Hilda L. Solis, Secretary of Labor, United States Department of Labor, Plaintiff, v. Seafood Peddler of San Rafael, Inc., dba Seafood Peddler; Alphonse Silvestri; Richard Mayfield; Fidel Chacon, Defendants Case No. 12-cv-0116 PJH (NC) Signed October 16, 2012 Cousins, Nathanael M., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART SEAFOOD'S MOTION TO COMPEL Re: Dkt. Nos. 20, 42, 54 *1 Defendant Seafood Peddler moves under Federal Rule of Civil Procedure 37 to compel the further production of documents responsive to Seafood's first request for production of documents, arguing that the Secretary's amended privilege log is insufficient and that many of the Secretary's privilege assertions are inapplicable. The issues presented are whether the Secretary's third amended privilege log is sufficient and whether the asserted privileges, including the informant's privilege, the deliberative process privilege, the work product doctrine, and the investigative files privilege, apply to the withheld documents. As an initial matter, the Court finds the Secretary's third amended privilege log to be sufficient. Having reviewed in camera specific documents noted in Seafood's motion to compel, the Court finds that certain categories of documents, including statements of confidential informants, Wage Hour investigator case diaries, and internal communications between investigators, are properly withheld as privileged. Other documents, including letters from the Department of Labor to confidential informants, however, are ordered produced in redacted form. Seafood's motion to compel is therefore GRANTED IN PART and DENIED IN PART. I. BACKGROUND A. Claims and Defenses On January 6, 2012, the Secretary of the United States Department of Labor filed a complaint against Seafood Peddler of San Rafael and individual defendants Alphonse Silvestri, Richard Mayfield, and Fidel Chacon (collectively “Seafood”), alleging that Seafood violated the Fair Labor Standards Act. Compl., Dkt. No. 1. The complaint, based on an investigation conducted by the Wage and Hour Division of the U.S. Department of Labor (“DOL”), alleges that during the period of July 18, 2008, through August 21, 2011, Seafood failed to pay overtime premiums to certain of its employees. Id. at ¶ 7. Specifically, the Secretary claims that Seafood: (1) did not properly compensate employees for work in excess of 40 hours per a week; (2) failed to make, keep, and preserve records of employees and the wages, hours, and other conditions and practices of employment; and (3) discriminated against specific employees because they believed that such employees filed a complaint with the Secretary alleging violations of the FLSA. Id. ¶¶ 7-9. B. Discovery Overview Seafood served its first request for production of documents on May 21, 2012. Def.'s Mot. Compel at 3, Dkt. No. 20. In response, the Secretary produced 962 pages of documents, including a privileged internal Wage and Hour narrative (the “FLSA Narrative”), on June 6, 2012. On June 22, the Secretary produced an additional 945 pages of documents, many of which were redacted for claimed privileges. Id. On July 13, 2012, the Secretary produced an initial privilege log. Dkt. No. 28-6. Seafood then moved to compel the FLSA Narrative on the grounds that the Secretary waived the confidential informant's privilege. See Def.'s Mot. Compel at 5-7. Seafood further moved to compel all documents responsive to Seafood's first request for production, asserting that all privileges had been waived due to the Secretary's untimely production of her privilege log, that all asserted privileges are inapplicable, and that the privileges must give way to Seafood's need for the documents. See id. at 9-10. *2 The Court held a hearing on Seafood's motion to compel on August 22, 2012. Finding the Secretary's privilege log deficient, the Court ordered the Secretary to revise her privilege log and allowed Seafood to file a motion regarding the sufficiency of the revised privilege log by August 31. See Dkt. No. 34. The Secretary filed her amended privilege log on August 24. Dkt. No. 35. On August 24, by written order, the Court denied Seafood's motion to compel the FLSA Narrative and motion to compel production of all responsive documents due to the Secretary's delay in production of the privilege log. Dkt. No. 36. Finding the Secretary's amended privilege log insufficient, however, the Court ordered the Secretary to provide Seafood with a further amended privilege log. Id. The Secretary filed and served its second amended privilege log on September 1, 2012. Dkt. No. 40. C. Seafood's Motion to Compel In its current motion to compel, Seafood contends that the Secretary's second amended privilege log does not provide sufficient information to enable Seafood to evaluate the privilege claims. Def.'s Mot. Compel at 2. Specifically, Seafood asserts that many log entries: (1) fail to identify all recipients of documents, instead describing them as “various employees; and (2) fail to identify certain Wage Hour investigators by name. Def.'s Mot. Compel at 2. Seafood further asserts that the Secretary improperly redacts documents in their entirety based on the confidential informant's privilege; improperly withholds emails between Wage Hour investigators on the basis of work product, the confidential informant's privilege, the deliberative process privilege, and the investigative files privilege; and makes improper assertions of privilege over many other withheld documents. Id. at 3. In its moving papers and at hearing, Seafood requested that the Court conduct an in camera review of documents produced by the Secretary to determine whether the documents are properly withheld and redacted. Id. At the motion hearing held on September 19, 2012, the Court again found the Secretary's second amended privilege log insufficient in its current form. Dkt. No. 49. The Court ordered the Secretary to file and serve a further amended privilege log, specifically naming the “various employees” and Wage Hour investigators referenced in the Secretary's second amended privilege log. Id. The Court further ordered the Secretary to produce for in camera review the redacted and unredacted versions of documents listed in the Secretary's second amended privilege log. Id. The District Court referred this motion and all discovery matters to this Court in accordance with Civil Local Rule 73-1. Dkt. No. 22. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 26 governs discovery and provides, in part, that “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1) (emphasis added). Under Rule 26, when “a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or things not produced or disclosed–and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). “If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. *3 If a party fails to answer a request for production, or provides an evasive or incomplete response, the requesting party may move to compel production in accordance with Federal Rule of Civil Procedure 37. III. DISCUSSION The Court first addresses the sufficiency of the Secretary's third amended privilege log. Next, the Court addresses Seafood's privilege challenges to specific documents listed in the Secretary's second amended privilege log. A. The Secretary's Third Amended Privilege Log Seafood asserts that the Secretary's second amended privilege log fails to identify recipients of documents adequately, referring to them as “various employees.” Def.'s Mot. Compel at 7. The Court previously ordered the Secretary to revise its privilege log to name these “various employees” and provide the last known address of these “various employees.” Dkt. No. 49. The Court has reviewed the Secretary's third amended privilege log, Dkt. No. 54, and finds that the Secretary has now sufficiently named the “various employees” and provided the last known addresses for these persons. Seafood also contends that the Secretary fails to identify certain Wage Hour investigators by name. Def.'s Mot. Compel at 2. The Court finds the Secretary has now sufficiently named the Wage Hour investigators authoring certain withheld documents. In sum, the Secretary's third amended privilege log cures facial defects form the second amended log. B. Seafood's Privilege Challenges Seafood identifies numerous categories of documents in the Secretary's second amended privilege log that Seafood asserts are inadequately described and/or improperly withheld on the basis of privilege. After conducting an in camera review of the specific categories of documents identified in Seafood's motion to compel, the Court finds as follows: 1. Documents Referencing Confidential Informants The confidential informant's privilege allows the government to withhold from disclosure the “identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53, 59-60 (U.S. 1957). The confidential informant's privilege “recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. The scope of the privilege, however, is limited by its underlying purpose–meaning, “where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” Id. a. Statements of Confidential Informants Seafood contends that documents described in the Secretary's privilege log as “statement of confidential informant,” should be withheld only to the extent that the documents disclose the identity of a “confidential informant.” Def.'s Mot. Compel at 5. Here, the Court has conducted an in camera review of all documents labeled as “statement of confidential informant” and finds that these statements are protected by the confidential informant's privilege as they contain the names, as well as identifying information, of confidential informants. Therefore the documents have been properly withheld and Seafood's motion to compel the production of these documents is DENIED. b. Paycheck Stubs and Pay Information *4 Seafood next asserts that documents described as paycheck stubs and pay information and bank account information are “evidence” and not witness statements or other narratives of information and therefore not subject to the confidential informant privilege. Def.'s Mot. Compel at 9. The Court has reviewed the documents at issue, including DOL000300-000301, in camera and concludes that the Secretary's redactions properly withhold the names and identifying information of confidential informants. Seafood's motion to compel paycheck stubs and pay information, including DOL000300-000301, is therefore DENIED. c. Letters from DOL to Seafood Employees Seafood asserts that letters from the DOL to Seafood employees redacted based on the confidential informant's privilege should not be entirely redacted but only to the extent that names of employees are identified. Def.'s Mot. Compel at 7. The Court has conducted an in camera review of this category of documents, including DOL000135-000155. Finding that no identifying information exists within the text of the letters, the Court orders the Secretary to produce the documents, redacting only the names and addresses of confidential informants. d. Emergency Room Hospital Records Seafood contends that emergency room hospital records of a confidential informant are “evidence” and not witness statements or other narratives of information subject to the confidential informant privilege. Def.'s Mot. Compel at 9. After conducting an in camera review of the emergency room hospital records, DOL000400-000405, the Court finds that the records are protected by the confidential informant's privilege as they contain the name and identifying information of a confidential informant. The records are also protected under federal privacy rules, including the Health Insurance Portability and Accountability Act (HIPAA). Seafood's motion to compel the production of these hospital records, DOL000400-000405, is DENIED. e. Meetings with Confidential Informants Seafood asserts that the Secretary has failed to produce document DOL000413 and that document DOL000414 appears to redact more than just the names of confidential informants. Def.'s Mot. Compel at 11. Having reviewing both documents in camera, the Court finds that the information redacted from DOL000413 and DOL000414 includes information protected under the confidential informant's privilege and the investigative files privilege. The Court orders the Secretary to bates stamp DOL000413 in its current redacted form and produce the bates-stamped document to Seafood. f. Letter from DOL to Confidential Informant Seafood asserts that the Secretary waived any assertion of the confidential informant's privilege over a letter from the Department of Labor to a confidential informant and his legal representative “since the document can be used for any purpose by that alleged ‘confidential informant.’ ” Def.'s Mot. Compel at 14 (referencing DOL000581-000582). The Court finds that the Secretary has not waived any privilege by sending a letter to a confidential informant and his/her legal representative. In addition, the letter is protected under the confidential informant's privilege, as well as the investigative files privilege as informal investigatory material. 2. Wage Hour Investigator Case Diaries and Communications *5 Seafood next challenges privilege assertions made by the Secretary as to (1) internal emails between Wage Hour investigators and (2) investigator case diaries.[1] Def.'s Mot. Compel at 10-11, 13. The investigator case diaries contain the name of the investigator, the date, the number of hours spent on a task and a description of what was done by the investigator. Def.'s Mot. Compel at 13. The Secretary withholds both categories of documents asserting the confidential informant's privilege, the investigative files privilege, the deliberative process privilege, and work product. See Dkt. No. 54 (DOL000350, DOL000407, DOL000523-000537). The Court addresses each of the Secretary's privilege assertions below. a. Deliberative Process Privilege In the privilege log the Secretary asserts that “disclosure of redacted statements will reveal subjective statements and personal opinions of the writer rather than policy of the agency, and would reveal information used by the agency to pursue a particular course of action or to initiate litigation.” See Dkt. No. 54. The deliberative process privilege covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Nat'l Wildlife Fed'n v, United States Forest Serv., 861 F.2d 1114, 1118-19 (9th Cir. 1988). “The privilege, however, does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment.” Ethyl Corp. v. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994). The privilege also does not cover purely factual material. EPA v. Mink, 410 U.S. 73, 88 (1973). Here, the Secretary has not met her burden by demonstrating that the deliberative process privilege applies to email communications between Wage Hour investigators or to investigators' case diaries, as the internal emails and matters in the case diaries appear factual in nature and peripheral to actual policy formation. Accordingly, while other privileges apply to these documents as discussed below, the deliberative process privilege does not apply to these investigative materials. b. Work Product Privilege To qualify for protection under Rule 26(b)(3) the documents must be prepared in anticipation of litigation or for trial, and they must be prepared by or for a party to the litigation or by or for that party's representative. In re California Pub. Utils. Comm'n, 892 F.2d 778, 780-81 (9th Cir. 1989). “At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” United States v. Noble, 422 U.S. 225, 238 (1975). Protected items include the mental impressions, conclusions, opinions, or legal theories of a party's attorney. See Fed. R. Civ. P. 26(b)(3). The Ninth Circuit has recognized that “while the purpose of the work-product doctrine is to shelter the mental processes of the attorney to allow him to properly analyze and prepare his client's case, the practical realities of the doctrine lend to protection of documents created by investigators and other agents in assisting attorneys for litigation and trial.” United States v. Torf (In re Grand Jury Subpoena), 350 F.3d 1010, 1016-18 (9th Cir. 2003). *6 Here, the Secretary claims that “disclosure of redacted statements in email will reveal information acquired or compiled by representatives of a party and prepared by the party's agent in anticipation of litigation.” Dkt. No. 54 at 11. As the Secretary noted in opposition to Seafood's motion to compel the FLSA Narrative, “[t]he investigation at issue in this case was a repeat investigation of Defendants initiated as a result of information obtained by the U.S. Department of Labor regarding Defendants' pay practices. This investigation was developed with an eye toward litigation.” Pl.'s Opp'n Mot. Compel at 15, Dkt. No. 28. The Secretary further attests that “emails directing tasks were circulated among WH representatives after consultation with attorneys from the Solicitor's office.” Id. As the Wage Hour investigators conducted their investigation on behalf of the Department of Labor in anticipation of litigation, their internal communications and case diaries are privileged work product. c. Investigative Files Privilege The informal investigatory and trial preparatory process of administrative agencies are protected by an evidentiary privilege. National Labor Relations Board v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir. 1980). The qualified privilege preserves the confidentiality of investigative files and applies to informal investigatory material and preliminary determinations. Id. The Secretary asserts that documents withheld from disclosure include Wage and Hour documents that reflect investigative techniques, investigators' work on the investigation, internal identification numbers, and indexing notations. Pl.'s Opp'n Mot. Compel at 16. As to internal emails between Wage Hour investigators and investigators' case diaries, the Secretary asserts that “disclosure of redacted statements will reveal the nature of the investigation and techniques used by the Secretary to conduct the investigation.” Dkt. No. 54 at 11. Having reviewed the documents in camera, the Court finds that the Wage Hour investigator emails and the case diaries are informal investigatory materials. See N.L.R.B. v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir. 1980) (finding investigator's impressions regarding his interview of certain witnesses to be informal investigatory materials). In sum, while the deliberative process privilege does not apply to the Wage Hour investigators' internal emails and investigators' case diaries, the documents are protected under the investigative files privilege and as work product. IV. CONCLUSION Seafood's motion to compel is GRANTED in part and DENIED in part. The Court orders the Secretary to produce documents DOL000135-000155, redacting only the names and addresses of the confidential informants, and DOL000413 with the proper bates stamp but in its current redacted form. The Secretary is to produce these documents within 14 days of the filing date of this order. Any party may object to this nondispositive pretrial order within 14 days of the filing date of this order. See Civ. L.R. 72-2. IT IS SO ORDERED. Footnotes [1] The Secretary notes that she inadvertently misprinted DOL000523-000537 as DOL000525-000537 in the second amended privilege log. This mistake has been corrected in the third amended privilege log.