United States District Court, S.D. Mississippi, Northern Division
KEITH BALL UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's motion to compel  certain
documents withheld by Defendant under a claim of privilege.
For the following reasons, the Court finds that the motion
should be granted in part and denied in part.
and Procedural History
an employment discrimination lawsuit brought by Carol Stevens
against her former employer, Mississippi Power Company
(“MPC”). Stevens asserts claims for race
discrimination, sex discrimination, retaliation, and age
discrimination pursuant to Title VII and 42. U.S.C. §
filed an EEOC charge on May 8, 2015.  at 1. She contends
MPC received notice of the charge on May 14, 2015.  at 1.
Shortly thereafter, MPC began an investigation. [57-1].
Jennifer Krohn, an MPC employee relations coordinator,
conducted the investigation under the direction of in-house
MPC counsel. Id. at 1. In an affidavit, Krohn states
that her response to the EEOC charge “was prepared in
conjunction with MPC's counsel and in anticipation that
Ms. Stevens would pursue her claims in litigation.”
Id. at 2. Stevens received her right to sue notice
from the EEOC on January 21, 2016.  at 1-2. She filed her
original complaint on January 29, 2016. . She filed her
Second Amended Complaint on April 21, 2016. .
7, 2016, Stevens propounded discovery requests, including
requests for production of documents, to MPC. . With
respect to various documents withheld from its production,
MPC produced a supplemental privilege log to Stevens. [55-1].
The privilege log asserts claims of work product and
attorney-client privilege as to the withheld documents.
Stevens asks the Court to compel production of a series of
documents described in the privilege log.  at 2.
work-product doctrine is codified in Rule 26(b)(3) of the
Federal Rules of Civil Procedure. Conoco Inc. v. Boh
Bros. Const. Co., 191 F.R.D. 107, 117-18 (W.D. La.
1998). The Rule states:
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another
party or its representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent).
But, subject to Rule 26(b)(4), those materials may be
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
Fed. R. Civ. P. 26(b)(3). “The work product doctrine
applies to documents prepared in anticipation of litigation.
. . .” Udoewa v. Plus4 Credit Union, 457
Fed.Appx. 391, 393 (5th Cir. 2012)(quotation marks omitted).
“The law of our circuit is that the privilege can apply
where litigation is not imminent, ‘as long as the
primary motivating purpose behind the creation of the
document was to aid in possible future
litigation.'” In re Kaiser Aluminum & Chem.
Co., 214 F.3d 586, 593 (5th Cir. 2000)(quoting
United States v. El Paso Co., 682 F.2d 530, 542 (5th
work-product doctrine does not protect materials assembled in
the ordinary course of business.” Conoco Inc.,
191 F.R.D. at 118. Additionally, documents “determined
to be work-product may still be subject to disclosure in
discovery under certain circumstances.” Id.
But, work product may be obtained “only upon a showing
that the party seeking discovery has substantial need of the
materials in the preparation of his case and that he is
unable without undue hardship to obtain the substantial
equivalent of the materials by other means.”
Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't
of the Treasury, I.R.S., 768 F.2d 719, 721 (5th Cir.
1985). “The burden of establishing that a document is
work product is on the party who asserts the claim, but the
burden of showing that the materials that constitute work
product should nonetheless be disclosed is on the party who
seeks their production.” Id.