Harding v. Dana Transport, Inc.

• Decision Date: 25 January 1996
• Docket Number: Civ. A. No. 94-4261(JEI).
• Citation: 914 F. Supp. 1084
• Parties: Carol Sue HARDING, Wallace E. Harding and Cheryl A. Scull, Plaintiffs, v. DANA TRANSPORT, INC. and Robert Partridge, Defendants.
• Court: U.S. District Court — District of New Jersey

914 F. Supp. 1084

Carol Sue HARDING, Wallace E. Harding and Cheryl A. Scull, Plaintiffs, v. DANA TRANSPORT, INC. and Robert Partridge, Defendants.

Civ. A. No. 94-4261(JEI).

United States District Court, D. New Jersey.

January 25, 1996.

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Stephen G. Console, Diane L. Newman, Law Offices of Stephen G. Console, Haddon Heights, New Jersey, for Plaintiffs, Carol Sue Harding, Wallace E. Harding and Cheryl A. Scull.

Steven M. Berlin, Giordano, Halleran & Ciesla, P.C., Middletown, New Jersey, for Defendant, Dana Transport, Inc.

Lawrence P. Engrissei, Law Offices of Thomas Dempster, III, Mt. Laurel, New Jersey, for Defendant, Robert Partridge.

OPINION

ROSEN, United States Magistrate Judge:

Presently before the court is the motion of Steven M. Berlin, Esquire, counsel for Defendant Dana Transport, Inc. (hereinafter "Dana"), for a protective order preventing or in the alternative limiting the deposition of William J. Bowe pursuant to Rule 26(c), Fed. R.Civ.P.¹ After careful consideration of the parties' submissions, and after further consideration of the oral argument conducted on November 3, 1995, and for the reasons noted below, the defendant's motion shall be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs Carol Sue Harding and Cheryl A. Scull brought this sexual discrimination action against Dana, their employer, and one of its supervisors, Robert Partridge, for acts and omissions alleged to have taken place beginning in January 1993 and continuing until both plaintiffs terminated their employment.² Dana hired Ms. Harding in June 1991 as a secretary/bookkeeper at Dana's Paulsboro, New Jersey, facility. (Complaint, ¶ 21). Dana hired Ms. Scull in November 1992 as a billing bookkeeper at the same facility. (Complaint, ¶ 25). Robert Partridge joined Dana as General Manager of the Paulsboro facility in September or October of 1992. (Complaint, ¶ 22). On August 31, 1994, plaintiffs filed suit alleging violations under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (hereinafter "Title VII"), the New Jersey Law Against Discrimination N.J.S.A. § 10:5-1, et seq. (hereinafter "NJLAD"). In addition, plaintiffs Carol Sue and Wallace Harding alleged separate causes of action for defamation. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1367.

Prior to commencing suit in federal court, in September 1993 Ms. Harding filed a complaint with the New Jersey Division on Civil Rights (hereinafter "NJDCR"), the agency charged with enforcement of the NJLAD. See N.J.S.A. 10:5-6, 5-30. In December 1993, Ms. Scull filed a similar complaint against Dana. The complaints alleged that both Ms. Harding and Ms. Scull were subjected to sexual intimidation, harassment and discrimination by Mr. Partridge, conduct which Dana failed to prevent, address or take corrective measures. (See NJDCR Complaints of Carol S. Harding and Cheryl A. Schull attached as Ex. A and Ex. B to the Supplemental Affidavit of William J. Bowe) (hereinafter "Bowe Supp.Aff."). In February and June 1994 respectively, the NJDCR held fact-finding conferences to determine the propriety of Ms. Harding's and Ms. Scull's claims. The plaintiffs maintain, and Dana does not contest, that Dana "defended its position during the NJDCR inquiry in part on the grounds that it had conducted an appropriate investigation of the plaintiffs' allegations." (Plaintiff's Brief at 2-3 (hereinafter "Pls.' Br."); see also, Dana Transport, Inc. Position Statement attached as Ex. 1 to Pls.' Br. at 5; Dana's Responses to Plaintiffs' Interrogatories attached as Ex. 2 to Pls.' Br.).

The issue presently before the court concerns the propriety of a deposition of William J. Bowe, Dana's attorney during the initial stages of the dispute. Mr. Bowe is a shareholder in the law firm of Giordano, Halleran & Ciesla, P.C. (hereinafter "GH & C"). Dana retained GH & C in November of 1993 in response to Ms. Harding's NJDCR discrimination complaint. (Affidavit of William J. Bowe, ¶ 3) (hereinafter "Bowe Aff."). Mr. Bowe was in charge of handling Dana's defense in the administrative action before the NJDCR.³

The plaintiffs seek to inquire into an investigation conducted by Mr. Bowe at the behest of his client, Dana. (Defendant Dana Transport, Inc.'s Brief at 5) (hereinafter "Dana's Br."). According to Dana, the investigation was conducted "in preparation of an anticipated Fact Finding Conference to be held by the NJDCR and in anticipation of further litigation." (Id.). The investigation consisted of conferences with Dana's President, Ron Dana; Controller, Robert H. Moogan; Paulsboro Transport Manager, Timothy Schultz; and Paulsboro Shop Manager, Robert Partridge. (Bowe Aff. ¶ 5). Dana asserts that "the purpose of the investigation was to determine the factual bases, if any, of Harding's complaint with the Division and to assess the strengths, if any, and weaknesses of Harding's charges and to recommend, if appropriate, remedial measures and a legal defense strategy/settlement posture based upon his findings." (Dana's Br. at 5; Bowe Aff. ¶ 6).

Dana utilized the results of Mr. Bowe's investigation in three ways. First, Dana prepared a position statement for submission to the NJDCR at the fact finding conference. (Pls.' Br.Ex. 1). Second, Dana's counsel postulated a defense strategy with regard to Ms. Harding's and Ms. Scull's administrative complaints, which strategy Dana intended to use in any future litigation. (Dana's Br. at 6). Third, Dana formulated a written sexual harassment policy. (Id.). Significantly, part of Dana's defense strategy included reliance upon the reasonableness of Dana's actions in response to the plaintiffs' charges. In its position statement to the NJDCR, Dana asserts that it has "fully investigated the complaints raised in the Verified Complaint and has found that there is no supporting evidence that the same occurred." (Dana Transport, Inc. Position Statement attached as Ex. 1 to Pls.' Br. at 5). Moreover, with respect to the present suit, Dana has represented to this court that it intends to defend liability based in part upon Mr. Bowe's investigation. (See Letter of Steven M. Berlin, Esq., dated October 26, 1995 at 5) (hereinafter "Berlin 10/26 Letter").

Based upon Dana's reliance on the Bowe investigation, counsel for the plaintiffs inquired into the substance of Mr. Bowe's investigation during the deposition of Mr. Moogan. (Berlin Aff. ¶ 5-6). Although Mr. Berlin allowed superficial inquiry into the fact that an investigation was conducted, he objected to any inquiry into the substance of that investigation on the grounds of the attorney/client privilege. (Berlin Aff. ¶ 6; see also Moogan Deposition Tr. attached as Ex. A to Berlin Aff. at 20-21).

As a result of Mr. Berlin's objection during the Moogan deposition, on August 17, 1995, plaintiffs' counsel noticed Mr. Bowe for deposition. To the notice plaintiffs attached a request for production of the following documents:

1. Any and all documents, letters, memos, handwritten notes and/or tapes that refer to, relate to or evidence any investigation, questioning of witnesses or conversations pertaining to allegations of sexual harassment or misconduct of Dana Transport, Inc., and Robert Partridge;

2. Any and all time sheets and billing records that refer to, relate to or evidence actual time spent by deponent in investigating the issues referred to above; and

3. Any and all correspondence between Dana Transport, Inc., and deponent pertaining to the investigation to be conducted, or previously conducted, by deponent (excluding, by appropriate redaction, if necessary, any and all communications between Dana and deponent that pertain to legal opinions and legal advice being sought or provided by deponent).

(See Deposition Notice and Document Request attached as Ex. 5 to Pls.' Br.). Mr. Berlin timely objected to both the deposition and the document request. This motion followed.

II. DISCUSSION

The defendants advance four arguments in support of preventing or limiting a deposition of attorney William J. Bowe. They base their first argument on rules of privilege, evoking both work product doctrine and the attorney/client privilege. Second, they argue for non-disclosure by analogizing Mr. Bowe's investigation materials, thoughts and impressions to "self-critical analysis" which courts have protected as privileged. The defendants base their third argument on the public policy underlying the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. Finally, the defendants argue that, even if this court does not find privilege, the plaintiffs' discovery request is unduly burdensome and oppressive.

As no court has been asked to assess the discoverability of investigative materials obtained by counsel in sexual discrimination cases founded on allegations of hostile work environment, this court is faced with a case of first impression.

A. PRIVILEGE DOCTRINES

The defendants argue that the request for materials and access to Mr. Bowe should be proscribed because the substance of communication by and with him is protected from discovery by the attorney/client privilege and work product protection doctrines. The plaintiffs offer two arguments in opposition to Dana's position. First, the plaintiffs argue that Mr. Bowe was not acting as an attorney when he conducted interviews of Mr. Partridge and other Dana employees in connection with Dana's investigation into Harding and Scull's allegations. Nor was Mr. Bowe acting as an attorney when he prepared any documentation as a result of those interviews. Second, the plaintiffs contend that Dana, by asserting the investigation as part of its defense, has waived any privilege. (Pls.' Br. at 7). In contravention to discovery, Dana argues that the court should consider the "chilling effect" a ruling permitting discovery would have on attorney/client communications, and...