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HARDING v. DANA TRANSP.

January 25, 1996

CAROL SUE HARDING, WALLACE E. HARDING and CHERYL A. SCULL, Plaintiffs,
v.
DANA TRANSPORT, INC. and ROBERT PARTRIDGE, Defendants.



The opinion of the court was delivered by: ROSEN

 ROSEN, Magistrate Judge:

 Presently before the court is the motion of Steven M. Berlin, Esquire, counsel for Defendant Dana Transport, Inc. (hereinafter "Dana"), for a protective order preventing or in the alternative limiting the deposition of William J. Bowe pursuant to Rule 26(c), Fed. R. Civ. P. *fn1" After careful consideration of the parties' submissions, and after further consideration of the oral argument conducted on November 3, 1995, and for the reasons noted below, the defendant's motion shall be granted in part and denied in part.

 I. FACTUAL AND PROCEDURAL HISTORY

 Plaintiffs Carol Sue Harding and Cheryl A. Scull brought this sexual discrimination action against Dana, their employer, and one of its supervisors, Robert Partridge, for acts and omissions alleged to have taken place beginning in January 1993 and continuing until both plaintiffs terminated their employment. *fn2" Dana hired Ms. Harding in June 1991 as a secretary/bookkeeper at Dana's Paulsboro, New Jersey, facility. (Complaint, P 21). Dana hired Ms. Scull in November 1992 as a billing bookkeeper at the same facility. (Complaint, P 25). Robert Partridge joined Dana as General Manager of the Paulsboro facility in September or October of 1992. (Complaint, P22). On August 31, 1994, plaintiffs filed suit alleging violations under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (hereinafter "Title VII"), the New Jersey Law Against Discrimination N.J.S.A. § 10:5-1, et seq. (hereinafter "NJLAD"). In addition, plaintiffs Carol Sue and Wallace Harding alleged separate causes of action for defamation. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1367.

 Prior to commencing suit in federal court, in September 1993 Ms. Harding filed a complaint with the New Jersey Division on Civil Rights (hereinafter "NJDCR"), the agency charged with enforcement of the NJLAD. See N.J.S.A. 10:5-6, 5-30. In December 1993, Ms. Scull filed a similar complaint against Dana. The complaints alleged that both Ms. Harding and Ms. Scull were subjected to sexual intimidation, harassment and discrimination by Mr. Partridge, conduct which Dana failed to prevent, address or take corrective measures. (See NJDCR Complaints of Carol S. Harding and Cheryl A. Schull attached as Ex. A and Ex. B to the Supplemental Affidavit of William J. Bowe) (hereinafter "Bowe Supp. Aff."). In February and June 1994 respectively, the NJDCR held fact-finding conferences to determine the propriety of Ms. Harding's and Ms. Scull's claims. The plaintiffs maintain, and Dana does not contest, that Dana "defended its position [during the NJDCR inquiry] in part on the grounds that it had conducted an appropriate investigation of [the plaintiffs'] allegations." (Plaintiff's Brief at 2-3 (hereinafter "Pls.' Br."); see also, Dana Transport, Inc. Position Statement attached as Ex. 1 to Pls.' Br. at 5; Dana's Responses to Plaintiffs' Interrogatories attached as Ex. 2 to Pls.' Br.).

 The issue presently before the court concerns the propriety of a deposition of William J. Bowe, Dana's attorney during the initial stages of the dispute. Mr. Bowe is a shareholder in the law firm of Giordano, Halleran & Ciesla, P.C. (hereinafter "GH&C"). Dana retained GH&C in November of 1993 in response to Ms. Harding's NJDCR discrimination complaint. (Affidavit of William J. Bowe, P 3) (hereinafter "Bowe Aff."). Mr. Bowe was in charge of handling Dana's defense in the administrative action before the NJDCR. *fn3"

 The plaintiffs seek to inquire into an investigation conducted by Mr. Bowe at the behest of his client, Dana. (Defendant Dana Transport, Inc.'s Brief at 5) (hereinafter "Dana's Br."). According to Dana, the investigation was conducted "in preparation of an anticipated Fact Finding Conference to be held by the NJDCR and in anticipation of further litigation." (Id.). The investigation consisted of conferences with Dana's President, Ron Dana; Controller, Robert H. Moogan; Paulsboro Transport Manager, Timothy Schultz; and Paulsboro Shop Manager, Robert Partridge. (Bowe Aff. P 5). Dana asserts that "the purpose of the investigation was to determine the factual bases, if any, of Harding's complaint with the Division and to assess the strengths, if any, and weaknesses of Harding's charges and to recommend, if appropriate, remedial measures and a legal defense strategy/settlement posture based upon his findings." (Dana's Br. at 5; Bowe Aff. P 6).

 Dana utilized the results of Mr. Bowe's investigation in three ways. First, Dana prepared a position statement for submission to the NJDCR at the fact finding conference. (Pls.' Br. Ex. 1). Second, Dana's counsel postulated a defense strategy with regard to Ms. Harding's and Ms. Scull's administrative complaints, which strategy Dana intended to use in any future litigation. (Dana's Br. at 6). Third, Dana formulated a written sexual harassment policy. (Id.). Significantly, part of Dana's defense strategy included reliance upon the reasonableness of Dana's actions in response to the plaintiffs' charges. In its position statement to the NJDCR, Dana asserts that it has "fully investigated the complaints raised in the Verified Complaint and has found that there is no supporting evidence that the same occurred." (Dana Transport, Inc. Position Statement attached as Ex. 1 to Pls.' Br. at 5). Moreover, with respect to the present suit, Dana has represented to this court that it intends to defend liability based in part upon Mr. Bowe's investigation. (See Letter of Steven M. Berlin, Esq., dated October 26, 1995 at 5) (hereinafter "Berlin 10/26 Letter").

 Based upon Dana's reliance on the Bowe investigation, counsel for the plaintiffs inquired into the substance of Mr. Bowe's investigation during the deposition of Mr. Moogan. (Berlin Aff. P 5-6). Although Mr. Berlin allowed superficial inquiry into the fact that an investigation was conducted, he objected to any inquiry into the substance of that investigation on the grounds of the attorney/client privilege. (Berlin Aff. P 6; see also Moogan Deposition Tr. attached as Ex. A to Berlin Aff. at 20-21).

 As a result of Mr. Berlin's objection during the Moogan deposition, on August 17, 1995, plaintiffs' counsel noticed Mr. Bowe for deposition. To the notice plaintiffs attached a request for production of the following documents:

 
1. Any and all documents, letters, memos, handwritten notes and/or tapes that refer to, relate to or evidence any investigation, questioning of witnesses or conversations pertaining to allegations of sexual harassment or misconduct of Dana Transport, Inc., and Robert Partridge;
 
2. Any and all time sheets and billing records that refer to, relate to or evidence actual time spent by deponent in investigating the issues referred to above; and
 
3. Any and all correspondence between Dana Transport, Inc., and deponent pertaining to the investigation to be conducted, or previously conducted, by deponent (excluding, by appropriate redaction, if necessary, any and all communications between Dana and deponent that pertain to legal opinions and legal advice being sought or provided by deponent).

 (See Deposition Notice and Document Request attached as Ex. 5 to Pls.' Br.). Mr. Berlin timely objected to both the deposition and the document request. This motion followed.

 II. DISCUSSION

 The defendants advance four arguments in support of preventing or limiting a deposition of attorney William J. Bowe. They base their first argument on rules of privilege, evoking both work product doctrine and the attorney/client privilege. Second, they argue for non-disclosure by analogizing Mr. Bowe's investigation materials, thoughts and impressions to "self-critical analysis" which courts have protected as privileged. The defendants base their third argument on the public policy underlying the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. Finally, the defendants argue that, even if this court does not find privilege, the plaintiffs' discovery request is unduly burdensome and oppressive.

 As no court has been asked to assess the discoverability of investigative materials obtained by counsel in sexual discrimination cases founded on allegations of hostile work environment, this court is faced with a case of first impression.

 A. PRIVILEGE DOCTRINES

 The defendants argue that the request for materials and access to Mr. Bowe should be proscribed because the substance of communication by and with him is protected from discovery by the attorney/client privilege and work product protection doctrines. The plaintiffs offer two arguments in opposition to Dana's position. First, the plaintiffs argue that Mr. Bowe was not acting as an attorney when he conducted interviews of Mr. Partridge and other Dana employees in connection with Dana's investigation into Harding and Scull's allegations. Nor was Mr. Bowe acting as an attorney when he prepared any documentation as a result of those interviews. Second, the plaintiffs contend that Dana, by asserting the investigation as part of its defense, has waived any privilege. (Pls.' Br. at 7). In contravention to discovery, Dana argues that the court should consider the "chilling effect" a ruling permitting discovery would have on attorney/client communications, and requests "no discovery be had regarding any aspect of Bowe's investigation." *fn4" (Dana's Br. at 1).

 Although intertwined, work product protection and attorney/client privilege are independent principles intended to protect litigants from unfettered disclosure. See United States v. Nobles, 422 U.S. 225, 238 n. 11, 95 S. Ct. 2160, 2170, 45 L. Ed. 2d 141 (1975) (citing Hickman v. Taylor, 329 U.S. 495, 508, 67 S. Ct. 385, 392, 91 L. Ed. 451 (1947)). The Federal Rules of Civil Procedure allow parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Rule 26(c) of the Federal Rules of Civil Procedure codifies the court's authority to protect privileged information from disclosure. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). A party or person seeking to obtain a protective order on the basis of an asserted privilege bears the burden of establishing the applicability of a privilege to the information sought. In re Bevill, Busler & Schulman, Inc., 805 F.2d 120, 126 (3d Cir. 1986); Grand Jury Empaneled February 14, 1978, 603 F.2d 469, 474 (3d Cir. 1979).

 The privileges referred to in Rule 26(b)(1) are those privileges embodied in Rule 501 of the Federal Rules of Evidence. Rule 501 states that the scope and application of any claimed privilege is governed by the common law, unless otherwise provided by the Constitution or federal statute. *fn5" In cases premised upon federal question jurisdiction, federal common law governs the evidentiary privileges, rather than state law. Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 103 (3d Cir. 1982); Wei v. Bodner, 127 F.R.D. 91, 94 (D.N.J. 1989). Moreover, "where, as here, there are both federal and state law claims, federal privileges rather than state privileges apply to all claims." Wei v. Bodner, 127 F.R.D. at 94. Accordingly, federal common law shall govern those claims premised upon federal question jurisdiction as well as those premised upon state law.

 1. ATTORNEY-CLIENT PRIVILEGE

 The United States Supreme Court examined the application of the attorney-client privilege in the corporate context in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Recognizing the attorney-client privilege as the "oldest of the privileges for confidential communications known to the common law," the Court reflected that its purpose is:

 
to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.

 Id. at 389, 101 S. Ct. at 682; see also Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 862 (3d Cir. 1994); In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979) ("the attorney-client privilege exists to foster disclosure and communication between the attorney and the client"). The Court also recognized that although the artificial nature of a corporation creates complications in the application of the privilege, the privilege applies equally when the client is a corporation. Upjohn, 449 U.S. at 389-390, 101 S. Ct. at 682-83. The Court was careful to indicate that no bright-line rule governs the applicability of the attorney-client privilege. 449 U.S. at 396-97, 101 S. Ct. at 686. Rather, courts should determine the applicability of the privilege on a case-by-case basis. Id. (citing S.Rep. No. 93-1277, p. 13 (1974)).

 The Third Circuit has enumerated the traditional elements of the privilege:

 
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

 The plaintiffs argue that the attorney-client privilege does not protect the requested discovery on two grounds. First, the plaintiffs assert that Mr. Bowe's investigation did not constitute a communication in which he was "acting as a lawyer." Second, the plaintiffs posit that Dana, by asserting the investigation as part of its defense, has waived any attorney-client privilege which may have existed.

 
a. Acting As An Attorney for the Purposes of the Attorney-Client Privilege

 The plaintiffs maintain that Mr. Bowe "was not acting as an attorney when he conducted interviews of Partridge and other Dana employees in connection with Dana's investigation into Harding and Scull's allegations." (Pls.' Br. at 8). Rather, they assert, Mr. Bowe was acting as a fact finder or investigator, and that legal acumen was not required or utilized when he conducted the interviews. (Id.). The court does not find this argument persuasive as this view overlooks Supreme Court teaching that:

 
the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. [citations omitted] The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.

 Upjohn, 449 U.S. at 390, 101 S. Ct. at 683. *fn6" In Upjohn, the Court confronted the complexities of corporate representation. The Court noted that having a corporation as a client necessitates obtaining factual information from a number of individuals within that corporation. Id. at 391, 101 S. Ct. at 683. Thus, an attorney who interviews various individuals within a corporation may do so with the intent to enhance client representation.

 Dana retained GH&C in November 1993, a full three months after Ms. Harding had filed her complaint with the NJDCR. (Berlin Aff. P 2). GH&C entered its appearance as attorneys for Dana in both plaintiffs' administrative actions. (Bowe Aff. PP 8 & 9). Mr. Bowe indicates that he conducted the investigation at Dana Transport, Inc. in furtherance of his representation of Dana. (Bowe Aff. P 6). This court has been provided with no information which contradicts Mr. Bowe's assertion. Mr. Bowe's investigation clearly falls within the purview of attorney activity. Consequently, the court finds that Mr. Bowe was acting as an attorney for the purposes of the attorney-client privilege.

 
b. Waiver of the Attorney-Client Privilege

 Although privileges often provide categorical protection, common law doctrines exist which give courts a limited ability to ensure that privileges do not serve ends for which they were not intended. See In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 807 (D.C. Cir. 1982). One such doctrine is waiver, which can be either express or implied. According to federal common law, the doctrine of implied waiver concerns an abuse of a privilege itself rather than of a privileged relationship. Id. Explaining, the court opined: "Where society has subordinated its interest in the search for truth in favor of allowing certain information to remain ...


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