Adrieanna Hooks v. Target Corporation et al Case No. 5:22-cv-00052-SSS (SPx) United States District Court, C.D. California Filed March 09, 2023 Counsel Brennan S. Kahn, Michael Sherr Walker, Todd H. Harrison, Perona Lander Beck Serbin and Harrison APC, Long Beach, CA, for Adrieanna Hooks. Samantha C. Grant, Tanner Hendershot, Whitney Nonnette Perry, Armine Antonyan, Reed Smith LLP, Los Angeles, CA, for Target Corporation et al. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Denying Plaintiff's Motion to Compel [64] I. INTRODUCTION *1 On February 4, 2023, plaintiff Adrieanna Hooks filed a motion to compel defendant Target Corporation to further respond to one interrogatory and thirteen requests for production of documents. Docket no. 64. The parties' positions are set forth in a joint stipulation (“JS”). Plaintiff's arguments are supported by the declaration of her counsel Brennan S. Kahn (“Kahn Decl.”) and exhibits. Defendant's arguments are supported by the declaration of its counsel Samantha C. Grant (“Grant Decl.”) and exhibits. Neither party filed a supplemental memorandum. The court held a hearing on plaintiff's motion on February 28, 2023. After considering the parties' written and oral arguments, and for the reasons discussed below, the court now denies plaintiff's motion to compel. II. BACKGROUND This is an employment discrimination case arising from defendant's alleged constructive termination of plaintiff. Plaintiff alleges that following a workplace injury, defendant placed her on forced medical leave. Kahn Decl. ¶ 3. Defendant states the leave was temporary and was an accommodation for plaintiff's injury. After four months of leave, on January 13, 2021, plaintiff sent an email complaining of disability discrimination to defendant's human resources department, corporate offices, and in house counsel. Kahn Decl. ¶ 4. This case originated in state court and was removed on January 6, 2022. On March 1, 2022, plaintiff served her first sets of interrogatories, requests for admission, and requests for production of documents (“RFPs”) on defendant. Kahn Decl. ¶ 9. Defendant served its responses to those requests on May 9, 2022. Kahn Decl. ¶ 10, Exs. F, G. On July 22, 2022, defendant served supplemental responses. Kahn Decl. ¶ 15, Ex. J. On August 18, 2022, the parties met and conferred via Zoom regarding claimed deficiencies in defendant's discovery responses. Kahn Decl. ¶ 18. After conferring, the parties came to agreements about some, but not all, of their discovery disputes. Id. Defendant further supplemented its responses and produced a privilege log on September 6, 2022. Kahn Decl. ¶ 19, Exs. M, N, O. On September 7, 2022, plaintiff filed a motion to compel further supplemental responses. Kahn Decl. ¶ 20. Defendant further supplemented its responses to plaintiff's RFPs on September 22, 2022. Kahn Decl. ¶ 22, Ex. P. In light of the new production, the court denied plaintiff's motion and ordered the parties to meet and confer. Docket no. 54. The parties met and conferred on December 19, 2022, but were unable to resolve their disputes. Kahn Decl. ¶ 25. On December 28, 2022, the parties appeared for a telephonic informal discovery conference with the court. Kahn Decl. ¶ 27. After discussion, the court directed the parties to brief disputed issues by motion. Id. On February 3, 2023, defendant served supplemental and amended responses, including to RFPs 22, 118, and 119. Grant Decl. ¶ 5. Plaintiff filed the present motion on February 4, 2023. Docket no. 64. Plaintiff seeks an order compelling further discovery responses from defendant and sanctions under Rule 37. The discovery cutoff is March 24, 2023. Docket no. 50. III. DISCUSSION *2 Plaintiff moves to compel further responses to interrogatory no. 20 and RFP nos. 22-23, 38, 40-45, and 117-120.[1] JS at 13. Generally, these discovery requests seek information and documents concerning plaintiff's January 13, 2021 email complaining of discrimination and failure to accommodate her, as well as any subsequent communications regarding the complaint. Defendant produced a privilege log listing responsive documents being withheld on the bases of attorney-client privilege and/or work product protection: four documents dated January 13, 2021 pertaining to plaintiff's complaint and an Employee Relations Investigation dated January 22, 2021. Kahn Decl., Ex. O. Plaintiff argues further responses are needed because at least some of the withheld records are not privileged, and because even if they are privileged, defendant waived the privilege by putting the information directly at issue in the litigation. Defendant maintains the withheld records are privileged and that there has been no waiver. A. RFP Nos. 22, 118, and 119 As an initial matter, the court notes that defendant appears to have amended or supplemented RFP nos. 22, 118, and 119 just before the filing of this motion. Grant Decl. ¶ 5. Defendant states that as of that production on February 3, 2023, it “is not withholding the privileged investigation documents and information in response to those requests.” Id. RFP no. 22 requests documents pertaining to or related to any communications between plaintiff and certain of defendant's employees. JS at 28. RFP nos. 118 and 119 request emails between defendant's employees and its workers compensation department or workers compensation insurance providers. JS at 126, 135. For RFP no. 22, defendant states its supplemental response “clarif[ied] that [defendant] is not withholding documents on the basis of privilege.” JS at 38. Defendant argues that “Target's privileged investigation report and surrounding communications would not be responsive to this request,” and even if they were, the records are privileged and that the privilege has not been waived. Id. Similarly, for RFP nos. 118 and 119, defendant explains that “Target served a supplemental response to this request that refers Plaintiff to the subpoenaed documents produced in this litigation.” JS at 135, 144. Defendant further states that “Target's privileged investigation report and surrounding communications would not be responsive” to RFP nos. 118 and 119, and even if they were, defendant argues the records are privileged and that the privilege has not been waived. Id. Plaintiff does not address these supplemental responses in her portion of the joint stipulation. Neither party submitted the actual supplemented responses as exhibits, nor the subpoenaed documents defendant referenced in its discussion of RFP nos. 118 and 119. Based on the above information, defendant's position is that the withheld documents are not responsive to RFP nos. 22, 118, and 119, and in any case are covered by the privilege. Plaintiff's position – although she has not directly addressed the supplemental responses – appears to be that the withheld documents are responsive to these requests, and are not protected by the privilege. As discussed below, the court finds the withheld documents are privileged, and therefore the question of their responsiveness to the requests is irrelevant. B. The Documents in Question Are Protected Against Disclosure Along with those discussed in the section above, the other disputed requests are interrogatory no. 20 and RFP nos. 23, 38, 40-45, 117, and 120. Interrogatory no. 20 asks defendant to “describe any and all efforts undertaken ... to respond to and/or in any way investigate the claims made in PLAINTIFF'S January 13, 2021 e-mail,” including any actions taken, interviews conducted, and the names of everyone who participated in responding. JS at 13-14. Defendant's amended response consists of the following statement, subject to boilerplate objections: “The investigation was conducted at the direction of counsel and is subject to the attorney-client privilege and work product doctrine. Amy Mikel, Employee Relations Consultant, reported to Plaintiff that Target's leadership acted in accordance to Target's best practice and the accommodation process was appropriately followed.” JS at 14. *3 RFP nos. 23, 38, 40-45, 117, and 120 request records reflecting the following: any correspondence among defendant's employees referring or pertaining to plaintiff, complaints plaintiff made during her employment, factual findings from the investigation into plaintiff's complaint, or witness interviews conducted during the investigation. In response to each, defendant has provided supplemental responses stating that it has produced all responsive, nonprivileged documents in its control and/or that it is withholding responsive documents based on the attorney-client privilege and work product doctrine. The documents being withheld are listed on the privilege log. See Kahn Decl., Ex. O. Plaintiff contends that information and documents reflecting defendant's response to her complaint are fundamental to her claims and needed to prove whether or not defendant met its burdens under California law. Specifically, plaintiff argues she needs the documents to prove that defendant failed to engage in an interactive process after her complaint, failed to provide reasonable accommodations in response to her complaint, failed to promptly, fully, and in good faith investigate her complaint of discrimination, and knowingly permitted conditions that would compel her to resign. Further, plaintiff argues she needs these documents to prove her punitive damages claim, which is based on the allegation that plaintiff complained directly to defendant's managing agents and those agents failed to take corrective action. Plaintiff argues that some of the withheld records are not privileged (JS at 21-23) and also seems to suggest that to the extent the withheld records are privileged, defendant has waived that privilege by putting the information at issue in the litigation. See, e.g., JS at 33 (“Defendant must provide evidence that it took appropriate action to address Plaintiff's complaints – i.e. to remedy and/or prevent the discrimination and/or retaliation Plaintiff alleged – or else be found liable at trial for each of these causes of action.”). Defendant maintains the withheld records are privileged and that there has been no waiver. JS at 8-9. Specifically, defendant argues it has not waived its privilege by either disclosing a significant part of the withheld communications or putting the communications at issue in the litigation. JS at 26. Defendant maintains it is not relying on the investigation-related information and documents as a defense to plaintiff's claims, and as such, has not put the records at issue. JS at 9, 27. It argues that whether the privileged records are relevant to plaintiff's claims is not relevant to whether waiver has occurred. JS at 27. 1. The Documents in Defendant's Log Are Privileged In a diversity jurisdiction case such as this one, state law governs matters of privilege. Oakes v. Halvorsen Marine, Ltd., 179 F.R.D. 281, 284 (C.D. Cal. 1998); Fed. R. Evid. 501. In California, the attorney-client privilege attaches to confidential communications between a client and the client's attorney during the course of the attorney-client relationship. Cal. Evid. Code § 952; 2,022 Ranch, LLC v. Superior Court, 113 Cal. App. 4th 1377, 1388 (2003). The party asserting the privilege bears the initial burden of demonstrating that the communication falls within the privilege. Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal. App. 4th 110, 123 (1997). Once an attorney-client relationship has been established, communications between the attorney and the client are presumed to be in confidence, and an opposing party bears the burden of proving the communication was not in confidence. Cal. Evid. Code § 917; State Farm Fire & Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 639 (1997). *4 California law also expressly contemplates protection over communications to third persons to whom disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer is consulted. Cal. Evid. Code §§ 952, 912(d). Thus, the privilege extends to communications which are intended to be confidential, if they are made to attorneys, family members, business associates, or agents of the party or his attorney on matters of joint concern, when disclosure of the information is reasonably necessary to further the interest of the litigant. OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874, 890-91 (2004). If such a third party (e.g., a consultant) engages in confidential communications with the client for the purpose of assisting counsel in the preparation and presentation of the case, the client's statements to the third party are protected by the attorney-client privilege unless the privilege is waived or an exception applies. People v. Ledesma, 39 Cal. 4th 641, 690 (2006), cert. denied, 549 U.S. 1324 (2007). The five documents listed in the privilege log are the Employee Relations investigation conducted in response to plaintiff's January 13, 2021 email and correspondence surrounding the investigation. JS at 8-9. For each document, defendant lists as the participants/author three individuals from among the following: Don Liu, Matt Zabel, Melissa Kremer, Sandy Schlafge, Aimee Lim, Andi Marston, Heidi Rockswold, Adam Klarfeld, Tierney Heim, and Amy Mikel. Kahn Decl., Ex. O. At the hearing, defendant represented that most of the individuals listed belonged to the “Employee Relations Group,” which is part of defendant's legal department that handles employee litigation, and several of the individuals are attorneys for defendant who were acting as such. Plaintiff argues that at least some of the information in the withheld documents is not privileged. Plaintiff does not argue the documents on the privilege log are not records of communications between or among defendant and its attorneys, or that those communications were not made in confidence. Rather, she argues the fact that “Plaintiff's complaint was sent to a managing agent who happens to be Defendant's general in house counsel does not make the response by that managing agent privileged.” JS at 21. “[T]he attorney is a witness in this case based on his direct receipt of Plaintiff's complaint, directly from Plaintiff to him, no different than any other witness, attorney or not, who also received her complaint.” JS at 22. “Defendant cannot hide behind the job title of an recipient of Plaintiff's complaint who had the power and authority to respond on behalf of Defendant to that complaint simply because that person's job title happens to be ‘attorney.’ ” JS at 21. Plaintiff characterizes defendant as having invoked privilege over its investigation and surrounding communications simply because one of the people involved happened to have been an attorney. But defendant has explained that the investigation was conducted by and at the direction of its counsel, and that it and the surrounding communications were made in connection with obtaining legal advice. Defendant represents that it would not be possible to respond further to plaintiff's requests without revealing communications made in confidence to and by its attorneys. In other words, contrary to plaintiff's characterization, defendant does not appear to be avoiding disclosure of discoverable documents by hiding behind counsel's incidental involvement in its response to plaintiff's email, acting in the same role as “any other witness.” Rather, the privilege claim appears to be based on counsel's involvement as counsel, conducting and directing an internal investigation into defendant's compliance with the law, in response to plaintiff's complaint of discrimination. Plaintiff offers nothing that would cause the court to doubt this. As such, the documents listed in the privilege log are covered by the attorney-client privilege. 2. Defendant Has Not Waived Its Privilege *5 The attorney-client privilege may be waived expressly or impliedly. See Garcia v. Progressive Choice Ins. Co., 2012 WL 3113172, at *3 (S.D. Cal. 2012) (citing Transamerica Title Ins. Co. v. Superior Court, 188 Cal. App. 3d 1047, 1052, 233 Cal. Rptr. 825 (1987)). Express waiver is governed by Cal. Evid. Code § 912, which states that a privilege is waived “if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” Attorney-client privilege may also be impliedly waived if a party to litigation places into issue a matter that is traditionally privileged. See Garcia, 2012 WL 3113172, at *3 (citing Transamerica Title Ins. Co., 188 Cal. App. 3d at 1052). Such an implied waiver can be found when a party states that it relied upon the advice of counsel, therefore putting the attorney-client communication directly at issue. Id. Whether express or implied, the scope of a waiver must be narrowly construed and the information required to be disclosed “must fit strictly within the confines of the waiver.” Id. “Privileged communications do not become discoverable simply because they are related to issues raised in the litigation.” Transamerica Title Ins. Co., 188 Cal. App. 3d at 1052-53. Here, defendant has not expressly waived the privilege by disclosing a significant part of the communications at issue or consenting to disclosure. The issue is therefore whether it impliedly waived the privilege by putting the attorney-client communications directly at issue. Plaintiff argues that defendant has waived any claims of privilege by putting the information contained in the documents at issue in the litigation. Specifically, plaintiff contends that in order to avoid liability for her claims, including failure to engage in an interactive process and failure to accommodate, defendant must rely on information in the withheld documents about how defendant responded to her complaint. See, e.g., JS at 33 (“Defendant must provide evidence that it took appropriate action to address Plaintiff's complaints – i.e. to remedy and/or prevent the discrimination and/or retaliation Plaintiff alleged – or else be found liable at trial for each of these causes of action.”). Defendant notes that it has not asserted any affirmative defenses that would require an inquiry into the investigation or related communications. Moreover, it insists it is not relying on investigation-related communications and documents at all, and that such evidence is irrelevant to its defenses. JS at 27. Contrary to plaintiff's arguments that defendant must either use the information in the privileged documents or lose, defendant states its position that “the adequacy of an investigation or the fact that something was investigated is not a legally cognizable defense to any of Plaintiff's claims.” JS at 26-27. Defendant argues that even “[i]f Plaintiff is correct that Target cannot prevail without relying on the investigation (which she is not),” that is ultimately Target's concern, not plaintiff's. JS at 23. Plaintiff's argument that defendant has put the investigation at issue assumes that defendant intends to rely upon it in defending against plaintiff's claims. Plaintiff seems to characterize the investigation as part of the interactive process, and appears to assume that when defendant defends against plaintiff's claims by describing that process, it is certain to point to the investigation. But at the hearing, defendant stated again that it has no such intention. Rather, defendant suggested that in order to defend against plaintiff's claims of failure to accommodate and engage in the interactive process, it intends to rely on actions it took prior to plaintiff's sending her January 13, 2021 email, namely, the interactive process between plaintiff and human resources personnel at the local level, as well as defendant's accommodation of placing plaintiff on a medical leave. *6 Whether or not defendant could rely on the investigation and surrounding communications to defend against plaintiff's claims is irrelevant to the question of waiver. Rather, the question is whether defendant is actually relying on the evidence, and here, defendant insists it is not. Plaintiff is free to try to support her claims by arguing that defendant's response to her January 13, 2021 email was deficient, subject to any limitations placed by the court. Defendant's position that the documents on the privilege log are privileged and not at issue will preclude it from using the investigation in defense. Since defendant maintains it will not rely on the withheld documents in any way, it has not waived the protection of the attorney-client privilege by putting them at issue. See Rock River Commc'ns v. Universal Music Group, 745 F.3d 34, 353-54 (9th Cir. 2014) (affirming district court finding of no waiver where challenging party's allegations required an inquiry into privileged information, but invoking party's defense required no such inquiry). IV. ORDER For the foregoing reasons, the court DENIES plaintiff's motion to compel (docket no. 64). Accordingly, plaintiff's request for Rule 37 sanctions is also denied. Footnotes [1] Although RFP no. 115 is listed among the requests at issue, it is not discussed anywhere else in the joint stipulation, and at the hearing plaintiff indicated it is not at issue.