United States District Court, D. Arizona
ORDER
Honorable David C. Bury, United Slates Distnct Judge
Plaintiff
sues the Allied Pilots Association (APA), which is the union
representing pilots of American Airlines. She is a former
pilot of American Airlines and alleges that the union
breached its duty under the Railway Labor Act of fair
representation.[1] Plaintiff alleges claims relating to an
Equity Distribution that Plaintiff received in 2013 and
alleges that APA breached its duty of fair representation to
her in 2016 when it entered into an agreement with American
Airlines concerning treatment of employees who had been out
on disability for fewer than 5 years and when it also agreed
in 2016 to reinstate a pilot, who had been administratively
terminated by American Airlines, to the seniority list after
he had been out on disability for more than five years.
(Ds' Motion (Doc. 1-2)).
There
are three discovery disputes pending. Plaintiff seeks to
compel discovery from American Airlines, a non-party to the
suit. (Doc. 105.) American Airlines seeks to quash her
subpoena duces tecum for the discovery. (Doc. 110.) The APA
seeks to compel discovery from the Plaintiff, (Doc. 106), and
she seeks to compel discovery from the APA, (Doc. 115). The
Court begins with the easy discovery issues.
First,
the Court grants Defendant's Motion to Compel the
Plaintiff to produce the settlement agreement from a civil
action brought by her against American Airlines which was
settled in 2014.[2] Defendants believe that pursuant to this
settlement agreement the Plaintiff waived any right to
reinstatement/reemployment with the company and released any
claims arising out of her termination from American Airlines.
Defendants assert that if such a settlement was entered into
by the Plaintiff, then the union's duty of fair
representation does not extend to her because she ceased to
be a member of the bargaining unit upon entering into the
settlement. (Motion (Doc. 106) at 7.)
Plaintiff
represents that her claim for breach of the duty of fair
representation dates back to 2012, before the 2014 settlement
agreement with American Airlines, when the APA represented
falsely that her grievance DFW 12-012 was being extinguished
or closed. In truth DFW 12-012 was “Excluded from
Settlement” pursuant to the 2013 Collective Bargaining
Agreement. According to the Plaintiff DFW 12-012 remained
open at that time, remained open through at least December
2018, and may be open today. (Response (Doc. 117) at 9.)
According to the Plaintiff, she entered into the settlement
agreement in 2014 based on fraudulent misrepresentations
intentionally made to her by both American and APA that were
unknown to her until 2016. But for the alleged deliberate
misrepresentations she would not have entered into the
settlement agreement in 2014. Id.
The
2014 Settlement Agreement is absolutely relevant, especially
to the defense. American Airlines has no objection to
Plaintiff producing the Settlement Agreement to the APA as
long as the Settlement Agreement is marked and treated as
confidential pursuant to a written agreement. American
Airlines should prepare the confidentiality agreement and
provide it to the Plaintiff and the APA for use in relation
to the disclosure of the 2014 Settlement Agreement. It shall
be immediately signed by both parties and, thereafter, the
Plaintiff shall disclose the 2014 Settlement Agreement.
Second,
the Court denies the Plaintiff's Motion to Compel
Discovery from Non-party American Airlines and grants
Non-Party American Airline's Cross-motion to Quash the
Subpoena Duces Tecum. Plaintiff seeks to compel American
Airlines by subpoena to produce documents relevant to other
American Airline pilots whom Plaintiff alleges were similarly
situated to her by having filed individual grievances, but
unlike her were represented by the APA and, pursuant to such
representation were reinstated as pilots for American
Airlines whereas she was not. American Airlines correctly
asserts that as a non-party, it is protected from discovery
when information is available from a party to the litigation.
(Motion (Doc. 110) at 4-5)). American Airlines asserts that
the Plaintiff has already sought production of many of the
documents from the APA and that all of the documents sought
by the Plaintiff are in the possession of the APA.
Additionally, American Airlines charges that the Plaintiff
failed to seek to compel the documents from the APA. Unless
and until, Plaintiff seeks this discovery from the APA and
can show that the APA does not have it, the Court quashes
discovery from non-party American Airlines.
Third,
the Court directs that the Plaintiff must provide a privilege
log to support her objection to providing discovery requested
by the APA for Emery, Preitz, and Meadows. Defendant seeks to
compel disclosure of any and all documents, including emails,
concerning any communications between Plaintiff and Kathy
Emery, Wally Preitz, and Lawrence Meadows. Plaintiff
identified these three people as non-party witnesses but
challenges Defendant's discovery requests as not likely
to lead to relevant evidence and as protected by the work
product doctrine. Plaintiff asserts work product privilege
over her communications with these allegedly similarly
situated pilots because any documents, including emails, were
produced by her, acting pro se, solely for the purpose of
pursuing litigation.
Rule
26(b)(3)(A) of the Federal Rules of Civil Procedure governs
discovery of 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.” “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)(B).
The
work product doctrine generally protects “from
discovery documents and tangible things prepared by a party
or his representative in anticipation of litigation.”
United States v. Richey, 632 F.3d 559, 567
(9th Cir. 2011). Defendant asserts that the
Plaintiff waived any privilege by disclosing her work product
to these non-attorney, non-party, individuals.
In her
response, Plaintiff explains that these three individuals are
not ordinary witnesses because in addition to being
“similarly situated pilots who had extended medical
leaves of absence (greater than 5 years), ” they have
all litigated against both American and the APA.”
(Response (Doc. 117) at 4.) She provides a list of eight
cases filed between the three of them over the course of
years as follows: 2008, 2011, 2014, 2016, and 2017. She
asserts she came to know these three individuals in the
course of her litigation “stemming from APA's
breach of its duty of fair representation owed us and
otherwise have no connection." Id. at 5. She
submits that the work product privilege was not waived by
disclosure to these individuals because there is a
community-of-interest or common-interest privilege between
them. Id.
The
purpose of the attorney-client privilege is to promote candid
and complete discussions between attorneys and clients.
Upjohn Co. v. U.S., 449 U.S. 383, 389 (1989). The
common interest doctrine that the Plaintiff is generally an
extension of the attorney-client privilege and provides an
exception to the general rule that disclosing privileged
information to a third party destroys the privilege. The
doctrine is designed to allow attorneys for different clients
pursuing a common legal strategy to communicate with each
other without destroying the attorney-client privilege.
Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575,
578 (Calif. 2007). In the Ninth Circuit, the common interest
privilege is “designed to allow attorneys for different
clients . . . to communicate with each other.” In
re Pac Pictures Corp, 697 F.3d at 1121, 1129
(9th Cir. 2012). The doctrine does not apply to
the pro se Plaintiff's communications with these other
non-attorney third-parties. Id.
Unlike
attorney-client privilege, attorney work product protection
is not automatically waived upon disclosure to third parties
because “‘the purpose of the work-product rule is
not to protect the evidence from disclosure to the outside
world but rather to protect it only from the knowledge of
opposing counsel and his client, thereby preventing its use
against the lawyer gathering the materials.'”
California Sportsfishing Protection Alliance v. Chico
Sheetmetal Inc., 299 F.R.D. 638, 645 (Calif. 2014)
(quoting Wright, Miller, Kane & Marcus, 8 Fed. Prac.
& Proc. Civ. § 2024 (3d ed.). Therefore, disclosure
generally “‘does not waive the work product
immunity unless it has substantially increased the
opportunities for potential adversaries to obtain the
information.'” Id. Disclosure to a person
with an interest common to that of the attorney or client is
not inconsistent with an intent to invoke the work product
doctrine's protection and would not amount to waiver.
Id. (citing In re Doe, 662 F.2d 1073, 1081
(4th Cir.1981)).
The
common interest exception to waiver is construed more
narrowly in the context of attorney-client privilege than it
is in the context of the attorney work product doctrine.
Id. at 646 (citing United States v. Am. Tel. and
Tel. Co., 642 F.2d 1285, 1298-99 (D.C.Cir.1980).
“The standard for waiver of work product protection is
more lenient than the standard for waiver of attorney-client
privilege because the two privileges serve different
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