Anstead v. Virginia Mason Medical Center

• Court: District Court, W.D. Washington
• Decided: April 20, 2022
• Docket: 2:21-cv-00447
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 AMY ANSTEAD, CASE NO. 2:21-cv-00447-JCC-JRC 11 Plaintiff, ORDER ON DEFENDANTS’ 12 v. MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH 13 VIRGINIA MASON MEDICAL CENTER, PLAINTIFF’S THIRD-PARTY et al., SUBPOENAS 14 Defendants. 15 16 This matter is before the Court on referral from the district court (Dkt. 11) and on 17 defendants’ motion for a protective order and/or to quash plaintiff’s third-party subpoenas. Dkt. 18 28. 19 In this employment dispute, plaintiff propounded six subpoenas to third parties, seeking 20 information to support her claims of discrimination and retaliation. Defendants ask the Court to 21 step in to resolve the parties’ dispute over whether plaintiff is entitled to certain documents she 22 seeks via the subpoenas. Specifically, defendants argue that Ms. Amy Efroymson and her 23 employer, Avitus Group, should not be required to provide documents protected by attorney- 24 1 client privilege. They also argue that the subpoenas seek irrelevant information and are unduly 2 burdensome. 3 The Court concludes that Ms. Efroymson and her employer, who were contracted by 4 defendants to provide human resources services, were the functional equivalent of defendants’ 5 agents, such that any communications between them and defendants’ attorneys—for the purpose

6 of seeking or receiving legal advice—is protected by the attorney-client privilege. However, 7 while the Court concludes that defendants have standing to assert the attorney client privilege on 8 behalf of their agents, defendants lack standing to challenge the subpoenas on the basis that they 9 are irrelevant, overbroad, duplicative, or unduly burdensome. Therefore, defendants’ motion is 10 granted in part and denied in part. 11 BACKGROUND 12 Plaintiff initiated this action on April 2, 2021 when she filed a complaint alleging that 13 defendants violated her rights under the Family and Medical Leave Act, Washington Law 14 Against Discrimination, the Americans with Disabilities Act, Title VII, and Washington’s Equal

15 Pay and Opportunities Act. Dkt. 1 at 5–9. Plaintiff alleges that defendants discharged her or 16 “otherwise limited her employment opportunities based on discriminatory motivations, including 17 exaggerated fears and discomfort about [p]laintiff’s disability and unfounded assumptions about 18 how [her] disability would impact her work performance.” Id. at 6. 19 The parties have engaged in substantial discovery. See Dkt. 29 at 2. However, the parties 20 disagree as to whether plaintiff is entitled to discovery concerning documents within the control 21 of the following third parties: Amy Efroymson, Avitus Group, Matrix Absence Management, 22 Unum, Marianne Fehrenbacher, and Lippincott Consulting. Dkts. 29-2, 29-3. Having met and 23 24 1 conferred without resolving their disagreement, plaintiff served the six subpoenas on the third 2 parties in March 2022. See Dkt. 29-1. 3 On March 23, 2022, defendants filed a motion for protective order and/or to quash 4 plaintiff’s subpoenas. Dkt. 28. The motion has been fully briefed. See Dkts. 28, 31, 33. 5 DISCUSSION

6 Pursuant to Federal Rule of Civil Procedure 45(d)(3)(A)(iii), the Court must quash or 7 modify a subpoena if it requires disclosure of privileged or other protected matter. Defendants 8 move the Court for a protective order or to quash plaintiff’s subpoenas because two of them seek 9 privileged information and because all six seek information that is unduly burdensome and 10 irrelevant. Dkt. 28 at 6. 11 I. Attorney-Client Privilege 12 The federal common law of attorney-client privilege applies to federal claims, while state 13 law concerning privilege governs as to claims or defenses for which state law provides the rule 14 of decision. Fed. R. Evid. 501. Here, plaintiff asserts both federal and state law claims. See Dkt.

15 1 at 5–9. 16 “The attorney-client privilege protects confidential communications between attorneys 17 and clients, which are made for the purpose of giving legal advice.” United States v. Sanmina 18 Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (citations omitted). “[A] party asserting the attorney- 19 client privilege has the burden of establishing the [existence of an attorney-client] 20 relationship and the privileged nature of the communication.” United States v. Ruehle, 583 F.3d 21 600, 607 (9th Cir. 2009) (citation omitted). “Because it impedes full and free discovery of the 22 truth, the attorney-client privilege is strictly construed.” Id. 23 24 1 In the Ninth Circuit, courts use the following eight-part test to determine whether 2 information is protected by the attorney-client privilege: 3 (1) Where 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 4 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 5 waived.

6 Sanmina, 968 F.3d at 1116 (quoting U.S. v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010). The first 7 and fifth elements are implicated in defendants’ motion. 8 A. Whether the communication was for the purpose of seeking legal advice 9 Defendants argue that Ms. Efroymson and her employer, Avitus Group, who were 10 contracted by defendants to engage in the interactive process with plaintiff concerning her 11 reasonable accommodation request, engaged in privileged communications with defendants’ 12 attorneys. According to defendants’ counsel, Devin Smith, “[Ms.] Efroymson obtained legal 13 advice regarding [defendants’] legal obligations in providing reasonable accommodations for 14 [plaintiff] and ways to engage in the interactive process that fulfilled [defendants’] legal 15 obligations.” Dkt. 29 at 1–2. In response, plaintiff argues that because Ms. Fehrenbacher testified 16 in her deposition that she did not seek legal advice from anyone while she worked with plaintiff, 17 Ms. Efroymson, who succeeded Ms. Fehrenbacher in working with plaintiff, must have done the 18 same. See Dkt. 31 at 4–5, 9. Plaintiff also argues that the mere involvement of attorneys in 19 communications does not make them privileged communications. Id. at 9. 20 The Court is not persuaded by plaintiff’s arguments in light of Mr. Smith’s declaration, as 21 well as the declaration from Ms. Efroymson, in which she states that she “regularly engaged with 22 [defendants’] legal counsel in order to obtain legal guidance and advice regarding the interactive 23 process with [plaintiff].” Dkt. 34 at 2. Therefore, defendants have met their burden to establish 24 1 that certain communications between Ms. Efroymson and by extension her employer, Avitus 2 Group, were for the purpose of seeking legal advice. 3 B. Whether Efroymson and Avitus Group were “clients” 4 Defendants argue that Efroymson and Avitus were defendants’ agents because they acted 5 on defendants’ behalf “for the purposes of engaging in the interactive process with [plaintiff].”

6 Dkt. 28 at 7. Plaintiff presents a cursory challenge to this assertion by alleging that Ms. 7 Efroymson was not defendants’ employee and was merely contracted to “shepherd employees 8 through the accommodation process.” Dkt. 31 at 4-5. 9 In U.S. v. Graf, the Ninth Circuit answered the question of whether an outside 10 consultant’s communication with corporate counsel fell within the corporation’s attorney-client 11 privilege. 610 F.3d at 1156. It held that the privilege applies where the consultant is the 12 functional equivalent of a corporate employee. Id. at 1158–59. The Court concluded that the 13 consultant in that case was a functional employee because he communicated with insurance 14 brokers and agents on behalf of the company, managed company employees, and communicated

15 with corporate counsel. Id. at 1158. 16 Here, Ms. Efroymson and her employer, Avitus Group, were contracted by defendants to 17 provide human resources services on their behalf. Specifically, Ms. Efroymson was contracted to 18 “participate in the interactive process with [defendants’] employees to help [defendants] comply 19 with disability laws . . . .” Dkt. 34 at 2. According to Ms. Efroymson, she had regular 20 communications with defendants’ in-house counsel and outside counsel to ensure that defendants 21 were meeting their legal obligations with respect to plaintiff’s accommodations request. Id. In 22 this context, Ms. Efroymson and her employer, Avitus Group, were functionally equivalent to 23 defendants’ employees. Therefore, any communications concerning legal advice are privileged. 24 1 II. Relevancy and Undue Burden 2 Defendants argue that certain requests present in all six subpoenas propounded on the 3 third parties are improper because they cause an undue burden and “have no bearing on the 4 claims or defenses in this case.” Dkt. 28 at 8–9. Specifically, defendants take issue with plaintiff 5 seeking documents regarding “the accommodation process or job analysis performed or

6 requested for any physician employed by [defendants] from January 1, 2017 to June 6, 2020.” 7 See, e.g., Dkt. 29-1 at 7. Plaintiff also seeks “[d]ocuments which refer or relate to the scope of 8 services, guidelines, policies or practices with respect to accommodation leaves of absence” 9 which the subpoena recipients used or relied upon in their work “for any clients or for 10 [defendants], between January 1, 2017 and June 6, 2020.” Id. 11 Plaintiff suggests that defendants may not have standing to challenge her subpoenas on 12 these grounds. See Dkt. 31 at 10, n.7. Indeed, defendants claim that they could not produce these 13 documents because they did not have “custody and control” over the documents yet claim that 14 production of those documents would be unduly burdensome. See Dkt. 31 at 6. Notably, none of

15 the third parties have challenged the subpoenas themselves and defendants do not specifically 16 address whether they have standing. “Ordinarily a party has no standing to seek to quash a 17 subpoena issued to someone who is not a party to the action, unless the objecting party claims 18 some personal right or privilege with regard to the documents sought.” Crispin v. Christian 19 Audigier, Inc., 717 F. Supp. 2d 965, 974 (C.D. Cal. 2010) (internal quotations and citations 20 omitted). This Court agrees with other district courts in the Ninth Circuit that a party generally 21 lacks standing to object to a subpoena served on a third party on grounds of relevance or undue 22 burden. See Tater v. City of Huntington Beach, No. 8:20-cv-01772-JVS, 2021 WL 4735015, at 23 *3 (C.D. Cal. June 7, 2021) (“Plaintiff’s contentions that the Subpoenas seek irrelevant 24 1 information and are overly broad do not provide her standing to quash the Subpoenas.”); Lee v. 2 Lee, No. CV 19-8814 JAK, 2020 WL 7890868, at *5 (C.D. Cal. Oct. 1, 2020) (“[O]nly the party 3 to which the subpoena is directed has standing to object to the requests on the grounds that they 4 are irrelevant, vague, overbroad, duplicative, unduly burdensome, etc.”). Therefore, the Court 5 concludes that defendants do not have standing to challenge the subpoenas on these grounds.

6 Even if they had standing, the Court disagrees that the documents plaintiff seeks are 7 irrelevant and notes that the stipulated protective order contemplates the production of such 8 information. See Dkt. 20. Defendants do not say why the protective order they agreed to is 9 insufficient to protect the other physicians. In fact, defendants appear to suggest that it will. See 10 Dkt. 28 at 9 (“Even if this information were produced confidentially, it would not change the fact 11 that the information is impermissibly invasive, not relevant to the alleged claims, and not 12 proportional to the needs of the case.”). 13 CONCLUSION 14 Defendants’ motion is granted in part and denied in part. Specifically, the motion to

15 quash the subpoenas is granted to the extent the subpoenas require production of privileged 16 communications involving Ms. Efroymson or Avitus Group. Defendants’ motion is denied in all 17 other respects. Because the Court grants in part and denies in part defendants’ motion, the Court 18 denies defendants’ request for fees and costs in bringing the motion. Each party shall bear their 19 own fees and costs. 20 Dated this 20th day of April, 2022. 21 A 22 J. Richard Creatura Chief United States Magistrate Judge 23