Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010)

Rolando Hernandez alleged claims of race and national origin discrimination based on disparate treatment, retaliation, and a hostile work environment while he was employed as a mechanic in the Fire Shop of the City of Vancouver, Washington. Hernandez sued the city and another employee, Mark Tanninen. Hernandez was initially represented by attorney Gregory Ferguson. Hernandez told Ferguson that Tanninen had witnessed the discrimination and would corroborate his story. Ferguson interviewed Tanninen, who did initially corroborate Hernandez’s story, but after speaking with the Deputy Fire Chief, Tanninen decided his getting involved would not be good for the Deputy Fire Chief and “everyone involved.” Since Ferguson was a witness to Tanninen’s original statements corroborating the allegations, Ferguson referred the case to another attorney.

In response to a request for production of documents, Hernandez produced a privilege log referencing 35 documents protected by the attorney-client or work-product privileges or both. Hernandez opposed the city’s motion for summary judgment based on affidavits from himself and Ferguson and some of Ferguson’s handwritten notes. The district court ruled that any attorney-client or work-product privilege between Hernandez and Ferguson was waived and ordered production of the 35 documents. The Ninth Circuit granted Hernandez’s petition for a writ of mandamus and held the district court had erred in finding an unlimited waiver of the attorney-client and work product privileges. The Court held that Hernandez waived privileges only as they pertained to the conspiracy claim against the city and Tanninen (29 U.S.C. § 1985(3)) but not the underlying discrimination and retaliation claims.