The opinion of the court was delivered by: John E. Simko United States Magistrate Judge
OPINION AND ORDER ON MOTIONS
Pending are motions to compel a response to a subpoena (Doc. 25) and to quash a subpoena (Doc. 20).
Plaintiff Gail Clifford was an employee of defendant Sanford. On July 18, 2005, she was injured on the job. She filed a claim for worker's compensation benefits (Doc. 22, Part 1). Initially benefits were paid, but denied after April 30, 2008. Sanford is self insured. Risk Administration Services (RAS) administered plaintiff's claim. On January 11, 2008, plaintiff was terminated by Sanford. On February 17, 2009, plaintiff filed her complaint against Sanford and Paul Kenneth Aspaas alleging her termination was contrary to the Americans with Disabilities Act (ADA). On July 23, 2009, in connection with her ADA lawsuit plaintiff issued a subpoena (Doc. 23) directing RAS to produce her worker's compensation claim file. RAS objected to the subpoena (Doc. 22). Sanford and Aspaas moved to quash the subpoena (Doc. 20). Clifford moved to compel RAS to respond to the subpoena (Doc. 25).*fn1
Clifford argues the information in the worker's compensation file is important because Sanford/Aspaas have contended during the administrative phase of the ADA claim that they were not aware of the permanency or long term nature of Clifford's condition while she was treating her job related injury. Clifford asserts Sanford's knowledge about the subject would be revealed the worker's compensation file.
RAS argues the worker's compensation file is protected from discovery by the attorney-client privilege because on February 26, 2007, Sanford and RAS retained counsel during the administration of the worker's compensation claim. RAS also argues the worker's compensation file was prepared in anticipation of litigation and is protected from discovery by the work product doctrine, and that there is a pending worker's compensation claim in which Clifford is the claimant and Sanford and RAS are the respondents. RAS asserts the worker's compensation file is not relevant, and that the subpoena subjects them to an undue burden.
Sanford and Aspaas join the arguments of RAS and particularly argue the worker's compensation file is protected from discovery by the attorney-client privilege because Sanford and RAS retained counsel during the administration of the worker's compensation claim. Sanford asserts the same documents have already been furnished to Clifford in response to discovery requests for the very same documents which were subpoenaed from RAS, minus the privileged documents.
Federal Rule of Civil Procedure 45(c)(3) addresses quashing or modifying a subpoena. Particularly, Rule 45(c)(3)(A)(iii) and (iv) provide a subpoena must be quashed or modified if there is a timely motion and the subpoena "(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Rule 26(b)(3)(A) provides:
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent.) But, subject to Rule 26(b)(4) those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
There is abundant case authority in the Eighth Circuit which considers Rule 26(b)(3)(A) and the production of materials alleged to be prepared in anticipation of trial. A few are:
! Pepsico, Inc., v. Baird, Kurtz & Dobson LLP, 305 F.3d 813 (8th Cir. 2002). "The Supreme Court has directed that courts must narrowly construe privileges, and statutes creating them, and must avoid suppressing probative evidence." Pepsico at 816 (internal citation omitted). In the Eighth Circuit federal law governs work product claims. Id. at 817. "In order to protect work product, the party seeking protection must show the materials were prepared in anticipation of litigation, i.e., because of the prospect of litigation." Id. "Work product is not discoverable unless the party ...