Grano v. Sodexo, Inc.
3:18-cv-01818
S.D. Cal.Oct 12, 2021Background:
- This is a discovery dispute in consolidated E. coli outbreak litigation: Cargill seeks Plaintiffs' communications with federal agencies (CDC and Navy) underlying two witness declarations (Drs. Keaton and Espiritu).
- Cargill served RFP Nos. 3 and 4 seeking documents Plaintiffs received from third parties and all documents/communications related to governmental investigations; Plaintiffs produced FOIA/subpoena returns but withheld counsel communications, drafts, and notes.
- Cargill moved to compel: (1) emails/requests from Plaintiffs to CDC/Navy seeking testimony/declarations and agency responses; (2) drafts, edits, counsel communications, notes concerning the Keaton and Espiritu declarations; and (3) broader communications between Plaintiffs (and their counsel/experts) and CDC/Navy.
- Plaintiffs invoked the attorney work-product doctrine, argued relevance/proportionality objections, and contended Cargill had equal access to witnesses and documents.
- The Court held that requests for procedural logistics (scheduling) are irrelevant, ordered production of communications requesting testimony/declarations and the agencies’ responses (except drafts), and denied compel as to drafts, counsel notes, and overbroad requests as protected work product or irrelevant.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RFPs cover the requested counsel–agency communications | RFPs sought documents received from third parties, not counsel’s internal correspondence or drafts | RFPs 3 and 4 encompass all documents/communications with agencies, including counsel correspondence | Court: RFP 3 does not cover counsel correspondence; parts of Cargill’s requests fall within RFP 4 only to the extent they relate to the outbreak investigation; other requests are overbroad |
| Relevance/proportionality of logistics vs. substantive communications | Scheduling/meeting logistics irrelevant and disproportionate | Communications about drafting/declarations and materials provided to declarants are relevant to motions | Court: Logistics not relevant; requests about requests for testimony/declarations, agency responses, scope limits, and communications about information/documents provided to declarants and drafting are relevant |
| Whether the communications/drafts are protected work product | Counsel communications, draft affidavits, notes are work product (including opinion work product) | Not protected because communications are to federal employees and subject to FOIA; waiver occurred by disclosure on docket | Court: Drafts, counsel notes, and communications about drafting are work product; draft materials and counsel mental impressions get heightened protection; communications requesting testimony and agency responses are not protected |
| Whether Plaintiffs waived work-product protection / whether Cargill shows substantial need and undue hardship | No waiver; filing final declarations does not waive drafts; Cargill can obtain equivalent info via FOIA or its own interviews | Waiver because Plaintiffs engaged agencies subject to FOIA and placed materials before the court; Cargill has substantial need | Court: Limited waiver as to correspondence that Plaintiffs publicly filed (Navy correspondence disclosed on docket) — those must be produced; otherwise Plaintiffs did not waive work product for drafts/notes and Cargill failed to show substantial need/undue hardship or compelling need for opinion work product |
Key Cases Cited
- Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002) (district courts have broad discretion to determine relevancy for discovery)
- Admiral Ins. Co. v. United States Dist. Court for the Dist. of Arizona, 881 F.2d 1486 (9th Cir. 1989) (work-product doctrine protects materials prepared in anticipation of litigation)
- Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573 (9th Cir. 1992) (opinion work product is entitled to heightened protection and is discoverable only in narrow circumstances)
- United States v. Nobles, 422 U.S. 225 (1975) (work product is a qualified protection and may be waived by disclosure)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-created interview notes and similar materials often constitute classic work product)
- McKenzie Law Firm, P.A. v. Ruby Receptionists, Inc., 333 F.R.D. 638 (D. Or. 2019) (party asserting waiver of work product bears burden to show waiver)
- Schoenmann v. Federal Deposit Ins. Corp., 7 F. Supp. 3d 1009 (N.D. Cal. 2014) (draft affidavits and counsel correspondence are protected work product)
- United States v. Sanmina Corporation, 968 F.3d 1107 (9th Cir. 2020) (work-product protection is qualified; waiver analysis applies)