## Facts

- Dennis Marten sued his employer, Yellow Freight System, Inc. (Yellow Freight), in an employment-discrimination case that included Title VII claims.
- During discovery, Marten moved to compel production of a document titled “ERC Minutes May 1, 1995” (minutes).
- The minutes related to a meeting of Yellow Freight’s Employee Review Committee (ERC), a group that convened only as needed rather than on a regular schedule.
- The ERC meeting occurred after Marten filed a complaint with the Equal Employment Opportunity Commission (EEOC), and the meeting discussed Marten’s employment and job-related disciplinary problems.
- Yellow Freight’s in-house counsel, Ronald Sandhaus, prepared the minutes.
- Yellow Freight refused to produce the minutes and asserted protections under the attorney–client privilege and the work-product doctrine, supported by Sandhaus’s statement that the minutes contained legal advice about how to address Marten’s disciplinary issues in light of legal risk.
- Marten argued that any legal input was incidental to business decision-making and that the minutes should be produced.
- Marten also argued waiver, pointing to deposition testimony from a Yellow Freight executive describing the meeting and its general subject matter.

## Issues

1. Whether the “ERC Minutes May 1, 1995,” prepared by in-house counsel, were protected from discovery by the attorney–client privilege.
2. Whether the minutes were protected from discovery as work product prepared in anticipation of litigation under Federal Rule of Civil Procedure 26(b)(3), including as opinion work product reflecting counsel’s mental impressions.
3. Whether Yellow Freight waived any protection by allowing deposition testimony about the ERC meeting and the general substance of what was discussed.

## Decision

- The court denied Marten’s motion to compel production of the ERC minutes.
- The court found the minutes were protected by the attorney–client privilege because they reflected confidential communications involving in-house counsel for the purpose of providing legal advice regarding Marten’s disciplinary situation after his EEOC filing.
- The court also found the minutes were protected work product because counsel prepared them in anticipation of litigation and they reflected counsel’s thoughts and mental impressions about the disciplinary circumstances.
- The court rejected Marten’s waiver argument, concluding that testimony describing the occurrence of the meeting and its general topics did not disclose the substance of privileged legal communications or counsel’s protected mental impressions.

## Legal Principles

- Attorney–client privilege protects confidential communications between a client’s employees and the company’s lawyer when made for the purpose of obtaining or providing legal advice.
- The privilege can apply to communications involving in-house counsel when the communication is primarily legal in purpose, even if it relates to workplace discipline or termination decisions.
- Work-product protection under Rule 26(b)(3) applies to documents prepared because litigation is reasonably anticipated; an EEOC complaint may contribute to reasonable anticipation of litigation.
- Opinion work product—an attorney’s mental impressions, conclusions, or legal theories—receives especially strong protection from discovery.
- Waiver of privilege or work product generally requires disclosure of the protected substance; describing a meeting’s existence and general subject matter does not, by itself, waive protection for a lawyer-prepared record of the meeting.

## Conclusion

In Marten v. Yellow Freight System, Inc., the court refused to compel production of internal ERC meeting minutes prepared by in-house counsel after the employee filed an EEOC complaint, holding the document was protected by attorney–client privilege and opinion work product and that deposition testimony about the meeting’s general subject matter did not waive those protections.


Marten v. Yellow Freight System, Inc., 1998 WL 13244 (1998)