GINGRICH V. SANDIA CORPORATION,
2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135
PATRICIA GINGRICH,
Plaintiff-Appellee,
v.
SANDIA CORPORATION, LOCKHEED
MARTIN CORPORATION, C. PAUL ROBINSON,
and JOHN DOES 1-5,
Defendants-Appellants.
Docket No. 25,955 & 25,956
COURT OF APPEALS OF NEW MEXICO
2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Valerie H. Mackie Huling, District Judge.
Certiorari Denied, No. 30,527, July 30,
2007. Released for Publication August 22, 2007.
Freedman Boyd Daniels Hollander &
Goldberg, P.A., John W. Boyd, Martha E. Mulvany, Albuquerque, NM, for Appellee.
Modrall, Sperling, Roehl, Harris &
Sisk, P.A., Charles A. Armgardt, Albuquerque, NM, for Appellants.
Rodey, Dickason, Sloan, Akin & Robb,
P.A., Charles K. Purcell, Albuquerque, NM, for Non-Party Appellant Norman Bay.
A. JOSEPH ALARID, Judge. WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge, RODERICK T. KENNEDY, Judge.
AUTHOR: A. JOSEPH ALARID.
{1} Defendants-Appellants
Sandia Corporation, Lockheed Martin Corporation, and C. Paul Robinson
(collectively, Sandia) and Non-Party attorney Norman Bay (Bay) filed
interlocutory appeals from an order of the district court compelling production
of materials for which the Appellants have asserted attorney-client privilege
and work product immunity. The district court ordered various materials
produced after finding that Sandia, in defense of a suit brought by
Plaintiff-Appellee Patricia Gingrich, had waived the attorney-client privilege
with respect to an investigative report produced by Bay and relied upon by
Sandia to defend this case. In that order compelling discovery, the district
court certified the issues raised therein for appeal after making the requisite
findings.
See NMSA 1978, §
39-3-4(A) (1999) (permitting appellate review
of an interlocutory district court order where the order "does not
practically dispose of the merits of the action," and the district court
believes that the order "involves a controlling question of law as to
which there is a substantial ground for difference of opinion," and that
"an immediate appeal from this order [or decision] may materially advance
the ultimate termination of the litigation"). Sandia and Bay filed
separate interlocutory appeals in this Court, which we granted and
consolidated. The district court has stayed all further proceedings pending the
resolution of this appeal. Requests for oral argument are hereby denied. For
the reasons stated herein, we affirm the order of the district court, except to
the extent that it required production of that portion of Bay's work product
that was not communicated to Sandia.
FACTS AND PROCEDURAL BACKGROUND
{2} The facts relevant
to this appeal are not in dispute. Bay was retained by Sandia to investigate
allegations by two internal Sandia Ethics Office investigators who claimed that
their work was being impeded and that they were being retaliated against by
Sandia managers as a result of their investigations. Sandia was notified of the
investigators' allegations by way of a letter sent to Sandia management by a
local attorney, captioned "Re: Employment discrimination-Pat O'Neill and
Mark Ludwig." The letter relayed several of the investigators' accusations,
including that Sandia managers had interfered with their investigative efforts,
that they had suffered retaliatory adverse employment actions, and that they
had been subjected to "potentially slanderous statements and libelous
writings" and a "hostile work environment." The letter requested
that Sandia "reverse certain improperly motivated management initiatives
against these two investigators." In closing, the letter also encouraged
Sandia to "avoid a serious legal mistake" by taking steps to ensure
that the investigators were being treated lawfully.
{3} After receiving
this letter, and after realizing that any such investigation would normally
have been conducted by the investigators themselves, Sandia retained Bay, a
former federal attorney and currently a professor of law at the University of
New Mexico, to conduct an investigation into the investigators' accusations.
The letter memorializing Bay's engagement, sent by Lawrence Greher, Senior
Attorney for Sandia, instructed Bay to conduct an inquiry into the
investigators' allegations that they were:
(1) being prevented from fully and
faithfully carrying out their assigned duties as security investigators and (2)
being retaliated against because of their past or ongoing efforts to ferret out
possible fraud, waste [or] abuse at Sandia.
{4} Sandia further
instructed Bay to conduct a "complete, thorough, and comprehensive
investigation into the allegations," to treat his investigation as
"attorney-client privileged to the fullest extent possible," and to
submit a "comprehensive report on [his] findings to C. Paul Robinson,
Sandia's President and Laboratory Director." In addition to submitting a
written report containing the results of his investigation, Bay was directed to
"advise [Sandia's in-house counsel] from time to time concerning, in
general terms, the progress being made in completing [his] investigation."
{5} Bay began his
investigation in August 2002, culminating in the submission of a 221-page
"Report of Independent Investigation" (the Report) to Robinson in
June 2003. Plaintiff was one of several Sandia employees whose conduct,
according to the Report, "merited scrutiny." Plaintiff was
disciplined later that month, and approximately one year later, she terminated
her employment with Sandia. Plaintiff subsequently filed a complaint in
district court challenging the disciplinary actions taken by Sandia, and
alleging that the Report contained false allegations of wrongdoing by
Plaintiff. Specifically, and more germane to this appeal, Plaintiff alleged
that Sandia managers knew that the Report's conclusions which criticized
Plaintiff's conduct were incorrect, but nevertheless chose to discipline her in
order to placate members of Congress responsible for oversight of the
laboratory. Sandia's response denied Plaintiff's allegations that the Report
was a sham, and more particularly, stated that the Report provided an
objective, reasonable belief that any action taken against Plaintiff was
justified.
{6} The district court
found that waiver of both the attorney-client privilege and work product
immunity had occurred as a result of Sandia's disclosure of the Report prior to
and during this litigation, and by Sandia's direct use of the Report in
defending against Plaintiff's claim that she was demoted, and constructively
discharged, without cause. In determining the scope of the waiver resulting
from Sandia's disclosure and use of the Report, the district court ordered that
the following additional materials be disclosed as well:
(1) communications between Bay,
Sandia lawyers, and Sandia representatives regarding Plaintiff and the Report;
(2) work product materials prepared by Sandia's in-house counsel and
communicated to non-legal representatives of Sandia; and (3) all materials
prepared or compiled by Bay relating to the Report.
{7} Sandia and Bay
request that we reverse the district court's order and uphold Sandia's
assertions of attorney-client privilege and work product immunity. For the
reasons stated herein, we affirm the district court's order with respect to
Sandia's in-house communications and work product, but reverse insofar as it
compels Bay to produce attorney work product materials that were not
communicated to Sandia.
APPLICABILITY OF ATTORNEY-CLIENT
PRIVILEGE
AND WORK PRODUCT IMMUNITY
{8} We first
address Plaintiff's contention that the district court erroneously concluded
that the Report, prior to its disclosure and use in this litigation, was
protected by the attorney-client privilege and that Bay's investigation was
entitled to work product immunity. Plaintiff advances this argument as an
alternative ground for affirmance, and takes the position that if the
aforementioned protections do not apply to Bay's work and investigation, then
the district court was correct to order their production. We review decisions
regarding the initial applicability of the attorney-client privilege and work
product immunity for abuse of discretion.
See Hartman v. Texaco Inc.,
1997-NMCA-032, ¶ 20,
123 N.M. 220,
937 P.2d 979.
{9} The rule guiding
application of work product immunity in New Mexico is Rule
1-026(B)(4) NMRA,
which provides that the immunity extends to "documents and tangible things
. . . 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)." The
district court found that "Norman Bay was retained to perform and did
perform legal services for Sandia Corporation in investigating the subjects
covered by the . . . Report . . . and in creating the [Report]. His work was in
anticipation of litigation by the [two] Sandia investigators[.]" The court
therefore concluded that the "Report was protected at the outset by the
attorney-client privilege and the work product doctrine."
{10} Plaintiff argues
that Bay was not acting as an attorney when conducting his investigation, but
instead as an "independent investigator" who was charged only with
"finding facts and reporting back." Relying on this characterization,
Plaintiff further submits that "[w]hen an attorney is acting as an
investigator, rather than as a lawyer rendering legal advice or assistance, the
lawyer's activities are not covered by the privilege." We disagree. The
facts recited above demonstrate Sandia's cognizance of the legal nature of the
investigators' accusations, as well as Sandia's awareness that the allegations
raised matters that could result in direct or vicarious liability on the part
of Sandia for retaliation, fraud, and other illegal actions taken by its
employees. We also reference Sandia's engagement letter to Bay, which made
clear that "[o]f key interest to Sandia . . . is whether such retaliation,
and/or fraud, waste or abuse exists, and, if so, whether it is being allowed to
go uncorrected[,]" and expressed Sandia's awareness that the
investigators' allegations "contain[ed] the implicit and explicit threat
of litigation, either by [the two investigators], or by other third
parties."
{11} We find ample
support in the record for the district court's decision that Bay's
investigation was conducted in anticipation of litigation by the investigators
or other third parties. Accordingly, we see no abuse of discretion in the
district court's ruling that Bay's communications with Sandia and his
investigation were protected at the outset by the attorney-client privilege and
work product immunity.
Cf. Knight v. Presbyterian Hosp. Ctr.,
98 N.M.
523, 525,
650 P.2d 45, 47 (Ct. App. 1982) (extending attorney work product
immunity to statements taken by a hospital employee from various persons
involved in the treatment of a patient "for and on behalf of the
hospital's attorney" after counsel apparently became aware that the
treatment rendered to that patient raised the possibility of litigation).
WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE
{12} The district court
found that Sandia had waived the attorney-client privilege by (1) disclosing
the Report to persons outside the attorney-client privilege prior to and during
this litigation, and (2) making direct use of the Report by relying upon it in
defending against Plaintiff's claims. The question of whether a party has
waived the attorney-client privilege is a matter of law which we review de
novo.
See Public Serv. Co. of N.M. v. Lyons,
2000-NMCA-077, ¶ 10,
129
N.M. 487,
10 P.3d 166.
{13} We hold that the
district court committed no error in concluding that Sandia waived the
attorney-client privilege with respect to the Report. Sandia's disclosure of
the Report to the Plaintiff during this litigation, as well as Sandia's prior
extrajudicial disclosures to members of Congress and to representatives of the
Department of Energy, trigger waiver under the plain language of Rule
11-511
NMRA. That rule provides:
A
person upon whom these rules confer a privilege against disclosure of the
confidential matter or communication waives the privilege if the person or
person's predecessor while holder of the privilege voluntarily discloses or
consents to disclosure of any significant part of the matter or communication.
This rule does not apply if the disclosure is itself a privileged
communication.
{14} In addition to
disclosing the Report, Sandia has made direct use of the Report in this
litigation in defending against Plaintiff's claim that Sandia violated the
terms of an implied employment contract by demoting her without cause. This
constitutes waiver under the rule articulated in
Lyons. In that case,
this Court adopted the Third Circuit's restrictive view of "at-issue"
waiver, as articulated in
Rhone-Poulenc Rorer Inc. v. Home Indem. Co.,
32 F.3d 851, 864-65 (3d Cir. 1994). The "restrictive" nature of the
adopted approach applies a bright-line rule to the question of whether a party
has waived the attorney-client privilege; in New Mexico, waiver occurs where a
party "seeks to limit its liability by describing [an attorney's] advice
and by asserting that he relied on that advice."
Lyons,
2000-NMCA-077, ¶ 22 (internal quotation marks and citation omitted).
{15} In
Lyons, the
plaintiffs affirmatively pled fraudulent concealment, equitable tolling and
equitable estoppel "in anticipation of Defendant raising a statute of
limitations defense."
Id. ¶ 1. Defendant argued that Plaintiff had
impliedly waived their attorney-client and work product privileges by so pleading
because Defendant must be allowed to test Plaintiffs' assertion that it had
been ignorant of the existence of its claims before it filed the action.
Id.
¶ 7. We held that the fact that the plaintiffs' mental state (claimed
ignorance) had been placed at issue in the case was insufficient to constitute
a waiver of attorney-client communications on that subject.
Id. ¶ 31.
Instead, we adopted the more restrictive
Rhone approach, which permits a
finding of waiver only where a party directly relies on attorney-client
communications in order to advance a claim or defense.
Id. ¶ 22. We
found the
Rhone approach to be most consistent with the purpose
underlying the privilege, which "`is to encourage full and frank
communication between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of justice.'"
Lyons,
2000-NMCA-077, ¶ 25 (quoting
Upjohn Co. v. United States,
449 U.S. 383, 389, (1981)). Our holding in
Lyons reflected our
recognition that waiver in New Mexico should be determined within the confines
of Rule 11-511, which requires actual disclosure or "consent[] to
disclosure" of attorney-client communications.
Lyons,
2000-NMCA-077, ¶¶ 11-14. Under
Lyons, where a party relies on an
attorney's advice to advance a claim or defense, that party has implicitly
"consented to disclosure" of those communications within the meaning
of Rule 11-511.
Lyons,
2000-NMCA-077, ¶¶ 15, 23.
{16} Applying that rule,
we find no error in the district court's finding that Sandia has asserted an
"advice of counsel" defense in this litigation by relying on the Report
to demonstrate the lawfulness of its actions regarding Plaintiff. In contrast
to the facts of
Lyons, in which attorney-client communications were
neither referred to nor relied upon by the plaintiffs in order to support an
equitable tolling claim, Sandia has explicitly pled reliance upon Bay's advice
in order to defend against Plaintiff's claims. While Sandia argues it has
"not pled anything of the sort," we look to Sandia's response, which
states:
[Sandia]
assert[s] in answer to Plaintiff's First Amended Complaint that if an agreement
existed by which Plaintiff could be demoted or discharged only for cause, which
is denied, there was no violation of any such agreement because in light of the
. . . Report, Sandia and Robinson in fact believed that they had a sufficient
cause to justify any demotion or discharge of Plaintiff and that belief was
reasonable.
{17} The language
employed by Sandia in its response tracks the language of UJI
13-2306 NMRA,
which sets out the standard for determining when an employer has discharged its
duty to abide by the terms of an implied employment contract:
13-2306. Cause justifying
discharge.
If
(employer) agreed that (employee) could be discharged only for cause,
(employer) could discharge (employee) without violating the agreement if
(employer) in fact believed that [he] [she] had a sufficient cause to
justify the discharge of (employee) and that belief was reasonable.
{18} The standard
articulated in UJI 13-2306 is both objective and subjective. It requires actual
(i.e. subjective) belief on the part of the employer that its actions were
justified, and also tests the objective reasonableness of that belief.
See
Kestenbaum v. Pennzoil Co.,
108 N.M. 20, 27-28,
766 P.2d 280, 287-88 (1988)
(holding that a decision to terminate an employee where an implied contract is
found must be supported by reasonable grounds for the employer to believe that
sufficient cause existed to justify the employee's termination). By arguing
that the Report provided sufficient cause to discipline Plaintiff, and by
asserting reasonable reliance upon the Report's conclusions, Sandia seeks to
prove in its favor both the objective and subjective elements of UJI 13-2306.
{19} Sandia argues that
nothing it did put the report at issue so as to trigger a waiver under
Lyons
because it was Plaintiff who first challenged the veracity of the Report, and
that Sandia's invocation of the report in this litigation was "merely
defensive," i.e., a response to Plaintiff's claims. Sandia also takes the
position that it has merely asserted its own good faith in response to
Plaintiff's claims which placed Sandia's state of mind at issue. We think these
arguments ignore the principles underlying the rule adopted in
Lyons, as
well as the disjunctive styling of the rule's operative language.
Lyons
stands for the proposition that a party who places either an opponent's or
their own state of mind at issue in litigation does not thereby overcome or
waive the attorney-client privilege with respect to communications that might
be relevant, or even vital, to an evaluation of that party's claims.
Lyons,
2000-NMCA-077, ¶ 21. However, where a party makes "direct
or
offensive" use of attorney-client communications in order to prove that it
acted with a lawful intent, waiver will be found as a matter of law.
{20} As already
discussed, Sandia has not merely asserted a lawful state of mind in response to
Plaintiff's allegations that the Report's conclusions were false and that
Sandia knew better than to rely upon them; Sandia has gone a step further, and
asserted objective, reasonable reliance upon the Report's criticisms of
Plaintiff's conduct. Even if not explicitly termed an "advice of
counsel" defense by Sandia, we think it is beyond dispute that Sandia has
asserted reliance on the Report as a complete defense to Plaintiff's claim that
she was disciplined, without just cause, in violation of an implied employment
contract between herself and Sandia. Accordingly, we hold that the district
court correctly ruled, as a matter of law, that Sandia has made "direct or
offensive" use of the Report in this case, effecting a waiver of the
attorney-client privilege.
{21} Having concluded
that the district court correctly determined that Sandia waived the attorney-client
privilege with respect to the Report, we now turn to the district court's
conclusions regarding the extent to which that waiver triggered a
subject-matter waiver requiring the production of other protected materials.
Regardless of the means by which a waiver of the attorney-client privilege or
work product immunity is effected, the resulting scope of that waiver is a
question addressed to the discretion of the district court.
See In re
Echostar Commc'ns Corp., 448 F.3d 1294, 1300 (Fed. Cir. 2006) ("We
review the district court's determination as to the scope of the waiver for an
abuse of discretion.");
see also In re Sealed Case, 29 F.3d
715, 719 (D.C. Cir. 1994) (explaining that because delineation of a waiver's
scope "depend[s] heavily on the factual context in which the privilege is
asserted," such determinations are entitled to deferential review
(internal quotation marks and citation omitted)); 2 Paul R. Rice,
Attorney-Client
Privilege in the United States ' 9:77 (2d ed. 2007) (stating that once the
client has taken actions that are construed as a waiver of the privilege, the
court must then assess the scope of that waiver. The decision of whether the
waiver applies only to the actual communication disclosed or to additional
communications that substantively relate to it is a discretionary one, based
upon the judge's assessment of what is fair under the circumstances). We
therefore review the scope of the waiver, as established by the district court,
to ensure that it was not "clearly contrary to the logical conclusions
demanded by the facts and circumstances of the case."
See Sims
v. Sims,1996-NMSC-078, ¶ 65,
122 N.M. 618,
930 P.2d 153.
{22} For the reasons
stated below, we hold that the district court did not abuse its discretion in
ordering production of (1) communications between Bay, Sandia managers, and
Sandia's in-house counsel relating to the Plaintiff and the Report, and (2)
Sandia's in-house counsel's work product relating to the Report that was
communicated to Sandia managers. Sandia argues that the district court
erroneously compelled production of these materials because (1) communications
between Sandia's in-house counsel and Sandia's managers regarding Plaintiff and
the Report have not been disclosed and are not being relied upon by Sandia in
defending against Plaintiff's claims, and (2) the scope of any subject-matter
waiver effected by Sandia's disclosure and direct use of communications with
Bay should not encompass communications between Sandia's in-house counsel and
Sandia's management.
{23} Sandia posits that
"the [d]istrict [c]ourt . . . was required to strictly apply Rule 11-511
to the internal Sandia in-house counsel communications," and that any
waiver "extends only to those particular attorney-client communications
which the privilege holder has thrust into the action." We agree with
Plaintiff, however, that this argument replaces the proper inquiry-whether the
district court abused its discretion in establishing the subject-matter scope
of Sandia's waiver-with the legal standard applicable to the question of
whether a waiver has occurred. The position advocated by Sandia stands in
marked contrast to the generally accepted view that parties may not disclose
attorney advice to prove a claim or defense while shielding from discovery
communications from other attorneys on the same subject.
See Convolve,
Inc. v. Compaq Computer Corp., 224 F.R.D. 98, 103 (S.D.N.Y. 2004) (holding
that waiver based upon reliance on advice of attorney "waives the
attorney-client privilege as to the subject matter of the advice disclosed.
This waiver extends not only to the attorney who rendered the [advice], but
also to all other attorneys who may have advised or communicated with the
client on the same subject matter").
{24} We also agree with
Plaintiff that the principle of fairness for which those authorities stand is
especially applicable here, where Bay was instructed to communicate with Sandia
by both submitting a comprehensive report to Sandia's president as well as
providing periodic updates regarding the progress of his investigation to
Sandia in-house counsel.
Cf. Bank Brussels Lambert v. Credit Lyonnais
(Suisse), S.A., 210 F.R.D. 506, 510 (S.D.N.Y. 2002) (holding that scope of
subject-matter waiver resulting from party's advice of counsel defense included
communications with both outside and in-house counsel, where outside counsel
was instructed to communicate with client through in-house counsel);
Inmuno
Vital, Inc. v. Telemundo Group, Inc., 203 F.R.D 561, 564 (S.D. Fla. 2001)
(extending scope of waiver of attorney-client privilege to both the advice
advanced by the party to support its legal position as well as communications
with other attorneys on the same subject, stating that disclosure "cannot
be limited to the counsel and advice of the [d]efendant's choosing. Rather,
when the advice of counsel defense is raised, the party raising the defense
must permit discovery of any and all legal advice rendered on the disputed
issue").
{25} In light of Sandia's
disclosure of the Report and assertion of actual and reasonable reliance
thereon, we hold that the district court acted within its discretion in
ordering production of all communications between Sandia, Bay, and Sandia's
in-house counsel regarding Plaintiff and the Report that have not already been
produced. We also hold that the other materials Sandia was ordered to
produce-work product of Sandia in-house counsel relating to the Report that was
communicated to non-legal representatives of Sandia-constitute
attorney-client communications and are also a proper subject of discovery in
this case.
{26} While we conclude
that including Sandia's internal materials and attorney-client communications
within the scope of the waiver was virtually compelled in light of the defense
raised in this case, we think requiring disclosure of Bay's work product too
severely tests the logic supporting the district court's delineation of the
scope of Sandia's waiver. Initially, we note that the district court expressly
declined to order production of Sandia's in-house counsel's work product that
was not communicated to Sandia representatives responsible for the actions taken
against Plaintiff. By the same reasoning implicit in that ruling-that in-house
counsel's uncommunicated work product does not bear on the legality of Sandia's
decisions with regard to Plaintiff-we hold that the district court erred in
ordering the converse with respect to Bay: that, as a result of Sandia's waiver
of the attorney-client privilege, "work product protection for all
materials prepared or compiled by Bay relating to the [Report] has been
waived."
{27} Plaintiff submits
that because Sandia has asserted an advice of counsel defense, the scope of the
resulting subject-matter waiver necessarily includes the work product
underlying that advice. Plaintiff principally relies on
Harding v. Dana
Transp., Inc. 914 F.Supp 1084 (D. N.J. 1996), for the proposition that
reliance upon an attorney's investigation in advancing a defense waives the
immunity for the attorney's work product underlying that investigation. In
Harding,
the defendant employer retained an outside attorney to conduct an investigation
into an employee's allegations that she had been sexually harassed and
discriminated against in violation of Title VII.
Id. at 1087-88. When
defending against actions brought under Title VII, employers may escape
respondeat superior liability by taking sufficient remedial measures once a
complaint of discrimination is received.
Id. at 1096. Once litigation
began, the employer pointed to the investigation performed by outside counsel
to show that it had taken sufficient remedial measures to avoid liability for
the plaintiff's claims.
Id. In light of that defense, the appellate
court affirmed the lower court's order requiring disclosure of the attorney's
work product because the employer's defense in that case depended not just upon
an evaluation of the employer's mental state, as informed by counsel, but
instead upon the sufficiency of the attorney's investigation itself.
Id. The
court concluded that because the trier of fact could not determine whether
sufficient remedial measures had been taken without access to the content of
the attorney's investigation, the employer's reliance on the sufficiency of the
attorney's actions as a defense required disclosure of work underlying that
investigation.
Id. The substantive context of
Harding, considered
together with the nature of the defense raised in that case, logically explains
that court's reasons for ordering disclosure of the contents of the attorney's
investigation. Both the fact and substance of the investigation were invoked by
the employer in that case to defend against the plaintiff's claims; it was
therefore the sufficiency of the attorney's investigation itself, not just the
employer's reliance upon it, that would absolve the employer of liability under
Title VII.
{28} Unlike
Harding,
at issue in this case is not the sufficiency of Bay's investigation, but
whether it was reasonable for Sandia to rely upon the Report in light of all of
the information that Sandia had.
See, e.g., Harter v. Univ. of Ind.,
5 F.Supp.2d 657, 665 (S.D. Ind. 1998) (explaining distinction, for the purpose
of determining the scope of waiver of attorney-client privilege and work
product immunity, between defense based on a client's reliance on
attorney-client communications and defense to respondeat superior liability
based upon sufficiency of an attorney's investigation);
cf. Chimie v. PPG
Indus., Inc., 218 F.R.D. 416, 421 (D. Del. 2003) ("The attorney-client
privilege and the work product doctrine are based on different public policies,
protect different though frequently complementary interests, and are subject to
different analyses when considering the propriety of a finding of waiver.
Neither legal protection is well served by conflating the analysis of the
two.") (citation omitted).
{29} Bay's work product
that was not communicated or disclosed to Sandia did not and could not form any
basis for Sandia's actions with regard to Plaintiff, and thus would not assist
the trier of fact in determining either what Sandia actually believed, or
whether that belief was reasonable.
See Conkling v. Turner, 883 F.2d
431, 435 (5th Cir. 1989) (concluding that when a party relies upon attorney
advice to advance a defense, work-product waiver is not automatically
triggered, as "[t]hat approach reveals much more than what [the waiving
party] knew and when [that party] knew it; it seeks to discover things known to
[the party]'s attorneys that were unknown to [the party]");
accord
Rhone, 32 F.3d at 866 (explaining that "[w]ork product that was not
communicated to the client cannot affect the client's state of mind" in
determining that waiver of attorney-client privilege did not extend to attorney
work product that was not communicated to the client, and citing failure of
lower court to "determine whether the [work product] sought [was] relevant
to the matters in issue" (citation omitted)).
{30} We therefore
conclude, in light of the facts and circumstances of this case, that the
district court abused its discretion by including Bay's uncommunicated work
product within the subject-matter scope of Sandia's waiver. However, for the
same reason that Sandia's in-house counsel's work product that was communicated
to Sandia must be produced, we hold that documents relating to plaintiff and
the Report, that have been disclosed by Bay to Sandia, or which were provided
to Bay by Sandia's in-house counsel or management, constitute attorney-client
communications that fall within that portion of the district court's order that
we affirm.
{31} Though we
reverse the district court insofar as it extended the scope of Sandia's waiver
to Bay's uncommunicated work product, Plaintiff may still seek discovery
thereof, but only upon the showing required by our Court rules.
See Rule
1-026(B)(4) (permitting discovery of work product upon a party's showing of
"substantial need of the materials in the preparation of the party's
case" and where the party "is unable without undue hardship to obtain
the substantial equivalent of the materials by other means"). In the event
such a showing is made, the district court may order disclosure of non-opinion
work product, but "shall protect against disclosure of the mental
impressions, conclusions, opinions or legal theories of an attorney." Rule
1-026(B)(4);
see Hartman, 1997-NMCA-032, ¶ 23 (applying this standard).
To the extent Sandia's use and reliance upon the Report in this case is
expanded to defend against other claims raised by Plaintiff and not addressed
in this opinion, the district court should consider, in light of the nature of
any such defense, whether any further production should also be compelled.
PLAINTIFF'S ADDITIONAL ASSERTION
OF ERROR
AND REQUEST FOR RELIEF
{32} Lastly,
Plaintiff challenges the district court's decision with regard to the temporal
scope of the waiver. Plaintiff argues that the district court's order should be
affirmed, but her Answer Brief also injects an assertion of error and a request
for discovery beyond the scope granted by the district court's order. Plaintiff
did not file an application for interlocutory appeal to request such relief,
and thus has not satisfied the requirements of Rule
12-203(A) NMRA (mandating
that an application for interlocutory appeal be filed within 15 days after the
entry of the order appealed from). Nor did Plaintiff file a cross-appeal on
this issue in accordance with Rules 12-201(B) and
12-208(G) NMRA.
{33} Rule 12-201(C)
permits this Court to review issues raised by an appellee where a cross-appeal
has not been taken, but only where the appellee raises those issues "for
the purpose of enabling the appellate court to affirm," or "for
determination only if the appellate court should reverse, in whole or in part,
the judgment or order appealed from." Rule
12-208(G) NMRA. Plaintiff's
additional challenge to the district court's ruling regarding the temporal
scope of the waiver satisfies neither of the criteria contained in Rule
12-201(C). We therefore decline to review this issue.
{34} For the reasons
stated above, we affirm all portions of the district court's order compelling
discovery from Sandia, but reverse the order insofar as it requires production
of Bay's uncommunicated work product. This case is remanded to the district
court with instructions to vacate the portion of the order reversed herein.
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge