Opinion
Civil Action No. 09-1972 (HHK/JMF)
04-02-2013
EARTHWORKS, et al., Plaintiffs, v. U.S. DEPT. OF THE INTERIOR, et al., Defendants.
MEMORANDUM ORDER
There has been assigned to me the task of reviewing a large number of documents which the Department of Interior ("DOI") claims are protected by the attorney-client and, to a lesser extent, the work product privileges.
The attorney-client privilege protects confidential communications made by a client to a lawyer for the purpose of securing legal advice or services, while the work product privilege protects a lawyer's mental processes while that lawyer is preparing for trial or working in anticipation thereof. The former is said to advance the crucial societal interest in clients being candid with their lawyers, while the latter advances the equally important value in zealous advocacy.
Banks v. Office of the Senate Sergeant at Arms, 236 F.R.D. 16, 19-20 (D.D.C. 2006).
Upjohn Co. v. United States, 449 U.S. 383, 389 (1982).
Hickman v. Taylor, 329 U. S. 495, 510-11 (1947).
Review of privilege logs often discloses that the person doing the log may not understand the intricacies of the privileges being claimed. Perhaps the greatest deficiency is the failure to appreciate that the attorney-client privilege does not operate to insulate from disclosure every possible communication between an attorney and client. It should be obvious that communications from the attorney to client are not ipso facto protected. To the contrary, the privilege operates to shield communications from an attorney to a client "only if that communication is based on confidential information provided by the client." Mead Data Cent. v. U.S. Dep't of the Air Force, 566 F.2d 242, 255 (D.C. Cir. 1977). In that case, the district court determined that several documents were privileged although the court of appeals found that the government's description of the documents gave "no indication as to the confidentiality of the information on which they were based." Id. at 254. The court of appeals, therefore, ordered that the documents be remanded so that the Air Force could shield from disclosure, as privileged, only those documents where the "information upon which they [were] based was supplied by the Air Force [to counsel] with the expectation of secrecy and was not known or disclosed to any third party . . . ." Id.
I have attached to this opinion two charts, which indicate my ruling as to each document. As will be seen, I have ruled finally on certain documents, but only conditionally as to others. As I will now explain, the necessity for such conditional rulings is because so many of the documents are drafts that were exchanged either between two persons or among a group of persons.
Whether or not a document styled a draft in a privilege log is privileged can be a multifaceted and fact-bound determination. The transmittal of a communication from a client to a lawyer with an express request for guidance presents the easy case: "Here is the draft employment agreement I am going to ask my boss to sign. Let me know if it protects my legal rights." In other circumstances, the absence of an explicit request for advice may not doom the claim of privilege, if the confidential nature of the communication can be discerned from what the lawyer has said or done. For example, a red lined edited draft of the agreement from the lawyer to the client may, in a certain context, itself permit the inference that the client sent the draft to the lawyer expecting the lawyer to provide confidential guidance as to contents of the documents. The process of the exchange may itself bespeak an intention by the client that her transmittal of the draft be a confidential request for guidance.
On the other hand, and this is particularly true in a governmental situation, the lawyer may be the chief draftsperson of a particular document which she then sends to her co-workers for their views and thoughts. While their responses may qualify as communications to a lawyer intended to be confidential, the lawyer's draft, transmitted to them, does not yield any confidential communication from them. In other words, from the lawyer's draft, we learn only that she wrote a draft and transmitted it to her clients. Thus, while there are circumstances where even a draft might yield a secret, client communication (e.g. the draft of a will that provides for an illegitimate child), the transmittal of drafts in this case does not. That the DOI lawyers and other employees were in the process of drafting new rules and regulations in response to an order in this case is hardly a secret. The privilege log itself indicates that such drafting was taking place.
As a result of the nuanced distinctions I have just elucidated, and because of the obvious deficiencies in the privilege log, I must make conditional rulings. For example, I cannot tell from the names of the authors and recipients who are the attorneys and who are the clients. In several instances, the email address indicates that the person sending or receiving the electronically stored information is in the Solicitor's office, and therefore appears to be an attorney. In all other instances, however, I cannot ascertain from the log who is the lawyer and who is the client. Furthermore, the log cannot possibly tell me what I need to know—whether the document explicitly or implicitly reveals a communication from a client that was intended to be confidential. Thus, in its current condition, the privilege log fails me in several particulars.
I will not, however, return to the obligation of reviewing the documents until the parties consider whether the claims of privilege could be more quickly resolved by resorting to an agreement pursuant to Rule 502(d) of the Federal Rules of Evidence.
Having reviewed more privilege logs and assertedly privileged documents than I care to remember, I can state with certainty that the overwhelming majority of "privileged" documents are insignificant, and their disclosure would never prejudice the party claiming the privilege or place that party at any tactical disadvantage. Simply put, in my almost 15 years of being a magistrate judge and my more than 40 years of practicing law, I am still waiting to see that "smoking gun"-the privileged document that makes a substantial difference to whether a case is won or lost. This case is no different. To date, I have not seen a single document in this case that, if revealed, would harm the DOI's position in this litigation.
Often, as may be true here, the assertion of the attorney-client and work product privileges is usually and understandably self-protective, lest the failure to assert the privilege as to one document be deemed a waiver of all documents that deal with the same subject matter. But, Rule 502(a) of the Federal Rules of Evidence abolishes this so-called subject matter waiver and replaces it with a much more constricted principle that requires the disclosure of a second document (or a larger amount of a single document) only when the second document deals with the same subject matter as the disclosed document and the two documents "ought in fairness be considered together." Fed. R. Evid. 502(a).
Rule 502(b) provides further protection against an inadvertent disclosure by permitting the disclosed document to be "clawed back" under certain circumstances.
Finally, Rule 502(d) permits the parties to enter into any agreement they see fit pertaining to the privilege questions, and makes their agreement good against the world. Used creatively, it can save the parties and the court great expense and burden. As to the latter, in these days of finite resources, courts can no longer justify spending many hours resolving privilege claims, document by document, when a party can achieve the protection it needs by use of Rule 502(d). Thus, I will order DOI to meet with plaintiffs' counsel to ascertain whether a 502(d) order could not promptly resolve the outstanding privilege claims so the parties can once again focus on the merits of the controversy. The DOI now has my views on its privilege assertions and can use them to shape the agreement it needs. I also expect it to make a conscientious effort to de-duplicate the remaining documents. As it is well aware, the same email or memorandum appears again and again in the documents claimed to be privileged. I urge it to use a categorical grouping of the remaining documents so its discussions with plaintiffs can achieve the efficiency that is needed.
See John M. Facciola & Jonathan Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, http://www.fclr.org/fclr/articles/html/2009/facciolaredgrave.pdf (last visited Mar. 29, 2013).
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I expect the parties to report to me within ten days from the date of this opinion on whether they can forge such an agreement. If they cannot, I will then decide whether I will order the DOI to prepare a revised privilege log or enter a Rule 502(d) order myself, sua sponte.
SO ORDERED.
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JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE