D.Or. Sept.15, 2004) (finding employee had no reasonable expectation of privacy in files he stored in his personal folder on his computer because office had monitoring policy.). Although the account is shared, there no evidence to support that Mr. Westmoreland reviewed or read any e-mails or opened any attachments that were intended for Mrs. Westmoreland. Rather, to the contrary, Mr. Westmoreland testified in his sworn affidavit that it is his practice to inform his wife when he sees an e-mail in the Saxman inbox that is from his wife's counsel and addressed to her, and to not otherwise read the contents.
In addition, even if Mr. Westmoreland read the e-mails, the Court is reluctant to conclude that Mr. Westmoreland qualifies as a third-party for the purposes of waiver of the privilege to attorney-client communications. All communications between Mr. and Mrs. Westmoreland are presumed to be confidential and protected by the martial communications privilege.
Wells Fargo Bank seeks return of a laptop computer it issued to Westmoreland for use in the course of her employment for review by its internal IT department. During the hearing, it became clear that neither party has accessed the laptop computer during the course of this litigation, and that both parties are interested in the obtaining certain contents of the laptop computer. Due to certain information that Westmoreland contends she saved on the computer, but may later have been removed by her supervisor or others during a leave of absence (prior to this litigation), the parties disagree as to how they will obtain and review the contents. Wells Fargo Bank contends their company IT technicians should conduct the imaging and retrieval process, while Westmoreland contends a third party technician should be hired instead.
The Court will order that an agreed upon a third-party technician will conduct the imaging and retrieval process. In consideration of Wells Fargo Bank's security concerns, a Wells Fargo Bank technician and representative of Westmoreland may be present during the process. The contents of the laptop will be provided to both parties subject to the protective order. The parties must meet and agree to the imaging and retrieval process, as well as upon cost sharing, prior to the technician beginning the process, which must be completed within thirty (30) days of this order.
