The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge
Judge Joan Humphrey Lefkow
MEMORANDUM OPINION AND ORDER
Plaintiff Nadia Musa-Muaremi brings this Title VII case alleging a hostile work environment, gender discrimination and workplace harassment that culminated in her constructive discharge. (First Am. Compl. ¶¶ 1, 16, 17, 46.) [Dkt 29.] Defendant Florists' Transworld Delivery, Inc. ("FTD") denies Musa-Muaremi's claims and asserts a number of affirmative defenses. (First Am. Ans.) [Dkt 30.] Discovery closed in this matter on April 1, 2010. (Feb. 25, 2010 Order.) [Dkt 80]. Before the close of discovery, however, Musa-Muaremi moved to compel production of four documents that FTD had withheld on the claim of attorney-client privilege and work product protection. (Pl.'s Mot. to Compel.) [Dkt 65.] The parties submitted briefs on the issue and an oral argument was held. [Dkt 79.] After an in camera review of the documents and consideration of the parties' arguments and authorities, Musa-Muaremi's motion is granted.
Musa-Muaremi, a former FTD employee, alleges that she was sexually harassed and/or suffered gender discrimination by her supervisor, Andrew Fordyce. (First Am. Compl. ¶¶ 11, 16, 17, 21-23, 29, 44.) She alleges that she complained of Mr. Fordyce's behavior to supervisors and human resources personnel to no avail. (Id. ¶¶ 20-23, 33-35, 40-42.) On May 1, 2007, MusaMuaremi submitted to the human resources department a six-page complaint detailing her concerns. (Id. ¶ 43; Pl.'s Mot. to Compel, Ex. 7.) Shortly thereafter FTD conducted an investigation of her claims. Apparently both FTD's in-house and outside counsel played a role in that investigation, a fact that has given rise to the present motion.
Prior to the filing of the motion to compel, the parties conferred in efforts to resolve their discovery dispute. (See, e.g., Pl.'s Mot. to Compel, Ex. 3-4.) Although FTD had not initially prepared a privilege log, it prepared one after being ordered to do so.*fn1 (See Sept. 25, 2009 Order.) [Dkt 50.] FTD twice revised that log after Musa-Muaremi's counsel complained that the log lacked sufficient information to assess the claimed protections. In the course of its opposition to the motion to compel, FTD further revised certain of its statements and disclosed still further information about the withheld documents -- information that should have been disclosed initially. For example, FTD's privilege log failed to include any mention whatsoever of the role of its in-house counsel, Jon Burney. (See Second Supp. Log.) Not only did Mr. Burney play a role in two of the disputed documents, he was the author of one of them, which FTD misleadingly identified only as a "draft of the investigation summary of Angie Weld [a human resources employee] to the file of Plaintiff."
(Second Supp. Log ¶ 5.) The in camera review of the withheld documents disclosed other problems with FTD's descriptions, as discussed further below.
Each of the four disputed documents is a memorandum that shows redline edits of earlier drafts.*fn2
PR 4-5: This is a two-page memorandum to the "personnel file of Nadia Musa" from Amy Majka, regarding "investigation summary meeting." It has two parts: the first purportedly reflecting a meeting on May 17, 2007, and the second part purportedly reflecting a May 21, 2007 meeting.
FTD's log describes this as a single document containing a draft prepared by Amy Majka, FTD's Human Resources Director, at the direction of outside counsel Renee Koehler on or about June 1, 2007, and edited by Koehler on or about June 4, 2007.*fn3 (Second Supp. Log ¶ 3.) In its briefing and oral argument, however, FTD revised its description to say that the document was drafted by Majka to FTD's in-house counsel Jon Burney at the direction of Burney and Koehler, and that the final version of the document was placed in Musa-Muaremi's personnel file and already produced to her. (Def.'s Resp. at 5.) The withheld draft reflects Koehler's redline edits, which according to FTD, convey Koehler's legal advice, mental impressions and opinions. (Id.)
The in camera review of PR 4-5 show that the edits include adding entire sentences, for example: "Nadia stated that she did not want to work at FTD anymore." (PR 4.) All of the changes are editorial, for example, deleting the "Attention: Jon Burney" or adding text. There is no discussion of legal issues.
PR 8: This is a one-page, one-paragraph memorandum entitled "Investigation Notes to the file Nadia Musa," purportedly by Angeline Weld. FTD's log describes this document as a "draft of the investigation summary of Angie Weld to the file of Plaintiff" that was never finalized or placed in Musa-Muaremi's personnel file and not shared with anyone other than Weld and FTD's "current counsel." (Second Supp. Log ¶ 5.) In its briefing, however, FTD revised its description to assert that the document was "initially created" by Burney on or about June 6, 2007, and reviewed with Koehler and stored on her firm's computer system. (Def.'s Resp. at 5.) In oral argument, counsel for FTD reported yet a third version of the document's history: that the document was created by Weld at Burney's direction, and rewritten by Burney, although it was never finalized or placed in MusaMuaremi's personnel file.
The "edits" to PR 8, in fact, delete the original draft in its entirety and replace it with a different text. All of the text is purportedly a summary of past events. There is no discussion of legal issues.
PR 9-10: This is a one-paragraph memorandum, purportedly by Majka, to "Personnel File of Nadia Musa," and dated May 17, 2007. It is another, more detailed, report of the May 17, 2007 meeting that is also described in PR 4-5. FTD's log describes this document as a "draft of the memorandum to [Musa-Muaremi's] personnel file summarizing the meeting with [her] regarding the results of the investigation of her complaint dated May 17, 2007." (Second Supp. Log ¶ 6.) FTD did not identify the document's author, but stated that the "draft form of the document" was not reviewed by anyone other than Majka and "FTD's current counsel." (Id.) In its briefing, FTD revised its description to state that the document is a draft memorandum that was provided to FTD's counsel as information on which FTD's attorneys could provide legal advice. (Def.'s ...