Sleep Number Corporation v. Young

Background

The defendants—Steven Jay Young, Carl Hewitt, and UDP Labs, Inc.—filed two motions asking the court to compel discovery from Sleep Number Corporation.

In the first motion, the defendants relied on Federal Rule of Evidence 612, which can give an opposing party access to writings a witness used to refresh memory before or during testimony. They sought documents and communications that Annie Bloomquist reviewed while preparing for her deposition, including emails with Sleep Number’s lawyers. They also sought to depose Bloomquist again about those materials.

Bloomquist testified that she reviewed a large group of documents, including emails to counsel, and at some points said the emails refreshed her memory. But her testimony was also unclear and contradictory about whether the emails actually refreshed her memory or affected her testimony. Sleep Number argued that the communications were privileged.

In the second motion, the defendants argued that Sleep Number had improperly redacted business and technical information from documents and had improperly withheld other information under the attorney-client privilege or work-product doctrine. They asked the court to require Sleep Number to review and reproduce improperly redacted documents and to permit additional depositions concerning documents later produced with fewer or no redactions.

First Motion to Compel

The court held that Rule 612 requires the requesting party to show that the witness used the writing to refresh memory, used it for the purpose of testifying, and that production was necessary in the interests of justice. The court also explained that merely reviewing a document is not enough; the witness must have relied on it or the document must have affected the testimony.

The court found that the defendants had not provided evidence showing that Bloomquist relied on the emails with counsel during her testimony or that the emails sufficiently affected her testimony to require production. The court also concluded that the defendants were using Rule 612 as a search for potentially contradictory evidence in privileged communications, rather than showing a specific basis for disclosure.

The court therefore denied Defendants’ Motion to Compel at Docket 326.

Second Motion to Compel

The court recognized that Sleep Number had voluntarily produced some previously redacted documents in unredacted form or with fewer redactions. But the court declined to require Sleep Number to review all other redacted documents or documents withheld entirely as privileged merely because some documents had been reproduced. The court also rejected the argument that a communication cannot be privileged simply because no lawyer appears as a sender or recipient; certain internal corporate communications can transmit or relay legal advice on a need-to-know basis.

The court further declined to require another review of the emails Bloomquist sent to Sleep Number’s lawyers after meetings with Young and Hewitt. The court found that Bloomquist represented that those emails were sent to obtain legal advice for Sleep Number. Although the privilege does not protect underlying facts, the defendants could ask Bloomquist about the facts during her deposition, and the record did not show that they had tried to refresh her memory during that deposition using documents.

The court did, however, allow the defendants to reopen depositions for the limited purpose of addressing documents that had since been produced without redactions or with fewer redactions. The parties were ordered to meet and confer about the deponents and the time needed, and to notify the court of any agreement or submit separate position letters if they could not agree.

Accordingly, Defendants’ Motion to Compel at Docket 347 was granted only to the extent that Defendants may reopen depositions consistent with the Order, and was otherwise denied.

Disposition

Magistrate Judge Elizabeth Cowan Wright denied the first motion to compel. She granted the second motion only to permit limited reopening of depositions concerning documents newly produced with fewer or no redactions, and otherwise denied it.