HomeMy WebLinkAbout2018CV3204 - LORI FRANK V. CITY OF FORT COLLINS, TERENCE F. JONES AND JEROME SCHIAGER - 064 - ORDER ON DISCOVERY DISPUTE AFTER IN CAMERA REVIEW1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-03204-RBJ-NRN
LORI FRANK,
Plaintiff,
v.
CITY OF FORT COLLINS, a municipality; TERENCE F. JONES, former Interim Chief of
Police, in his individual capacity and JEROME SCHIAGER, former Deputy Chief of
Police, in his individual capacity,
Defendants.
ORDER ON DISCOVERY DISPUTE AFTER IN CAMERA REVIEW
Upon referral by Judge R. Brooke Jackson (Dkt. #52), the Court held a discovery
hearing on November 4, 2019 by telephone. At the conclusion of that hearing, the Court
issued certain rulings, and also asked that the Defendants submit certain of the
disputed materials in unredacted form for in camera review. See Dkt. #54 (Courtroom
Minutes of 11/04/2019 proceedings). The documents that I asked be submitted in
unredacted form for in camera review included FC-SEP16ORDER 000408-000535, and
the executive summary of an investigation by outside counsel (Investigations Law
Group LLC) into alleged race discrimination in the Fort Collins Police Department
(“Executive Summary”). I also asked that the parties submit supplemental briefs on the
question of the applicability of the attorney-client privilege to the executive summary.
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The Defendants did as requested and on November 8, 2019, submitted via the
Court’s electronic filing system two documents as “Restricted – Level 3,” meaning that
the documents may only be reviewed by the Court and not the opposing party or the
public. See Dkt. ##56 and 58. Defendants submitted a brief explanation of unredacted
documents Bates labeled FC-SEP16ORDER 000408-000535, and the basis for the
original redactions. See Dkt. #55. As requested, both parties submitted additional
briefing on the issue of attorney client privilege as applied to the Executive Summary.
See Dkt. #59 (Plaintiff’s Submission on Attorney/Client Privilege) and Dkt. #57
(Defendant City of Fort Collins’ Statement Regarding Privileged and Protected Nature of
ILG’s Executive Summary and ILG Report).
Having reviewed the submissions by the Parties, the relevant authorities, and
conducted an in camera review of the submitted discovery materials, I come to the
following conclusions:
1. ILG’s Executive Summary and Report
In April 2016, Kennyberg Araujo and Francis Gonzales sued the City of Fort
Collins, the former Deputy Chief of Police, and a Police Sergeant for alleged race
discrimination. The lawsuit contained no claims of gender discrimination or gender
discrimination-related retaliation. In September 2016, the City, through its City Attorney
and on the advice of outside counsel, retained Investigations Law Group LLC (“ILG”) to
conduct a third-party investigation of race discrimination complaints against the Fort
Collins Police Department.
ILG completed its investigation and, on November 21, 2016, issued a confidential
Investigation Report. The Report was authored by two attorney-investigators at ILG,
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Elizabeth Rita and Kevin Paul, and is labeled “CONFIDENTIAL WORK PRODUCT.” On
December 3, 2016, ILG issued an Executive Summary, which summarized the
Investigation Report’s findings. That report was also written by Ms. Rita and Mr. Paul.
The Investigation Report itself was not been shared with any City employee except two
attorneys in the City Attorney’s Office involved in addressing the litigation. Since the
Executive Summary’s creation, the Executive Summary was shared in a hard copy
version with the City Manager, the Chief Human Resources Officer and the Chief of
Police during the course of a meeting. These senior staff members returned the hard
copy versions of the executive summary to the two attorneys at the conclusion of the
meeting.
The City maintains that the ILG Report and ILG Executive Summary are work
product and attorney-client privileged documents. Based on these assertions of
privilege and the work-product doctrine, the City argues they are entitled to withhold
these documents, even though the documents address certain limited substantiated
claims of race discrimination and therefore arguably fall within the categories that Judge
Jackson said should be produced. The City cites Upjohn Co. v. United States, 449 U.S.
383, 395 (1981) for the proposition that the attorney-client privilege and work-product
protection extend to a retained outside investigator’s files. The City also cites Collardey
v. Alliance for Sustainable Energy, LLC, Civil Action No. 18-cv-00486-PAB-SKC, 2019
WL 3778298, (D. Colo. 2019), where Judge Brimmer recently affirmed Magistrate Judge
Crews’ decision holding that similar documents, created by an outside investigator in
anticipation of litigation under the supervision of counsel, were protected from
disclosure.
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Plaintiff, for her part, cites the opinion of Judge Krieger in Crews v. School
District No. 1, et al., 13-cv-029120MSK-MEH (D. Colo. Dec, 3, 2015). The Crews case
was race discrimination case against a school district that involved a legal advisor who
had conducted interviews with district employees in order to prepare an investigative
report. Judge Krieger there found that there were insufficient indicia to support a
conclusion that the interviews were conducted with the intent that they remain
confidential and under the shroud of the attorney-client privilege. Absent that essential
element of the attorney client privilege, Judge Krieger ordered the production of the
investigation report. Oddly, perhaps because the parties did not raise it, there was no
mention of the work-product doctrine in the Crews case.
I have personally reviewed in camera the Executive Summary. I have not
reviewed the report (which was not submitted for in camera review), but I am working
under the assumption that the Executive Summary adequately summarizes the contents
of the report itself. I find that the Executive Summary and the Report are covered by
both the attorney-client and work product privileges. The Executive Summary contains
the thoughts and impressions of counsel and draws conclusions about allegations of
race discrimination based on an investigation.
Under federal common law, the attorney-client privilege generally applies to
“communications made in confidence by a client and a client’s employees to an
attorney, acting as an attorney, for the purpose of obtaining legal advice.” Sandra T.E.
v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010) (citing Upjohn, 449
U.S. at 394-99). See also In re Qwest Commc’ns Int’l Inc., 450 F.3d 1179, 1185 (10th
Cir. 2006) (stating that a “critical component of the [attorney-client] privilege is whether
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the communication between the client and the attorney is made in confidence of the
relationship and under circumstances from which it may reasonably be assumed that
the communication will remain in confidence” (internal quotation marks omitted)). “[T]he
mere fact that an attorney was involved in a communication does not automatically
render the communication subject to the attorney-client privilege.” In re Grand Jury
Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010) (internal quotation marks and
bracket omitted). On the other hand, courts have extended the privilege to
communications between a client and a third-party where the “communication was
made in confidence for the purpose of obtaining legal advice from the lawyer.” Roe v.
Catholic Health Initiatives Colorado, 281 F.R.D. 632, 637 (D. Colo. 2012); see also
United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995) (recognizing that the
attorney-client privilege can extend to communications with non-attorneys “when the
purpose of the communication is to assist the attorney in rendering advice to the client”).
Here, the Executive Summary and the ILG Report were prepared in confidence,
by lawyers or their investigators, conducting an investigation to be delivered to counsel
for the purpose of giving and receiving legal advice. They are privileged documents.
They were intended to be kept confidential, and based on representations of the City’s
counsel, received only very limited distribution. The reasoning in Collardey is applicable
here. The Crews case does not apply because, unlike in Crews, I find these documents
were always intended to be confidential and were prepared for the purpose of allowing
counsel for the City to give legal advice.
In addition to the attorney-client privilege, the documents are attorney work-
product, reflecting, as they do, the thoughts and impressions of counsel. Martin v.
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Monfort, Inc., 150 F.R.D. 172 (D. Colo. 1993) lays out a sequential step approach to
determining whether documents fall under the protection of the work product doctrine:
First, the party seeking discovery must show that the subject documents or
tangible things are relevant to the subject matter involved in the pending litigation
and are not privileged. Once such a showing has been made, the burden shifts to
the party seeking protection to show that the requested materials were prepared
in anticipation of litigation or for trial by or for the party or the party’s attorney,
consultant, surety, indemnitor, insurer or agent. . . . If the Court concludes that
the items were prepared in anticipation of litigation, the burden shifts back to the
requesting party to show: (a) a substantial need for the materials in the
preparation of the party’s case; and (b) the inability without undue hardship of
obtaining the substantial equivalent of the materials by other means.
150 F.R.D. at 172-73 (internal citations omitted).
Here, there is no dispute that the Executive Summary and the Report were
prepared in anticipation of litigation. On its face the Executive Summary recites that the
“investigation was conducted solely for the purposes of responding to pending claims
and preparing for threatened and potential future claims against the City of Fort Collins.”
I am not convinced that there is a substantial need on the part of the plaintiff for the
materials in the preparation of the party’s case. This investigation in question involved
race discrimination, not gender discrimination. It addresses events that happened prior
to April 2016. Similarly, I am not convinced of the inability of the Plaintiff to obtain the
substantial equivalent of the non-attorney-client privileged materials by other means. To
whatever limited extent the materials are not covered by attorney-client privilege, there
is no showing that the Plaintiff (through depositions or interviews of her own counsel)
cannot obtain similar factual material. The City need not produce the ILG Report or the
Executive Summary.
2. Partly-Redacted Documents:
Bates-Labeled FC-SEP16ORDER 000408-000535
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These documents were produced to Plaintiff by the Defendants as part of a
larger production in response to Judge Jackson’s September 16, 2019 discovery order,
Dkt. #45. That order required that documents falling under one of six categories of be
produced; documents falling outside these six categories were not ordered to be
produced:
1. Any document that contains an allegation against the City regarding gender
discrimination or gender-related relation whether sustained or not;
2. Any complaint of discrimination on bases other than gender discrimination if
sustained;
3. Documents regarding any complaint about any type of discrimination
deemed unfounded if the decision was made internally and not by outside
investigators;
4. Any complaint versus Defendant Schiager except complaints regarding
alleged extramarital affairs or against his wife;
5. Any investigation involving any complaint of discrimination or retaliation
against any person listed in Defendants’ initial disclosures; and
6. Any investigation of Kelly French’s complaints which were disclosed but not
produced due to a confidentiality provision in the City’s settlement agreement
with a non-party.
The documents were ordered to be produced unredacted. However, this group of
Bates labeled documents are portions of investigative files and primarily consist of
witness statements. The witness statements include and intermix allegations that fall
within the categories of information ordered produced as well as information ordered not
to be produced. According to the Defendants the “redacted text consists of complaints
of discrimination on bases other than gender discrimination that were not sustained by
outside investigators; complaints of retaliation unrelated to gender, and a variety of
criticisms, disagreements, and conflicts among employees in the workplace, which
would not be responsive and have not been ordered to be produced.”
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I have personally reviewed the redacted portions of documents FC-
SEP16ORDER 000408-000535. I agree generally that the redacted texts do not fall
within the categories of documents that Judge Jackson ordered produced. The
exception is documents Bates pages FC-SEP16ORDER 000523-535. This is an
extensive recitation by a single individual recounting numerous incidents of alleged
racial discrimination and retaliation over an extended period of time. I have no way to
tell whether these allegations were or were not sustained, and if not sustained, whether
they were not sustained by an outside entity. If these allegations on pages 000523-535
were investigated by an outside entity and not sustained, then they are not materials
that need be produced per Judge Jackson’s order.
Accordingly, I ORDER that Defendants (via someone with personal knowledge)
certify by November 26, 2019 as to whether the allegations contained in pages 000523-
535 were investigated and not sustained or substantiated. The certification should
include the outside entity that investigated the allegations and the date when the
allegations were found not to be sustained. If no such certification can be procured, the
documents pages 000523-535 should be produced to the Plaintiff by close of business
November 26, 2019. If the requested certification is produced, the documents may be
withheld. To be clear, if an independent investigation substantiated certain of the
allegations, but not others, then then entire statement of this individual should be
produced. It makes little sense to continue to parse such allegations on a statement by
statement basis, if some of the allegations were later found to be sustained.
3. Conclusion
The ILG Executive Summary and ILG Report are attorney-client privileged and
attorney-client work product. They need not be produced. Unredacted portions of Bates
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pages FC-SEP16ORDER 000408-000522 need not be produced. With respect to Bates
pages FC-SEP16ORDER 000523-000535, unredacted versions of those pages shall be
produced only in the event Defendants cannot certify that the allegations on those
pages were investigated by an outside entity and found not to be substantiated.
Dated this 22nd day of November, 2019.
BY THE COURT:
_
N. Reid Neureiter
United States Magistrate Judge
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