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Lassiter v. Hidalgo Medical Services

United States District Court, D. New Mexico

April 18, 2018



          STEPHAN M. VIDMAR, United States Magistrate Judge

         THIS MATTER is before the Court on Plaintiff's Motion to Compel Regarding HMS's Responses to Plaintiff's First Set of Discovery [Doc. 38], filed on December 13, 2017. Defendant responded on December 27, 2017. [Doc. 51]. Plaintiff replied on January 3, 2018. [Doc. 57]. The Court heard argument from the parties at a hearing on the motion on April 4, 2018. Having considered the briefing, oral argument, relevant portions of the record, and relevant authorities, and being otherwise fully advised in the premises, the Court finds that Plaintiff's motion is not well-taken and will be DENIED.

         I. Background

         In this action, Plaintiff sues her former employer, Hidalgo Medical Services (“HMS”), and its Chief Executive Officer (“CEO”), Dan Otero, for sexual harassment and retaliation. Plaintiff was the Chief Operations Officer of HMS. She alleges that Defendant Otero sexually harassed her and ultimately retaliated against her by terminating her employment when she rejected his advances. Plaintiff alleges violation of Title VII of the Civil Rights Act of 1964 and the New Mexico Human Rights Act, among other related claims. See [Doc. 1].

         Plaintiff filed the instant motion to compel the following written discovery from Defendant: (1) “documents/information regarding the facts it obtained from its factual investigations into CEO Dan Otero sexually harassing multiple female employees (including Mrs. Lassiter)”; (2) “the documents evidencing the purported billing investigation Dan Otero used to place Mrs. Lassiter on administrative leave”; (3) documents/information regarding discipline of male comparators at HMS”; and (4) “employee files of other female employees who made discrimination claims against Dan Otero, and files of HMS' decision[-]makers who participated in the termination decision of Mrs. Lassiter.” [Doc. 38] at 1. Defendant objected on the basis of attorney-client privilege, work product, confidentiality, and relevance.

         Entry of a Stipulated Confidentiality Order [Doc. 63] resolved most of the disputes. At oral argument, the parties clarified that disputes remained as to the production of (1) the reports and factual findings from the investigations conducted by outside counsel Paula Maynes, and (2) the employee file of Cathy Diaz, the former human resources director at HMS. See [Doc. 86] at 1. Subsequently, Defendant agreed to produce the Diaz employee file, and did so on April 17, 2018. See [Doc. 90]. Therefore, only the dispute regarding the Maynes investigations remains before the Court.

         II. Analysis

         Defendant brought in an outside attorney, Paula Maynes, to conduct an internal investigation into sexual harassment claims against Defendant Otero made by three female employees of HMS, including Plaintiff. [Doc. 51] at 3. Ms. Maynes prepared reports of her findings. Plaintiff's Request for Production 11 and Interrogatory 7 seek documents and information pertaining to Ms. Maynes's investigations. [Doc. 38] at 2-3. Plaintiff does not contend that she is entitled to Ms. Maynes's legal advice to HMS, nor her mental impressions. Id. at 3. Rather, Plaintiff argues she is entitled to the factual information that was gathered. Plaintiff specifically requests the “facts, complaints, recording(s) of interview(s), and accounts of witnesses” interviewed by Ms. Maynes. Id. at 4. Defendant objects to the production of this discovery. While acknowledging that the underlying facts of the investigation are discoverable, Defendant maintains that the results of the internal investigation led by Ms. Maynes are protected on the basis of work product and attorney-client privilege.

         The work product protection is set out in Fed.R.Civ.P. 26(b)(3), which provides:

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

Fed. R. Civ. P. 26(b)(3). Courts generally recognize two types of protected work product-fact work product and opinion work product. A party may discover fact work product, notwithstanding the protections of the doctrine, by satisfying the substantial need/undue burden test set out in Rule 26(b)(3)(A)(ii). See Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 704 n.12 (10th Cir. 1998); In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1186 (10th Cir. 2006). Discovery of opinion work product, i.e., an attorney's mental impressions and legal strategy, is generally permitted only in exceptional circumstances, if at all. See Frontier Refining, 136 F.3d at 704 n.12; In re Qwest Commc'ns, 450 F.3d at 1186 (noting ...

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