Curry v. Contra Costa County, 3:12-cv-03940

Plaintiff Jerri Curry, a 69-year-old Mental Health Clinical Specialist, alleges age discrimination and retaliation by Contra Costa County for hiring younger, less-qualified applicants in 2011–2012 and for adverse actions after she filed a union grievance and EEOC/DFEH complaints.
Defendant sought communications between Curry and her union (Local One) relating to discrimination, retaliation, and her employment; Curry withheld ten documents and asserted a "union-employee communication" privilege and privacy interests; attorney-client privilege was not asserted.
Local One joined the privilege objections and argued the communications were confidential; Defendant moved to compel production and to re-open Curry’s deposition to question her about the documents.
The court reviewed the ten documents in camera and found one 2010 email string discoverable on relevance grounds; three other documents (privilege log entries 8, 9, and 11) were found relevant to the grievances underlying the suit.
The court declined to recognize a federal union-employee communications privilege in this context, rejected Local One’s First Amendment associational-privacy showing (no specific evidence of chilling), and ordered production of entries 6, 8, 9, and 11 and allowed a one-hour re-opened deposition on those documents.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether communications between Curry and her union are privileged (union-employee communications privilege)	Local One/Curry: communications are confidential union-member communications and therefore privileged	County: no such privilege exists; communications are discoverable if relevant	Court: refused to recognize a federal union-employee communications privilege in this context and denied the privilege claim
Relevance of pre-2011 communications (2009–2010)	Curry: many documents predate the alleged discrimination and are not relevant	County: pre-2011 docs may show non-discriminatory reasons or a pattern of unfounded complaints bearing on credibility	Court: most pre-2011 documents not relevant; one 2010 email string (entry 6) is discoverable on relevance grounds
First Amendment associational-privacy protection for the union	Local One: disclosure would chill association and advocacy, so documents protected	County: no prima facie showing of chilling; County seeks disclosure	Court: Local One failed to make the required objective showing of chilling; First Amendment protection not established
Scope of production and further deposition	Curry/Local One: withhold documents; oppose further deposition	County: produce documents and re-open deposition to question Curry about them	Court: ordered production of entries 6, 8, 9, and 11; granted one-hour re-opened deposition limited to those documents

Univ. of Pa. v. EEOC, 493 U.S. 182 (1990) (privileges strictly construed; balanced against need for probative evidence)
Trammel v. United States, 445 U.S. 40 (1980) (Rule 501 grants courts flexibility to develop privileges cautiously)
Dowling v. Am. Haw. Cruises, Inc., 971 F.2d 423 (9th Cir. 1992) (federal policy favors open discovery; privileges narrowly applied)
Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005) (federal privilege law governs where federal question jurisdiction exists)
McCoy v. Southwest Airlines Co., 211 F.R.D. 381 (C.D. Cal. 2002) (declining to extend attorney-client privilege to union representative communications)
Brock v. Local 375, Plumbers Int’l Union of Am., 860 F.2d 346 (9th Cir. 1988) (standard for showing associational-privacy/First Amendment injury)
Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671 F.2d 100 (3d Cir. 1982) (federal privilege law applies when federal and pendent state claims are present)