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Stevens v. Brigham Young University

United States District Court, D. Idaho

April 4, 2019

LORI STEVENS, Plaintiff,
v.
BRIGHAM YOUNG UNIVERSITY-IDAHO d/b/a BYU-Idaho, a Utah Corporation, Defendant, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Intervener.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, U.S. District Court Judge.

         INTRODUCTION

         Three ripe motions are presently before the Court: Brigham Young University of Idaho's (“BYUI”) Brief in Support of the Common Interest Privilege (Dkt. 119); BYUI's Motion for Independent Examination of Plaintiff, for an Award of Monetary Sanctions, and for an Extension of the Deadlines (Dkt. 129); and BYUI's Renewed Motion Regarding Plaintiff's Waiver of the Priest-Penitent Privilege (Dkt. 139). Additionally, the Parties have fully briefed a dispute regarding the applicability of the attorney work product doctrine to a set of notes created by BYUI employee Mckinzie Cole.

         ANALYSIS

         1. The Work Product Doctrine Shields Ms. Cole's Notes from Discovery

         Plaintiff Lori Stevens seeks access to notes taken by Mckinzie Cole during Ms. Cole's interview of Stevens' friend, Danielle Spencer (hereinafter, the “Cole Notes”). Stevens' request is denied.[1]

         A. Background

         (a) Factual Background

         In June of 2016, Stevens, along with her friend Ms. Spencer, reported to members of BYUI's faculty that Stevens had an inappropriate non-academic relationship with BYUI Faculty Member Robert Stokes. After Stevens' relationship with Mr. Stokes came to light, Ms. Cole, an attorney who was employed as the Employee Relations Coordinator in BYUI's Human Resources Department, began gathering facts regarding Stevens' relationship with Mr. Stokes. Then, on August 5, 2016, Stevens' counsel sent BYUI a letter putting BYUI on notice of Stevens' intent to file a lawsuit. Thereafter, on August 15, 2016, Ms. Cole, along with BYUI in-house counsel Stephen Craig and BYUI trial counsel Wade Woodard, interviewed Ms. Spencer. The Cole Notes are the product of that interview.

         (b) Procedural Background

         The dispute between the Parties over the Cole Notes was previously considered by Judge Nye. On June 11, 2018, Judge Nye ordered BYUI to turn over for in camera review documents containing information Ms. Spencer gave to BYUI employees either via conversations or interviews. Dkt. 89 at 39. Mr. Woodard subsequently emailed, among other things, the Cole Notes to Judge Nye's law clerk on June 20, 2018. After performing an in camera review of the documents, Judge Nye found that the Cole Notes were covered by the work product doctrine. Dkt. 91.

         B. Legal Standard

         As the party seeking to protect documents under the work product doctrine, BYUI bears the burden of showing that the documents are, in fact, work product. See In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir. 2007). The work product doctrine, codified in Rule 26(b)(3), protects “from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” In re Grand Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004).

         If a document falls within the doctrine, the adverse party must then show a “substantial need [for] the materials” and “undue hardship [in obtaining] the substantial equivalent of the materials by other means.” See Rule 26(b)(3). But the standard is higher when opinion work product is sought. There, the adverse party must make “a showing beyond the substantial need/undue hardship test.” See Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992). That higher test requires that the attorney's mental impressions be at issue in the case, and further that the need for the material is compelling. Id. at 577. Notes taken by an attorney from a witness interview are generally opinion work product because, in choosing what to write down and what to omit, the attorney necessarily reveals his or her mental processes. See In re Grand Jury Proceedings, 492 F.3d 976, 981-82 (8th Cir. 2007).

         C. Analysis

         Having reviewed the Cole Notes, the Court concludes that they are attorney work product. Ms. Cole is an attorney, and at the time the interview took place, BYUI was on notice that Stevens intended to bring a lawsuit against it. Thus, the notes were prepared in anticipation of litigation. In light of this determination, two questions remain: (1) whether the Cole Notes are fact work product or opinion work product and (2) whether, depending on the category that applies, Stevens has demonstrated a sufficient level of need.

         With respect to the first inquiry, the Court notes that the United States Court of Appeals for the Eighth Circuit has held that notes taken by an attorney during a witness interview are generally opinion work product because, in choosing what to write down and what to omit, the attorney necessarily reveals his or her mental processes. See In re Grand Jury Proceedings, 492 F.3d at 981-82. Looking at the Cole Notes, the Court agrees with the Eighth Circuit's holding. Although the Cole Notes contain some direct quotations, they are not a verbatim transcript of Ms. Cole's interview with Ms. Spencer. Rather, the Cole Notes include, in an organized fashion, Ms. Spencer's version of the events giving rise to this litigation. By choosing what details to record and what details to omit, Ms. Cole implanted her mental impressions in her notes, thereby making them opinion work product.

         Because the Cole Notes are opinion work product, Stevens is required to show something beyond “substantial need for the materials and undue hardship.” See Holmgren, 976 F.2d 573 at 577. Stevens has not come close to making the required showing. Instead, Stevens suggests that Spencer has changed her story after extensive time spent with BYUI's counsel. According to Stevens, she needs the Cole Notes to compare Spencer's current story to her prior story. To the extent it is true that Ms. Spencer has changed her story, the proper tool for probing this issue is rigorous questioning during Ms. Spencer's upcoming deposition and at trial. Given that both tools are still available to Stevens, there is no substantial need or undue burden associated with Defendants' refusal to produce the Cole Notes.[2]

         2. The Court Will Review In Camera Documents that Defendants Maintain Are Subject to a Common Interest Privilege with the LDS Church

         Next, the Court turns to the dispute between the Parties regarding whether a common-interest privilege exists between the LDS Church and BYUI. Defendant's Motion (Dkt. 119) is denied to the extent it seeks ...


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