United States District Court, D. Arizona
G. Campbell United States District Judge.
Greyhound Lines, Inc. seeks to compel production of certain
documents that Defendant Viad Corporation has withheld as
privileged. Doc. 54. The Court held a telephonic conference
with the parties to discuss this issue. Doc. 56. As a result,
Greyhound submitted for in camera review three
representative documents from each of six disputed
categories, and the parties provided a matrix setting forth
their arguments on each category. Doc. 60. After reviewing
the representative documents and the parties' arguments,
the Court will grant Plaintiff's motion in part and deny
it in part.
Rule of Evidence 501 provides that “in a civil case,
state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.”
Fed.R.Evid. 501. This case includes federal and state claims
(Doc. 30), but the parties do not address whether federal or
state privilege law should apply. When state law does apply,
Rule 501 “does not tell us which state law the forum
state should apply.” KL Grp. v. Case, Kay &
Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Commentators
have suggested several methods of resolving this
choice-of-law issue: (1) use the privilege law of the state
whose substantive law provides the rule of decision; (2)
apply the privilege law of the state in which the federal
court sits; or (3) apply the choice-of-law doctrine of the
state in which the federal court sits. Id. (citing
23 C. Wright & K. Graham, Jr., Federal Practice and
Procedure § 5435, at 865-69 (1980); 2 Weinstein's
Federal Evidence § 501 (1986)). The parties do not
address this choice of law issue either.
relies on an Arizona statute that defines the attorney-client
privilege for corporations, A.R.S. § 12-2234. Doc. 60-1
at 1. Viad does object to the use of this statute, and does
not cite contrary authority. Id. at 1-8. Because
Greyhound is the party challenging Viad's assertion of
the privilege, and Viad does not object to Greyhound's
legal arguments, the Court will apply the Arizona statute and
attorney-client privilege “is rigorously guarded to
encourage full and frank communications between attorneys and
their clients and thereby promote broader public interests in
the observance of law and the administration of
justice.” State v. Sucharew, 66 P.3d 59, 64,
¶ 10 (Ariz.Ct.App. 2003) (citing State v.
Towery, 920 P.2d 290, 299 n.6 (Ariz. 1996) (internal
quotation marks omitted)). “The privilege belongs to
the client and encompasses communication between the attorney
and client made in the course of the attorney's
professional employment.” Id. (citing
State v. Holsinger, 601 P.2d 1054, 1058 (Ariz.
1979)). A.R.S. § 12-2234 protects “any
communication” that is either “[f]or the purpose
of providing legal advice to the entity, ” or
“[f]or the purpose of obtaining information in order to
provide legal advice to the entity[.]” A.R.S. §
12-2234(B)(1), (2). The privilege protects communications.
A.R.S. § 12-2234(B). “The burden of showing the
relationship, the confidential character of the
communication, and other necessary facts, is that of the
party claiming the privilege.” State v. Sands,
700 P.2d 1369, 1374 (Ariz.Ct.App. 1985) (citation omitted).
law governs application of the work product doctrine.
Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379,
382 (D. Ariz. 2010) (citing cases). “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).” Fed.R.Civ.P. 26(b)(3)(A). The
party claiming work-product protection bears the burden of
proof. Conoco Inc. v. U.S., 687 F.2d 724, 728 (3d
Category 1: Reports Prepared by Dr. Kenneth Ries.
challenges Viad's privilege assertion for certain monthly
and quarterly reports prepared by Dr. Kenneth Ries for
lawyers in Viad's law department. Doc. 60-1 at 1-2.
Greyhound argues that the reports are not privileged because
they are factual in nature, Dr. Ries did not seek legal
advice, and Dr. Ries did not label the reports
“attorney-client privileged.” Greyhound also
argues that Viad waived the privilege because its Rule
30(b)(6) witness did not know whether the reports were on the
company's privilege log or which attorney specifically
directed Dr. Ries to prepare the reports in prior years.
provides the following evidence related to the reports. Dr.
Ries was a non-lawyer member of Viad's legal department
from 1987 to 2001. Docs. 60-4 at 2, ¶ 4; 60-5 at 2,
¶ 6. After 2001, Dr. Ries served as a consultant to
Viad's law department, providing the “functional
equivalent” of his previous services, but “on a
more limited basis.” Doc. 60-4 at 2, ¶ 5. In this
role, Dr. Ries “often provided monthly and quarterly
reports and other information to Viad's General Counsel
and others in Viad's law department.” Id.
at ¶ 4. These reports were always prepared at the
direction of lawyers in Viad's law department so that the
lawyers could monitor the company's environmental
obligations and provide appropriate legal advice. Docs. 60-4
at 2, ¶¶ 4, 7; 60-5 at 2, ¶ 6.
contends that the reports are not privileged because they are
factual in nature. Doc. 60-1 at 1-2. To be protected, a
communication must be made for the purpose of providing legal
advice or for the purpose of obtaining information to provide
legal advice. A.R.S. § 12-2234(B)(1), (2); see also
In re Bard IVC Filters Prods. Liab. Litig., No. MDL
2641, 2016 WL 3970338, at *7 (D. Ariz. July 25, 2016). The
affidavits of Dr. Ries and one of Viad's in-house lawyers
establish that the reports were prepared at the direction of
lawyers in Viad's law department, to enable the lawyers
to provide legal advice to the company. Docs. 60-4 at 2,
¶¶ 4, 7; 60-5 at 2, ¶ 6. This is reinforced by
the reports themselves, which address a wide range of topics
on which lawyers typically advise clients, including ongoing
and threatened litigation, settlement discussions and offers,
general legal exposure, and regulatory action. The fact that
these reports contained factual information ...