Labbe v. Dometic Corp.

• Docket Number: 2:20-CV-1975-DAD-DMC
• Decision Date: 01 September 2023
• Parties: LANE LABBE, et al., Plaintiffs, v. DOMETIC CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of California

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LANE LABBE, et al., Plaintiffs, v. DOMETIC CORPORATION, Defendant.

No. 2:20-CV-1975-DAD-DMC

United States District Court, E.D. California

September 1, 2023

ORDER

DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE.

Plaintiffs who are proceeding with retained counsel, bring this civil action alleging products liability. The matter was removed from Plumas County Superior Court under this Courts diversity jurisdiction. See ECF No. 1.

The case has been referred to the undersigned by the District Judge for further evaluation of specific objections relating to privileges raised in a prior discovery motion and on reconsideration. See ECF No. 91. Specifically, the undersigned has been directed to address the merits of Defendant's assertions of the attorney-client and work product privileges. See id.

For the reasons discussed below, and upon referral for further consideration on the merits of Defendant's objections the Court finds that Defendant's objections should be sustained. Because the discovery at issue (Dr. Buc's testing materials) was fact-finding by counsel communicated as part of legal advice, and because it was made in anticipation of litigation, it is protected by the attorney-client privilege and work product doctrines.

I. BACKGROUND

A. Plaintiffs' Claims

This action proceeds on Plaintiffs' first amended complaint. See ECF No. 40. Plaintiffs' factual allegations have been summarized in prior orders and will not be repeated here. Plaintiffs assert the following theories of liability:

Count I Strict Products Liability Based on Design Defect.

Count II Strict Products Liability Based on Failure to Warn.

Count III Negligence Based on Design Defect.

Count IV Negligence Based on Failure to Warn.

Count V Negligence Per Se.

Count VI Negligence Based on Failure to Conduct Adequate Recall.

Count VII Fraud by Concealment.

See id. at ¶¶ 66-106.

B. Procedural History

Following a hearing before the undersigned on July 20, 2022, on Plaintiffs' motion to compel, the matter was submitted. On July 29, 2022, the Court issued an order granting Plaintiffs' motion in part, denying the motion in part, and deferring ruling in part subject to supplemental briefing by the parties. See ECF No. 55. Specifically, the Court ordered follows:

a. Defendant's Objection No. 9 is overruled.

b. Defendant's general objection to definitions is overruled without prejudice to such objections being raised in the context of specific discovery requests.

c. Defendant's general objection to discovery requests seeking the identities of witnesses, particularly corporate directors, officers, and shareholders is sustained subject to Plaintiffs propounding more tailored requests and further meet-and-confer efforts.

d. Defendant's general objection to discovery requests seeking information regarding similar incidents is sustained subject to further meet-and-confer efforts discussing more narrowly tailored requests as to time and description.

e. Defendant's general objection regarding proportionality is overruled subject to further good faith meet-and-confer efforts relating to more narrowly tailored discovery requests. f. The Court defers ruling on Defendant's obj ections concerning Dr. Buc's testing materials subject to supplemental briefing.

g. Plaintiffs' general objection regarding possession, custody, and control is overruled.

h. Plaintiffs' general objection regarding possession, custody, and control is overruled. Plaintiffs' general objection to reference to documents to respond to interrogatories is overruled subject to the parties' obligation to strictly comply with Federal Rule of Civil Procedure 33(d)(1) when referencing documents to answer an interrogatory.

i. Defendant's general objection to the use of the word “all” in Plaintiff s various requests for production is overruled subject to further meet-and-confer efforts and additional tailoring of Plaintiff s discovery requests.

j. Defendant's objection to the number of interrogatories already served is overruled as waived. Plaintiffs may not, however, propound any new interrogatories absent stipulation or leave of Court.

k. Plaintiffs' motion to compel is granted as to Dometic's Rule 30(b)(6) witness.

l. The Court defers ruling on Defendant's objections concerning National Highway Traffic Association (NHTSA) drafts subject to supplemental briefing on the related issue of Dr. Buc's testing materials, which were provided to the NHTSA.

See id. at 20-21.

The July 29, 2022, order directed the parties to meet and confer on or before August 19, 2022, regarding the specific discovery at issue in light of the Court's general rulings, outlined above. See id. at 21. As to items (f) and (1), the Court directed the parties to submit supplemental briefing. See id. Consistent with the briefing schedule established in the July 29, 2022, order, Plaintiffs filed their supplemental brief on August 3, 2022, see ECF No. 56, Defendant filed its supplemental brief on August 18, 2022, see ECF No. 65, and Plaintiffs filed a reply brief on August 24, 2022, see ECF No. 68.

On August 12, 2022, Defendant filed a motion for clarification and/or reconsideration of portions of the Court's July 29, 2022, order. See ECF No. 62. On August 17, 2022, Defendant filed a memorandum in support of its motion for reconsideration. See ECF No. 65. On August 26, 2022, Plaintiffs filed their opposition to Defendant's motion for reconsideration. See ECF No. 71. On September 15, 2022, the Court issued an order vacating the hearing set for September 21, 2022, on Defendant's motion for clarification and/or reconsideration and that matter was submitted for decision with Plaintiffs' related motion to compel and in light of supplemental briefing relating to items (f) and (1) outlined in the July 29, 2022, order. See ECF No. 72.

On March 31, 2023, the undersigned issued an order addressing the pending motions. See ECF No. 82. The undersigned also ordered certain documents relating to the pending discovery motions to be filed under seal. See ECF No. 83. Relevant here, the undersigned ordered that Defendant's objections based on the attorney-client and work product privileges had been waived by failure to submit a privilege log. See ECF No. 82. The undersigned set a deadline for Defendant to produce discovery responses. See id.

Thereafter, Defendant sought reconsideration of the undersigned's March 31, 2023, order by the District Judge. See ECF No. 84. On June 14, following briefing and submission without oral argument, the District Judge issued an order resolving Defendant's motion for reconsideration. See ECF No. 91. The District Judge vacated the deadline set for Defendant to produce discovery responses pursuant to the March 31, 2023, order, and referred the matter back to the undersigned for further consideration of the merits of Defendant's privileges objections. See id.

II. DISCUSSION

At issue is the applicability of the attorney-client and work product privileges to the Buc testing materials and NHTSA drafts as requested in Plaintiffs' Request for Production Nos. 23 and 62. The District Judge has directed the undersigned to consider the merits of Defendant's objections to Request for Production Nos. 23 and 62 based on these privileges, which the Court does below.

The attorney-client privilege protects confidential communications between attorneys and clients that are made for the purpose of giving legal advice. See United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). “The attorney-client privilege may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). The privilege also extends to communications with third parties acting as the agent of the client. See United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978). Underlying facts in a communication are not covered by the attorney-client privilege. See Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). “The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.” Id. (quoting Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (E.D. Pa. 1962).

The work product doctrine protects documents when it can be fairly said that the documents were created because of anticipated litigation, and it would not have been created in substantially similar form but for the prospect of litigation. See In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021). The primary concern is to “preserve a zone of privacy in which a layer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.” Id. at 1093 (quoting United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998)). The work product doctrine shields mental impressions, conclusions, opinions, and legal theories. See Am. C.L. Union of N. California v. United States Dep't of Just., 880 F.3d 473, 483 (9th Cir. 2018) (citing Fed.R.Civ.P. 26(b)(3)). Ultimately, the purpose of the privilege is “to encourage effective legal representation within the framework of the adversary system by removing counsel's fears that his thoughts and information will be invaded by his adversary.” Id. at 486 (quoting Jordan v. U.S. Dep't of Just., 591 F.2d 753, 775 (D.C. Cir. 1978)).

A. Buc Testing Materials - Request for Production No. 62

Elizabeth Buc was hired by Dometic's counsel in 2005 to conduct tests on Dometic-branded gas absorption refrigerators. See ECF No. 49, pg. 37. The testing focused on whether Dometic gas absorption...