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

Background

The court had previously issued a report and recommendation concerning sanctions for spoliation of evidence—failure to preserve potentially relevant evidence. Judge Saundra Armstrong adopted that report except for certain deadlines. Under the resulting order, Scott Griffith Collaborative Solutions, LLC (SGCS) submitted documents it had withheld under the work-product doctrine for private, in-camera review.

The review was intended to determine whether SGCS’s failure to preserve other evidence created a substantial need for production of the withheld documents despite their work-product protection. The opinion states that SGCS failed to preserve emails between its employee Paul LeSage and employees of its client AMR, text messages between LeSage and AMR employee Rob Garrett, and an email from LeSage to SGCS contractor Ann Kovacs. The documents submitted for review did not concern the missing email between LeSage and Kovacs, so the order addressed communications between SGCS and AMR.

Legal standard and analysis

Federal Rule of Civil Procedure 26(b)(3) generally protects documents and tangible things prepared for litigation or trial. Factual work product may be discovered when the requesting party shows a substantial need for the material and cannot obtain its equivalent without undue hardship. The court distinguished work-product protection from attorney-client privilege and explained that the protection is qualified rather than absolute.

The court found that SGCS’s failure to preserve communications deprived Falck USA, Inc., together with related entities referred to collectively as Falck, of discovery that would have helped Falck understand coordination between SGCS and AMR when AMR released to the press a purportedly defamatory statement drafted by SGCS. The court therefore found a substantial need for documents that factually described SGCS’s communications or coordination with AMR. The opinion did not extend that finding to attorney opinions or legal theories; the production described was based on factual descriptions of communications.

Proposed production and order

The order lists Bates-numbered documents and specifies what SGCS must produce and what it must redact. Some documents were to be produced in full, some in part, and others were to remain entirely redacted. The listed redactions include quoted emails, email subject lines, and specified passages. The order also states that some relevant portions were already captured in other documents and therefore did not need separate production.

The court did not enter an unconditional final production directive in this order. Instead, it ordered any party that believed the contemplated production was inconsistent with the earlier adopted report or applicable law to show cause by filing a response no later than October 18, 2021. Such a response could not reargue matters previously decided. Chief Magistrate Judge Joseph C. Spero issued the corrected order.