United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiff, Tamela Keith, has filed a Motion to Compel defendant, Clatskanie People's Utility District ("CPUD"), to produce a report prepared in 2007 by an investigator concerning allegations made by CPUD employees regarding breaches by the CPUD's former General Manager, defendant Gregory Booth, of his duties and responsibilities. Asserting that the report is protected from disclosure by the attorney-client privilege, CPUD submitted it to the court for an in camera review. For the following reasons, plaintiff's motion is denied.
Plaintiff alleges employment discrimination claims under both federal and state laws for unlawful retaliation by Booth because she and three other female employees reported sexual harassment, resulting in her termination. "Where there are federal question claims and pendent state law claims present, the federal law of privilege applies." Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir 2005) (citations omitted); FRE 501. Although federal law controls, state law may still be considered when state actors are involved. See, e.g. Doubleday v. Ruh, 149 FRD 601, 605 n3 (ED Call 993) ("However, the fact that federal law controls does not make a discussion of state law entirely irrelevant where state actors are involved..."); Kelly v. City of San Jose, 114 FRD 653, 656 (ND Cal 1987) ("None of this means, however, that federal courts should wholly ignore state laws, or rights recognized by state governments, when analyzing privilege issues in civil rights cases.").
"The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice." United States v. Richey, 632 F.3d 559, 566 (9th Cir 2011) (citation omitted). The party asserting privilege has the burden of establishing the applicable privilege. Id. The attorney-client privilege exists where:
(1) legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.
Id (brackets, quotations and citation omitted).
However, "because it impedes full and free disclosure of the truth, the attorney-client privilege is strictly construed." United States v. Martin, 278 F.3d 988, 999 (9th Cir 2002) (quotations and citation omitted). It is vital to the privilege "that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer." United States v. Gurtner, 474 F.2d 297, 298 (9th Cir 1973) (emphasis in original) (quotations and citation omitted).
In 2007, after placing Booth on administrative leave, the CPUD Board of Directors hired Phillip Griffin, an attorney, to perform an independent investigation regarding the execution of Booth's duties and responsibilities. O'Kasey Decl., Ex. 1, p. 1; Seidl Decl., Ex. A, p. 6. Mr. Griffin's investigation was commissioned by the CPUD to aid Stacey Mark, its outside employment attorney, in her assessment of certain employment law issues. O'Kasey Decl., Ex. 1, p. 1. Booth then sued the CPUD for violating the public meetings law when it placed him on leave. Seidl Decl., Ex. A, p. 6.
After receiving a preliminary investigative report on March 16, 2007, the Board dismissed some allegations and told Mr. Griffin to proceed with others. Seidl Decl., Ex. A, p. 6. On April 16, 2007, Mr. Griffin delivered his final report to Ms. Mark who forwarded it to the Board and certain CPUD attorneys with a memorandum containing her analysis of the report. O'Kasey Decl., Ex. 1, pp. 1-2.
CPUD's general counsel notified each recipient that the report was privileged and confidential and was not to be disclosed to anyone. Id, p. 2. Further, CPUD's general counsel advised that each recipient should print only one copy of the report and delete it from their respective computers. Id. Thereafter, each recipient's printed copy was collected and placed in a file designated "Privileged and Confidential - Not for Public Disclosure." Id.
On April 17, 2007, the Board reinstated Booth and settled his lawsuit a couple of months later. Seidl Decl., p. 6.
On April 19, 2007, The Daily News of Longview, Washington ("The Daily News") submitted a public records request to the CPUD requesting a copy of the report and other documents. O'Kasey Decl., Ex. A, p. 3. When the CPUD denied that request, the Daily News filed a petition with the Office of the District Attorney for Columbia County, Oregon, requesting that it order the CPUD to disclose the report. Id. On June 29, 2007, the District Attorney issued an opinion latter denying the petition because the report was protected by Oregon's attorney-client privilege. Id, pp. 5-6. In March of 2008, an anonymous third party delivered the report to the Oregon Department of Justice ...