Daniel'la Deering, Plaintiff, v. Lockheed Martin Corporation, a Maryland corporation; Maryanne Lavan, an individual; and Kenneth Bastian, an individual, Defendants Civ. No. 20-1534 (DSD/BRT) United States District Court, D. Minnesota Signed October 22, 2021 Counsel Clayton D. Halunen, Esq., Halunen Law; Heidi J.K. Fessler, Esq., Innova Law Group, PLLC; William J. Egan, Esq., Avisen Legal, P.A., counsel for Plaintiff. Allyson J. Petersen, Esq., Donald M. Lewis, Esq., Joseph G. Schmitt, Esq., Nilan Johnson Lewis PA; Michael S. Burkhardt, Esq., Benjamin K. Jacobs, Esq., Morgan, Lewis & Bockius LLP, counsel for Defendants. Thorson, Becky R., United States District Judge PARTIAL ORDER ON PLAINTIFF'S SECOND MOTION TO COMPEL PRODUCTION OF DOCUMENTS (DOC. NO. 64) AND ADDENDUM TO THE PROTECTIVE ORDER *1 This matter is before the Court on Plaintiff's Second Motion to Compel Production of Documents (“Plaintiff's Second Motion to Compel”). (Doc. No. 64.) The Court heard oral argument on Plaintiff's Second Motion to Compel on September 30, 2021. The Court ruled on the record on a portion of Docket No. 64, denying the part of the motion that sought to compel Defendant Lockheed Martin (herein “Defendant”) to run ESI search terms to new custodians, Kara King, and Chris Wronsky. (Doc. No. 94.) The Court has separately issued an order on Plaintiff's Second Motion to Compel regarding Request for Production No. 20, and Plaintiff's Motion to Compel Answers to Plaintiff's Interrogatories (Set I) and Responses to Plaintiff's Request for Production of Documents (Set II). (Doc. No. 97.) This Partial Order addresses the rest of Plaintiff's Second Motion to Compel regarding the challenged documents listed on Defendant's first and second privilege logs. I. Background Defendant produced its first privilege log on May 21, 2021, and its second privilege log on July 15, 2021. (Doc. Nos. 67-1, 67-2.) In her motion, Plaintiff Deering (“Plaintiff”) seeks to compel production of privileged documents listed on these logs. (Doc. No. 64.) During the meet and confer process, Defendant offered to produce a subset of the logged documents that Plaintiff had selected herself as supportive of her claims when she took those documents and attached them to her EEOC charge of discrimination.[1] Defendant's offer for this subset, however, hinged on Plaintiff agreeing to a non-waiver stipulation.[2] Plaintiff would not agree to this proposal and requested production of all documents listed on both privilege logs. (Def.’s Resp. at 6.) Defendant rejected this request.[3] (Id.) At the September 30, 2021 hearing, the parties agreed to further meet and confer about resolving the issue by stipulation, but no agreement was reached. (Doc. Nos. 84, 96.) The parties now request that the Court issue a ruling as to “documents 1 through 22” on Defendant's first privilege log and “other documents” on Defendant's privilege logs “for which Plaintiff was a sender, author, and/or recipient.” (Doc. No. 96.) Plaintiff seeks the production of these listed documents in unredacted form, including the documents Plaintiff herself submitted with her EEOC charge in 2018.[4] II. Analysis *2 Federal Rule of Civil Procedure 26 governs discovery in federal court. Discovery under the Federal Rules of Civil Procedure, however, is not without bounds even if relevance is shown. Federal Rule of Civil Procedure 26(b)(1) provides: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. In addition, Rule 26(b)(5) provides, in part, that a party may withhold information otherwise discoverable by claiming that the information is privileged so long as the party “expressly make[s] the claim” and “describe[s] the nature of the documents, communications, or tangible things not produced or disclosed” in such “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). Plaintiff has not challenged the descriptions on the log and Plaintiff has made no showing that the documents at issue are not subject to the attorney-client privilege or work product doctrine.[5] See Robeck v. Ford Motor Co., No. 04-4858 (JNE/JJG), 2005 WL 8164548, at *3 (D. Minn. Sept. 9, 2005). The Court also finds that—as of the hearing—Defendant has not taken action that would waive privilege. Further, Plaintiff's disclosure of Defendant's privileged and protected documents to her attorney or the EEOC cannot be construed as Defendant's waiver. The privilege belongs to Defendant and only Defendant may waive it. See Hageman v. Accenture, LLP, No. 10-1759 (RHK/TNL), 2011 WL 13136510, at *6 (D. Minn. June 7, 2011). Moreover, Defendant promptly took steps to retrieve the documents when it learned that Plaintiff took them without Defendant's consent. See United States Equal Emp. Opportunity Comm'n v. George Washington Univ., 502 F. Supp. 3d 62, 81 (D.D.C. 2020) (finding that the defendant did not waive its privilege when the plaintiff, an employee of the defendant, provided the EEOC with certain attorney-client privileged work-related emails that supported her charge because the defendant had not intended the disclosure, no amount of precautions would have prevented the disclosure, and the defendant promptly requested the return of the documents). Having made these findings, the Court now turns to Plaintiff's argument that the challenged documents on both privilege logs must be produced because “the attorney-client privilege may not be invoked to prevent an attorney from using privileged or otherwise confidential information in an employment claim brought by the attorney against her employer.” (Doc. No. 69, Memo. of Law in Supp. of Pl.’s Second Mot. to Compel Production of Documents and Things (“Pl.’s Mem.”), 20.) Specifically, the Court addresses Plaintiff's argument that the Minnesota Rules of Professional Conduct permit a lawyer to disclose otherwise privileged information to establish a discrimination claim when the lawyer reasonably believes the disclosure is necessary to establish a claim in a controversy between the lawyer and the client.[6] *3 Under Rule 1.9(c), the Minnesota Rules of Professional Conduct provides in part that “a lawyer who has formerly represented a client in a matter ... shall not thereafter”: (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these rules would permit or require with respect to a client. Minn. R. Prof. Conduct 1.9(c). This rule, however, is not without exception. Under Rule 1.6(b), a lawyer may reveal information relating to the representation of a client for a number of reasons, including if: (8) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer's representation of the client .... Minn. R. Prof. Conduct 1.6(b)(8).[7] The Comments listed below Rule 1.6 elaborate on this specific exception: [8] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(8) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. Minn. R. Prof. Conduct 1.6 cmt. 8. *4 Here, Plaintiff contends that Defendant subjected her to discriminatory unequal terms and conditions of employment during her career working for Defendant and that she was subjected to undue criticism for her work despite her alleged “near perfect track record” of job performance as an attorney. (Pl.’s Mem. 23–24.) According to Plaintiff, the challenged privileged documents are needed to maintain her claim against Defendant. Having reviewed the privilege logs that list these documents (as well as the motion papers, corresponding record, and the arguments presented by the parties), the Court finds that Plaintiff has made a sufficient showing that the subset of documents that she took and attached to her EEOC charge of discrimination[8] may be necessary to establish her claim.[9] Plaintiff, however, has not made that showing as to any of the other documents. Thus, this part of Plaintiff's Second Motion to Compel is granted in part and denied in part. This does not mean that the Court finds that Defendant has lost the privilege or protections, or that by producing these documents under this Order, Defendant waives privilege for the documents or their subject matter. Under Federal Rule of Evidence 502, such a waiver could be made only if the waiver is intentional or, if inadvertent, because Defendant failed, in part, to take reasonable steps to prevent disclosure. See U.S. S.E.C. v. Welliver, No. 11-CV-3076 (RHK/SER), 2012 WL 8015672, at *5 (D. Minn. Oct. 26, 2012) (addressing Rule 502(a) and (b).) Because Defendant has objected to the production of these documents and taken steps through its opposition to prevent their disclosure, this Order's disclosure to Plaintiff has not intentionally waived Defendant's privilege, nor does this Order's disclosure suggest Defendant failed to take reasonable steps to prevent their disclosure. See, e.g., Tchrs. Ins. & Annuity Ass'n of Am. v. Shamrock Broad. Co., 521 F. Supp. 638, 641 (S.D.N.Y. 1981) (“[D]isclosure is not a waiver if it is compelled by court order.”); see also In re Papst Licensing GMBH & Co., KG Litig., 250 F.R.D. 55, 61 (D.D.C. 2008) (“Where a party's disclosure is the result of judicial compulsion, courts do not imply a waiver.”). To ensure that privilege or protection of the documents is maintained, unless subject to further order, the Court will also enter an Addendum to the Protective Order to govern the handling of documents that must be produced pursuant to this Order. See Weeks v. McLaughlin, No. 09-2498 (JWL/GLR), 2010 WL 11485532, at *4 (D. Kan. Mar. 11, 2010) (“When made in connection with a judicial proceeding, the disclos[ed] [client information] should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”) (quotations omitted). III. Addendum to the Protective Order The Court enters the following Addendum to the Protective Order which will govern the documents and information subject to this Order until an amended protective order is entered. The Addendum to the Protective Order is entered to ensure that Defendant Lockheed's attorney-client privileged or work product protected documents and information maintains their protected status, unless otherwise ordered. *5 The attorney-client privileged or work product protected documents and information subject to the Court's Order must be disclosed only in designated ways: (a) “RESTRICTED PRIVILEGED DOCUMENT(S)” means any document(s) ordered to be produced pursuant to this Order. (b) Defendant Lockheed (the “Producing Party”) may supplement the “confidential” mark (see paragraph 2(b) of the Protective Order at Doc. No. 22) with the words “RESTRICTED PRIVILEGED DOCUMENTS,” in which case the following additional restrictions apply: (i) The Producing Party must produce the RESTRICTED PRIVILEGED DOCUMENTS in hard-copy paper form, single sided, with Bates numbers. (ii) Plaintiff's (the “Receiving Party”) access to the Producing Party's RESTRICTED PRIVILEGED DOCUMENTS is limited to Plaintiff's outside counsel of record. At this time, “Plaintiff's outside counsel” means the following: William J. Egan, Heidi J.K. Fessler, and Clayton D. Halunen. (iii) Each of Plaintiff's outside counsel may retain a paper-copy paper of the RESTRICTED PRIVILEGED DOCUMENTS. The Receiving Party must maintain a log of all copies and the location of each copy. (iv) Counsel for the Producing and Receiving Parties must meet and confer about how Plaintiff Deering or any outside consultants or experts may access the RESTRICTED PRIVILEGED DOCUMENTS no later than 7 days following the entry of this Order. (v) Counsel for the Producing and Receiving Parties must meet and confer about how any of Plaintiff's outside counsel's staff may access the RESTRICTED PRIVILEGED DOCUMENTS no later than 7 days following the entry of this Order. (vi) No later than 14 days following the entry of this Order, Defendant's counsel must file a proposed Amended Protective Order incorporating the restrictions set forth in this Addendum and any other agreed upon restrictions or requirements for handling, using, or filing the RESTRICTED PRIVILEGED DOCUMENTS. (vii) All copies received by Plaintiff's outside counsel must be stored in a secured place in the offices of Plaintiff's outside counsel, or other permitted place that is agreed to in writing by the Producing Party. (viii) With respect to the RESTRICTED PRIVILEGED DOCUMENTS, within 60 days after the termination of this action (including any appeals), each party must return all of the RESTRICTED PRIVILEGED DOCUMENTS and notify the Producing Party that it has returned all of the RESTRICTED PRIVILEGED DOCUMENTS. ORDER Thus, based on the file, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Plaintiff's Second Motion to Compel as to the documents listed on Defendant's first and second privilege logs (Doc. No. 64) is GRANTED IN PART and DENIED IN PART. Defendant must produce the documents listed in its first privilege log that Plaintiff attached to her EEOC charge of discrimination. Plaintiff's Second Motion to Compel as to the remaining documents at issue is DENIED; 2. Counsel must meet and confer about the issues identified above no later than 7 days from the date of this Order. Defendant's counsel must file a proposed Amended Protective Order no later than 14 days from the date of this Order. Until an amended protective order is entered, Defendant's documents will be governed by the Addendum to the Protective Order and any supplemental amendments that are issued regarding the RESTRICTED PRIVILEGED DOCUMENTS; and *6 3. Discovery ordered to be produced pursuant to this Order must be produced no later than 7 days after the Amended Protective Order is entered. Footnotes [1] As noted above, Plaintiff selected a subset of the listed documents at issue and—without Defendant's knowledge or consent—attached them to her EEOC charge. When Defendant learned of this, it demanded their return. Plaintiff returned the documents. [2] See Doc. No. 70, Lockheed Martin's Response to Plaintiff's Second Motion to Compel Production of Documents (“Def.’s Resp.”) 2–3) (stating that Defendant had offered to produce complete and unredacted copies of the documents that Plaintiff took and attached to her EEOC charge, subject to a stipulated order making clear that the documents are privileged and that Defendant's production would not constitute a waiver of the privilege); see also Doc. No. 71-1, Declaration of Benjamin Jacobs (“Jacobs Decl.”), Ex. A at 2 (defense counsel stating in an August 13, 2021 email to Plaintiff's counsel that “we do not agree to a blanket production of all privileged documents, but depending on the text of the stipulation might be willing to produce the documents Plaintiff attached to her EEOC charge”). [3] On July 30, 2021, Plaintiff's counsel proposed to Defendant a stipulated amendment to the Protective Order which, in part, would provide that any protected document disclosed would not be intended by Defendant as a general waiver of any privilege or protection and that the receiving party would maintain the confidentiality of any disclosed document. (Doc. No. 71-4, Jacobs Decl., Ex. D at 2.) [4] At the June 30, 2021 Status Conference, after Defendant had produced its first privilege log, Plaintiff's counsel explained that Plaintiff was only interested in obtaining “ten or so” documents on Defendant's first privilege log. (Doc. No. 60; Jacobs Decl. ¶ 3.) [5] At the hearing, Plaintiff's counsel appeared to argue that the documents do not satisfy the elements for privilege because Plaintiff advised Defendant on business matters. If Plaintiff pursues this argument, it is rejected as unsupported by the record or governing law regarding privilege. [6] Plaintiff also argues that the privileged communications were placed “at issue” in the litigation itself by Defendant when Defendant terminated her employment. (Pl.’s Mem. 28–33.) But based on the record, this Court cannot conclude at this stage of the case that Defendant's action placed the privileged communications at issue in the litigation. [7] An American Bar Association (“ABA”) advisory ethics opinion states the view that the model rule (which corresponds to the current version of the Minnesota rule) would apply to an in-house attorney's retaliation claim against a former employer. The advisory opinion concludes: The Model Rules do not prevent an in-house lawyer from pursuing a suit for retaliatory discharge when a lawyer was discharged for complying with her ethical obligations. An in-house lawyer pursuing a wrongful discharge claim must comply with her duty of confidentiality to her former client and may reveal information to the extent necessary to establish her claim against her employer. The lawyer must take reasonable affirmative steps, however, to avoid unnecessary disclosure and limit the information revealed. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. No. 01–424 (2001) (emphasis added); see also Kidwell v. Sybaritic, Inc., 749 N.W.2d 855, 863 (Minn. Ct. App. 2008). [8] These are the same documents Defendant had offered to produce subject to a non-waiver stipulation. [9] This Court's ruling is not, however, an endorsement of Plaintiff's conduct in removing privileged information from her former place of employment. The “proper avenue for a former employee (even an attorney) to obtain privileged and/or confidential documents in support of his or her claims is through the discovery process as set forth in the Federal Rules of Civil Procedure, not by self-help.” Muslow v. Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll., No. 19-11793, 2020 WL 4471160, at *4 (E.D. La. Aug. 4, 2020).