Scott Griffith Collaborative Solutions, LLC v. Falck Northern California Corp.

Background

The court had previously issued a report and recommendation concerning sanctions for spoliation, meaning the loss or destruction of potentially relevant evidence. Judge Armstrong adopted that report except for certain deadlines. Under the resulting orders, Scott Griffith Collaborative Solutions, LLC (SGCS) lodged documents for in camera review, meaning review by the court privately, to determine whether SGCS’s failure to preserve other evidence created a substantial need for producing materials SGCS had withheld as attorney work product.

The opinion explains that Federal Rule of Civil Procedure 26(b)(3) generally protects documents prepared in anticipation of litigation. Factual work product may nevertheless be discovered when the requesting party shows a substantial need and cannot obtain the information through other means without undue hardship.

Evidence at Issue

The court identified several categories of evidence SGCS failed to preserve: emails between SGCS employee Paul LeSage and employees of SGCS’s client AMR, text messages between LeSage and AMR employee Rob Garrett, and an email from LeSage to SGCS contractor Ann Kovacs forwarding a news article. The documents submitted for private review did not concern the missing email between LeSage and Kovacs, so the order focused on communications between SGCS and AMR.

The court stated that, to the extent the communications could not be obtained from other participants, SGCS’s failure to preserve them deprived Falck USA, Inc. and related entities of discovery that could have helped Falck understand coordination between SGCS and AMR when AMR released a statement to the press that SGCS had allegedly drafted.

Tentative Production Ruling

The court tentatively concluded that SGCS had to produce documents in the collection that factually described its communications or coordination with AMR. It stated that portions not describing those communications could be redacted. The order then listed specific Bates-numbered documents and specified which portions should be produced, which should be redacted, and which should remain withheld. The listed materials included portions of emails from or quoted by LeSage and Michael Coffin, email headers, and passages concerning communications with AMR. Many other listed documents were marked for complete redaction or no production.

The order was not presented as a final production directive at this stage. Instead, any party who believed the proposed production was inconsistent with the earlier adopted report or applicable law was ordered to show cause, by filing a response no later than October 18, 2021, why the court should not order production as described. The response could not reargue matters that had already been decided. The order was signed by Chief Magistrate Judge Joseph C. Spero.