Neither The Attorney-Client Privilege Nor Work-Product Doctrine Prohibits The Disclosure of Factual Information About A Party’s Discovery Efforts

24 Dec 2021

In GINA VASOLI v. YARDS BREWING COMPANY, and TREVOR PRICHETT, Civil Action No. 21-2066 (E.D.P.A. Nov. 1, 2021), at issue was whether Defendants withheld ESI that would have been pertinent to Plaintiff’s employment discrimination and retaliation case.

During discovery, Defendant Yards Brewing Company, LLC (“Yards”), and its Chief Executive Officer, Defendant Trevor Pritchett, chose (without Plaintiff’s input), 27 search terms and a limited time period to electronically search for documents responsive to Plaintiff’s requests.

During the fact deposition of Chris Hancq, Plaintiff’s supervisor, Hancq testified that he forwarded an email on Sept. 3, 2019, to Pritchett in which Plaintiff complained about the “reduction in her workload during her pregnancy.” Three versions of Plaintiff’s email to Hancq were produced by Defendants, however, the version forwarded to Pritchett was not. Plaintiff claimed this email was an integral part to her retaliation claim because she was fired by Pritchett two days after it was sent to Hancq, and that the unproduced version established that Pritchett knew of Plaintiff’s complaints before her termination.

Following Hancq’s deposition, Defendants produced the email forwarded to Pritchett, however, Plaintiff expressed to Defendants “serious concerns” about what else was not produced. Defendants did not reply until Plaintiff sent a letter to the Court during which Defendants explained that the search terms they had chosen would not have hit on any version of Plaintiff’s Sept. 3 email.

During a telephonic discovery dispute conference, the Court determined that there were flaws with how Defendants were searching for documents and contemplated as a sanction that Plaintiff be permitted to take a FRCP 30(b)(6) deposition on how Defendants’ discovery search had been conducted.  Defendants protested that their discovery process was protected and privileged.

Defendants’ argument was squarely rejected by the Court.  In the Third Circuit, the attorney-client privilege is “limited to confidential communications between a lawyer and his or her client to secure a legal opinion, legal services or assistance in a legal proceeding.” See Rhone-Poulenc Rorer Inc v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994).

While a party’s discovery efforts likely involve communications with counsel, a factual description of what a party did to meet its discovery obligations under Rule 26 does not necessarily require the disclosure of confidential client communications. The practical steps taken by an attorney or her client to identify responsive documents does not necessarily infringe on the thought processes of counsel.

Moreover, a holding to the contrary would go against the spirit and purpose of the discovery rules.  Rule 26 of the Federal Rules of Civil Procedure demands cooperation between counsel to identify and fulfill legitimate discovery needs. At each stage of discovery, counsels are expected to be transparent and communicate with one another.  These expectations are even more true for electronic discovery where, as outlined in Rule 26(f)(3), parties are required to develop a discovery plan and specifically directs them to discuss “any issues about disclosure, discovery, or preservation of electronically stored information [i.e., ESI]….” Fed. R. Civ. P. 26(f)(3)(C).

The Court’s sanction of a 30(b)(6) deposition into Defendants’ discovery methods was accordingly imposed.