Bolding v. Banner Bank

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 KELLY BOLDING, MICHAEL 7 MANFREDI, and SARAH WARD, Cause No. C17-0601RSL individually and on behalf of a class of all 8 others similarly situated, ORDER GRANTING IN PART 9 Plaintiffs, DEFENDANT’S MOTION TO COMPEL 10 v. 11 BANNER BANK, 12 Defendant. 13 14 This matter comes before the Court on “Defendant Banner Bank’s Motion to Compel 15 [Production of] Communications and Privilege Log.” Dkt. # 277. Defendant seeks to compel 16 supplemental responses to seven requests for production that were served on the three named 17 and the thirty opt-in plaintiffs. The requests generally seek communications between putative 18 class or potential collective members and the named plaintiffs and/or their counsel. 19 RFPs 31 and 32 were served first, and the parties worked together to narrow their scope 20 21 and resolve disputes regarding the privilege log. Each side made concessions. Defendant agreed 22 that plaintiffs need not produce communications with counsel and agreed to both subject matter 23 and temporal limitations. Plaintiffs agreed to provide a privilege log related to communications 24 with absent class members occurring prior to class certification and with putative members of 25 the collective occurring prior to the filing of an individual’s opt-in notice. These concessions 26 27 ORDER GRANTING IN PART 1 were consistent with governing law and reasonable attempts to move forward without court 2 intervention. 3 Both sides have now repudiated their agreements, essentially negating the entire meet and 4 confer process. Rather than deny the motion for failure to meet and confer in good faith, the 5 Court adopts the parties’ concessions and further finds as follows: 6 7 As written, RFPs 31 and 32 were grossly overbroad, sought irrelevant information, and 8 invaded the attorney-client privilege and the work product doctrine. In the face of plaintiffs’ 9 meritorious objections, defendant compromised, three time assuring plaintiffs that it was seeking 10 only “communications between the responding plaintiff and any other opt-in plaintiff or class 11 member related to the subject matter of this lawsuit during the class period.” Dkt. # 278-1 at 18. 12 See also Dkt. # 278-1 at 25; Dkt. # 291 at 85. The three named plaintiffs and nine of the opt-in 13 14 plaintiffs provided supplemental responses based on that compromise, reiterating their privilege 15 objections and stating that he or she “has no other responsive documents or communications to 16 produce.” See, e.g., Dkt. # 278-1 at 38-39 (supplemental responses of plaintiff Kelly Bolding). 17 No further supplementation is necessary from these twelve individuals. The other twenty-one 18 opt-in plaintiffs have not yet produced or denied the existence of communications with “any 19 20 other opt-in plaintiff or class member related to the subject matter of this lawsuit during the class 21 period.” They will be required to supplement their responses to RFPs 31 and 32 (as narrowed by 22 defendant). 23 On June 30, 2020, defendant served its fourth set of discovery requests on the named and 24 opt-in plaintiffs. RFPs 50-52 seek communications between class counsel and putative class 25 members regarding the Class Notice and the decision or choice to opt-out, including all 26 27 ORDER GRANTING IN PART 1 communications with any putative class member who opted out of the class. Dkt. # 278-1 at 67- 2 69. RFPs 53-55 seek the same information regarding communications between the named 3 plaintiffs and putative class members. Dkt. # 278-1 at 69-71. Plaintiffs objected based on the 4 attorney-client privilege and the work product doctrine, but produced copies of the opt-out forms 5 submitted in response to the Class Notice. Plaintiffs did not provide a privilege log related to 6 7 these requests for production. 8 “Issues concerning application of the attorney-client privilege in the adjudication of 9 federal law are governed by federal common law.” U.S. v. Ruehle, 583 F.3d 600, 608 (9th Cir. 10 2009). The Ninth Circuit uses an eight-part test to determine whether a communication is 11 privileged: “(1) When legal advice of any kind is sought (2) from a professional legal adviser in 12 his or her capacity as such, (3) the communications relating to that purpose, (4) made in 13 14 confidence (5) by the client, (6) are, at the client’s instance, permanently protected (7) from 15 disclosure by the client or by the legal adviser (8) unless the protection be waived.” U.S. v. 16 Martin, 278 F.3d 988, 999 (9th Cir. 2002) (citing 8 Wigmore, Evidence § 2292, at 554 17 (McNaughton rev. 1961)). Washington views the privilege similarly. See Dietz v. Doe, 131 18 Wn.2d 835, 849 (1997) (adopting the same eight-factor test). “The burden is on the party 19 20 asserting the privilege to establish all the elements of the privilege.” Martin, 278 F.3d at 21 999-1000. See also Dietz, 131 Wn.2d at 851. 22 Whether the communications defendant seeks are privileged does not turn on whether 23 they occurred before or after the class was certified or the individual had opted in. 24 Communications from prospective clients with the aim of obtaining legal services are generally 25 covered by the attorney-client privilege, even if the attorney is not ultimately retained. 26 27 ORDER GRANTING IN PART 1 There is nothing anomalous about applying the privilege to such preliminary 2 consultations. Without it, people could not safely bring their problems to lawyers unless the lawyers had already been retained. The rationale for this rule is 3 compelling, because no person could ever safely consult an attorney for the first 4 time with a view to his employment if the privilege depended on the chance of 5 whether the attorney after hearing his statement of the facts decided to accept the employment or decline it. 6 7 Barton v. U.S. Dist. Ct. for Cent. Dist. of Cal., 410 F.3d 1104, 1111-12 (9th Cir. 2005) (internal 8 quotations omitted). Plaintiffs appropriately produced the opt-out forms submitted by putative 9 class members who, far from seeking advice regarding the Class Notice or the opt-out decision, 10 were simply communicating their rejection of counsel’s offer of representation. Plaintiffs claim 11 12 that all other communications are privileged, a not surprising contention given that inquiries 13 from putative class members about the meaning of the Class Notice, their options going forward, 14 and the impact of an opt-out decision would generally satisfy the eight-factor test for a privileged 15 communication. Plaintiffs have not, however, produced a privilege log that would allow 16 defendant to test their assertion. 17 18 19 For all of the foregoing reasons, defendant’s motion to compel the production of 20 communications (Dkt. # 277) is GRANTED in part. The twenty-one opt-in plaintiffs who have 21 not yet produced or denied the existence of communications with “any other opt-in plaintiff or 22 class member related to the subject matter of this lawsuit during the class period” shall 23 supplement their responses to RFPs 31 and 32. Plaintiffs shall provide a privilege log for 24 communications responsive to RFPs 31 (as narrowed), 32 (as narrowed), and 50-55 that 25 26 occurred prior to the date the opt-in plaintiffs sent in their opt-in agreements or that occurred 27 ORDER GRANTING IN PART 1 prior to class certification. Plaintiffs shall supplement their discovery responses within twenty- 2 one days of the date of this Order. 3 4 Dated this 19th day of April, 2021. 5 6 Robert S. Lasnik 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER GRANTING IN PART