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Stevens v. Mississippi Power Co.

United States District Court, S.D. Mississippi, Northern Division

April 11, 2018

CAROL STEVENS PLAINTIFF
v.
MISSISSIPPI POWER COMPANY DEFENDANT

          ORDER

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff's motion to compel [55] 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.

         Factual and Procedural History

         This is 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. § 1981.

         Stevens filed an EEOC charge on May 8, 2015. [12] at 1. She contends MPC received notice of the charge on May 14, 2015. [55] 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. [12] at 1-2. She filed her original complaint on January 29, 2016. [1]. She filed her Second Amended Complaint on April 21, 2016. [12].

         On July 7, 2016, Stevens propounded discovery requests, including requests for production of documents, to MPC. [23]. 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. [55] at 2.

         Standard of Law

         The 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 discovered if:
(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 Cir.1982)).

         “The 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.

         Analysis of ...


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