Summary
finding that documents which did not on their face contain requests for legal advice were nevertheless protected because they were compilations of facts for use by counsel in providing legal advice
Summary of this case from Fed. Trade Comm'n v. Boehringer Ingelheim Pharm., Inc.Opinion
William P. Farley, at Karl & Tarone, Washington, DC, for plaintiff.
MEMORANDUM ORDER
FACCIOLA, United States Magistrate Judge.
This case was referred to me by Judge Kennedy for full case management. Currently pending before me is the issue of whether the Office of the Senate Sergeant-at-Arms and Doorkeeper (" SAA" or " defendant" ) must produce certain documents, claimed to be privileged and submitted for in camera review, to Roy Banks (" Banks" or " plaintiff" ). For the reasons stated herein and in accordance with this Memorandum Order, the SAA must produce to plaintiff several of the documents submitted for in camera review.
I. BACKGROUND
Plaintiff brought this lawsuit alleging that his employer, the SAA, engaged in several unlawful employment actions. See Banks v. Office of the Senate Sergeant-at-Arms, 222 F.R.D. 7, 9 (D.D.C.2004). The parties have engaged in substantial litigation regarding discovery. In this memorandum, I resolve the issue of whether certain documents, submitted by the defendant for in camera review, can be withheld because they are covered by the work-product doctrine, the attorney-client privilege, or both.
II. PRIVILEGES CLAIMED BY THE DEFENDANT
A. The Work-Product Privilege
As the Supreme Court has stated, " it is essential [to our adversarial system] that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). If a lawyer's work product were " open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own." Id. at 511, 67 S.Ct. 385.
In light of these important interests, Federal Rule of Civil Procedure 26(b)(3) and the work-product doctrine provide that materials prepared in anticipation of litigation or for trial by an attorney or a party are protected from disclosure, and they may be subject to discovery only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. Fed.R.Civ.P. 26(b)(3). In addition, the court must protect the " mental impressions, conclusions, opinions, or legal theories of an attorney." Id. See also Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 619 (D.C.Cir.1997). These materials, known as opinion work product, " are entitled to special protection and require a stronger showing of necessity to justify release ... although the precise contours of this showing have not been resolved." Byers v. Burleson, 100 F.R.D. 436, 439 (D.D.C.1983) (citing Fed.R.Civ.P. 26(b)(3) and Upjohn Co. v. United States, 449 U.S. 383, 400-01, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). See also In re Sealed Case, 856 F.2d 268, 273 (D.C.Cir.1988).
In reviewing documents claimed to be protected by the work-product privilege, the court must determine " whether, in light of the nature of the document or the factual situation in a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Equal Employment Opportunity Comm'n v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C.Cir.1999) (emphasis added). See also Willingham v. Ashcroft, Civ. A. No. 02-1972, 2005 WL 873223, at *2 (D.D.C. Apr.15, 2005). As I have recently noted,
[t]o be protected by the work-product doctrine, a document must have been created for use at trial or because a lawyer or party reasonably anticipated that specific litigation would occur and prepared the document to advance the party's interest in the successful resolution of that litigation. Motivation is key. In ways that cannot often be foreseen when they are created, documents may prove useful in litigation because they record an event or memorialize an occurrence. But, their creation at a time when litigation was anticipated does not automatically render them privileged. The purpose of preparing for the anticipated litigation is critical, lest the rule be interpreted to protect everything a lawyer or party does when litigation is anticipated even though the lawyer or party did not create the document to advance the client's interest in the litigation.
Willingham, 2005 WL 873223, at *2. Hence, if the same or essentially similar documents would have been created whether or not litigation was foreseen, " ‘ it [cannot] fairly be said that they were created " because of" actual or impending litigation.’ " Id. (quoting United States v. Adlman, 134 F.3d 1194, 1202-03).
B. The Attorney-Client Privilege
In this Circuit, " the attorney-client privilege is narrowly circumscribed to shield from disclosure only those communications from a client to an attorney made in confidence and for the purpose of securing legal advice." Willingham, 2005 WL 873223, at *6 (quoting Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 204 (D.D.C.1998)). See also Tax Analysts, 117 F.3d at 618; In re Sealed Case, 737 F.2d 94, 98 (D.C.Cir.1984). The privilege also applies to communications from attorneys to their clients if the communications " ‘ rest on confidential information obtained from the client.’ " Tax Analysts, 117 F.3d at 618 (quoting In re Sealed Case, 737 F.2d at 99 and citing Mead Data Central, Inc. v. United States Dep't of Air Force, 566 F.2d 242, 254 (D.C.Cir.1977)).
III. SPECIFIC ISSUES REGARDING SUBSETS OF THE DOCUMENTS
A. Documents Revealing How Counsel Investigated the Case and Prepared the Government's Defense
Many of the documents submitted for in camera review concern a matter that defense counsel investigated when developing the facts of the case and preparing its defense. These documents were clearly prepared because of the prospect of litigation, and they reveal counsel's mental impressions and litigation strategy. Accordingly, the documents that reflect the process by which defense counsel prepared this case constitute highly protected opinion work product. Defendant's claim of work-product privilege is sustained, and defendant need not produce these documents. In the chart summarizing my rulings on each document submitted for in camera review, these materials are identified by the terms " Case Investigation and Preparation."
B. Jane and John Doe Documents
Several documents submitted for in camera review concern SAA employees other than Banks and the individuals who made decisions concerning the terms of his employment. Indeed, most of these documents memorialize conversations with and about a certain SAA employee, whom I shall call Jane Doe I. Other documents concern SAA employees to whom I will refer as Jane Doe II, Jane Doe III, John Doe I, and John Doe II.
For many of these documents, the defendant claims the work-product privilege. But, neither on the face of the documents nor in the privilege log is there any showing that the documents were created because of the prospect of litigation by Banks or anyone else. Without such a showing, any claim of work-product privilege simply cannot be sustained.
For the majority of these documents, the SAA has also claimed the attorney-client privilege. An analysis of the Jane Doe I documents reveals that the materials fall into two categories. In the first group are documents that reflect communications between the client (the SAA) and its counsel when the SAA sought legal advice regarding how to handle Jane Doe I's continued use-and possible abuse-of her sick and disability leave. A review of these documents indicates that the SAA intended the communications to be confidential, at least while the government made a determination as to whether to take disciplinary or other action. This group of documents, in which the client specifically seeks legal guidance with the understanding that its communications are confidential, is clearly protected under the attorney-client privilege.
The second group of materials concerns the same situation. However, each of these materials does not, on its face, disclose that the client sought or an attorney rendered specific legal advice. Rather, in these documents, the SAA recounts facts so that its counsel may continue to be apprised of the developing situation and the SAA may receive continued advice from its attorneys. If the court were to deny the privilege as to these documents, it would reveal the nature of the guidance SAA sought from its counsel and, in effect, nullify the privilege that the court sustained as to the first group. Indeed, when read as a whole, it is clear that these communications were intended to be confidential and were part of the process by which the SAA sought legal advice from counsel. Indeed, " [i]t is not essential ... that [a] request for advice be express. Client communications intended to keep the attorney generally apprised of continuing business developments, with an implied request for legal advice thereon ... may also be protected." Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 144-45 (D.Del.1977). In addition, although " it is essential that communications between client and attorney deal with legal assistance and advice in order to be privileged, it is not essential that such requests by the client for legal advice be expressed.... [Rather,] there must be a finding that each document is involved in the rendition of legal assistance." Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 37-39 (D.Md.1974). Because it can fairly be said that the documents in the second group were created to keep SAA's counsel apprised of the very situation about which the SAA sought legal assistance, the SAA's claim of attorney-client privilege, as to the second group of documents, is sustained.
C. Chart and Abbreviated Notations
In the interest of clarity, I have included in this memorandum two charts. The first summarizes various abbreviations I have used to describe my analysis of the materials. The second lists each document submitted for in camera review and my rulings on each privilege claim.
Abbreviated Notation
Explanation
Not for Trial
Based on information provided by defendant, thedocument cannot fairly be said to have been prepared orobtained because of the prospect of litigation or fortrial. Defendant's claim of work-product privilegeis denied.
lines
Opinion Work Product
Document can fairly be said to have been prepared fortrial or in anticipation of litigation, and it reflectscounsel's mental impressions. Defendant's claimof work-product privilege is sustained.
Ordinary Work Product
Document can fairly be said to have been prepared fortrial or in anticipation of litigation, but it does notreflect counsel's mental impressions.Defendant's claim of work-product privilege issustained, but plaintiff will have the opportunity tomake a showing of substantial need and undue hardship.
Not Confidential
Document does not disclose information that the clientintended to be confidential. Defendant's claim ofattorney-client privilege is denied.
Confidential and Seeks Legal Advice
Document reflects communications that the clientintended to be confidential and that were made for thepurposes of seeking legal advice. The attorney-clientprivilege is sustained.
Case Investigation and Preparation
These documents reveal the manner in which defensecounsel investigated and prepared the government'sdefense. The documents were prepared in anticipation oflitigation and reveal counsel's mental impressionsand litigation strategy. Defendant's claim ofwork-product privilege is sustained.
Jane Doe I, Jane Doe II, Jane Doe III, John Doe I, orJohn Doe II
These documents relate to SAA employees other thanBanks. Defendant has failed to indicate whether thesedocuments were prepared for trial or in anticipation oflitigation, either because they are related to theinstant case or to adversarial proceedings involvingother employees. Because defendant failed to make asufficient showing that these documents qualify as workproduct, the claim of work-product privilege is denied.
However, these documents do reflect confidentialcommunications made from a client (the government) toits attorney (defense counsel). Therefore, where theattorney-client privilege has been claimed, theprivilege is sustained.
Privilege
Bates #
Claimed
Ruling
Reason
RB 001735
Attorney-client
Denied
Not Confidential
Work-product
Denied
Not for Trial
RB 001793
Attorney-client
Denied
Not Confidential
Work-product
Denied
Not for Trial
RB 001808
Attorney-client
Denied
Not Confidential
Work-product
Denied
Not for Trial
RB 001885
Attorney-client
Denied
Not Confidential
Work-product
Denied
Not for Trial
RB 002004
Attorney-client
Denied
Not Confidential
Work-product
Denied
Not for Trial
RB 002012
Attorney-client
Denied
Not Confidential
Work-product
Sustained
Ordinary Work Product
RB 002408
Attorney-client
Denied
Not Confidential
Work-product
Sustained
Ordinary Work Product
RB 002501
Attorney-client
Denied
Not Confidential
RB 002502
Attorney-client
Denied
Not Confidential
RB 002538
Attorney-client
Denied
Not Confidential
RB 002541
Work-product
Denied
While technically prepared in anticipation oflitigation, the document recounts conversations withplaintiff's counsel regarding the InitialScheduling Conference. The court will not sustaindefendant's claim of work product as to thisdocument because to do so would trivialize theprivilege.
RB 002557
Attorney-client
Denied
Not Confidential
RB 003049
Work-product
Sustained
Case Investigation and Preparation
RB 003050-
Work-product
Sustained
Case Investigation and Preparation
RB 003051
RB 003056-
Work-product
Sustained
Case Investigation and Preparation
RB 003058
RB 003060-
Work-product
Sustained
Case Investigation and Preparation
RB 003062
RB 003066
Work-product
Sustained
Case Investigation and Preparation
RB 003067
Work-product
Sustained
Case Investigation and Preparation
RB 003068
Work-product
Sustained
Case Investigation and Preparation
RB 003095
Work-product
Sustained
Case Investigation and Preparation
RB 003096
Work-product
Sustained
Case Investigation and Preparation
RB 003111
Work-product
Sustained
Case Investigation and Preparation
RB 003112
Work-product
Sustained
Case Investigation and Preparation
RB 002417
Work-product
Denied
Not for Trial
RB 002993-
Work-product
Sustained
Opinion Work Product
RB 002994
RB 003113-
Work-product
Sustained
Case Investigation and Preparation
RB 003122
RB 003123
Work-product
Sustained
Case Investigation and Preparation
RB 003129-
Work-product
Sustained
Opinion Work Product
RB 003131
RB 003687
Work-product
Sustained
Opinion Work Product
RB 003738
Attorney-client
Denied
Not Confidential
RB 003757
Attorney-client
Denied
Not Confidential
Work-product
Denied
Insufficient showing of whether this draft letter to anunnamed individual was prepared in anticipation oflitigation
RB 004186-
Work-product
Sustained
Opinion Work Product
RB 004187
RB 004604-
Attorney-client
Denied
Case Investigation and Preparation
RB 004608
Work-product
Sustained
RB 004612
Work-product
Sustained
Opinion Work Product
RB 006235-
Work-product
Sustained
Case Investigation and Preparation
RB 006239
RB 007037
Attorney-client
Denied
Case Investigation and Preparation
Work-product
Sustained
RB 007038-
Work-product
Sustained
Case Investigation and Preparation
RB 007040
RB 007041-
Work-product
Sustained
Case Investigation and Preparation
RB 007042
RB 007043
Work-product
Sustained
Case Investigation and Preparation
RB 007044
Attorney-client
Denied
Not Confidential
Work-product
Denied
Not for Trial
RB 008418
Work-product
Denied
Not for Trial
RB 004188-
Work-product
Sustained
Opinion Work Product
RB 004193
RB 008542-
Attorney-client
Sustained
Jane Doe I
RB 008543
Work-product
Denied
RB 008552-
Attorney-client
Sustained
Jane Doe I
RB 008554
Work-product
Denied
RB 008559-
Attorney-client
Sustained
Jane Doe I
RB 008562
Work-product
Denied
RB 008563-
Attorney-client
Sustained
Jane Doe I
RB 008564
Work-product
Denied
RB 008570
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008587
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008588-
Attorney-client
Sustained
Jane Doe I
RB 008589
Work-product
Denied
RB 008592
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008593
Attorney-client
Sustained
Jane Doe I
RB 008594
Attorney-client
Sustained
Jane Doe I
RB 008626
Attorney-client
Sustained
Jane Doe I
RB 008627
Attorney-client
Sustained
Jane Doe I
RB 008663
Attorney-client
Sustained
Jane Doe I
RB 008907-
Attorney-client
Sustained
Jane Doe I
RB 008908
Work-product
Denied
RB 008909
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008558
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008919
Attorney-client
Denied
Not Confidential
RB 008925
Attorney-client
Denied
Not Confidential
RB 008928-
Work-product
Denied
Jane Doe II
RB 008930
RB 008931-
Work-product
Denied
Jane Doe II
RB008932
RB 008941
Attorney-client
Denied
Case Investigation and Preparation
Work-product
Sustained
RB 008942
Work-product
Sustained
Case Investigation and Preparation
RB 008944
Attorney-client
Denied
Not Confidential
RB 008956
Work-product
Denied
Jane Doe III
RB 008957-
Work-product
Denied
John Doe I
RB 008962
RB 009415
Attorney-client
Denied
Case Investigation and Preparation
Work-product
Sustained
RB 009416
Attorney-client
Denied
Case Investigation and Preparation
Work-product
Sustained
RB 009417-
Attorney-client
Denied
Case Investigation and Preparation
RB 009419
Work-product
Sustained
RB 012245
Attorney-client
Sustained
John Doe II
RB 013332
Attorney-client
Denied
Not Confidential
RB 013352-
Work-product
Sustained
Opinion Work Product
RB 013353
RB 013451-
Work-product
Sustained
Case Investigation and Preparation
RB 013452
RB 013714
Work-product
Sustained
Case Investigation and Preparation
RB 013793
Attorney-client
Sustained
Confidential and Seeks Legal Advice
Work-product
Sustained
Opinion Work Product
RB 013794
Attorney-client
Denied
Not Confidential
Work-product
Sustained (in part)
RB 013804
Work-product
Sustained
Opinion Work Product
RB 013805
Work-product
Sustained
Opinion Work Product
RB 013806-
Work-product
Sustained
Opinion Work Product
RB 013812
RB 013813-
Work-product
Sustained
Opinion Work Product
RB 013823
RB 013824-
Work-product
Sustained
Opinion Work Product
RB 013828
RB 013829-
Work-product
Sustained
Opinion Work Product
RB 013830
RB 013863-
Work-product
Sustained
Opinion Work Product
RB 013864
RB 013865-
Work-product
Sustained
Opinion Work Product
RB 013866
RB 013873-
Attorney-client
Denied
Not Confidential
RB 013874
Work-product
Sustained (in part)
RB 013875-
Work-product
Sustained
Opinion Work Product
RB 013878
RB 013879-
Attorney-client
Sustained
Confidential and Seeks Legal Advice
RB 013880
RB 014815-
Attorney-client
Denied
Not Confidential
RB 014816
RB 014937
Work-product
Sustained
Opinion Work Product
RB 014939-
Work-product
Sustained
Opinion Work Product
RB 014940
RB 015144
Attorney-client
Denied
Not Confidential
RB 015147
Work-product
Sustained
Ordinary Work Product
RB 008476
Work-product
Denied
Jane Doe I
RB 008439
Attorney-client
Sustained
Jane Doe I
RB 008477
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008478
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008483
Work-product
Denied
Jane Doe I
RB 008487
Attorney-client
Sustained
Jane Doe I
RB 008488-
Work-product
Denied
Jane Doe I
RB 008490
RB 008491-
Attorney-client
Sustained
Jane Doe I
RB 008493
Work-product
Denied
RB 008499
Attorney-client
Sustained
Jane Doe I
RB 008507
Attorney-client
Sustained
Jane Doe I
RB 008508
Attorney-client
Sustained
Jane Doe I
RB 008509
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008510
Attorney-client
Sustained
Jane Doe I
RB 008511
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008512
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008479
Attorney-client
Sustained
Jane Doe I
RB 008480
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008481
Attorney-client
Sustained
Jane Doe I
RB 008482
Attorney-client
Sustained
Jane Doe I
RB 008484
Attorney-client
Sustained
Jane Doe I
RB 008485
Attorney-client
Sustained
Jane Doe I
RB 008486
Attorney-client
Sustained
Jane Doe I
RB 008494
Attorney-client
Sustained
Jane Doe I
RB 008495
Attorney-client
Sustained
Jane Doe I
RB 008496
Attorney-client
Sustained
Jane Doe I
RB 008497
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008498
Attorney-client
Sustained
Jane Doe I
RB 008500
Attorney-client
Sustained
Jane Doe I
RB 008502
Attorney-client
Sustained
Jane Doe I
RB 008503
Attorney-client
Sustained
Jane Doe I
RB 008504
Attorney-client
Sustained
Jane Doe I
RB 008505
Attorney-client
Sustained
Jane Doe I
RB 008506
Attorney-client
Sustained
Jane Doe I
RB 008513
Attorney-client
Sustained
Jane Doe I
RB 008443-
Attorney-client
Sustained
Jane Doe I
RB 008444
Work-product
Denied
RB 008445
Attorney-client
Sustained
Jane Doe I
RB 008446
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008447
Attorney-client
Sustained
Jane Doe I
RB 008448
Work-product
Denied
Jane Doe I
RB 008449
Work-product
Denied
Jane Doe I
RB 008455-
Attorney-client
Sustained
Jane Doe I
RB 008456
Work-product
Denied
RB 008457
Attorney-client
Sustained
Jane Doe I
RB 008458
Attorney-client
Sustained
Jane Doe I
RB 008459
Attorney-client
Sustained
Jane Doe I
RB 008460
Attorney-client
Sustained
Jane Doe I
RB 008461
Attorney-client
Sustained
Jane Doe I
RB 008462
Attorney-client
Sustained
Jane Doe I
RB 008465
Attorney-client
Sustained
Jane Doe I
RB 008467
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008468
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008469-
Attorney-client
Sustained
Jane Doe I
RB 008470
Work-product
Denied
RB 008471
Attorney-client
Sustained
Jane Doe I
work product
Denied
RB 008472
Attorney-client
Sustained
Jane Doe I
RB 008473
Attorney-client
Sustained
Jane Doe I
RB 008474
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008475
Attorney-client
Sustained
Jane Doe I
Work-product
Denied
RB 008441
Work-product
Denied
Jane Doe I
RB 008451
Attorney-client
Sustained
Jane Doe I
RB 008452
Attorney-client
Sustained
Jane Doe I
RB 008453
Attorney-client
Sustained
Jane Doe I
RB 008454
Attorney-client
Sustained
Jane Doe I
RB 008463
Attorney-client
Sustained
Jane Doe I
RB 008464
Attorney-client
Sustained
Jane Doe I
RB 008466
Attorney-client
Sustained
Jane Doe I
RB 014230-
Work-product
Sustained
Opinion Work Product
RB 014236
RB 014241-
Work-product
Sustained
Opinion Work Product
RB 014247
RB 014263-
Attorney-client
Sustained as to
Opinion Work Product
RB 014269
Work-product
work product
RB 014289-
Attorney-client
Sustained as to
Opinion Work Product
RB 014290
Work-product
work product
E-mail from Pence dated 5/28/04
Work-product
Sustained
Opinion Work Product
Memo to file dated 7/15/03
Work-product
Sustained
Opinion Work Product
IV. CONCLUSION
Memo to file dated 7/25/03
Work-product
Sustained
Opinion Work Product
The first sentence of the second paragraph is opinion work product. Therefore, the document must be produced, but only after that sentence has been redacted.
The first sentence of the second paragraph is opinion work product. Therefore, the document must be produced, but only after that sentence has been redacted.
For the reasons stated herein, the defendant is, hereby, ORDERED to, within 10 days of this Memorandum Order, produce all of the documents as to which its claim of privileges have been denied. As to those documents for which the court has sustained the claims of privilege in part, defendant shall produce redacted versions of the materials to plaintiff. For documents determined to be ordinary work product, the court has provided a more detailed description than appears in the privilege log so that plaintiff, if he chooses, may articulate his substantial need for the materials and his inability to secure the substantial equivalent without undue hardship. Any such showing must be made, in writing, by May 16, 2005. Defendant may respond by May 23, 2005. The court notes that these documents are hardly earth-shattering in their significance and hopes that, in a case in which so much money has already been spent on discovery, the parties can work together to determine whether additional litigation over these three documents is in anyone's interest.
These descriptions appear in Appendix A.
SO ORDERED.
Appendix A
The following contains a description of all thedocuments found to be ordinary work product.
RB 002012
This document is a memorandum from Catherine Brooks(" Brooks" ), Administrator, SenateWorkers' Compensation Program, to Brenda Pence,Senior Counsel. The memorandum concerns an inventorylog that Brooks received from S.R.
RB 002408
This document is an email from Claudia Kostel to JeanMcComish. It concerns how to follow up with Banksregarding his FMLA forms.
RB 015147
This document is an email from Brenda Pence to KathleenJoseph. It concerns Banks' appeals of hisworkers' compensation claims.