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Gipson v. Reed

United States District Court for the Western District of Washington

June 5, 2019, Decided; June 5, 2019, Filed

CASE NO. C18-0951-JCC

Opinion

ORDER

This matter comes before the Court on Plaintiff Ron Gibson's motion to compel and request for sanctions (Dkt. No. 41). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.

I. BACKGROUND

The Court has previously set forth the underlying facts of this case and will not repeat them here. (See Dkt. No. 27.) Defendant Snohomish County hired Marcella Fleming Reed1 to conduct an Equal Employment Opportunity ("EEO") investigation into Defendant Karen Hastings' complaint that Plaintiff Ron Gibson sexually harassed her. (Dkt. No. 12-2 at 1.)

Plaintiff Ron [*2]  Gibson alleges that during the course of Reed's investigation Defendants Barbara Lucken, Dee Thayer, Cathy White, and Hastings made several false and defamatory statements about Plaintiff, and reported allegations against Plaintiff Ron Gibson that were unsubstantiated and untrue. (Id. at 6-7.) Plaintiff further alleges that Reed and Defendant Snohomish County knowingly incorporated those statements into Reed's final report. (Id.) Plaintiff asserts claims of invasion of privacy or false light disclosure, negligent infliction of emotional distress, defamation, and loss of consortium. (Id. at 9-11.) Plaintiff now seeks to compel communications between Snohomish County officials and Reed related to Plaintiff from 2014 to the present. (Dkt. No. 41.)

II. DISCUSSION

A. Legal Standards

The Court strongly disfavors discovery motions and prefers that parties resolve such disputes on their own. "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). If a party inappropriately withholds or fails to answer a discovery request, the requesting party may move for an order compelling discovery. Fed. R. Civ. P. 37(a)(1); David v. Hooker, Ltd., 560 F.2d 412, 418 (9th Cir. 1977). If a party fails to comply [*3]  with a discovery order, the Court may also sanction that party accordingly. Fed. R. Civ. P. 37(b)(2). The Court has broad discretion to decide whether to compel disclosure of discovery. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). On a motion to compel, the movant must demonstrate that "the information it seeks is relevant and that the responding party's objections lack merit." Hancock v. Aetna Life Ins. Co., 321 F.R.D. 383, 390 (W.D. Wash. 2017). An attorney the discovery request is subject to shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment. Wash. Rev. Code § 5.60.060.

The burden to establish privilege is on the party asserting that privilege. See United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000). The definition of attorney-client privilege is: (1) legal advice of any kind is sought; (2) from a professional legal advisor in his capacity as such; (3) the communication relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from his disclosure by himself or by the legal advisor; (8) unless the objection is waived. See Fischel v. Margolis, 557 F.2d 209, 211 (9th Cir. 2006). The definition of "client" is not limited to internal attorneys and investigators of an organization, and therefore communications between internal attorneys and [*4]  independent investigators are subject to attorney-client privilege. United States v. Graf, 610 F.3d 1148, 1158 (9th Cir. 2010); see also In re Bieter Co., 16 F.3d 929, 937 (8th Cir. 1994).

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2019 U.S. Dist. LEXIS 94305 *; 2019 WL 2372480

RON GIBSON and SHIRLEY GIPSON, a married couple, Plaintiffs, v. MARCELLA FLEMING REED, et al., Defendants.

Prior History: Gipson v. Reed, 2018 U.S. Dist. LEXIS 143678 (W.D. Wash., Aug. 23, 2018)

CORE TERMS

attorney-client, discovery, documents, investigations, communications, legal advice, privilege log, disputed