United States District Court, S.D. West Virginia, Charleston Division
L. Tinsley, United States Magistrate Judge.
a wrongful termination case in which Plaintiff Scott Stowers
(“Plaintiff”) alleges that he was terminated from
his employment as a probation officer with Defendant Supreme
Court of Appeals of West Virginia (“Defendant”)
because Defendant sought to retain a female probation officer
instead. (ECF No. 1.) Before this Court are Defendant Supreme
Court of Appeals of West Virginia's Motion for Protective
Order (ECF No. 48) and Plaintiff's First Motion to Compel
(ECF No. 60). Each is addressed in turn.
Defendant's Motion for Protective Order (ECF No. 48)
seeks a protective order with respect to some of the topics
Plaintiff has designated for his Federal Rule of Civil
Procedure 30(b)(6) deposition of Defendant. (See ECF
No. 49 at 3.) The specific inquiries to which Defendant
objects concern two sets of topics: one set, topics 2-14,
requests information Defendant has with regard to certain
allegations in the complaint; the second set, topics 15-23,
requests facts Defendant uses to assert its affirmative
defenses. (ECF No. 43.)
argues that the proposed topics seek information protected by
the attorney- client privilege and the work product doctrine.
(ECF No. 49 at 9-10.) The attorney-client privilege shields
from disclosure the communications between a party and its
counsel made for the purpose of securing legal assistance.
See NLRB v. Interbake Foods, LLC, 637 F.3d 492,
501-02 (4th Cir. 2013) (quoting United States v.
Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per
curiam)). The work product doctrine similarly protects
“documents and tangible things that are prepared in
anticipation of litigation or for trial by . . . a party or
its representative.” Fed.R.Civ.P. 26(b)(3)(A).
Defendant bears the burden to demonstrate that either
attorney-client privilege or the work product doctrine
applies. Interbake Foods, 637 F.3d at 501.
mere fact that counsel must prepare a witness for a
deposition does not inherently implicate these protections.
The attorney-client privilege “only protects disclosure
of communications; it does not protect the disclosure of the
underlying facts by those who communicated with the
attorney.” Upjohn Co. v. United States, 449
U.S. 383, 395 (1981). And the work product doctrine
safeguards “documents and tangible things, ” not
witness testimony. Fed.R.Civ.P. 26(b)(3)(A). However,
proposed topics 15, 16, 17, 18, 22, and 23 are, as written in
the notice of deposition, inappropriate inquires for a Rule
30(b)(6) deposition insofar as they ask the witness to offer
a legal opinion. Defendant's motion for a protective
order is GRANTED with respect to these
also urges this Court to require Plaintiff to obtain
information about Defendant's denials of certain
allegations in the complaint and about its affirmative
defenses through the use of contention interrogatories. (ECF
No. 49 at 11-14.) However, although couched in quotes from
the complaint and answer, these topics are appropriate
inquiries for a Rule 30(b)(6) deposition. For example, topics
5-8 seek information related to the suggestion of
Plaintiff's supervisor that Plaintiff obtain a
bachelor's degree and Defendant's awareness of
Plaintiff's enrollment in a bachelor's degree
program. (See ECF No. 43 at 1-2.) And topics 19-21
ask Defendant to explain why it believed Plaintiff was not
qualified for his position and that he misrepresented his
educational background. (Id. at 4.) These are
fact-based inquiries that may be asked of a Rule 30(b)(6)
witness. This Court declines to force Plaintiff to use an
alternate discovery mechanism merely for Defendant's
convenience when Plaintiff's chosen discovery tool is
proper. Defendant's motion for a protective order is
DENIED in this respect.
remainder of Defendant's objections are without merit.
Therefore, Defendant Supreme Court of Appeals of West
Virginia's Motion for Protective Order (ECF No. 48) is
GRANTED IN PART and DENIED IN
Plaintiff's Motion to Compel (ECF No. 60)
seeks to compel Defendant to turn over the official personnel
file and any related notes that may constitute an
“unofficial” personnel file for Stacia Roberts
(“Roberts”), the individual whom Plaintiff
alleges replaced him shortly after he was fired. (ECF No. 60
at 1.) Plaintiff claims that Roberts expressed concern to
Plaintiff's supervisor that her position was “about
to be de-funded, ” and Plaintiff's supervisor was
attracted to Roberts, so he fired Plaintiff in order to hire
Roberts. (Id. at 2.) However, given that Roberts, a
nonparty, retains a special privacy interest in the contents
of her personnel file, this Court declines to order Defendant
to disclose the entire file. See Weller v. Am. Home
Assurance Co., No. 3:05-cv-00090, 2007 WL 1097883, at
*6-*7 (N.D. W.Va. Apr. 10, 2007).
Defendant is ORDERED to disclose any
information in Roberts's personnel file related to her
educational background and credentials, as well as
information related to her alleged request to transfer to
another position or to take over Plaintiff's position.
Plaintiff has failed to demonstrate why any other materials
in the file are relevant to his claims for gender
discrimination and retaliation. Plaintiffs First Motion to