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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Kristin Naca,

Court File No.: 16-cv-3263 PJS-BRT

Plaintiff, DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO COMPEL THE DEPOSITION OF HLEE VANG

vs. Macalester College, Defendant.

I. INTRODUCTION This lawsuit is about whether Plaintiff Kristin Naca was discharged because she solicited sex from a student prior to graduation and commenced a sexual relationship with the student days after graduation (as Defendant Macalester College contends) or because of discriminatory animus toward her religion, sexual orientation, gender, race, and/or ancestry (as Plaintiff contends). Macalester filed a motion to dismiss Plaintiff’s 35-count Amended Complaint. [ECF No. 40]. At the hearing on Macalester’s motion, the Court dismissed roughly twothirds of Plaintiff’s claims. [ECF No. 65]. Critical to the Court allowing certain claims to proceed was that Plaintiff had pled (albeit, barely) factual allegations about an alleged comparator: [Plaintiff] does plead I think one comparator, and that is in paragraph 146 she pleads that [Professor B],1 a straight, white, Christian male, was permitted to go up 1

Although the name of this professor is known to the parties and the Court, Macalester will refer to him herein as “Professor B.”

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for tenure review and was awarded tenure despite multiple harassment complaints by then incumbent Macalester students during his tenure review. I admit it’s thin, I admit it’s very thin . . . . I [don’t] see anything else that I think would make this survive, but I’m just a little nervous on this comparator. See Somermeyer Decl. Ex. A at 26-30. In addition, the Court made clear that in allowing this case to go forward, comparator discovery would be sharply limited: I am not going to allow discovery [in]to any personnel decision that Macalester has made at any time in its history or even in its recent history. Rather, the discovery will be limited to the [Professor B] case to finding out exactly what that case was about and exactly what the accusations were, what was known to Macalester and Macalester's decision, and discovery on whether there are any other comparators, and by comparators, I mean whether there were any other professors who were accused of violating either the sexual harassment or sexual abuse policies or assault policies and/or who engaged in sexual misconduct with students or recent alumni that Macalester was aware of and yet did not take action against, but we're not going to let the discovery go beyond that. Id. at 40-41. At some point during this action, Hlee Vang began acting as counsel for Plaintiff. Id. at ¶ 3. During Plaintiff’s deposition, she revealed for the first time that her counsel, Ms. Vang, was one of the students who accused Professor B of harassment. Id. Ex. B at 222-23. Plaintiff’s other attorney, Mr. Nickitas, objected and instructed Plaintiff not to answer questions about what factual information was provided to her by Ms. Vang. Id. at 227-230. Defendant subsequently noticed the deposition of Ms. Vang. Id. Ex. C. Plaintiff refused to permit a deposition of Ms. Vang on the basis that she “is co-counsel” and “[t]he questions Macalester poses infringe upon the attorney-client privilege.” Id. Ex. D

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at 5.2 Macalester now asks this Court to compel Ms. Vang to appear for a deposition. Ms. Vang’s testimony is directly relevant to Plaintiff’s claims and she is a fact witness regarding the one valid comparator the Court found Plaintiff had identified in her Amended Complaint. Plaintiff cannot shield facts from discovery by hiring a fact witness to represent her, and then claiming facts to the witness are protected by attorney-client privilege. II. BACKGROUND Plaintiff’s Amended Complaint alleges that Macalester discriminated against her on various grounds. [ECF No. 8]. Plaintiff specifically identified Professor B and appeared to allege that he engaged in conduct comparable to Plaintiff yet was treated more favorably: [Professor B], a straight, white, Christian male, was permitted to go up for tenure review, and was awarded tenure, despite multiple harassment complaints by then-incumbent Macalester students during his tenure review. Id. at ¶ 146 (emphasis in original). At the February 17, 2017 hearing on Macalester’s Motion to Dismiss [ECF. 65], the Court expressed its view that Plaintiff’s allegations regarding Professor B were barely enough for certain of her discrimination claims to survive dismissal. Somermeyer Decl. Ex. A at 68. The Court emphasized that although Plaintiff’s claims were “very, very weak as [plead]” and “very thin,” it “[thought] the best course here is to let [the claims]

2

Counsel subsequently met and conferred but were unable to reach an agreement on

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go forward, allow discovery. . . and just deal with this on motion for summary judgment or at trial.” Id. at 39, 44, 46. The Court emphasized that discovery should be focused on “what happened with respect to [Professor B]” and “with respect to the comparators who are described in paragraph 202 of the complaint.” Id. at 68. In response to Plaintiff’s discovery requests, Macalester produced certain documents relating to Professor B—documents which showed the student complaints against him arose in March 2002 and, unlike Plaintiff, did not involve claims that Professor B solicited sex or engaged in sex with any students or recent graduates. See Somermeyer Decl. ¶ 8. During Plaintiff’s July 27, 2017 deposition, Plaintiff identified Ms. Vang as a source of information regarding her allegations about Professor B. Somermeyer Decl. Ex. B at 223-226. Plaintiff claimed she had not heard the “details” regarding Ms. Vang’s allegations against Professor B, and testified that she had not yet decided whether she might ask Ms. Vang for more information. Id. Mr. Nickitas objected and instructed Plaintiff not to answer other questions regarding Ms. Vang: Q: What factual information did Lee [sic] Vang provide you about your case or about facts that you view as relevant to your case? MR. NICKITAS: I'm going to object. That's encroaching on attorney-client. I think the earlier question had to do with her history as a student and a connection with [Professor B]. Your last question was a little different from the first one. ____________________________

whether Macalester could take Ms. Vang’s deposition. Id. at ¶ 7.

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MR. SOMERMEYER: I'm asking the last one. If you could read that back, please. (Record read as requested.) MR. NICKITAS: Okay. Same objection. ... Q. Did Ms. Vang provide -- did you exchange any written communications with Ms. Vang addressing facts that you view as relevant to your claims in this case? MR. NICKITAS: Now I'm going to object again because the question doesn't limit it to her connection with Professor [B]. Any facts relevant to the case, that infringes on attorney-client privilege. . . . Id. at 227-230. Tellingly, Plaintiff’s discovery responses (both before and after her deposition) do not mention Ms. Vang. Plaintiff did not identify Ms. Vang in her Initial Disclosures. Somermeyer Decl. Ex. E. Nor did Plaintiff identify Ms. Vang as an individual she has spoken to or met with regarding the basis for her claims against Macalester. Id. Exs. F, G, H.3 Macalester noticed Ms. Vang’s deposition on September 9, 2017 to obtain discovery regarding Ms. Vang’s factual knowledge relevant to this case. Id. Ex. C.

3

Ms. Vang did not appear in either Plaintiff’s initial or supplemental answers to interrogatories, even though the latter were served after Plaintiff’s deposition. Somermeyer Decl. Exs. F, G, H. Indeed, Plaintiff’s supplemental Interrogatory No. 10 claimed only that “Plaintiff discussed facts included in her complaint (re: [Professor B] and promotion decisions) with Macalester alumni and faculty, prior to Plaintiff

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Plaintiff refused to allow Ms. Vang to be deposed, claiming that her testimony is precluded by attorney-client privilege. Id. Ex. D at 5. LEGAL STANDARD Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” The Court may issues orders compelling discovery. Fed. R. Civ. Pro. 37(a)(1). This Court “has considerable discretion in granting or denying discovery requests.” Bredemus v. Int’l Paper Co., 252 F.R.D. 529, 534 (D. Minn. 2008). ARGUMENT Macalester will be prejudiced in this case if it is prevented from deposing Ms. Vang, particularly given Plaintiff’s testimony that she “will consider” whether to solicit factual information from Ms. Vang. Somermeyer Decl. Ex. B at 228. This Court should compel Ms. Vang to appear for a deposition because: (A) a party cannot hide facts by hiring a fact witness as counsel and claiming factual information is somehow privileged; (B) there is no alternative source of the information known to Ms. Vang; and (C) the information sought from Ms. Vang is relevant and not privileged.

____________________________

undergoing investigation by the MCHC, i.e. prior to May 2015.” Id. Exs. G, H (emphasis added.)

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A.

A party cannot block fact discovery by retaining a witness as counsel.

There is no dispute that Ms. Vang is a fact witness with discoverable information. Courts have recognized that a party cannot prevent a material witness from being deposed by hiring that witness as its attorney. Pamida, Inc. v. E.S. Originals, Inc., 199 F.R.D. 633, 635 (D. Minn. 2001), aff’d sub nom. Pamida v. E.S. Originals, Inc., 01-MC10 RHK/JMM, 2001 WL 492414 (D. Minn. Mar. 22, 2001), aff’d sub nom. Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002). To be sure, Courts have cautioned that a party cannot “by its choice of counsel, [] avoid the duty to provide depositions and other relevant and appropriate discovery.” Id. This is especially true where, as here, counsel is an “actor or viewer,” rather than one who “was not a party to any of the underlying transactions giving rise to the action,” or whose role was “speculative and not central to the dispute.” Johnston Development Group, Inc. v. Carpenters Local Union No., 1578, 130 F.R.D. 348, 352 (D.N.J. 1990) (citations omitted). In cases like this one—where an attorney for a party has first-hand knowledge of discoverable information—the deposition of an attorney may be “both necessary and appropriate.” Id. Ms. Vang has personal knowledge and information regarding the facts and circumstances of her allegations against Professor B and that information cannot be shielded just because Plaintiff chose to retain a fact witness as counsel.

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B.

There is no alternative source of the factual information known to Ms. Vang.

Ms. Vang’s deposition is the only means to obtain information from her about her allegations against Professor B, any communications between her and Plaintiff prior to their forming an attorney-client relationship, and anything else that may be relevant to this action. Plaintiff refused to testify as to what she learned from Ms. Vang, claiming privilege and evasively stating that she “ha[s]n’t thought about it to this point, but [she] will consider” whether she might ask Ms. Vang for factual information. Somermeyer Decl. Ex. B at 228. Macalester must discover what facts Ms. Vang knows so that it can adequately prepare for and avoid surprise at summary judgment or, if necessary, at trial. Because of Plaintiff’s gamesmanship, Macalester simply has no other means to obtain what factual information is known to Ms. Vang—information which, according to Plaintiff, she may someday inquire about and use. C.

The information sought from Ms. Vang is relevant and nonprivileged.

It is undisputed that Ms. Vang has relevant information and Plaintiff has not opposed her deposition on relevancy grounds. Rather, Plaintiff opposes Ms. Vang’s deposition on the grounds a deposition—apparently in its entirety—would be precluded on the basis of attorney-client privilege. Plaintiff is wrong. First, the prospect that the witness may be asked questions that would be objectionable on privilege grounds is not a basis for failure to produce a witness. See Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 2102,

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8A Fed. Prac. & Proc. Civ. § 2102 (3d ed.). Instead, any privilege objection must be raised as to each item sought or question asked in a deposition. See In re Bame, 251 B.R. 367, 372 (Bankr. D. Minn. 2000) (citations omitted). Second, Macalester only seeks testimony regarding facts known to Ms. Vang. While the attorney-client privilege protects communications between privileged persons, it does not permit a party to resist disclosure of the facts underlying those communications. Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981); Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440, 443 (Minn. 1998) (the attorney-client privilege is strictly construed, protecting only communications made for the purpose of securing legal advice, not information). Third, there is no other privilege that would prohibit Ms. Vang’s testimony. Facts relevant to the case are not opinion work-product of an attorney. See Mead Corp. v. Riverwood Nat. Res. Corp., 145 F.R.D. 512, 518 (D. Minn. 1992); Oehmke v. Medtronic, Inc., CIV. 13-2415 MJD/JSM, 2015 WL 2242041, at *5 (D. Minn. Mar. 26, 2015), aff'd, CIV. 13-2415 MJD/JSM, 2015 WL 2242064 (D. Minn. May 12, 2015) (no attorneyclient privilege where questions will not seek the attorney’s mental impressions, work product, or attorney-client privileged information). Macalester does not seek to question Ms. Vang regarding her legal advice, mental impressions, work product, or litigation strategy with respect to her representation of Plaintiff. Instead, Macalester seeks testimony regarding her allegations against Professor B (and any other similar allegations), information regarding any communications with Plaintiff before they entered into an attorney-client relationship, and any other factual -9-

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information that may become apparent during the course of her deposition.4 These are proper topics for the deposition of an attorney. See, e.g., Oehmke v. Medtronic, Inc., CIV. 13-2415 MJD/JSM, 2015 WL 2242041, at *7 (D. Minn. Mar. 26, 2015), aff'd, CIV. 13-2415 MJD/JSM, 2015 WL 2242064 (D. Minn. May 12, 2015) (granting the deposition of an in-house counsel regarding his own statements and his recollection of what was said during a meeting he attended with plaintiff). IV. CONCLUSION Plaintiff cannot block the discovery of facts by hiring a fact witness as counsel and wrongly claiming privilege. Ms. Vang’s testimony is relevant to this case, Macalester has no other means to obtain the information, and the information is necessary for Macalester to avoid surprise and defend against Plaintiff’s claim that Professor B is a valid comparator. The Court should compel Ms. Vang appear for her deposition.

4

Although it is far from clear, Plaintiff’s supplemental response to Interrogatory No. 10 states that Plaintiff had conversations regarding Professor B with “Macalester alumni” prior to May 2015—well before this lawsuit commenced. If one of these alumni was Ms. Vang, any such discussions were not privileged and would be discoverable.

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FAEGRE BAKER DANIELS LLP Dated: September 28, 2017

By: /s/ Sean R. Somermeyer Sean R. Somermeyer (#0391544) [email protected] Kathlyn E. Noecker (#184779) [email protected] Terran C. Chambers (#0396415) [email protected] 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 (612) 766-7000 Attorneys for Defendant Macalester College

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