United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, United States Magistrate Judge
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
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].
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.
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.
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
work product protection is set out in Fed.R.Civ.P. 26(b)(3),
(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 ...