Beltran v. Interexchange, Inc.
| Decision Date | 12 February 2018 |
| Docket Number | Civil Action No. 14-cv-03074-CMA-CBS |
| Parties | JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, and SARAH CAROLINE AZUELA RASCON, Plaintiffs, v. INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and GOAUPAIR OPERATIONS, LLC, Defendants. |
| Court | U.S. District Court — District of Colorado |
This matter is before the Court on Plaintiffs' Objections (Doc. # 771) to an Order issued by United States Magistrate Judge Kathleen M. Tafoya on December 4, 2017 (the "Magistrate Judge's Order") (Doc. # 763), wherein the Magistrate Judge denied Plaintiffs' Motion to Compel and for Relief. In Plaintiffs' Motion to Compel and for Relief, Plaintiffs moved the Court to compel the Alliance for International Exchange (the "Alliance") to produce seventy-seven pages of the Alliance's communications without redactions. (Doc. # 710 at 1-2.) Plaintiffs also asked the Court to impose monetary sanctions on Defendants and to order Defendants to pay Plaintiffs' reasonable expenses incurred in regards to their Motion to Compel. (Id. at 15.)
For the following reasons, the Court affirms Plaintiffs' Objections (Doc. # 771) and reverses in part the Magistrate Judge's Order (Doc. # 763).
The factual and procedural background of this case has been extensively detailed in the Court's previous orders and the Magistrate Judge's recommendations. See, e.g., (Doc. ## 240, 569, 828.) The matter now before the Court concerns a discovery dispute. Additional factual and procedural background is detailed here to the extent necessary to address Plaintiffs' Objections.
The Alliance is a trade association of ninety non-governmental organizations "comprising the international education and cultural exchange community in the United States." (Doc. # 717 at 7) (internal quotation omitted). It predates this action andcontinues to conduct its business as this action is litigated. (Doc. # 763 at 2-3.) Thirteen au pair sponsor organizations, including most Defendants, form an Au Pair Program sub-group within the Alliance.1 (Id. at 3) (internal citation omitted). Officers of three Defendants serve on the Alliance's Board of Directors as Chairperson, Treasurer, and general board member.2 (Id. at 3.) After service of the instant suit, the Alliance's Au Pair Program sub-group hosted discussions among its members to address this litigation and potential responses to it. (Doc. # 717 at 2.) Hand-written notes taken by and a draft letter composed by Alliance staff members at these discussions are the subject of Plaintiffs' Objections. (Doc. # 771.)
Plaintiffs served an initial subpoena on the Alliance on or about January 30, 2017 (Doc. # 709-2), and an amended subpoena on May 25, 2017 (Doc. # 709-3), pursuant to Federal Rule of Civil Procedure 45.3 (Doc. # 763 at 3.) Defendants objected to the subpoena on June 6, 2017. (Doc. # 709-4.) Plaintiffs and Defendants conferred on several occasions about the subpoena and specifically about potential privileges throughout June 2017. See (Doc. ## 709-5-709-7.)
The Alliance produced a seventy-seven page, partially-redacted document of its communications to Plaintiffs on August 23, 2017. (Doc. ## 709-9-709-16.) In its cover letter to Plaintiffs, the Alliance stated that additional, potentially-responsive documents were still being reviewed. (Doc. # 709-8.) The Alliance proposed a claw-back agreement, "such that [the Alliance] could produce additional documents now while preserving [its] rights to clawback any documents which are determined to be privileged or otherwise confidential." (Id.) Plaintiffs promptly agreed to a claw-back arrangement (Doc. # 709-17) in an email to which the Alliance did not reply. The Alliance has not produced any documents since this correspondence.
On September 13, 2017, one day before the Chairperson of the Alliance's Board of Directors was to be deposed, Defendants sent a letter to Plaintiffs "assert[ing] that certain portions of the documents produced by the Alliance [on August 23, 2017,] are protected by the work product privilege, the common interest and joint defense doctrines, and possible the attorney client privilege." (Doc. # 709-22.) Defendants requested that Plaintiffs "immediately destroy or return to counsel for the Alliance the documents" in the August 23, 2017 production. (Id.) The parties conferred on September 15, 2017, but failed to reach agreement on the Alliance's production. (Doc. # 717 at 5.) Shortly thereafter, Defendants produced a redacted version of the Alliance's production and a privilege log. (Doc. # 709-1; Doc. # 717-5.) The privilege log contains ten entries and states that the bases for withholding information are "work product, [and] common interest" for all ten entries and also "attorney-client privilege reflecting legal advice of Jeffrey Allen, Esq. of Lawson & Weitzen, LLC" for five entries(entries 2-6).4 (Doc. # 717-5.) Mr. Allen previously served as counsel for Defendant Cultural Care, Inc.
On September 27, 2017, Plaintiffs filed their Motion to Compel and for Relief Under Federal Rules of Civil Procedure 26, 37, and 45, asserting that Defendants could not assert privileges over documents the Alliance produced on August 23, 2017. (Doc. # 710.) Plaintiffs asked the Court to compel production of unredacted versions of the documents and suggested that the Court sanction Defendants for their conduct. (Id.) Plaintiffs also requested that the Court impose monetary sanctions on Defendants and award Plaintiffs attorneys' fees and costs. (Id.) Defendants responded in opposition on October 6, 2017. (Doc. # 717.) Plaintiffs replied in support of their Motion to Compel and for Relief on October 11, 2017. (Doc. # 721.) This Court referred Plaintiffs' Motion to Magistrate Judge Tafoya pursuant to 28 U.S.C. § 636(b)(1)(A). (Doc. #712.) The Magistrate Judge heard argument on November 15, 2017, see (Doc. # 757), and subsequently conducted an in camera review of the unredacted version of the Alliance's documents, see (Doc. # 763.)
The Magistrate Judge denied Plaintiffs' Motion to Compel and for Relief in her Order on December 4, 2017, concluding that "the common interest doctrine . . . protect[s] . . . privileged portions of the communications from disclosure."5 (Doc. # 763 at 13.) Plaintiffs objected to the Magistrate Judge's Order pursuant to Rule 72(a) onDecember 18, 2017. (Doc. # 771.) Defendants responded in opposition to Plaintiffs' Objections on January 10, 2017. (Doc. # 802.)
Where a magistrate judge issues an order on a non-dispositive, pretrial order, "[a] party may serve and file objections to the order to the district court within 14 days after being served with a copy." Fed. R. Civ. Pro. 72(a). The district court must modify or set aside any part of the order that "is clearly erroneous or is contrary to law." Fed. R. Civ. Pro. 72(a); 28 U.S.C. § 636(b)(a)(A); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000).
With regard to legal matters, the district court conducts an independent, plenary review of the magistrate judge's order. In re Motor Fuel Temperature Sales Practice Litigation, 707 F. Supp. 2d 1145, 1148 (D. Kan. 2010); see also 12 Charles Alan Wright, et al., Federal Practice & Procedure § 3069 (2d ed. 2017). Under the 'contrary to law' standard, the reviewing court "set[s] aside the magistrate order only if it applied an incorrect standard," Dias v. City & Cty. of Denver, No. 07-cv-00722-WDM-MJW, 2007 WL 4373229, *2 (D. Colo. Dec. 7, 2007) (internal quotations omitted), or applied the appropriate legal standard incorrectly, Kissing Camels Surgery Ctr., LLC v. Centura Health Corp., No. 12-cv-3012-WJM-BNB, 2014 WL 5599127, *1 (D. Colo. Nov. 4, 2014).
As to factual findings by the magistrate judge, the 'clearly erroneous' standard "requires that the reviewing court affirm unless it 'on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Ocelot Oil Corp. v.Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). This is a deferential standard. In re Motor Fuel Temperature Sales Practice Litigation, 707 F. Supp. 2d at 1147.
Federal Rule of Civil Procedure 26(b)(1) requires production of "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." (Emphasis added.) The Alliance's documents satisfy the broad relevancy standard of Rule 26. The question for the Court is whether Plaintiffs' discovery request for the Alliance's unredacted documents covers privileged information. Privileges "further the administration of justice and should not be set aside lightly." Plaza Ins. Co. v. Lester, No. 14-cv-01162-LTB-CBS, 2015 WL 3528336, *4 (D. Colo. June 4, 2015) (internal quotation omitted). However, federal courts "narrowly construe all privileges."6 Everitt v. Brezzel, 750 F. Supp. 1063, 1066 (D. Colo. 1990). "Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth."...
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