1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Helen Nyerges, et al., No. CV-19-02376-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 Hillstone Restaurant Group Incorporated,
13 Defendant. 14 15 Pending before the Court is a discovery dispute concerning the sufficiency of 16 Hillstone’s disclosures of factual information contained in attorney-client privileged 17 documents. (Doc. 88.) The documents in question are four written statements prepared by 18 Hillstone employees at the behest of Hillstone’s general counsel in the aftermath of a fatal 19 choking incident at a Hillstone restaurant. On July 30, 2020, the Court determined these 20 statements are protected by the attorney-client privilege and thus denied Plaintiffs’ request 21 to compel production of them. (Doc. 75.) In the pending dispute, Plaintiffs argue that 22 Hillstone has not sufficiently disclosed the facts contained in the statements. (Doc. 88 at 23 2.) 24 During a telephonic hearing, Plaintiffs set out their reasons for doubting the 25 sufficiency of Hillstone’s fact disclosures and requested that the Court review the 26 statements in camera to determine whether Hillstone’s disclosures are adequate. In 27 response, Hillstone’s counsel twice avowed that all of the facts contained in the witness 28 statements have been conveyed to Plaintiffs through witness deposition testimony or 1 through Hillstone’s Mandatory Initial Discovery Pilot Project (“MIDP”) disclosures. 2 A party requesting in camera review of assertedly privileged documents must show 3 “a factual basis sufficient to support a reasonable, good faith belief that in camera 4 inspection may reveal evidence that information in the materials is not privileged.” In re 5 Grand Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992).1 Although this 6 “evidentiary threshold” is “relatively minimal,” it “must first be met by the party requesting 7 review before the court may exercise its discretion.” Id. at 1072. This is because “in 8 camera review of documents . . . is an intrusion [into the attorney-client privilege] which 9 must be justified.” Id. at 1074. Thus, although the Court must engage in “[s]ome 10 speculation” when assessing whether the evidentiary threshold is met, id. at 1073, the 11 requesting party must show more than a “hunch” that privileged communications may 12 contain additional facts subject to disclosure. Cf. Reynolds v. Liberty Mut. Ins. Co., 2017 13 WL 6415360, *4 (D. Ariz. 2017) (party seeking in camera review “failed to make the 14 requisite factual showing, instead hinging his argument on a hunch”); Aerojet Rocketdyne, 15 Inc. v. Glob. Aerospace, Inc., 2019 WL 1178635, *4 (E.D. Cal. 2019) (party failed to meet 16 minimal threshold for in camera review of redacted material where it argued that most of 17 the redacted information was not privileged because the redactions appeared to be “heavy 18 handed” and “inconsistent”). 19 If the requesting party makes the threshold showing, the decision whether to order 20 in camera review is “within the discretion of the district court.” Grand Jury Investigation, 21 974 F.2d at 1075. The exercise of this discretion, in turn, “is guided by the factors 22 enumerated in [United States v. Zolin, 491 U.S. 554 (1989)].” Id. Under Zolin, “[t]he court 23 1 Although state law determines the scope of attorney-client privilege under Federal 24 Rule of Evidence 501 in diversity actions, In re Cal. Pub. Utils. Comm’n, 892 F.2d 778, 781 (9th Cir. 1989), federal law governs here because the propriety of in camera review is 25 a procedural matter. Aerojet Rocketdyne, Inc. v. Glob. Aerospace, Inc., 2019 WL 1178635, *2 (E.D. Cal. 2019) (“Although the law of the forum state governs the substantive issue of 26 attorney-client privilege in diversity cases, federal law governs procedure. The use of in camera review to determine whether attorney-client privilege is properly claimed is a 27 procedural matter.”) (citation omitted); MKB Constructors v. Am. Zurich Ins. Co., 2014 WL 2526901, *6-7 (W.D. Wash. 2014); United Invs. Life Ins. Co. v. Nationwide Life Ins. 28 Co., 233 F.R.D. 483, 486 (N.D. Miss. 2006); In re Fed. Skywalk Cases, 95 F.R.D. 477, 478-79 (W.D. Mo. 1982). 1 should make that decision [whether to conduct in camera review] in light of the facts and 2 circumstances of the particular case, including, among other things, the volume of materials 3 the district court has been asked to review [and] the relative importance to the case of the 4 alleged privileged information.” 491 U.S. at 572. 5 Here, Plaintiffs have failed to make the threshold evidentiary showing necessary to 6 support in camera review. During the telephonic hearing, Plaintiffs explained their reasons 7 for suspecting that the four witness statements may contain factual information that 8 Hillstone has not adequately disclosed. Plaintiffs argued that (1) Hillstone’s MIDP 9 responses did not contain much information; (2) during depositions, the witnesses failed to 10 recall many facts from the night in question; (3) during depositions, none of the witnesses 11 could remember what they had said in the earlier statements; (4) the earlier statements were 12 made closer in time to the choking incident; and (5) when Plaintiffs requested a 13 supplemental MIDP disclosure, Hillstone amended the disclosure for one of the four 14 witnesses to provide additional information. Plaintiffs ask the Court to consider these 15 observations in the aggregate and draw the inference that the statements may contain 16 additional facts that Hillstone must disclose under the MIDP and A.R.S. § 12-2234(C). 17 Plaintiffs’ evidence does not create “a factual basis sufficient to support a 18 reasonable, good faith belief that in camera inspection may reveal evidence that 19 information in the materials is not privileged.” Grand Jury Investigation, 974 F.2d at 1075. 20 Even if the Court accepts that Hillstone’s MIDP disclosures are somehow inadequate, 21 Plaintiffs deposed all four witnesses, so that perceived inadequacy alone could not support 22 in camera review. As for points two through four, Plaintiffs point to no authority 23 establishing that a witness’s failure to remember many details during a deposition justifies 24 in camera review of privileged documents, nor did the Court identify any such authority 25 through its own research. Finally, Hillstone’s effort to comply with its obligations under 26 the MIDP, by providing supplemental disclosures after Plaintiffs raised concerns about the 27 sufficiency of its initial disclosures, does not justify an inference that Hillstone is somehow 28 misleading Plaintiffs and the Court in its assertion of privilege over the witness statements, || even if the information in the supplemental disclosures was taken from the privileged 2|| documents. Cf Aerojet Rocketdyne, Inc., 2019 WL 1178635 at *4 (“[A] single 3 || inconsistency is hardly evidence of broad based over-reach in the assertion of privilege.”). 4 Alternatively, even if Plaintiffs had met their initial burden, the Court would || exercise its discretion not to conduct an in camera review in light of the facts and || circumstances of this case. Hillstone’s counsel twice represented to the Court, in unambiguous terms, that all facts in the witness statements have already been disclosed to 8 || Plaintiffs through Hillstone’s MIDP disclosures or through witness deposition testimony. || Under these circumstances, in camera review is not warranted.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Helen Nyerges, et al., No. CV-19-02376-PHX-DWL
10 Plaintiffs, ORDER
11 v.
12 Hillstone Restaurant Group Incorporated,
13 Defendant. 14 15 Pending before the Court is a discovery dispute concerning the sufficiency of 16 Hillstone’s disclosures of factual information contained in attorney-client privileged 17 documents. (Doc. 88.) The documents in question are four written statements prepared by 18 Hillstone employees at the behest of Hillstone’s general counsel in the aftermath of a fatal 19 choking incident at a Hillstone restaurant. On July 30, 2020, the Court determined these 20 statements are protected by the attorney-client privilege and thus denied Plaintiffs’ request 21 to compel production of them. (Doc. 75.) In the pending dispute, Plaintiffs argue that 22 Hillstone has not sufficiently disclosed the facts contained in the statements. (Doc. 88 at 23 2.) 24 During a telephonic hearing, Plaintiffs set out their reasons for doubting the 25 sufficiency of Hillstone’s fact disclosures and requested that the Court review the 26 statements in camera to determine whether Hillstone’s disclosures are adequate. In 27 response, Hillstone’s counsel twice avowed that all of the facts contained in the witness 28 statements have been conveyed to Plaintiffs through witness deposition testimony or 1 through Hillstone’s Mandatory Initial Discovery Pilot Project (“MIDP”) disclosures. 2 A party requesting in camera review of assertedly privileged documents must show 3 “a factual basis sufficient to support a reasonable, good faith belief that in camera 4 inspection may reveal evidence that information in the materials is not privileged.” In re 5 Grand Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992).1 Although this 6 “evidentiary threshold” is “relatively minimal,” it “must first be met by the party requesting 7 review before the court may exercise its discretion.” Id. at 1072. This is because “in 8 camera review of documents . . . is an intrusion [into the attorney-client privilege] which 9 must be justified.” Id. at 1074. Thus, although the Court must engage in “[s]ome 10 speculation” when assessing whether the evidentiary threshold is met, id. at 1073, the 11 requesting party must show more than a “hunch” that privileged communications may 12 contain additional facts subject to disclosure. Cf. Reynolds v. Liberty Mut. Ins. Co., 2017 13 WL 6415360, *4 (D. Ariz. 2017) (party seeking in camera review “failed to make the 14 requisite factual showing, instead hinging his argument on a hunch”); Aerojet Rocketdyne, 15 Inc. v. Glob. Aerospace, Inc., 2019 WL 1178635, *4 (E.D. Cal. 2019) (party failed to meet 16 minimal threshold for in camera review of redacted material where it argued that most of 17 the redacted information was not privileged because the redactions appeared to be “heavy 18 handed” and “inconsistent”). 19 If the requesting party makes the threshold showing, the decision whether to order 20 in camera review is “within the discretion of the district court.” Grand Jury Investigation, 21 974 F.2d at 1075. The exercise of this discretion, in turn, “is guided by the factors 22 enumerated in [United States v. Zolin, 491 U.S. 554 (1989)].” Id. Under Zolin, “[t]he court 23 1 Although state law determines the scope of attorney-client privilege under Federal 24 Rule of Evidence 501 in diversity actions, In re Cal. Pub. Utils. Comm’n, 892 F.2d 778, 781 (9th Cir. 1989), federal law governs here because the propriety of in camera review is 25 a procedural matter. Aerojet Rocketdyne, Inc. v. Glob. Aerospace, Inc., 2019 WL 1178635, *2 (E.D. Cal. 2019) (“Although the law of the forum state governs the substantive issue of 26 attorney-client privilege in diversity cases, federal law governs procedure. The use of in camera review to determine whether attorney-client privilege is properly claimed is a 27 procedural matter.”) (citation omitted); MKB Constructors v. Am. Zurich Ins. Co., 2014 WL 2526901, *6-7 (W.D. Wash. 2014); United Invs. Life Ins. Co. v. Nationwide Life Ins. 28 Co., 233 F.R.D. 483, 486 (N.D. Miss. 2006); In re Fed. Skywalk Cases, 95 F.R.D. 477, 478-79 (W.D. Mo. 1982). 1 should make that decision [whether to conduct in camera review] in light of the facts and 2 circumstances of the particular case, including, among other things, the volume of materials 3 the district court has been asked to review [and] the relative importance to the case of the 4 alleged privileged information.” 491 U.S. at 572. 5 Here, Plaintiffs have failed to make the threshold evidentiary showing necessary to 6 support in camera review. During the telephonic hearing, Plaintiffs explained their reasons 7 for suspecting that the four witness statements may contain factual information that 8 Hillstone has not adequately disclosed. Plaintiffs argued that (1) Hillstone’s MIDP 9 responses did not contain much information; (2) during depositions, the witnesses failed to 10 recall many facts from the night in question; (3) during depositions, none of the witnesses 11 could remember what they had said in the earlier statements; (4) the earlier statements were 12 made closer in time to the choking incident; and (5) when Plaintiffs requested a 13 supplemental MIDP disclosure, Hillstone amended the disclosure for one of the four 14 witnesses to provide additional information. Plaintiffs ask the Court to consider these 15 observations in the aggregate and draw the inference that the statements may contain 16 additional facts that Hillstone must disclose under the MIDP and A.R.S. § 12-2234(C). 17 Plaintiffs’ evidence does not create “a factual basis sufficient to support a 18 reasonable, good faith belief that in camera inspection may reveal evidence that 19 information in the materials is not privileged.” Grand Jury Investigation, 974 F.2d at 1075. 20 Even if the Court accepts that Hillstone’s MIDP disclosures are somehow inadequate, 21 Plaintiffs deposed all four witnesses, so that perceived inadequacy alone could not support 22 in camera review. As for points two through four, Plaintiffs point to no authority 23 establishing that a witness’s failure to remember many details during a deposition justifies 24 in camera review of privileged documents, nor did the Court identify any such authority 25 through its own research. Finally, Hillstone’s effort to comply with its obligations under 26 the MIDP, by providing supplemental disclosures after Plaintiffs raised concerns about the 27 sufficiency of its initial disclosures, does not justify an inference that Hillstone is somehow 28 misleading Plaintiffs and the Court in its assertion of privilege over the witness statements, || even if the information in the supplemental disclosures was taken from the privileged 2|| documents. Cf Aerojet Rocketdyne, Inc., 2019 WL 1178635 at *4 (“[A] single 3 || inconsistency is hardly evidence of broad based over-reach in the assertion of privilege.”). 4 Alternatively, even if Plaintiffs had met their initial burden, the Court would || exercise its discretion not to conduct an in camera review in light of the facts and || circumstances of this case. Hillstone’s counsel twice represented to the Court, in unambiguous terms, that all facts in the witness statements have already been disclosed to 8 || Plaintiffs through Hillstone’s MIDP disclosures or through witness deposition testimony. || Under these circumstances, in camera review is not warranted. Cf Wellin v. Wellin, 2016 WL 7626174, *3 (D.S.C. 2016) (rejecting request for in camera review, where □□□□□□□□□□□ 11 |} counsel avowed that withheld documents did not fall within a particular exception to the attorney-client privilege and defendants sought review “to assure Plaintiff has fully 13 || complied with the Order compelling production of the documents subject to the .. . exception,” because “there is no basis for concluding the representations of □□□□□□□□□□□ 15 || counsel are untrue’); Guy v. United Healthcare Corp., 154 F.R.D. 172, 176 (S.D. Ohio 1993) (declining to conduct in camera review because such an “expenditure of judicial 17 || resources .. . could be justified only by an implicit determination that the representations 18 || made by defense counsel are untrue” and “[t]hat determination is unwarranted’’). 19 Accordingly, IT IS ORDERED that the pending discovery dispute, which is 20 || construed as a request for in camera review (Doc. 88), is denied. 21 Dated this Ist day of October, 2020. 22 23 Lm ee” 24 f t _o——— Dominic W. Lanza 25 United States District Judge 26 27 28
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