United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court
before the Court are Defendant's Motion to Claw Back
Certain Work Product Material Produced During Discovery and
For Entry of a Protective Order (Dkt. 25) and accompanying
Motion to Seal (Dkt. 28). The Motions are fully briefed and
at issue. For the reasons stated below, the Court will deny
the Motion to Claw Back but grant the Motion to Seal.
filed this lawsuit in U.S. District Court for the District of
Idaho on June 30, 2016, alleging Best Buy discriminated
against Plaintiffs based on their gender, retaliated against
them, and subjected them to harassment and a hostile work
environment, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”) and the Idaho Human
Rights Act (“IHRA”). Compl., Dkt. 1.
2016, Best Buy hired Attorney Sara E. Van Genderen from the
law firm of Geittmann Larson Swift LLP to investigate
Plaintiffs' allegations in their lawsuit against Best
Buy. See Van Genderen Decl. ¶ 5. On August 8, 9
and 18, 2016, Attorney Van Genderen met or spoke with
numerous employees from Best Buy's Idaho Falls Store #944
regarding the allegations in this lawsuit. Id.
¶¶ 6, 7. Ms. Van Genderen conducted the
investigation in her capacity as an attorney and prepared
witness summaries based on the information provided during
the investigation. Id. ¶ 8. After she completed
the internal investigation, she provided the witness
summaries to Best Buy. Id. ¶ 10; Van Genderen
Decl. Ex. 1. At the time she prepared them and provided
copies to Best Buy, Attorney Van Genderen understood her
witness summaries were covered by the work product doctrine.
Id. ¶ 11.
served Best Buy with a Summons and the Complaint on August
29, 2016. Dkt. 4. On October 20, 2016, the Parties entered
into a Stipulated Discovery Plan, containing the following
language regarding the production of privileged or work
Clawback: Pursuant to Fed.R.Evid. 502(d),
the parties request the Court to enter an Order that
production of a privileged or work-product-protected
document, whether inadvertent or otherwise, is not a waiver
of privilege or work-product protection in this case or in
any other federal or state proceeding.
Dkt. 15 at ¶ VI.a.
October 27, 2016, the Court entered a Case Management Order
stating “All discovery is subject to the Federal Rules
of Civil Procedure, the Local Civil Rules for the District of
Idaho, and the parties' joint discovery plan, which is
incorporated by reference.” Dkt. 16 at ¶ 4. The
case was reassigned from Judge Ronald E. Bush to District
Judge B. Lynn Winmill on November 28, 2016. The undersigned
thereafter entered an Amended Case Management Order
containing the same language. Dkt. 19 at ¶ 4.
October 27, 2016, Best Buy served Plaintiffs with its initial
disclosures and roughly 600 pages of documents. See
Ex. A. Attorney Van Genderen's August 2016 witness
interview summaries were included in Best Buy's initial
disclosures. See Van Genderen Decl. Ex. 1; Ex. A.
around March 2017, Best Buy hired Attorneys Thomas Deer and
Katherine Manuel from the law firm of Ogletree, Deakins,
Nash, Smoak & Stewart, P.C., to work with Best Buy's
current counsel, Moffatt Thomas. On April 6, 2017, Best
Buy's counsel notified Plaintiffs' counsel by
telephone and e-mail that work product material had been
included in Best Buy's initial production and requested
that the material be returned. See Ex. B. Best
Buy's counsel followed up with Plaintiffs' counsel on
April 18, 2017. See Ex. C. On April 20, 2017,
Plaintiffs' counsel refused to return the materials.
See Ex. D. On May 16, 2017, Best Buy's counsel
again contacted Plaintiffs' counsel about the witness
summaries. See Ex. E. Plaintiffs maintained their
objections and refused to return the witness summaries.
1, 2017, Best Buy's counsel circulated a draft protective
order for Plaintiffs' review and consideration.
See Ex. F. On May 26, 2017, Plaintiffs circulated
their proposed revisions. See Ex. H. Best Buy
accepted all revisions, except those made to the Inadvertent
Disclosure section. See Ex. I. Specifically,
Plaintiffs' revision striking the language
“Production of a privileged or work product document,
whether inadvertent or otherwise, is not a waiver of
privilege or work product protection in this case or in any
other federal or state proceeding.” Id. at 6.
Notably, this language mirrors the language in the
Parties' Stipulated Discovery Plan. See Dkt. 15
at ¶ VI.a. Plaintiffs removed this language, claiming a
protective order is not the proper place to address waiver of
the work product privilege. See Ex. J.
an unsuccessful meet and confer, and informal mediation with
the Court, Best Buy filed the present discovery motion. Best
Buy seeks an Order allowing it to claw back the witness
interview summaries and entry of its Proposed Protective
Motion to Claw Back Witness Interview Summaries
determining whether Best Buy is entitled to claw back of the
witness interview summaries, the Court must determine (1)
whether the materials are protected by the work product
doctrine and ...