Mir v. L-3 Communications Integrated Systems, L.P.
315 F.R.D. 460
N.D. Tex.2016Background
- Plaintiff Peter Mir applied for a job at L-3; after not being hired he filed an administrative complaint with OFCCP alleging disability discrimination under Section 503/ADA.
- L-3 retained counsel and submitted a position statement and follow-up communications to the OFCCP during its investigation.
- OFCCP concluded there was insufficient evidence, issued Mir a right-to-sue letter, and Mir sued L-3 under the ADA.
- In discovery Mir requested all documents and communications L-3 submitted to the OFCCP; L-3 withheld four documents (55 pages) as attorney work product.
- Mir moved to compel production, arguing L-3 failed to prove work-product protection and that any protection was waived by disclosure to the OFCCP (and, as to the position statement, by putting its defense at issue).
- The magistrate judge found L-3 established work-product protection but concluded L-3 waived that protection by voluntarily disclosing the materials to OFCCP; the Court granted the motion to compel (but denied an at-issue waiver), and declined to award fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the withheld OFCCP submissions are work product | L-3 must prove each document is work product; alternatively, even if work product, it was waived | Documents were prepared by L-3's counsel in anticipation of litigation and thus protected | L-3 satisfied burden; documents are work product |
| Whether disclosure to OFCCP waived work-product protection | Disclosure to an adversarial federal agency waives protection because it increases chances an adversary will obtain materials | Submission was made under an expectation of confidentiality and OFCCP regulations limiting disclosure, so no waiver | Waiver: Court held disclosure to OFCCP (a potential adversary) substantially increased risk of disclosure and thus waived work-product protection |
| Whether submitting the position statement put the document "at issue" (subject-matter waiver) | L-3’s asserted nondiscriminatory reason for not hiring Mir puts its OFCCP position statement at issue and waives protection | L-3’s defenses do not expressly rely on the position statement itself; using a defense does not ipso facto waive work product | Denied: Court found Mir did not show the position statement itself was put at issue and refused to find at-issue waiver |
| Whether movant or opponent should bear Rule 37 expenses | Mir sought fees as prevailing party on motion to compel | L-3 opposed fee award | Court exercised discretion to deny fees and ordered each side to bear its own expenses |
Key Cases Cited
- Shields v. Sturm, Ruger & Co., 864 F.2d 379 (5th Cir. 1989) (voluntary disclosure to third party not automatically waiving work-product; waiver where disclosure increases chances adversary obtains material)
- In re Grand Jury Subpoena, 220 F.3d 406 (5th Cir. 2000) (work-product protection not automatically waived by disclosure)
- Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373 (5th Cir. 2010) (waiver if disclosure substantially increases opportunities for adversaries to obtain information)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (special protection for materials revealing attorney mental impressions)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (foundational work-product doctrine; possible use for impeachment or corroboration)
- In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993) (disclosure to SEC in adversarial posture can waive work-product protection)
- In re Burlington Northern, Inc., 822 F.2d 618 (5th Cir. 1987) (waiver where party asserts claim or defense that explicitly relies on privileged communications)
- S.E.C. v. Brady, 238 F.R.D. 429 (N.D. Tex. 2006) (discussion of waiver when submitting materials to government agency under confidentiality agreement)