Reich v. Great Lakes Collection Bureau, Inc.

172 F.R.D. 58, 38 Fed. R. Serv. 3d 351, 1997 U.S. Dist. LEXIS 4256
CourtDistrict Court, W.D. New York
DecidedFebruary 20, 1997
DocketNo. 95-CV-828C(H)
StatusPublished
Cited by3 cases

This text of 172 F.R.D. 58 (Reich v. Great Lakes Collection Bureau, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reich v. Great Lakes Collection Bureau, Inc., 172 F.R.D. 58, 38 Fed. R. Serv. 3d 351, 1997 U.S. Dist. LEXIS 4256 (W.D.N.Y. 1997).

Opinion

[60]*60DECISION AND ORDER

HECKMAN, United States Magistrate Judge.

This case has been referred to the undersigned by Hon. John T. Curtin for pretrial matters and to hear and report on dispositive motions, in accordance with 28 U.S.C. § 636(b). Defendants have moved to compel the production of over 300 documents identified by plaintiff as privileged or subject to protection as trial preparation material. Oral argument was heard on November 12, 1996, following which plaintiff was directed to submit a detailed privilege log and the document for in camera review. Further oral argument was heard on January 28, 1997, and documents numbered 11, 12, 13, 29 and 31-1 through 31-112 were reviewed in camera.

This order confirms the court’s rulings on documents 11, 12, 13, 29 and 31-1 through 31-112.

BACKGROUND

On September 25, 1995, the Secretary of Labor filed a complaint against defendants for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Plaintiff alleges that defendants have failed to pay minimum wage and overtime compensation, and have failed to keep adequate records as required by DOL regulations (Item 1, H XII).

The government has produced a list containing the names and addresses of witnesses believed to have knowledge of the facts of the case, along with summaries of alleged violations and amounts allegedly due for each employee which the government contends was underpaid. The government has also answered interrogatories as to its investigation and computations. The government has refused to produce worksheets prepared by DOL investigators, and reports of employee complaints and interviews.

The defendants have moved to compel the production of these items, and the government asserts the informer’s privilege, work product immunity and the attorney-client privilege.

DISCUSSION

A. Document No. 11.

Document No. 11 is a 4-page worksheet entitled “Summary of Items Referenced in ‘B’ Exhibits.” The “B Exhibits” are the sheets on which DOL Investigator Martin Murray recorded the statements made by over 100 of defendants’ employees. Document No. 11 was prepared by Investigator Murray in 1995. It contains the names of 69 of the defendants’ employees, followed by several columns identifying whether specific items of information were obtained from these employees during the investigator’s interview.

The government maintains that this document is protected by both the informer’s privilege and work product immunity. As to the informer’s privilege, “ ‘[t]he privilege for communications by informers to the government is well established and its soundness cannot be questioned.’ ” Secretary of Labor v. Superior Care, Inc., 107 F.R.D. 395, 397 (E.D.N.Y.1985)(quoting Mitchell v. Roma, 265 F.2d 633, 635 (3d Cir.1959); see also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L. Ed. 151 (1938); United States v. Tucker, 380 F.2d 206 (2d Cir.1967)). The informer’s privilege has frequently been applied in civil cases brought. under the FLSA. See, e.g., Martin v. Albany Business Journal, Inc., 780 F.Supp. 927, 930-31 (N.D.N.Y.1992); Secretary of Labor v. Superior Care, Inc., supra; see also Brock v. On Shore Quality Control Specialists, Inc., 811 F.2d 282 (5th Cir.l987)(citing numerous instances of application in FLSA context); Wirtz v. Continental Finance & Loan Co. of West End, 326 F.2d 561, 563 (5th Cir.1964); J. Weinstein & M. Berger, 2 Weinstein’s Evidence ¶ 510[05] at 510-29; C. Wright & A. Miller, Federal Practice & Procedure § 2019 n. 77.

The rationale for the privilege was perhaps best explained by the Fifth Circuit in the Continental Finance case, as follows:

[T]he most effective protection from retaliation is the anonymity of the informer. The pressures which an employer may bring to bear on an employee are difficult [61]*61to detect and even harder to correct. The economic relationship of employer-employee makes possible a wide range of discriminatory actions from the most flagrant to those so subtle that they may be scarcely noticed.

Wirtz v. Continental Finance & Loan Co. of West End, supra, 326 F.2d at 563-64.

The cases have also uniformly recognized that the informer’s privilege “is a qualified one, not absolute, limited by the underlying purpose of the privilege as balanced against the fundamental requirements of fairness and disclosure in the litigation process.” Hodgson, v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir.1972). As explained by the Supreme Court in Roviaro v. United States, supra:

The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the informer has been disclosed to those who have cause to resent the communication, the privilege is no longer applicable. A further limitation of the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.

353 U.S. at 60, 77 S.Ct. at 627 (footnotes omitted).

Here, the names can be deleted from the document and the contents disclosed without compromising the informers’ identities.

As to work product protection, Rule 26(b)(3) of the Federal Rules of Civil Procedure provides that a party may discover documents “prepared in anticipation of litigation ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” In determining whether this qualified protection applies, the initial inquiry is “whether, in light of the nature of the documents and the factual situation in a particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Litton Industries, Inc. v. Lehman Bros. Kuhn Loeb Inc., 125 F.R.D. 51, 54 (S.D.N.Y.1989).

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172 F.R.D. 58, 38 Fed. R. Serv. 3d 351, 1997 U.S. Dist. LEXIS 4256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reich-v-great-lakes-collection-bureau-inc-nywd-1997.