Opinion
Civil No. 01-817-FR
January 2, 2002
Dana L. Sullivan, Hoevet, Snyder Boise, P.C., Portland, Oregon, Attorneys for Plaintiff.
James P. Martin, Kari A. Furnanz, Hoffman, Hart Wagner, LLP, Portland, Oregon, Attorneys for Defendants.
OPINION AND ORDER
The matter before the court is the plaintiff's motion to compel (#12).
BACKGROUND
The plaintiff, Barbara Huson, is employed as the Human Resources Manager for the City of Forest Grove. Plaintiff Huson brings this action against the defendants, the City of Forest Grove (the City) and Vergie Ries, the City Manager, for sex discrimination. Huson alleges claims for violations of 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991; and state law.
Barbara Huson alleges that the City has engaged in a pattern of discrimination against female management employees, including herself, which has included awarding female management employees lower merit increases than male management employees whose performance was rated at the same or a lower level. Specifically, plaintiff Huson alleges that nine members of the senior management team, including herself, were eligible for merit increases.
Huson alleges that defendant Ries, the City Manager, awarded each of the seven male managers salary increases between 4% and 12.5%, while awarding plaintiff Huson and the one other female member of the senior management team salary increases of 1.3%. Plaintiff Huson alleges that all but one of these male managers awarded a higher merit increase than Huson had been employed by the City as a manager for a shorter period of time, and several of the male managers received performance ratings that were similar to or lower than the rating she received.
The defendants have refused to produce eight categories of information requested by plaintiff Huson.
APPLICABLE LAW
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides, in part: "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." There is a general presumption that pretrial discovery is "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507 (1947). In employment discrimination cases "liberal civil discovery rules give plaintiffs broad access to employers' records in an effort to document their claims." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989).
ANALYSIS
Request for Production No. 2 — Written Minutes or Audio Tapes of City Council Plaintiff Huson requests written minutes or audio tapes of City Council meetings, including executive sessions, in which there was discussion of 1) management salaries and classifications; 2) plaintiff Huson; 3) defendant Ries's work performance; 4) complaints or disciplinary actions against defendant Ries; or 5) sex discrimination.
The defendants contend that this request should be denied for two reasons: 1) those documents which do not pertain to plaintiff Huson are not relevant to this case and are therefore not subject to disclosure under ORS 192.650(2), the Public Meetings Law; and 2) those materials involving discussions about plaintiff Huson are subject to the attorney-client and/or work product privileges.
Neither the Public Meeting Law nor the attorney-client privilege protect the defendants from disclosure of executive sessions, unless the sessions were held "[t]o consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed." ORS 192.660(1)(h). The defendants must make a showing sufficient to justify withholding the information requested.
It is not sufficient to state in a memorandum that "the City Attorney was present" or to assert in a memorandum that "[s]ome of the executive sessions referenced in plaintiff's requests meet these requirements." Defendants' Response to Plaintiff's Motion to Compel, p. 2. The plaintiff's motion to compel responses to Request No. 2 is granted as follows: the defendants must review the information responsive to Request No. 2 and provide to counsel for the plaintiff any responsive information or make a specific showing which identifies any responsive information not provided and explains how the information withheld fits within the attorney-client privilege within twenty days of the date of this opinion and order.
Request for Production No. 9 — Performance Appraisals
The requested information is directly relevant to the allegations in the complaint. The request is narrowly tailored, and the confidentiality concerns can be addressed with an appropriate protective order.
The plaintiff's motion to compel responses to Request No. 9 is granted. The parties shall prepare an appropriate protective order for signature by the court.
Request for Production No. 11 — Defendant Ries' Personnel File
Plaintiff Huson requests the following information from defendant Ries' personnel file: 1) any documents regarding defendant Ries' work performance, including performance appraisals; 2) information regarding defendant Ries' compensation; and 3) any complaints of sex discrimination. The defendants represent that there are no complaints of sex discrimination against defendant Ries. The defendants shall produce any documents regarding defendant Ries' work performance, including performance appraisals, and information regarding defendant Ries' compensation subject to an appropriate protective order limiting disclosure solely for the purpose of this case.
Request for Production No. 12 — Management Team Documents
Plaintiff Huson moves to compel production of documents in the possession of members of the City's management team or in the possession of the consultants retained by the defendants which reflect communications regarding 1) the terms of plaintiff Huson's employment, including but not limited to her compensation; 2) plaintiff Huson's work performance; 3) plaintiff Huson's allegations of gender discrimination; or 4) plaintiff Huson's legal action against the City.
The defendants object to these management team documents being disclosed "[d]ue to the fact that Ms. Huson is the Human Resources Manager, many such documents necessarily pertain to the individual personnel matters of these employees [management team members]." Defendants' Response to Plaintiff's Motion to Compel, p. 5.
The court finds plaintiff Huson's request to be narrowly tailored and reasonably calculated to lead to admissible evidence. The plaintiff's motion to compel responses to Request No. 12 is granted as limited in the plaintiff's motion to compel.
Documents Supporting Assertions in BOLI Response Letter
Plaintiff Huson requests documents and other information regarding the following assertions made by Christine Meadows, attorney for the City, in her January 26, 2001 letter to Oregon Bureau of Labor and Industries (BOLI) investigator Joseph Tam: 1) the City had concerns "regarding Ms. Huson's ability to fulfill the full range of her position's duties" (Document Request No. 19; Interrogatories No. 1 and No. 2); 2) plaintiff Huson "has been resistant to change" (Document Request No. 20; Interrogatories No. 3 and No. 4); and 3) plaintiff Huson has "publicly expressed a lack of support of new City policy" (Document Request No. 21; Interrogatories No. 5 and No. 6). Plaintiff Huson contends that these requests are not "broad general interrogatories" prohibited by Local Rule 33.1(d), and that the defendants have failed to make any showing that the requested information is subject to the attorney-client privilege. Plaintiff's Memorandum in Support of Motion to Compel, p. 8.
The defendants contend that these interrogatories and document requests, as worded, infringe upon the attorney-client and work product privileges in that they require the defendants to identify what information was communicated to Christine Meadows by specific individuals.
The defendants contend that plaintiff Huson will not be prejudiced if these requests are not allowed because her attorney may ask questions of City witnesses in their depositions to determine whether they agree with the statements made by Christine Meadows in her letter of January 26, 2001.
Plaintiff Huson correctly asserts that the burden of establishing that the attorney-client privilege applies to documents in question rests with the party asserting the privilege. See Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992). However, in this case, plaintiff Huson is asking counsel for the defendants, by way of a request for production, to identify documents which support statements made by counsel for the defendants, and asking counsel for the defendants, by way of interrogatories, to elaborate on the statements made by counsel for the defendants in the January 26, 2001 letter. This is more akin to taking the deposition of the attorney for the defendants. The court will not grant this motion to compel at this stage in the proceedings.
The plaintiff's motion to compel Document Requests No. 19, 20 and 21; Answers to Interrogatories No. 1, 2, 3, 4, 5 and 6 is denied.
Document Request No. 27 — Communications Regarding Defendant Ries
Plaintiff Huson requests documents reflecting the communications that former City Councilor Dave Freschette and City Councilor Rod Fuiten had with management employees regarding defendant Ries in or about October of 2000. Plaintiff Huson contends that these communications are relevant to her claims as the information may assist her in proving a discriminatory animus or may provide her with a basis for impeachment. Plaintiff Huson contends that any confidentiality concerns can be addressed by an appropriate protective order.
The defendants explain that they have agreed to provide plaintiff Huson with responsive information, to the extent that there are any documents which refer to any complaints of gender discrimination against defendant Ries, and that no such documents exist "with the exception of those relating to privileged discussions concerning Ms. Huson following the filing of her BOLI Complaint." Defendants' Response to Plaintiff's Motion to Compel, p. 6. The defendants contend that plaintiff Huson's request for additional material constitutes a fishing expedition, and that "[p]ursuant to the standards discussed in Section B above [performance appraisals of management employees], plaintiff has not made an adequate showing of the need to review these confidential personnel materials." Id.
Request No. 27 states: "Any and all documents, including, but not limited to, handwritten notes and/or memoranda, that describe or refer to any communications between Rod Fuiten or David Freschette and any employee of the City of Forest Grove in or around October 2000 regarding Ries." This is a request not limited to the subject matter of this litigation. The plaintiff's motion to compel responses to Request No. 27 is denied.
Document Requests No. 25 and 31
Request No. 25 — "Judy Clark's Interview Notes" and Request No. 31 — "Documents that Support Defendants' Affirmative Defenses" were not provided to the court in Exhibit A to the Affidavit of Dana L. Sullivan in Support of Plaintiff's Motion to Compel. The court will not compel the production of these documents at this time.
CONCLUSION
The plaintiff's motion to compel (#12) is GRANTED as to Requests for Production No. 2, 9, 11 and 12 and DENIED as to Document Requests No. 19, 20, 21, 25, 27 and 31 and Answers to Interrogatories No. 1, 2, 3, 4, 5 and 6 as detailed above.
IT IS SO ORDERED.