Opinion
Civil Action No. 98-2458-RDR
April 21, 2000
Pantaleon Florez, Jr., Florez Frost, P.A., Topeka, KS, for JACQUELINE McCOO, plaintiff.
Karen J. Halbrook, John R. Cleary and Karen M. Gleason, Shughart, Thomson Kilroy, P.C., Kansas City, MO, for DENNY'S INC., defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Motion for In-Camera Review (doc. 49), which asks the Court to review the investigative Kansas Human Rights Commission (KHRC) files relating to Plaintiffs' KHRC charges and to order the release of documents from those files.
Defendant Denny's Inc. (Denny's) objects to Plaintiffs' Motion on two grounds. First, Denny's asserts that K.S.A. 44-1005(e) prohibits the KHRC from disclosing these files. Second, Denny's claims that the KHRC files contain work product of Denny's that is not discoverable. The Court disagrees for the foregoing reasons.
I. K.S.A. 44-1005(e) Does Not Prohibit Disclosure of the Entire KHRC File.
Denny's asserts that none of the documents contained in the KHRC files should be released because K.S.A. 44-1005(e) prohibits the KHRC from disclosing "what has transpired in the course of their endeavors." Denny's, however, misquotes the non-disclosure provision contained in K.S.A. 44-1005(e) and takes it out of context from the rest of the statute. The non-disclosure provision actually states that the KHRC "shall not disclose what has transpired in the course of such endeavors." K.S.A. 44-1005(e) (Supp. 1999) (emphasis added). Subsection (e) deals solely with conciliation, and when the non-disclosure provision is read in context with the rest of subsection (e), it is clear that the term "such endeavors" means the KHRC's endeavors to conciliate and not its endeavors to investigate.
The Court's conclusion is supported by the Kansas Bar Association's Employment Law Handbook, § 6.22 at 6-17 (1991) ("Conciliation efforts are confidential, and not to be disclosed") (citing K.S.A. 44-1005(e)). The Court's conclusion is also supported by K.A.R. 21-24-6, which states that the KHRC "shall not disclose what has transpired in the course of its endeavors at conciliation and persuasion, per K.S.A. 44-1005(e) ." (Emphasis added.)
Subsection (e) states:
If such commissioner after such investigation, shall determine that probable cause exists for crediting the allegations for the complaint, the commissioner or such other commissioner as the commission may designate, shall immediately endeavor to eliminate the unlawful employment practice or the unlawful discriminatory practice complained of by conference and conciliation . The complainant, respondent and commission shall have 45 days from the date respondent is notified in writing of a finding of probable cause to enter into a conciliation agreement signed by all parties in interest. The parties may amend a conciliation agreement at any time prior to the date of entering into such agreement. Upon agreement by the parties the time for entering into such agreement may be extended. The members of the commission and its staff shall not disclose what has transpired in the course of such endeavors .
K.S.A. 44-1005(e) (emphasis added).
In light of the above, the Court rejects Denny's argument that none of the documents contained in the KHRC files may be released due to the non-disclosure provision. The Court does find, however, that the non-disclosure provision prohibits the release of any conciliatory materials. Plaintiffs acknowledge in their reply that they are not seeking the release of any conciliatory materials.
II. Denny's Waived Any Protection That the Claimed Work Product Enjoyed by Providing the Documents to the KHRC.
Contained in the KHRC files are three documents that Denny's contends are work product and therefore not subject to being released to Plaintiffs. The documents at issue are three letters from either Denny's "corporate personnel" or Denny's in-house counsel to the KHRC in response to Plaintiffs' KHRC charges. The Court will assume arguendo that these letters were prepared by or for Denny's and in anticipation of litigation, and are therefore protected work product. See Martin v. Monfort, Inc., 150 F.R.D. 172, 173 (D.Colo. 1993) (investigation by governmental agency provides reasonable grounds for anticipating litigation sufficient to trigger application of work product doctrine). The Court finds, however, that any work product immunity that these letters enjoyed was waived when they were provided to the KHRC.
Numerous courts have held that the voluntary disclosure of work product to a governmental agency who is investigating the entity claiming the work product immunity results in waiver of the immunity. See, e.g., In re Steinhardt Partners, L.P., 9 F.3d 230, 235-36 (2d Cir. 1993) (trader's submission of legal memorandum to Securities and Exchange Commission (SEC) waived work product immunity); Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428-30 (3d Cir. 1991) (disclosures to SEC and Department of Justice during investigations waived protections of both attorney-client privilege and attorney work-product doctrine); Cooper Hospital/University Medical Center v. Sullivan, 183 F.R.D. 119, 128-29 (D.N.J. 1998) (hospital's disclosure of audit report to state attorney general and United States Attorney during investigation of Medicaid fraud and violations of federal securities laws waived work product protection); Schultz v. Talley, 152 F.R.D. 181, 185 (W.D.Mo. 1993) (disclosure to state attorney general investigating college waived work product immunity). Once the work product immunity is waived as to the governmental agency, it is waived as to all adversaries. Steinhardt Partners, 9 F.3d at 235; Westinghouse, 951 F.2d at 1429.
Most cases apply a different rule where the investigating agency coerces the production of the documents or subpoenas or otherwise obtains them through compulsory legal process. See In re Steinhardt Partners, L. P., 9 F.3d 230, 324 (2d Cir. 1993); In re Subpoenas Duces Tecum, 738 F.2d 1367, 1373 (D.C. Cir. 1984).
These cases reason that the purpose of the work product doctrine is to promote the adversary system. Westinghouse, 951 F.2d at 1428; Cooper Hospital, 183 F.R.D. at 128-29. The work product doctrine does this by ensuring that an adversary cannot obtain materials that its opponent has prepared in anticipation of litigation. Westinghouse, 951 F.2d at 1428 . Disclosure of the protected document results in waiver of the immunity when the disclosure is inconsistent with the purpose of the rule. Id. Disclosure to an adversary is clearly inconsistent with the rule's goal of promoting the adversarial system. Steinhardt Partners, 9 F.3d at 235; Schultz, 152 F.R.D. at 125. Governmental agencies that are conducting investigations and the targets of those investigations are deemed to be adversaries for purposes of determining whether the work product doctrine applies. Westinghouse, 951 F.2d at 1428; In re Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984) ("no question" that target of SEC investigation was SEC's adversary for purpose of determining work product waiver issues); Schultz, 152 F.R.D at 1427.
Applying these rules to this case, the Court finds as follows. First, as a governmental agency investigating complaints of discrimination against Denny's, the KHRC was an adversary of Denny's. Second, Denny's voluntarily provided the letters to the KHRC. There is no evidence that the letters were provided to the KHRC as a result of coercion or in response to a subpoena or other compulsory process. Third, Denny's disclosure of the documents to the KHRC was inconsistent with the purpose behind the work product rule. These findings lead the Court to conclude that Denny's waived any work product protection that these documents may have enjoyed when Denny's sent them to the KHRC. Because Denny's waived the work product immunity as to the KHRC, Denny's waived it as to all adversaries, including Plaintiffs.
In light of the above, the Court must reject Denny's argument that the Court cannot order the release of these three documents because they are protected work product.
III. ORDER FOR INSPECTION AND REPRODUCTION
Neither of the arguments raised by Denny's persuades the Court that the KHRC files should not be released to Plaintiffs. The Court finds that the requested documents are relevant and discoverable, subject to the Court's review of any objections that may be filed by the KHRC and subject to the Court's in camera review of any documents that the KHRC contends should not be disclosed. The Court will therefore grant Plaintiffs' Motion and order the KHRC to produce the KHRC files for inspection and copying by the attorneys of record herein; provided, however, that the KHRC may, upon review of these files (1) withhold from production any documents that are deliberative or conciliatory in nature or that are work product of a KHRC attorney; and (2) file objections to producing any other documents that the KHRC contends it has a legal basis not to produce, in addition to providing to the Court copies of such documents for the Court's in camera review. Any objections of the KHRC shall be filed with the Court and served on the parties herein within twenty (20) days of the date of this Order.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs' Motion for In-Camera Review (doc. 49) is granted. IT IS FURTHER ORDERED that the KHRC shall produce for inspection by the attorneys of record for Plaintiffs and Defendants, all records pertaining to KHRC Case No. PA873-98, filed by Nathalie N. Kerr on or about July 15, 1997, and KHRC Case No. PA865-97, filed by Jacqueline Lee on or about April 10, 1997, subject to the qualifications set forth in the preceding paragraph. The KHRC shall allow copies of the same to be made at the expense of the party requesting such reproduction.
IT IS SO ORDERED.