DEPINA v. FEDEX GROUND PACKAGE SYSTEM INC (2024)

ORDER REGARDING DISCOVERY LETTER BRIEF

Regarding Docket No. 38

This matter comes before this Court on a motion by Defendant FedEx Ground Package System, Inc., (“Defendant”) to compel production of a survey that Plaintiff's counsel sent to putative class members, communications with those putative class members, and the responses to the survey from those putative class members.¹

Factual Background

In this case, Plaintiff Cara Delpina alleges, on her own behalf and on behalf of all other people similarly situated, that Defendant violated various sections of the California Labor Code by the following actions: (1) failing to provide Plaintiff and all other similarly situated individuals with meal periods; (2) failing to provide them with rest periods; (3) failing to pay them premium wages for missed meal and/or rest periods; (4) failing to pay them premium wages for missed meal and/or rest periods at the regular rate of pay; (5) failing to pay them at least minimum wage for all hours worked; (6) failing to pay them overtime wages at the correct rate; (7) failing to pay them double time wages at the correct rate; (8) failing to pay them overtime and/or double time wages by failing to include all applicable remuneration in calculating the regular rate of pay; (9) failing to pay them for all vested vacation pay; (10) failing to reimburse them for all necessary business expenses; (11) failing to provide them with accurate written wage statements; and (12) failing to pay them all of their final wages following separation of employment. (Dkt. No. 4 (First Amended Complaint), ¶1.) Defendant removed this suit from California state court to this Court based on diversity jurisdiction. (Dkt. No. 1.) The class has not yet been certified, as the hearing for the motion for class certification is set for July 16, 2024. (Dkt. No. 18.)

Analysis

A. Attorney-Client Privilege

Because Plaintiff asserts California claims against Defendant and because the parties are before this Court pursuant to diversity jurisdiction, California law applies to the analysis of attorney-client privilege. Federal Rule of Evidence 501 states: “But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” See also KL Grp. v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Under California law, the attorney-client privilege attaches to confidential communications between a client and her attorney during the course of the attorney-client relationship. See Cal. Evid. Code § 952; Roberts v. Cty. of Palmdale, 5 Cal. 4th 363, 371, 20 Cal.Rptr.2d 330, 853 P.2d 496 (1993). The party asserting the privilege bears the initial burden of demonstrating that the communication falls within the privilege. State Farm Fire & Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 639, 62 Cal.Rptr.2d 834 (1997).

California law defines the “client” as “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing the legal service or advice from him in his professional capacity ․” Cal. Evid. Code § 951. “Once the foundational facts have been presented, i.e., that a communication has been made ‘in confidence in the course of the lawyer-client ․ relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential,’ or that an exception exists.” State Farm Fire & Cas., 54 Cal. App. 4th at 639, 62 Cal.Rptr.2d 834, quoting Cal. Evid. Code § 917; see Alaska Exploration, Inc. v. Superior Court, 199 Cal. App. 3d 1240, 1262, 245 Cal.Rptr. 682 (1988).

The survey itself is obviously not a communication between an attorney and client. The communications between the prospective class members and Plaintiff's counsel are not communications between clients and their lawyers because Plaintiff's counsel has not yet been certified as class counsel. Plaintiff has provided no evidence to show that her counsel also represents anyone else in the putative class. For the same reason, the putative class members’ responses to the survey by are also not attorney-client communications. Thus, the attorney-client privilege does not shield the requested information from production.

B. Attorney Work Product Doctrine

In contrast to the law of attorney-client privilege, the attorney work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), is procedural in nature, and federal law applies. Great Am. Assur. Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1090 (N.D. Cal. 2009) (noting that “[u]nlike issues of attorney-client privilege, issues concerning the work-product doctrine are procedural and thus governed by Federal Rule of Civil Procedure 26(b)(3)”). Rule 26(b)(3) provides a qualified privilege that protects from discovery documents and tangible things prepared by a party or her representative in anticipation of litigation.

Here, Plaintiff argues that the survey itself includes the thoughts and impressions of Plaintiff's counsel. However, the responses to the surveys are not work product, as they are the thoughts and impression of the putative class members and not the lawyers’ thoughts and impressions. Although it would be odd to split the survey into two portions – the questions that are protected by the attorney work product doctrine and the responses – it is possible to do so. Similarly, the communications between Plaintiff's counsel and prospective class members that were made outside the survey might contain some attorney work product in the part of the communication from the lawyer, but again, comments from the prospective class members are not protected.

Defendant argues that, even assuming that the survey constitutes attorney work product, Plaintiff waived the attorney work product protection by disclosing that survey to and communicating with the putative class members. The protection of the attorney work product doctrine can be waived. United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). The waiver is limited, as “disclosure of work product to a third party does not waive the protection unless such disclosure is made to an adversary in litigation or waiver made in such a way that it ‘has substantially increased the opportunities for potential adversaries to obtain the information.’ ” United States v. Sanmina Corp., 968 F.3d 1107, 1121 (9th Cir. 2020), quoting 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2024 (3d ed. 2020).² Waiver occurs where “ ‘such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from the disclosing party's adversary.’ ” Id., quoting Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001).

The waiver here was not to Defendant, so the only way that waiver could apply in this context is if the disclosure to the third parties was made in such a way that it increased the opportunities for Defendant to obtain the surveys. As a practical matter, it is unlikely that a survey distributed to Defendant's employees could be maintained in a confidential manner. See, e.g., U.S. E.E.O.C. v. ABM Industries, Inc., 261 F.R.D. 503, 512-513 (E.D. Cal. 2009) (finding that attorney work product doctrine waived where survey was sent to employees of defendant). Similarly, it is unlikely that Plaintiff's counsel's portion of communication with putative class members, which arguably might be attorney work product, was made in a confidential manner.

For these reasons, the Court finds that the attorney work product doctrine does not protect the survey, the communications between Plaintiff's counsel and putative class members, or the responses to the survey. The survey and Plaintiff's counsel's portion of communications are the only part of the materials that possibly constitute attorney work product, but Plaintiff waived that protection by distributing the survey and communicating with Defendant's employees, the putative class members.

Conclusion

Plaintiff is ORDERED to produce the survey, the responses, and communications with prospective class members by April 22, 2024.

IT IS SO ORDERED.

FOOTNOTES

1.   Defendant does not seek drafts of the survey or communications between Plaintiff and the vendor who administered the survey.

2.   The Court is disappointed that Defendant did not cite to the correct standard in discussing waiver of attorney work product.

SALLIE KIM, United States Magistrate Judge