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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Greyhound Lines Incorporated,

Plaintiff, 

v. 

Viad Corporation, 

Defendant. 

No. CV-15-01820-PHX-DGC

ORDER 

 Plaintiff Greyhound Lines, Inc. seeks to compel production of certain documents 

that Defendant Viad Corporation has withheld as privileged. Doc. 54. The Court held a 

telephonic conference with the parties to discuss this issue. Doc. 56. As a result, 

Greyhound submitted for in camera review three representative documents from each of 

six disputed categories, and the parties provided a matrix setting forth their arguments on 

each category. Doc. 60. After reviewing the representative documents and the parties’ 

arguments, the Court will grant Plaintiff’s motion in part and deny it in part. 

I. Legal Standard. 

 A. Attorney-Client Privilege. 

 Federal Rule of Evidence 501 provides that “in a civil case, state law governs 

privilege regarding a claim or defense for which state law supplies the rule of decision.” 

Fed. R. Evid. 501. This case includes federal and state claims (Doc. 30), but the parties 

do not address whether federal or state privilege law should apply. When state law does 

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apply, Rule 501 “does not tell us which state law the forum state should apply.” KL Grp. 

v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Commentators have suggested 

several methods of resolving this choice-of-law issue: (1) use the privilege law of the 

state whose substantive law provides the rule of decision; (2) apply the privilege law of 

the state in which the federal court sits; or (3) apply the choice-of-law doctrine of the 

state in which the federal court sits. Id. (citing 23 C. Wright & K. Graham, Jr., Federal 

Practice and Procedure § 5435, at 865-69 (1980); 2 Weinstein’s Federal Evidence 

§ 501[02] (1986)). The parties do not address this choice of law issue either. 

 Greyhound relies on an Arizona statute that defines the attorney-client privilege 

for corporations, A.R.S. § 12-2234. Doc. 60-1 at 1. Viad does object to the use of this 

statute, and does not cite contrary authority. Id. at 1-8. Because Greyhound is the party 

challenging Viad’s assertion of the privilege, and Viad does not object to Greyhound’s 

legal arguments, the Court will apply the Arizona statute and relevant cases. 

 The attorney-client privilege “is rigorously guarded to encourage full and frank 

communications between attorneys and their clients and thereby promote broader public 

interests in the observance of law and the administration of justice.” State v. Sucharew, 

66 P.3d 59, 64, ¶ 10 (Ariz. Ct. App. 2003) (citing State v. Towery, 920 P.2d 290, 299 n.6 

(Ariz. 1996) (internal quotation marks omitted)). “The privilege belongs to the client and 

encompasses communication between the attorney and client made in the course of the 

attorney’s professional employment.” Id. (citing State v. Holsinger, 601 P.2d 1054, 1058 

(Ariz. 1979)). A.R.S. § 12-2234 protects “any communication” that is either “[f]or the 

purpose of providing legal advice to the entity,” or “[f]or the purpose of obtaining 

information in order to provide legal advice to the entity[.]” A.R.S. § 12-2234(B)(1), (2). 

The privilege protects communications. A.R.S. § 12-2234(B). “The burden of showing 

the relationship, the confidential character of the communication, and other necessary 

facts, is that of the party claiming the privilege.” State v. Sands, 700 P.2d 1369, 1374 

(Ariz. Ct. App. 1985) (citation omitted). 

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 B. Work-Product Doctrine. 

 Federal law governs application of the work product doctrine. Bickler v. Senior 

Lifestyle Corp., 266 F.R.D. 379, 382 (D. Ariz. 2010) (citing cases). “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).” Fed. R. Civ. P. 

26(b)(3)(A). The party claiming work-product protection bears the burden of proof. 

Conoco Inc. v. U.S., 687 F.2d 724, 728 (3d Cir. 1982). 

II. Analysis. 

A. Category 1: Reports Prepared by Dr. Kenneth Ries. 

 Greyhound challenges Viad’s privilege assertion for certain monthly and quarterly 

reports prepared by Dr. Kenneth Ries for lawyers in Viad’s law department. Doc. 60-1 at 

1-2. Greyhound argues that the reports are not privileged because they are factual in 

nature, Dr. Ries did not seek legal advice, and Dr. Ries did not label the reports 

“attorney-client privileged.” Greyhound also argues that Viad waived the privilege 

because its Rule 30(b)(6) witness did not know whether the reports were on the 

company’s privilege log or which attorney specifically directed Dr. Ries to prepare the 

reports in prior years. Id.

 Viad provides the following evidence related to the reports. Dr. Ries was a nonlawyer member of Viad’s legal department from 1987 to 2001. Docs. 60-4 at 2, ¶ 4; 60-5 

at 2, ¶ 6. After 2001, Dr. Ries served as a consultant to Viad’s law department, providing 

the “functional equivalent” of his previous services, but “on a more limited basis.” 

Doc. 60-4 at 2, ¶ 5. In this role, Dr. Ries “often provided monthly and quarterly reports 

and other information to Viad’s General Counsel and others in Viad’s law department.” 

Id. at ¶ 4. These reports were always prepared at the direction of lawyers in Viad’s law 

department so that the lawyers could monitor the company’s environmental obligations 

and provide appropriate legal advice. Docs. 60-4 at 2, ¶¶ 4, 7; 60-5 at 2, ¶ 6. 

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 Greyhound contends that the reports are not privileged because they are factual in 

nature. Doc. 60-1 at 1-2. To be protected, a communication must be made for the 

purpose of providing legal advice or for the purpose of obtaining information to provide 

legal advice. A.R.S. § 12-2234(B)(1), (2); see also In re Bard IVC Filters Prods. Liab. 

Litig., No. MDL 2641, 2016 WL 3970338, at *7 (D. Ariz. July 25, 2016). The affidavits 

of Dr. Ries and one of Viad’s in-house lawyers establish that the reports were prepared at 

the direction of lawyers in Viad’s law department, to enable the lawyers to provide legal 

advice to the company. Docs. 60-4 at 2, ¶¶ 4, 7; 60-5 at 2, ¶ 6. This is reinforced by the 

reports themselves, which address a wide range of topics on which lawyers typically 

advise clients, including ongoing and threatened litigation, settlement discussions and 

offers, general legal exposure, and regulatory action. The fact that these reports 

contained factual information (Doc. 60-1 at 1), or documented Dr. Ries’s monthly 

activities (id. (citing Doc. 54-10)), does not refute Viad’s evidence that they were created 

to enable lawyers to provide legal advice. The reports thus fall squarely within A.R.S. 

§ 12-2234(B)(2). 

 Greyhound argues that the reports are not privileged because Dr. Ries did not 

label them as privileged. Doc. 60-1 at 1. But some of the reports are labeled as 

privileged.1

 And even for those that are not, the Arizona statute does not require that 

communications be labeled to be privileged. The statute instead looks to the nature and 

content of the communication and protects those made “[f]or the purpose of obtaining 

information in order to provide legal advice.” See A.R.S. § 12-2234(B)(2). 

 Greyhound also argues that Viad has waived the attorney-client privilege. A party 

waives the privilege when it discloses confidential communications to third parties, 

Ulibarri v. Superior Court In & For Cty. of Coconino, 909 P.2d 449, 452 (Ariz. Ct. App. 

1995), or when it affirmatively places privileged communications at issue, State Farm 

Mutual Automobile Insurance Co. v. Lee, 13 P.3d 1169, 1175, ¶ 16 (Ariz. 2000)). 

Greyhound does not argue that either of these events occurred here. 

 

1

 These include Documents 1 (6/6/2000) and 2 (5/7/2001). 

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 Instead, Greyhound argues that Viad waived the privilege because attorney 

Jonathan Massimino, while testifying as Viad’s Rule 30(b)(6) witness, could not 

determine whether certain items listed on Viad’s privilege log were Dr. Ries’s reports. 

Doc. 54-9 at 1. But Greyhound provides no legal or logical argument as to why this 

testimony would constitute a waiver of the privilege. 

 Greyhound contends that Massimino gave inconsistent testimony on whether the 

reports were prepared at the direction of Viad’s counsel. The Court does not agree. 

Massimino testified that the Ries reports were prepared at the request of counsel, 

although he was not able to identify the specific attorney who made the request before he 

joined the legal department. Doc. 60-8 at 3-4. In his declaration – issued about a month 

after his deposition – Massimino avowed that he had directed Dr. Ries to prepare the 

reports while he was in the law department, and that records indicated that Dr. Ries had 

always done so at the direction of Viad’s lawyers. Doc. 60-5 at 2, ¶ 6. The Court does 

not view these assertions as inconsistent with his deposition testimony. 

 The Court concludes that the quarterly and monthly reports prepared by Dr. Ries 

are protected by the attorney-client privilege under A.R.S. § 12-2234(B). 

 B. Category 2: Annotated Documents. 

 Greyhound challenges Viad’s privilege assertion for documents containing 

notations of unidentified individuals. Doc. 60-1 at 3-4. Greyhound does not dispute that 

Viad has already produced unannotated versions of the documents. Id. Viad invoked the 

attorney-client privilege for all three documents (Doc. 54-1 at 5, 7), and the work-product 

doctrine only for document 4 (id. at 5). 

 Viad asserts that attorney authorship of the notations is established by the fact that 

the documents were found in the law department’s files. Doc. 60-5 at 2, ¶ 7. It explains 

that it cannot identify specific authors because Viad employed up to 35 attorneys at one 

time. Id. But even if these facts could be used to show that lawyers made the notations, 

Viad has failed to provide any evidence that the notations were ever communicated to 

anyone. Arizona’s corporate attorney-client privilege protects “communication[s].” 

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A.R.S. § 12-2234(B). Viad has made no effort to show that the notations were prepared 

in anticipation of litigation. 

 Viad has not carried its burden of establishing that the attorney-client privilege or 

the work-product doctrine protects the annotated documents from disclosure. The Court 

therefore concludes that the documents in category 2 are not protected from disclosure. 

 C. Category 3: Dr. Ries’s Memoranda to the File or to No One. 

 This category includes memoranda written by Dr. Ries, but addressed to “file” or 

to no one at all. Doc. 60-1 at 4-5. Greyhound contends that Dr. Ries sent memoranda to 

the file for the sole purpose of documenting facts, and that Viad cannot prove the 

memoranda were communications. Id.

 Dr. Ries testified that he sometimes wrote a “memorandum to file” for the sole 

purpose of documenting information. Doc. 54-4 at 2-3. But Dr. Ries prepared the three 

documents submitted for in camera review at the direction of Viad’s counsel to enable 

them to provide the company with legal advice, and he designated each document as 

attorney-client privileged. Docs. 60-4 at 2, ¶ 8; 60-5 at 2-3, ¶ 8. The documents were 

found in the law department’s files. Doc. 60-5 at 2-3, ¶ 8. 

 Greyhound argues that Dr. Ries’s testimony that he sometimes prepared a 

“memorandum to file” for the sole purpose of documenting information proves that these 

documents are not privileged. Doc. 60-1 at 4-5. The Court does not agree. One of the 

three documents reviewed by the Court was addressed to “Files: TLC – General.” The 

other two were labeled “Estimated Future Environmental Liabilities.” All three are 

labeled as privileged. Dr. Ries’s testimony about his practice of writing unrelated 

memoranda to file does not refute his sworn declaration about the documents submitted 

for in camera review. Dr. Ries stated that these documents were prepared at the direction 

of lawyers in Viad’s law department, and Massimino stated that Viad lawyers rely on 

these materials to advise the company. These facts support application of the privilege. 

 Greyhound also asserts that Viad has not provided proof that these documents 

were ever communicated. The Court does not agree. The declarations of Dr. Ries and 

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Mr. Massimino, and the location of the documents in the law department’s files, provides 

sufficient circumstantial evidence that the memoranda were communications of 

information needed to render legal advice. 

 The Court concludes that the three documents reviewed in camera are protected 

by the attorney-client privilege. 

 D. Category 4: Dr. Ries’s Charts Without a Recipient. 

 Greyhound challenges Viad’s privilege claim for certain charts prepared by Dr. 

Ries. Doc. 60-1 at 5-6. Viad provides the following evidence. Dr. Ries prepared or 

assisted in preparing these charts at the direction of Viad’s counsel, who used them to 

“monitor and advise the company as to environmental liabilities and obligations.” Doc. 

60-4 at 3, ¶ 9; see also 54-5 at 1. Viad continues to prepare such documents today at the 

request of Viad’s general counsel to assist the law department in monitoring and advising 

the company on environmental liabilities. Doc. 60-5 at 3, ¶ 9. The charts submitted for 

in camera review contain the phrase “Confidential – Attorney-Client Privilege.” 

 Greyhound asserts that Viad has failed to establish that the charts were 

communicated to anyone. Doc. 60-1 at 5-6. Greyhound notes that Viad’s privilege log 

supports this assertion because the “To” and “CC” columns are designated as “N/A,” or 

not applicable. Doc. 54-1 at 6-7. But Viad has presented evidence that the charts were 

created at the request of counsel and to assist counsel in advising the company, and this 

purpose necessarily includes communication of the charts to counsel. What is more, one 

of the charts contains a note that states “update & copy to DJD.” Doc. 60-1 at 6. Viad 

has submitted evidence that “DJD” are the initials of Viad’s general counsel. Doc. 60-5 

at 3, ¶ 9. This further supports Viad’s assertion that the charts are shared with counsel. 

 The Court concludes that Viad has carried its burden of establishing that the charts 

are communications within the scope of Arizona’s corporate attorney-client privilege. 

 E. Category 5: Memoranda Prepared by Daryl Hagg. 

 Greyhound challenges Viad’s privilege assertion for memoranda prepared by 

Daryl Hagg. Doc. 60-1 at 6-7. Hagg was an assistant to Viad’s general counsel and 

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others in Viad’s law department, and prepared memoranda addressing reimbursement 

figures from various sites. Doc. 60-4 at 3, ¶ 10. 

 The Court has reviewed these documents, and no legal advice is communicated in 

them. Nor has Viad provided any evidence that the information contained in them was 

obtained for purposes of providing legal advice. Viad has failed to meet its burden. See 

Sands, 700 P.2d at 1374. 

 Viad asserts work-product protection for document 15. See Doc. 54-1 at 9. This 

document appears to be a draft, but Viad makes no attempt to show that the document 

was prepared in anticipation of litigation. Doc. 60-1 at 6-7. 

 The Court concludes that the memoranda in category 5 are not protected by the 

attorney-client privilege or the work-product doctrine. 

 F. Category 6: Memoranda Prepared by Dr. Kenneth Ries. 

 Dr. Ries prepared two memoranda addressing invoices and reimbursement. Both 

are labeled “attorney/client communication” and were sent to lawyers. Doc. 60-4, ¶ 11.2

 Greyhound argues that the memoranda do not seek legal advice and merely 

convey facts. Doc. 60-1 at 7. But the memoranda are not limited to transmitting invoice 

information for payment. They contain other information that would assist a lawyer in 

providing legal advice concerning the company’s legal liability. The Court concludes 

that the memoranda in category 6 are protected by the attorney-client privilege. 

 IT IS ORDERED: 

1. Plaintiff Greyhound Lines Inc.’s motion to compel (Doc. 54) is granted in 

part and denied in part as set forth above. 

 

 

2

 Viad states that document 18 is not relevant because it “references a dispute over a property not at issue in this case.” Doc. 60-1 at 7. Greyhound argues that it was prejudiced by this late disclosure because Greyhound would have selected another document from Viad’s privilege log for in camera review. Id. at 7-8. The Court is not 

persuaded. The two documents submitted for review are sufficiently representative to allow the Court to determine whether this category of documents is privileged. 

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 2. Defendant Viad Corporation shall produce the documents in categories 2 

and 5 to Greyhound by September 12, 2016. 

 Dated this 8th day of September, 2016. 

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