JOSEPH C. WILKINSON, JR., United States Magistrate Judge
Plaintiffs, Catherine Lenihan, Jennifer McKnight and Heide DiSalvo, are current or former employees of defendant, Stewart Enterprises, Inc. ("Stewart"). They filed this action against Stewart under both federal and state law, alleging employment discrimination based on their gender, retaliation, intentional infliction of emotional distress and violations of the Equal Pay Act.
I. PROCEDURAL BACKGROUND
Stewart moved to compel two of the plaintiffs, Lenihan and McKnight ("plaintiffs" as used hereinafter refers to these plaintiffs only), to produce certain handwritten notes created by these plaintiffs, which plaintiffs assert are protected from disclosure by the attorney-client privilege and/or the work product doctrine. All of the withheld documents contain notes written by the plaintiffs on pages of their work calendars or diaries. Record Doc. No. 16. Plaintiffs filed a timely opposition memorandum, in which they noted that some of the withheld documents are not privileged but are irrelevant. Record Doc. No. 18. Stewart received leave to file a reply memorandum. Record Doc. Nos. 19, 20.
Plaintiffs delivered all of the withheld documents to the court for in camera review. The court also ordered plaintiffs to provide a privilege log to the court and opposing counsel, Record Doc. No. 22, which they have done. In their cover letter, plaintiffs state that they have withdrawn their privilege objections to many of the documents originally produced for in camera review. Accordingly, they sent to the court along with the log another copy of only those documents as to which they continue to assert objections to production. Stewart then received leave to file another memorandum in support of its motion to compel, Record Doc. Nos. 27, 28, and plaintiffs were subsequently permitted to file a supplemental opposition memorandum.
Having reviewed the complaint, the record, the submissions of the parties, the documents submitted for in camera review and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion to compel is GRANTED IN PART AND DENIED IN PART as follows.
II. ANALYSIS
A. The "Prager" Documents Are Irrelevant
Plaintiffs' objections are sustained and the motion to compel is denied as to the documents created by McKnight after she left Stewart and was employed at Prager, Inc. These 26 pages of documents, numbered 5 through 30 on plaintiffs' privilege log, are irrelevant to plaintiffs' claims against Stewart.
B. The Federal Law of Attorney-Client Privilege
Federal law governs the analysis of the attorney-client privilege in this case. Under Federal Rule of Evidence 501, privilege questions are generally governed by common law unless otherwise required by federal law. Thus, privilege questions are governed by the federal courts' interpretation of federal common law, except when state law supplies the rule of decision, in which case state law on privilege governs. Fed.R.Evid. 501; United States v. Moore, 970 F.2d 48, 49-50 (5th Cir. 1992); Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992); Robertson v. Neuromed. Ctr., 169 F.R.D. 80, 81-82 (M.D.La. 1996); Soriano v. Treasure Chest Casino, Inc., No. 95-3945, 1996 WL 736962, at *2 (E.D.La. Dec. 23, 1996).
Plaintiffs bring claims under both federal and Louisiana law. Federal law provides the rule of decision on the federal claims, while state law provides the rule of decision on the state law claims. "Rule 501 makes it clear that state privilege law will apply in diversity cases, and that federal privilege law will apply in federal question cases. However, in federal question cases where pendent state law claims have been asserted, the rule is equivocal." In re Combustion, Inc., 161 F.R.D. 51, 53 (W.D.La. 1995) (Tynes, M.J.), aff'd, 161 F.R.D. 54 (W.D.La. 1995) (Haik, J.) (citing Hancock v. Hobbs, 967 F.2d at 466; Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992); American Civil Liberties Union of Miss., Inc. v. Finch, 638 F.2d 1336, 1343 (5th Cir. Unit A March 1981)).
"[T]he weight of authority among courts that have confronted this issue in the context of discovery is that the federal law of privilege governs even where the evidence sought might be relevant to pendent state law claims." Robertson, 169 F.R.D. at 82-83 (citing Hancock, 967 F.2d at 466; von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982); Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061 n. 3 (7th Cir. 1981); In re Combustion, Inc., 161 F.R.D. at 54; Pagano v. Oroville Hosp., 145 F.R.D. 683, 687 (E.D.Cal. 1993), overruled in part on other grounds by Jaffee v. Redmond, 518 U.S. 1, 8 (1996)).
For the reasons stated in the cases cited above, I conclude "that the federal law of privilege provides the rule of decision with respect to privilege issues affecting the discovery of evidence in this federal question case involving pendent state law claims." In re Combustion, Inc., 161 F.R.D. at 53.
Federal courts have looked to various sources to define the federal common law of attorney-client privilege. Some courts rely on the time-honored Wigmore formulation.
The elements of the attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.
Reed v. Baxter, 133 F.3d 351, 355-56 (6th Cir. 1998) (citations omitted);
accord United States v. Massachusetts Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997) (quoting 8 J. Wigmore,
Evidence § 2292, at 554 (McNaughton rev. 1961)). Relying in part on the Wigmore formulation, Judge Alvin B. Rubin stated: "The oldest of the privileges for confidential communications, the attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice. The privilege also protects communications from the lawyer to his client, at least if they would tend to disclose the client's confidential communications."
Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 720-21 (5th Cir. 1985).
In addition, proposed Federal Rule of Evidence 503
provides a useful starting place for our discussion. Although not enacted by Congress, courts have relied upon [proposed Federal Rule of Evidence 503, also known as Supreme Court Standard 503] as an accurate definition of the federal common law of attorney-client privilege. . . . Consequently, despite the failure of Congress to enact a detailed article on privileges, Standard 503 should be referred to by the Courts. The most relevant aspect of Standard 503 is its statement of the general rule:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and his lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.
In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (quoting Supreme Court Standard 503(b); additional citations and quotations omitted).
C. Some of Plaintiffs' Documents Are Privileged
My review of the documents as to which plaintiffs claim the attorney-client privilege reveals that some of the documents contain only factual recitations. It is axiomatic that the attorney-client privilege "only protects disclosure of confidential communications between the client and attorney; it does not protect disclosure of underlying facts."United States v. Edwards, 39 F. Supp.2d 716, 723 (M.D.La. 1999) (citingUpjohn Co. v. United States, 449 U.S. 383, 395-96 (1981); In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992); United States v. Freeman, 619 F.2d 1112 (5th Cir. 1980); Computer Network Corp. v. Spohler, 95 F.R.D. 500 (D.D.C. 1982)). "`Pre-existing facts that underlie the client's confidential communications, whether oral or written, are not privileged simply because the client disclosed them to an attorney for the purpose of obtaining legal services.'" Id. at 736 (quoting Weinstein's Federal Evidence, § 503.14[4][a] (2d ed. 1998); citing Upjohn, 449 U.S. at 395) (emphasis added).
Thus, "[n]ot every communication between a party and his attorney is privileged. A party's recitation of incidents of discriminatory treatment by defendant's agents, even if written down to assist his attorney, is not per se privileged." Equal Employment Opportunity Comm'n v. Airborne Express, No. 98-1471, 1999 WL 236736, at *1-2 (E.D.Pa. 1999).
Damages calculations, even when made at the request of counsel, are not privileged but are factual information. Audiotext Comms. Network, Inc. v. US Telecom, Inc., No. 94-2395-GTV, 1995 WL 625962, at *10 (D.Kan. Oct. 5, 1995). Thus, Document Nos. 4 and 1712 are not privileged and must be produced unless protected by the work product doctrine, as discussed in the following section of this order.
Plaintiffs' discussions with their past and present attorneys, Haynie and Reinhardt, respectively, about attorney's fees and the decision to terminate their relationship with Haynie are not privileged. However, the court finds that Document Nos. 34, 63 and 64 concerning such discussions are not relevant or responsive to defendant's Request for Production No. 1 and need not be produced.
Moreover, plaintiffs contend in their privilege log that many of the documents, which plainly do not contain confidential communications with their attorneys, nonetheless were "prepared for discussion with counsel" and are therefore privileged. However, they also state in their privilege log that the "only persons to have seen the documents listed in the log were counsel, who first saw them in preparing for defendant's request for production." Privilege Log at 3 (emphasis added). Defendant's First Request for Production of Documents was served on February 15, 2002, Defendant's Exh. A, and plaintiffs' responses were served on April 19, 2002. Defendant's Exh. B. It is apparent that these documents were not even given to, much less reviewed or used by plaintiffs' counsel until they were well into discovery in this litigation. Therefore, the court cannot find that these documents were prepared for or discussed with counsel so as to make them confidential communications subject to the attorney-client privilege.
On the other hand, some of the withheld documents memorialize conversations with plaintiffs' attorneys and clearly are records of confidential communications. I find that the following documents are protected from disclosure by the attorney-client privilege and need not be produced: Document Nos. 1-3, 31-33, 35-45, 48, 50, 52-60, 62, 65, 1598, 1721, 1748 (second and third pages only of this three-page document) and 1935.
The remaining documents as to which plaintiffs assert the attorney-client privilege do not contain confidential communications and are not privileged. These documents consist of Document Nos. 46, 47, 49, 51, 61, 839, 852, 863, 869, 1539, the first page of 1748 (same as No. 49), 1917, 1938 and 1942. Plaintiffs do not assert the work product doctrine as to Nos. 51, 61, 1539 and 1917. Therefore, these non-privileged, non-work product documents (Nos. 51, 61, 1539 and 1917) must be produced.
Plaintiffs assert that the remaining non-privileged documents are protected by the work product doctrine. Because they are not privileged, they must be produced unless they are protected under the work product doctrine, as discussed below.
D. The Work Product Doctrine
Of the remaining documents that are neither attorney-client privileged nor irrelevant, plaintiffs claim work product protection only for Nos. 4, 46, 47, 49, 839, 852, 863, 869, 1712, the first page of 1748 (same as No. 49), 1938 and 1942.
The work product doctrine arises under federal law and is governed by Fed.R.Civ.P. 26(b)(3), which provides that
a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial
by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
Fed.R.Civ.P. 26(b)(3) (emphasis added). Federal law governs plaintiffs' assertions that certain documents are protected from disclosure by the work product doctrine. Dunn v. State Farm, 927 F.2d 869, 875 (5th Cir. 1991).
Plaintiffs, as the parties seeking protection, bear the burden to show that the documents are work product, i.e., that they were prepared in anticipation of litigation. Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D.La. 1997) (Tynes, M.J.) (citing Hodges. Grant Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)). A "party generally must provide more than mere assertions that documents . . . were created in anticipation of litigation." Audiotext Comms. Network, 1995 WL 625962, at *10.
The Fifth Circuit has described the standard for determining whether a document has been prepared in anticipation of litigation as follows:
It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine. We conclude that litigation need not necessarily be imminent, as some courts have suggested, as long as the
primary motivating purpose behind the creation of the document was to aid in possible future litigation.
United States v. Davis, 636 F.2d 1028, 1039 (1981) (citations omitted) (emphasis added);
accord In re Kaiser Alum. Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000).
It is not dispositive that the documents were prepared by plaintiffs and not by attorneys. Rule 26(b)(3) protects documents prepared by or for a party, as long as they are prepared in anticipation of litigation.United States v. Nobles, 422 U.S. 225, 238-39 (1975); Santelli v. Electro-Motive, No. 97 C 5702, 1999 WL 717824, at *1 (N.D.Ill. Aug. 17, 1999).
Plaintiffs' complaint states that Lenihan is still employed by Stewart, while McKnight and DiSalvo were allegedly constructively discharged on December 1 and December 15, 2000, respectively. The complaint refers to specific incidents that occurred in May, July, August, September, October and December 2000. Complaint, Record Doc. No. 1. The instant lawsuit was filed on September 20, 2001. The documents as to which plaintiffs claim work product protection are variously dated from August 7, 2000 through December 12, 2001.
As with the attorney-client privilege, the work product doctrine does not protect the underlying facts from disclosure. Allen v. Chicago Transit Auth., 198 F.R.D. 495, 500 (N.D.Ill. 2001); Audiotext Comms. Network, 1995 WL 625962, at *9 As to damages calculations, "[t]here are nonlitigation purposes for such material, i.e., settling a claim without litigation." Id. at *10. Therefore, plaintiffs' damages calculations in Document Nos. 4 and 1712 are not work product.
Plaintiffs have proffered no evidence to establish a date when their primary motivating purpose for creating the documents at issue became to aid in possible future litigation. However, they state in their privilege log that they first sought counsel on August 3, 2000 and retained an attorney, Barbara Haynie, to represent them on August 7, 2000. They contend that all documents prepared after that date are privileged. They also state that the "only persons to have seen the documents listed in the log were counsel, who first saw them in preparing for defendant's request for production." Privilege logs at 3 (emphasis added). Defendant's First Request for Production of Documents to each plaintiff was served on February 15, 2002, Defendant's Exh. A, and plaintiffs' responses were served on April 19, 2002. Defendant's Exh. B.
From my review of the documents submitted in camera, it appears that plaintiffs terminated Haynie and retained their current attorney, Bill Reinhardt, around the end of March 2001. My review further indicates that the parties were negotiating a potential settlement and discussing a possible mediation as early as April 2001 and participated in an unsuccessful mediation in late August or early September 2001.
The exact date of the mediation is not clear to the court from the documents produced in camera, but obviously is known to the parties.
Although "prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced," C.A. Wright, A.R. Miller R.L. Marcus, Federal Practice and Procedure § 2024, at 343 (1994), "[t]he fact that litigation ensues or that a party retains an attorney, initiates an investigation, or engages in negotiations over a claim, is not dispositive on the issue of whether litigation was anticipated." Allen, 198 F.R.D. at 500 (citing Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 660 (S.D.Ind. 1991), and cases collected therein).
In the instant case, "[n]o attorneys were involved in the production or review of any of the documents," id., until plaintiffs' attorneys reviewed them long after this litigation commenced. The evidence (or lack thereof) does not support a conclusion that anticipation of litigation was the primary motivating purpose for creating those documents generated before the mediation occurred. Although it is reasonable to assume that plaintiffs were considering filing suit if the mediation proved unsuccessful, they have failed to bear their burden of establishing a date prior to the mediation date when they began preparing documents in anticipation of litigation. Thus, all documents generated before the mediation date as to which plaintiffs claim work product protection, except those that are protected by the attorney-client privilege as discussed in the preceding section, are not work product and must be produced. These consist of Document Nos. 852, 869 and 1938. However, Document Nos. 49 and the first page of 1748 (which are the same document) were prepared after the lawsuit was filed and are protected by the work product doctrine.
Some of the documents are undated. I find that Document No. 46, which was purportedly prepared after the mediation, is protected work product. Document Nos. 839 and 863, which were prepared to be discussed with Haynie, are not work product because they must have been prepared before the end of March 2001. Document Nos. 47 and 1942 are not work product, regardless of when they were generated.
Even if plaintiffs establish that certain documents were prepared in anticipation of litigation, the documents "are not automatically exempt from discovery." Smith v. WNA Carthage. L.L.C., 200 F.R.D. 576, 578 (E.D.Tex. 2001). Stewart still may obtain the documents upon a showing that it has substantial need of the materials in the preparation of its case and that it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fed.R.Civ.P. 26(b)(3). In this case, Stewart has not shown any such substantial need or undue hardship. Accordingly, its motion to compel is denied as to any documents that are protected by the work product doctrine.
CONCLUSION
For the foregoing reasons, defendant's motion to compel is GRANTED IN PART. Document Nos. 4, 47, 51, 61, 839, 852, 863, 869, 1539, 1712, 1917, 1938 and 1942 must be produced to opposing counsel within ten days of entry of this order. In all other respects described above, the motion is denied. Stewart's request for an award of fees and costs is denied. The motion has been granted in part and denied in part. Under these circumstances, I find that a just apportionment of fees and costs incurred in connection with this motion is that each side should bear its own. Fed.R.Civ.P. 37(a)(4)(C).