United States District Court, D. Oregon
IN RE PREMERA BLUE CROSS CUSTOMER DATA SECURITY BREACH LITIGATION This Document Relates to All Actions.
OPINION AND ORDER
Stephens, Christopher I. Brain, Chase C. Alvord, and Jason T.
Dennett, Tousley Brain Stephens; Keith S. Dubanevich and
Steve D. Larson, Stoll Stoll Berne Lokting & Shlachter;
Tina Wolfson, Ahdoot and Wolfson; James Pizzirusso, Hausfeld
LLP; and Karen Hanson Riebel, Lockridge Grindal Nauen Of
Attorneys for Plaintiffs.
G. Karlsgodt, BakerHostetler LLP; James A. Sherer,
BakerHostetler LLP; Daniel R. Warren and David A. Carney,
BakerHostetler LLP, and Darin M. Sands, Lane Powell PC, Of
Attorneys for Defendant Premera Blue Cross.
Michael H. Simon, United States District Judge.
bring this putative class action against Defendant Premera
Blue Cross (“Premera”), a healthcare benefits
servicer and provider. On March 17, 2015, Premera publicly
disclosed that its computer network had been breached.
Plaintiffs allege that this breach compromised the
confidential information of approximately 11 million current
and former members, affiliated members, and employees of
Premera. The compromised confidential information includes
names, dates of birth, Social Security Numbers, member
identification numbers, mailing addresses, telephone numbers,
email addresses, medical claims information, financial
information, and other protected health information
(collectively, “Sensitive Information”).
According to Plaintiffs, the breach began in May 2014 and
went undetected for nearly a year. Plaintiffs allege that
after discovering the breach, Premera unreasonably delayed in
notifying all affected individuals. Based on these
allegations, among others, Plaintiffs bring various state
common law claims and state statutory claims.
the Court is Plaintiffs' motion to compel. Plaintiffs
request an order requiring Premera to produce certain
documents, described by category, that Premera has withheld
based on assertions of attorney-client privilege or
protection under the attorney work-product doctrine. For the
reasons discussed below, Plaintiffs' motion is granted in
part and denied in part.
originally argued that Oregon law, as the law of the forum
state, applies to the parties' dispute regarding the
scope of the attorney-client privilege. Premera responds that
Washington law applies. In supplemental briefing, Plaintiffs
concede that there is no material conflict between Oregon and
Washington law on the specific issues of attorney-client
privilege relevant to the pending motion. Thus, Plaintiffs do
not oppose the application of Washington law. The parties
also agree that federal law governs the work-product doctrine
in federal court.
law recognizes that “in our open civil justice system,
parties may obtain discovery regarding any unprivileged
matter that is relevant to the subject matter of the pending
action” and that the attorney-client privilege is
“an exception to the general duty to disclose.”
Newman v. Highland Sch. Dist. No. 203, 186 Wash.2d
769, 777 (2016). “A party claiming that otherwise
discoverable information is exempt from discovery on grounds
of the attorney-client privilege carries the burden of
establishing entitlement to the privilege.”
Id. In Newman, the Washington Supreme Court
explained the attorney-client privilege as follows:
Washington's attorney-client privilege provides that
“[a]n attorney or counselor shall not, without the
consent of his or her client, be examined as to any
communication made by the client to him or her, or his or her
advice given thereon in the course of professional
employment.” RCW 5.60.060(2)(a). But the
attorney-client privilege does not automatically shield any
conversation with any attorney. To qualify for the privilege,
communications must have been made in confidence and in the
context of an attorney-client relationship. It is a narrow
privilege and protects only communications and advice between
attorney and client. The privilege extends to corporate
clients and may encompass some communications with lower
level employees, as both the United States Supreme Court and
this court have recognized.
The attorney-client privilege does not shield facts from
discovery, even if transmitted in communications between
attorney and client. Rather, only privileged communications
themselves are protected in order 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 attorney-client privilege
recognizes that sound legal advice or advocacy serves public
ends and that such advice or advocacy depends upon the lawyer
being fully informed by the client. However, because the
privilege sometimes results in the exclusion of evidence
which is otherwise relevant and material, contrary to the
philosophy that justice can be achieved only with the fullest
disclosure of the facts, the privilege cannot be treated as
absolute; rather, it must be strictly limited to the purpose
for which it exists.
Id. at 777-78 (quotation marks and citations
omitted) (alteration in original).
well accepted that “[t]he attorney client privilege is
limited to information related to obtaining [legal]
advice.” Mechling v. City of Monroe, 152
Wash.App. 830, 853 (2009). The privilege “applies to
any information generated by a request for legal advice,
including documents created by clients with the intention of
communicating with their attorneys.” Doehne
v. EmpRes Healthcare Mgmt., LLC, 190 Wash.App. 274,
281 (2015). It does not, however, “protect documents
that are prepared for some other purpose than communicating
with an attorney.” Morgan v. City of Fed. Way,
166 Wash.2d 747, 755 (2009) (quotation marks omitted).
“a document prepared for a purpose other than or in
addition to obtaining legal advice and intended to be
seen by persons other than the attorney, does not become
subject to the privilege merely by being shown to the
attorney.” Mechling, 152 Wash.App. at 853
“if a portion of a document is not covered by the
attorney-client privilege, under the civil rules of discovery
it must be disclosed.” Id.
evaluating assertions of the attorney-client privilege in a
corporate setting, the Washington Supreme Court has adopted
the U.S. Supreme Court's “flexible” approach
set forth in Upjohn Co. v. United States, 449 U.S.
383 (1981). See Newman, 186 Wash.2d at 779. This
analysis allows non-managerial employees to qualify as the
“client” for purposes of privilege protection,
based on considerations including:
whether the communications at issue (1) were made at the
direction of corporate superiors, (2) were made by corporate
employees, (3) were made to corporate counsel acting as such,
(4) concerned matters within the scope of the employee's
duties, (5) revealed factual information not available from
upper-echelon management, (6) revealed factual information
necessary to supply a basis for legal advice, and whether the
communicating employee was sufficiently aware that (7) he was
being interviewed for legal purposes, and (8) the information
would be kept confidential.
Id. at 778-779 (quotation marks omitted). The
corporate attorney-client privilege, however, does not extend
to former employees. Id. at 779.
work-product doctrine “is not a privilege but a
qualified immunity protecting from discovery documents and
tangible things prepared by a party or his representative in
anticipation of litigation.” Admiral Ins. Co. v.
U.S. Dist. Court for the Dist. of Ariz., 881 F.2d 1486,
1494 (9th Cir. 1989) (citing Fed.R.Civ.P. 26(b)(3)).
Documents or the compilation of materials prepared by agents
of the attorney in preparation for litigation may be covered
by the work-product doctrine. U.S. v. Richey, 632
F.3d 559, 567 (9th Cir. 2011). To qualify for work-product
protection, materials must: “(1) be prepared in
anticipation of litigation or for trial and (2) be prepared
by or for another party or by or for that other party's
representative.” Id. (quotation marks
materials are prepared for a “dual purpose, ”
meaning they are not prepared exclusively for litigation,
then the “because of” test applies. Id.
at 568. Under that test, “[d]ual purpose documents are
deemed prepared because of litigation if ‘in light of
the nature of the document and the factual situation in the
particular case, the document can be fairly said to have been
prepared or obtained because of the prospect of
litigation.'” Id. Courts, however, must
view “the totality of the circumstances and determine
whether the document was created because of anticipated
litigation, and would not have been created in substantially
similar form but for the prospect of litigation.”
Id. (quotation marks omitted).
work-product doctrine also affords special or heightened
protection to materials that reveal an attorney's mental
impressions and opinions, i.e.,
“opinion” or “core” work product.
Admiral Ins. Co., 881 F.2d at 1494; Fed.R.Civ.P.
26(b)(3)(B). Work-product that does not rise to the level of
opinion or core work product may be ordered produced to an
opposing party upon a showing of substantial need for the
information or that the information cannot be otherwise
obtained without undue hardship. Admiral Ins. Co.,
881 F.2d at 1494; Fed R. Civ. P. 26(b)(3)(A)(ii). To obtain
the opinion or core work product, however, an opposing party
must show that the mental impressions of counsel are at issue
in the case and the need for the material is compelling.
Holmgren v. State Farm Mutual Auto. Ins. Co., 976
F.2d 573, 577 (9th Cir. 1992).
primary purpose of the work-product doctrine is to
“prevent exploitation of a party's efforts in
preparing for litigation.” Admiral Ins. Co.,
881 F.2d at 1494. Work-product protection, like the