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Westmoreland v. Wells Fargo Bank Northwest, N.A.

United States District Court, D. Idaho

October 31, 2016



          Honorable Candy W. Dale United States Magistrate Judge.


         Pending before the Court are two motions. First, Plaintiff Deborah Westmoreland filed a Motion for Relief from Protective Order, seeking an order directing Defendant Wells Fargo Bank to re-designate certain personnel documents designated “Attorney's Eyes Only” to “Confidential.” (Dkt. 21.) Second, Wells Fargo Bank filed a Motion to Compel Westmoreland to produce social media postings, communications from a joint email account Westmoreland shares with her husband, and a company issued laptop in Westmoreland's possession. (Dkt. 26.)

         The Court heard oral argument from the parties on October 18, 2016. After review of the record, consideration of the parties' arguments and relevant legal authorities, and otherwise being fully advised, the Court issues the following memorandum decision and order granting Westmoreland's motion, and granting in part and denying in part Wells Fargo Bank's motion.


         On August 10, 2015, Deborah Westmoreland filed a Complaint against Wells Fargo Bank asserting claims for sex discrimination, age discrimination, and retaliation in violation of state and federal law. (Dkt. 1.) Westmoreland alleges her direct supervisor, Don Melendez, discriminatorily harassed and retaliated against her, resulting in her receiving multiple “corrective actions, ” and forcing her to take a constructive demotion outside Idaho to salvage her career. Wells Fargo Bank denies the allegations and contends Westmoreland chose to leave her position in Idaho, and that her various corrective actions were non-discriminatory, non-retaliatory, and justified due to her lack of leadership and inadequate job performance.


         Wells Fargo Bank produced numerous personnel documents in this action, at least 222 of which were designated by Wells Fargo Bank as “Confidential/Attorney's Eye's Only” (AEO), pursuant to a stipulated protective order. (Dkt. 15.) Westmoreland objects to this designation on the 222 personnel documents, and seeks an order directing Wells Fargo Bank to re-designate the AEO documents to “Confidential, ” because the AEO designation hinders Westmoreland's counsel's ability and obligation to adequately and fully advise his client, and to prepare for depositions and other litigation activities. Specifically, Westmoreland's counsel contends re-designation is essential because he needs the assistance of and insight from Westmoreland to: (1) fully understand the documents' information in the context of the culture and practices of Wells Fargo Bank; (2) properly assess damages; and (3) determine what information can be used as potential evidence at trial, or whether there is a need for further discovery.

         Wells Fargo Bank is willing to consider re-designating some of the personnel documents marked as AEO, but only if Westmoreland's counsel first identifies the specific documents or portions of the documents he seeks re-designation, and explains why he needs to reveal the personnel documents to Westmoreland. In support of the AEO designation, Wells Fargo Bank asserts Westmoreland's review of the documents at issue would be unduly invasive, harassing, and unnecessary because Westmoreland is still a Wells Fargo Bank employee. The Bank contends also that Plaintiff's counsel did not meet and confer with Wells Fargo Bank before filing the current motion. However, Wells Fargo Bank did agree to re-designate some, but not all of the documents marked AEO, after e-mail communications were exchanged among counsel.

         The Court finds Plaintiff's counsel fully satisfied the threshold requirement to meet and confer when he e-mailed Wells Fargo's counsel, requesting they re-designate the documents. (Dkt. 22-1 at 2.) Counsel for the Bank indicated she was expecting further discussion with opposing counsel regarding which documents were still at issue and the reason Westmoreland needed to review them before the motion was filed. However, the Court finds further discussion demanded by Wells Fargo Bank, in this context, would likely require Westmoreland's counsel to reveal attorney work product, which is of course, not the purpose of the meet and confer. In addition, the Court finds nothing precluded counsel for Wells Fargo from extending this offer during the nearly three months between the time the motion was filed and before the hearing conducted on the same by the Court.

         Turning to the substance of the motion, the Court finds also that Wells Fargo Bank failed to meet its burden for the AEO designation on the personnel documents produced. The disclosure of confidential information on an “attorneys' eyes only” basis is typically “‘a routine feature of civil litigation involving trade secrets.'” MWI Veterinary Supply Co. v. Wotton, 2012 WL 2872770, at *1 (D. Idaho July 12, 2012) (quoting In re The City of New York, 607 F.3d 923, 936 (2nd Cir.2010)); see also Gillespie v. Charter Commc'ns, 133 F.Supp.3d 1195, 1202 (E.D. Mo. 2015) (“Generally, an ‘attorneys' eyes only' designation is an appropriate only in cases involving trade secrets.”). To protect the confidentiality of such disclosure, the Court has authority pursuant to Fed.R.Civ.P. 26(c) to issue an order that limits its disclosure. Fed.R.Civ.P. 26(c)(1)(G)(“The court may, for good cause, issue an order to protect a party or a person requiring that a trade secret or other confidential research, development, or commercial information not be revealed only in a specified way.”).

         The Court has “broad discretion…to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). However, the Court must be careful in issuing orders which allow for AEO designations, “because at least until trial, the opposing party itself cannot see the most crucial evidence in the case.” MWI Veterinary Supply Co., 2012 WL 2872770, at *2 (internal quotations omitted). Thus, in its determination as to whether an AEO designation is appropriate, “there must be solid grounds for keeping such material from a party, and there must be protections to allow that party to fully prepare for trial despite being unable to see the material.” Id.

         “While courts generally make a finding of good cause before issuing a protective order, a court need not do so where…the parties stipulate to such an order.” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011). In situations like here, where the parties stipulated to a protective order without making a good cause showing, “the burden of proof…remain[s] with the party seeking protection.” Id.(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 n. 1 (9th Cir. 2002). “If a party takes steps to release documents subject to a stipulated order, the party opposing disclosure has the burden of establishing that there is good cause to continue the protection of the discovery material.” Id.

         Here, Wells Fargo Bank is mistaken as to who bears the burden of establishing good cause to maintain the AEO designation to the personnel documents at issue-Wells Fargo Bank carries the burden, not Westmoreland. The Bank has not shown an AEO designation is necessary to protect the confidentiality of the personnel documents at issue, given production as “Confidential” would ensure the necessary protection- Westmoreland cannot publish or otherwise use the personnel documents outside the scope of this litigation. Wells Fargo Bank fails to demonstrate why a “Confidential” designation would be insufficient to protect the personnel documents, other than by alleging that Westmoreland's review of these documents would be unduly invasive, harassing, and unnecessary because she is still employed by Wells Fargo Bank. This argument is neither persuasive nor sufficient to establish good cause to maintain the AEO designation. Therefore, the Court will order Wells Fargo Bank to re-designate the personnel documents at issue as “Confidential.”[1]


         Wells Fargo Bank seeks an order compelling: (1) an additional-third review of Westmoreland's Facebook account by a paralegal; (2) production of any and all e-mails sent by Westmoreland's counsel to an e-mail account shared by Westmoreland and her husband during the period of legal representation to the present; and (3) the return of the company issued laptop in Westmoreland's possession to obtain the contents of the laptop. For the following reasons, the Court will deny the motion to compel the Facebook and emails, and will grant, in part, Wells Fargo Bank's request as it relates to the laptop computer.

         I. ...

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