MITCHELL S. GOLDBERG, District Judge.
This is an employment discrimination lawsuit between Plaintiff, Anthony Moore, and his former employer, Defendant, Plains All American GP, LLC. Plaintiff asserts claims for race discrimination, religious discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
Before me is Plaintiff's motion to compel certain emails withheld by Defendant pursuant to the work product doctrine.
In April 2010, Plaintiff began his employment as a terminal operator with Defendant, a corporation in the business of transporting, storing and marketing crude oil and natural gas liquids. Defendant maintains a company-wide policy requiring the use of respirators for certain employees who may be exposed to toxic fumes. Plaintiff alleges that terminal operators at the Philadelphia terminal, the site where he was assigned, were only required to wear respirators during annual "fit tests." (Am. Compl. ¶¶ 4, 7-10.)
Plaintiff asserts that his Muslim faith requires him to grow facial hair, and that for several years he was permitted to participate in the annual respirator fit test, so long as his facial hair was kept trimmed. However, Plaintiff alleges that in 2013, Defendant changed its policy and required all employees to be clean shaven.
Defendant was initially notified that Plaintiff had filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in November 2014, and Defendant received a subsequent notification on January 14, 2014. On January 20, 2014, Plaintiff informed Defendant that he would participate in the next fit test, which was scheduled for February 3, 2014, but that his religious faith prevented him from shaving his facial hair. Plaintiff claims that, on or about January 29, 2014, his employment was terminated due to his religious objection. (
Plaintiff's complaint was filed on August 7, 2014, and the parties have engaged in discovery. Among the materials Defendant has produced are two emails written by Defendants' management on January 20, 2014. The first email from Toni Graham, Human Resources Director for Defendant, to Regional Manager for Defendant, Shawn Roberts, states that Graham needs to "get a final from [Vice President of Operations, Phillip Smith,] that there will be no exceptions" to the respirator fit test and stating that if the policy "make[s] an exception for medical, they have to make an exception for religion." (Pl.'s Mot., Ex. 7.) Roberts then forwarded this email to other members of the management team, stating, "Hold up . . . and let Toni [Graham] run the trap she is stating below." (
The instant motion to compel seeks the production of two later emails, written on the same date, that Defendant has withheld on work product grounds. Defendant's privilege log reflects that the two emails were communications between Graham and Smith and contain mental impressions, conclusions, and opinions of party representatives prepared in connection with the defense of Plaintiff's EEOC charge. (Def.'s 2d Am. Privilege Log, p. 3.)
Both Graham and Smith were deposed and questioned about the withheld January 20, 2014 emails.
When Smith was asked about the emails during his deposition, he first stated that a decision as to Plaintiff's request for accommodation was not communicated in the withheld emails. (Smith Dep., Pl.'s Mot., Ex. 3, pp. 9-10.) Later in the deposition and in reference to the withheld emails, Smith acknowledged making the decision "that there will be nobody put into a position within the company with H2S or toxic-type exposures that is not in the respiratory protection program." (
Plaintiff largely challenges the work-product designation of the emails in question because they were created by Defendant's employees and were not directed to an attorney. Plaintiff also argues that the emails were created in the normal course of business, as opposed to being created for litigation purposes. Finally, Plaintiff asserts that, even if the emails constitute work product, he has demonstrated a substantial need for their disclosure, and cannot otherwise obtain the information without undue hardship.
Defendant responds that the plain language of Rule 26(b)(3) extends the work product doctrine to materials created by a party or its representative in anticipation of litigation, and does not require attorney involvement. Defendant further asserts that the materials were created in anticipation of litigation because Defendant had been notified about Plaintiff's filing with the EEOC, it had issued a litigation hold on November 19, 2013, and, as explained by Smith during his deposition, one email referenced obtaining the advice of counsel. Defendant also argues that Plaintiff has not demonstrated a substantial need for the information, as he has been provided with extensive discovery about the decisions made by its management team, particularly with regard to the request for accommodation to the respirator fit test. (
Defendant submitted the contested emails to the Court for an
For the reasons that follow, Plaintiff's motion to compel will be granted in part and denied in part.
"The work product doctrine is governed by a uniform federal standard set forth in Fed. R. Civ. P. 26(b)(3)."
Therefore, even if the withholding party demonstrates that the work product doctrine would otherwise apply because the materials at issue were prepared in anticipation of litigation, that privilege may be overcome by a showing that the requesting party has a substantial need and cannot otherwise obtain the information without undue hardship.
Furthermore, pursuant to Federal Rule of Civil Procedure 26(b)(3)(B), "`core' or `opinion' work product that encompasses the `mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation' is `generally afforded near absolute protection from discovery.'"
The work product doctrine has historically aimed to protect the work and mental processes of attorneys because "[i]n performing his various duties, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel."
As previously recited, the plain language of the Federal Rules of Civil Procedure anticipate that materials created "by or for another party or its representative" may be protected by the work product doctrine, so long as they were created in anticipation of litigation. The rule does not explicitly require the participation of an attorney in the creation of the materials. Other district courts guided by the plain language of Rule 26(b)(3) have reached the same conclusion.
I next consider whether the emails in question were created in anticipation of litigation. "A party claiming work product immunity bears the burden" of demonstrating that the materials in question were prepared in anticipation of litigation.
The emails in question were created following Defendant's receipt of Plaintiff's notice of charge of discrimination from the EEOC, and after a litigation hold had been put into effect. Defendant cites to cases where notice of an EEOC charge weighed in favor of a finding that certain materials were created in anticipation of litigation. While this is true, the cases cited differ somewhat from the facts before me. The materials claimed to be protected by the work product doctrine in the cases cited by Defendant were materials created during an investigation into the merits of the plaintiffs' EEOC charges.
My
I do find, however, that one sentence in the email from Graham to Smith qualifies as opinion work product, since it presents "the mental impressions, conclusions, opinions, or legal theories of a party's . . . representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B). "By their very nature," mental impressions, thoughts, and conclusions regarding litigation "are prepared in anticipation of litigation, and consequently they are protected from discovery as opinion work product."
For the reasons recited above, I find that, under Federal Rule of Civil Procedure 26(b)(3), materials produced by or for a party in anticipation of litigation may constitute work product despite the fact that the materials were not created at the direction of an attorney. However, the emails withheld in this case do not, as a whole, constitute work product that may be withheld because they were not created in anticipation of litigation. One sentence in these emails may be redacted as containing a party representative's mental impressions regarding litigation. An appropriate Order follows.
Because I find that the majority of the January 20, 2014 email chain is not work product and should be produced, I need not consider Plaintiff's remaining arguments regarding substantial need, undue hardship or Federal Rule of Evidence 612. Further, the redacted portion, as opinion work product, would not be produced even if Plaintiff were successful in showing substantial need.