Equal Employment Opportunity Commission v. Scottsdale Healthcare Hospitals

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Equal Employment Opportunity No. CV-20-01894-PHX-MTL Commission, 10 ORDER Plaintiff, [11] v. [12] Scottsdale Healthcare Hospitals, [13] Defendant. [14] 15 Pending before the Court is the parties’ Joint Summary of Discovery Dispute (Doc. 16 190). The Court ordered the parties to submit supplemental briefing (Docs. 193, 195) and 17 held a status conference on the same. 18 I. BACKGROUND 19 The EEOC brought this action against HonorHealth under the Americans with 20 Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 based on its alleged 21 failure to provide reasonable accommodations to its Arizona employees. The parties refer 22 to the current and former HonorHealth employees whose claims underlie the EEOC’s 23 lawsuit as the “Aggrieved Individuals” (“AI”). The parties refer to the entire group of 24 possible class members who received solicitation letters from the EEOC as “Potential AI.” 25 During discovery, HonorHealth produced a list of its current and former employees 26 who have requested an accommodation of their job duties based on a disability or medical 27 condition. From that list, EEOC attorneys and staff decided which of those persons to send 28 a solicitation letter about their workplace accommodation lawsuit. Ultimately, EEOC sent 1 solicitation letters to approximately 4,000 current and former HonorHealth employees. 2 The parties’ present dispute centers on Defendant Scottsdale Healthcare Hospitals’ 3 (“HonorHealth”) Request for Production No. 1, as modified during the parties’ meet and 4 confer and related communications. HonorHealth is now seeking: [5] 1. All solicitation letters and emails sent to [Aggrieved 6 Individuals “AI”] and potential AI in this case; 2. All responses to those solicitations; and 7 3. The participation agreements between the EEOC and the AI 8 who have been disclosed. 9 We ask that these documents be produced for any AI when any 10 of the following conditions are met: 11 1. the EEOC did not identify the individual providing the response as an AI in this case; [12] 2. the individual was identified as an AI, but was then dropped 13 from this case; 3. the solicitation letter or email sent to that AI or potential AI [14] did not invite the individual to call to obtain legal advice; or 15 4. the AI testifies or otherwise indicates that he or she did not have an attorney client relationship with the EEOC at the time [16] the communications occurred. [17] (Doc. 190-1 at 36.) The EEOC has objected to Defendant’s request based on attorney-client 18 privilege and the attorney work product doctrine.1 (Id. at 30-31.) The Court will analyze [19] whether the requested items fall under attorney-client privilege and/or attorney work [20] product protection. [21] II. LEGAL STANDARD [22] A. Attorney-Client Privilege [23] Arizona law governs the application of attorney-client privilege. “Confidential [24] disclosures by a client to an attorney made in order to obtain legal assistance are [25] privileged.” Fisher v. United States, 425 U.S. 391, 403 (1976) (citation omitted). The [26] 27 1 Additionally, the EEOC notes that the parties’ stipulated ESI Order, adopted by this Court, states that “[c]ommunications related to this litigation between the EEOC attorneys 28 (or their staff) and an aggrieved individual need not be produced nor listed on a privilege log.” (Doc. 193 at 2 (quoting Doc. 111-1 at ¶ 8(c)).) 1 purpose of attorney-client privilege “is to encourage full and frank communication between 2 attorneys and their clients and thereby promote broader public interests in the observance 3 of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383 , 389 4 (1981). The privilege only protects communications “made to or by [a] lawyer for the 5 purpose of securing or giving legal advice[.]” Samaritan Found. v. Goodfarb, 862 P.2d 6 870, 874 (Ariz. 1993). “[A]n attorney client relationship commences when [AIs in an 7 EEOC class action] take action to manifest their intent to enter the relationship. Courts 8 have found such a relationship to exist when an individual contacted the EEOC through 9 questionnaires and phone calls, consulted the EEOC with an intent to seek legal advice, or 10 signed an affidavit stating a belief that an attorney-client relationship existed.” E.E.O.C. v. 11 Collegeville/Imagineering Ent., No. CV-05-3033-PHX-DGC, 2007 WL 158735 , at *1 (D. 12 Ariz. Jan. 17, 2007) (citations omitted). 13 B. Attorney Work Product Protection 14 Federal law governs the application of the work product doctrine. See Bickler v. 15 Senior Lifestyle Corp., 266 F.R.D. 379, 382 (D. Ariz. 2010) (“Unlike the attorney-client 16 privilege, federal law governs the application of the work product doctrine in this case.”). 17 To qualify as privileged work product, the material must be (1) a document or tangible 18 thing, (2) prepared by or for counsel or its representative, (3) in anticipation of litigation or 19 for trial. See Fed. R. Civ. P. 26(b)(3)(A); United States v. Nobles, 422 U.S. 225 , 237–38 20 (1975); Hickman v. Taylor, 329 U.S. 495, 508 (1947); United States v. Richey, 632 F.3d 21 559 , 567–68 (9th Cir. 2011). This protection applies to documents prepared “by or for 22 another party or its representative (including the other party’s attorney, consultant, surety, 23 indemnitor, insurer, or agent).” Id. Rule 26(b)(3) states that otherwise protected materials 24 may be discoverable if a party “shows that it has substantial need for the materials to 25 prepare its case and cannot, without undue hardship, obtain their substantial equivalent by 26 other means.” Fed. R. Civ. P. 26(b)(3). The work product doctrine’s protections are also 27 waivable. See Richey, 632 F.3d at 567 . The party asserting the privilege bears the burden 28 of showing with precise facts that each subpoenaed document is work product created in 1 anticipation of litigation. See U.S. v. 22.80 Acres of Land, 107 F.R.D. 20 , 22–26 (N.D. Cal. 2 1985); Rogers v. Giurbino, 288 F.R.D. 469, 480 (S.D. Cal. 2012). 3 III. DISCUSSION 4 The parties dispute whether each category of communications is protected by the 5 attorney-client privilege and/or the attorney work product protection. To the extent the 6 attorney work product protection applies, the parties dispute whether Defendants have 7 established a substantial need for the requested documents to overcome the privilege. 8 A. Active AIs 9 EEOC asserts that, with respect to AIs who are named as class members and actively 10 involved in the case (“Active AIs”), the requested solicitation letters, communications, and 11 participation agreements are protected by attorney-client privilege. (Doc. 193 at 2.) EEOC 12 also points out that the parties stipulated that “[c]ommunications related to this litigation 13 between the EEOC attorneys (or their staff) and an aggrieved individual need not be 14 produced nor listed on a privilege log.” (Id. (quoting Doc. 111-1 at ¶ 8(c)).) HonorHealth 15 disagrees, arguing that the privilege does not apply because the AIs believe that they did 16 not have an attorney-client relationship with the EEOC. (Doc. 195 at 5.) 17 To the extent HonorHealth requests communications between EEOC attorneys and 18 Active AIs, the Court finds that all of the requested documents constitute attorney-client 19 communications. HonorHealth argues that some of the Active AIs that have been deposed 20 thus far testified that there was no attorney-client relationship between the EEOC and 21 themselves. (Doc. 195 at 5.) But the EEOC has provided affidavits from each of those 22 Active AIs establishing that there is an attorney-client relationship. The Court has reviewed 23 the deposition excerpts and is not persuaded that the deposed individuals understood 24 HonorHealth’s questions about the complex nature of an EEOC class action and how they 25 fit into the case class members. Moreover, the application of attorney-client privilege is a 26 legal conclusion and the signed affidavits rebut HonorHealth’s arguments. Where an active 27 AI responded to the EEOC’s solicitation letter and signed the participation agreement, or 28 otherwise has interests represented by the EEOC’s case, all requested communications 1 between the EEOC and the AIs are subject to attorney-client privilege. See 2 Collegeville/Imagineering Ent., 2007 WL 158735 , at *1 (“Courts have found [an attorney3 client] relationship to exist when an individual. . . signed an affidavit stating a belief that 4 an attorney-client relationship existed.”). Thus, the requested documents need not be 5 produced for these individuals. 6 Similarly, attorney-client privilege attaches for any AIs that affirmatively responded 7 to the EEOC’s solicitation letter to discuss their potential claims, including those who 8 signed up to be a class member through a participation agreement but have since dropped 9 out of the case. “An attorney-client relationship commences when the [AIs] take action to 10 manifest their intent to enter the relationship.” See Collegeville/Imagineering Ent., 2007 11 WL 158735 , at *1. Once an AI established an attorney-client relationship with the EEOC, 12 their later removal from the case does not remove the privilege over prior communications 13 made during that relationship. See United States v. Margolis (In re Fischel), 557 F.2d 209 , 14 211 (9th Cir. 1977) (privileged communications are permanently protected). To create an 15 attorney-client privilege, the EEOC’s solicitation letter must contain an “explicit offer of 16 EEOC legal representation,” U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-cv-0158817 LRH-GWF, 2014 WL 4987418 , at *8 (D. Nev. Oct. 6, 2014), or other language that shows 18 “its purpose was to solicit only from persons who wanted to be represented by the EEOC 19 in the underlying action,” U.S. E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503, 508 (E.D. 20 Cal. 2009 ). 21 The form solicitation letters in the record indicate that the EEOC requested 22 responses from only those employees whose experience fits within the lawsuit. (Doc. 19023 1 at 12-13.) Specifically, the letters request a response to determine if the recipient was 24 “denied a reasonable accommodation or fired or forced to quit” because of an 25 accommodation request or medical condition. (Id.) The letters also state that the recipient 26 will speak to an EEOC attorney and their experiences may entitle them to monetary relief. 27 (Id.) This is factually distinct from the letter in U.S. E.E.O.C. v. Republic Services, where 28 the letter sought any information about the employer’s practices, including from third-party 1 witnesses. No. 2:04-cv2007 WL 465446 , at *2 (D. Nev. Feb. 8, 2007) (“[T]hough the idea 2 of representation may be implicit in the letter, it is not its stated purpose.”). So, by 3 responding to the EEOC’s solicitation letters for a consultation about their claims, the AIs 4 evidenced their intent to seek legal advice from the EEOC’s attorneys, regardless of 5 whether they became actively involved in the case. “[T]he fact that a consultation is 6 relatively brief does not negate the establishment of the relationship.” Research Corp. 7 Tech. Inc. v. Hewlett Packard Co., 936 F. Supp. 697, 700 (D. Ariz. 1996). And, by signing 8 the Participation Agreement and returning it to the EEOC, those AIs evidenced “an 9 expectation of privacy in a communication with an attorney representing their interests and 10 evaluating their potential claims.” See E.E.O.C. v. Swissport Fueling, Inc., CV-10-210111 PHX-GMS, 2012 WL 1648416 , at *14 (D. Ariz. May 10, 2012). 12 B. Potential AIs 13 HonorHealth also seeks the identities of, and all communications with, persons who 14 received a solicitation letter but did not respond or responded by declining EEOC’s 15 invitation without a consultation. EEOC argues that the identities of these individuals are 16 covered by the attorney work product protection and any communications with those 17 persons are covered by attorney-client privilege. (Doc. 193 at 7.) HonorHealth disagrees, 18 arguing that the privilege does not apply for various reasons, including that EEOC did not 19 have an attorney-client privilege with these individuals because they never intended to seek 20 advice from the EEOC’s attorneys. (Doc. 195 at 4.) 21 The Court finds that attorney-client privilege does not cover the EEOC’s solicitation 22 letters that were not responded to, or those that were responded to, but the response 23 declined the invitation to speak to an EEOC attorney. Because a person must take an 24 affirmative action to evidence their intent to enter into the attorney-client relationship, there 25 can be no privilege where that person did not act at all, or their actions manifest an intent 26 not to enter into that relationship. See Collegeville/Imagineering Ent., et al., 2007 WL 27 158735, at *1 (D. Ariz. Jan. 17, 2007) (“An attorney-client relationship does not exist 28 across an entire class merely when the EEOC has filed a case and identified a class.”). The 1 EEOC must disclose the contents of the communications with all solicited individuals that 2 did not respond or responded “no” to their request, including the solicitation letters and any 3 responses, to the extent that they have not already been produced.2 See Swissport Fueling, 4 Inc., 2012 WL 1648416 , at *14 (“[T]he EEOC must disclose the contents of the 5 questionnaires that were returned without a Participation Agreement or that were returned 6 with Participation Agreements if the respondent indicated that he/she did not wish to assert 7 a claim.”). 8 The Court further finds that the attorney work product protection applies to the 9 extent Defendant requests the EEOC to identify the recipients of the letters. In response to 10 EEOC’s discovery requests, HonorHealth produced a list of all current and former 11 HonorHealth employees who requested an accommodation because of a disability or 12 medical condition. (Doc. 193 at 6.) EEOC avers that it decided which persons to contact 13 using data from HonorHealth’s document production after “countless hours [] spent 14 reconciling [HonorHealth] spreadsheets, removing duplicates, identifying incomplete 15 information, researching, and updating contact information.” (Doc. 193 at 6-7.) The 16 recipient list of the solicitation letters, then, is the result of EEOC attorney’s mental process 17 and impressions and may contain sensitive information about its case strategy. See 18 Swissport Fueling, Inc., 2012 WL 1648416 , at *13 (“Plaintiff is entitled to work-product 19 immunity to the extent that Defendant requests that it identify to whom its attorneys sent 20 the information.”); see also Collegeville/Imagineering Ent., 2007 WL 1089712 , at *1 (D. 21 Ariz. Apr. 10, 2007) (“[W]here a party . . . seeks to learn who has been contacted by 22 opposing counsel, work product concerns arise. Such discovery requests seek to track the 23 steps of opposing counsel . . . [and thus focuses] on the actions of lawyers rather than the 24 knowledge of witnesses.”). 25 HonorHealth argues that the identities of the solicited persons are relevant to its 26 defenses, and it has a substantial need because EEOC’s allegations stem from [27] 2 The Court notes that there are at least two form solicitation letters already in the record. 28 (Doc. 190-1 at 2-13.) To the extent there are other versions of the solicitation letters, the contents of those letters are not privileged and EEOC must produce them. 1 HonorHealth’s lack of infrastructure to process accommodations. (Doc. 195 at 5.) 2 According to HonorHealth, if it can establish that a statistically significant percentage of 3 the persons solicited did not have viable claims because their requested accommodations 4 were handed appropriately, it can defeat EEOC’s claims. (Id.) Notably, EEOC decided who 5 to contact based on data it received from HonorHealth. (Doc. 193 at 6-7.) Thus, 6 HonorHealth is in possession of the same information that EEOC used to identify its 7 prospective class and it is not entitled to discovery of EEOC’s case strategy without 8 establishing a substantial need. Blue Cross of California v. Insys Therapeutics Inc., CV9 17-02286-PHX-DLR, 2019 WL 13032419 , at *5 (D. Ariz. Mar. 13, 2019) (documents 10 “prepared under the direction of counsel and/or in preparation of litigation are privileged”). 11 HonorHealth has failed to “shows that it has substantial need for the materials to prepare 12 its case and cannot, without undue hardship, obtain their substantial equivalent by other 13 means.” Fed. R. Civ. P. 26(b)(3). 3 14 Thus, the Court will require EEOC to produce the substance of the communications 15 with those potential AIs that did not enter into an attorney-client relationship with EEOC, 16 as discussed herein, but the EEOC shall redact all personal identifiable information of those 17 persons as attorney work product. 18 /// 19 /// 20 /// [26] 3 Additionally, HonorHealth’s purported need for the requested information based on any 27 anticipated post-judgment attorney’s fees motion is premature. HonorHealth only relies on authority to support an attorney’s fees award for prevailing parties. See Hubbard v. 28 SoBreck, LLC, 554 F.3d 742, 743 (9th Cir. 2009). HonorHealth is not yet a prevailing party, so the Court will not allow discovery on this basis. IV. CONCLUSION 2 Accordingly, 3 IT IS ORDERED that the parties’ Statement of Joint Summary of Discovery 4|| Dispute (Doc. 190) is granted as follows: 5 1. EEOC shall produce all communications between the EEOC and solicited || individuals who did not respond to the EEOC’s solicitation, or responded to the solicitation but declined to participate, as set forth herein. For the avoidance of doubt, the identities of 8 || the solicited individuals are protected as EEOC’s attorney work product and all personal 9|| identifiable information shall be redacted prior to production of the communications. 10 2. The motion is denied in all other respects. 11 Dated this 14th day of August, 2023. [12] 8 Wichal T. FH bundle Michael T. Liburdi 15 United States District Judge [28] -9-