Opinion
06 Civ. 12994 (RJS) (KNF).
June 25, 2008
MEMORANDUM AND ORDER
INTRODUCTION
In this in rem action by the United States, pursuant to 19 U.S.C. § 1595a and 18 U.S.C. § 981(a)(1)(c), seeking the forfeiture of all right, title and interest in the artwork known as "Le Marche," created by Camille Pissarro, located at Sotheby's auction house, in New York, the claimant Sharyl R. Davis ("Davis") challenges the government's assertion of privileges for, withholding from disclosure, certain e-mail communications. In a joint letter by the parties, dated April 18, 2008, Davis contends she identified nine e-mail communications, on the privilege log produced by the government, for which she requested that additional information be provided to enable her to assess the privilege claims. In a joint letter by the parties, dated April 7, 2008, Davis indicated that the government failed "to lay a foundation for [asserting] either the `attorney client privilege' or the `law enforcement privilege,' or both." According to Davis, in response to her April 7, 2008 request for additional information, the government revised its privilege log to add the "work product" doctrine as an additional ground for withholding from disclosure some of the items sought by Davis. Davis maintains all nine documents are necessary for her defense and must be disclosed. The government contends: (1) all nine e-mail communications are protected from disclosure by the law enforcement privilege; (2) five of those nine e-mail communications, item Nos. 3, 4, 5, 6 and 9, are protected from disclosure by the attorney-client privilege; and (3) six of those nine e-mail communications, item Nos. 3, 4, 5, 7, 8 and 9, are protected from disclosure by the work-product doctrine.
Although the plaintiff contends, in its complaint, that the subject of the instant in rem action is a painting, the claimant contends, in her answer, that the item in question is a "monotype." A monotype is "a print taken from oil-colour or printer's ink painted on a sheet of glass or metal, the process being such that prints are produced singly." THE OXFORD ENGLISH DICTIONARY 1034 (2d ed. 1989).
DISCUSSION
Law Enforcement Privilege
The law enforcement privilege is a qualified executive privilege designed "to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation." In re Dep't of Investigation, 856 F.2d 481, 484 (2d Cir. 1988); see In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988). Based on the Supreme Court's analysis of the government's privilege to resist discovery in United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528 (1953), courts have developed a framework for analyzing the law enforcement privilege, invoked by the government. The Supreme Court noted in Reynolds that the executive privilege "belongs to the Government and must be asserted by it," and cautioned that it should not be "lightly invoked." Id. at 7, 73 S. Ct. at 532. To establish the law enforcement privilege, a party invoking it must meet certain threshold requirements: (1) a formal claim of privilege must be lodged by the head of the department which has control over the requested information; (2) assertion of the privilege must be based on actual personal consideration of the matter by that official; and (3) the claim must specify, with particularity, the information for which the privilege is invoked, and must explain why it falls within the scope of the privilege. See In re Sealed Case, 856 F.2d at 271. A formal claim of privilege must be made through an affidavit by a responsible official in the agency, one who has a relevant supervisory or policy making role, after personal consideration of the matter and not through an affidavit from the attorney representing the agency in the litigation. See Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987);accord In re Sealed case, 856 F.2d at 271-72; see Five Borough Bicycle Club v. the City of New York, No. 07 Civ. 2448, 2008 WL 704209, at *3 (S.D.N.Y. March 10, 2008); Al-Kidd v. Gonzales, No. CV 05-093-EJL-MHW, 2007 WL 4391029, at *5 (D. Idaho Dec. 10, 2007). Meeting these requirements includes "`a substantial threshold showing that there are specific harms likely to accrue from disclosure of specific materials,' and this burden must be discharged by presenting `those facts that are the essential elements of the privileged relationship' and not `by mere conclusory or ipse dixit assertions.'" MacNamara v. City of New York, ___ F.R.D. ___, 2008 WL 858679, at *13 (S.D.N.Y. 2008) (citations omitted). The threshold requirements are needed "to provide a court with the information necessary to make a reasoned assessment of the weight of the interests against and in favor of disclosure" and to provide a plaintiff "a fair opportunity to challenge the bases for the assertion of the privilege." Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992).
Once the affidavits, based on personal consideration of the matter, by the affiant officials making the law enforcement privilege claims, establish a threshold showing of privilege, a court must balance the "public interest in nondisclosure against the need of a particular litigant for access to the privileged information." In re Sealed Case, 856 F.2d at 272; see Black v. Sheraton Corp. of America, 564 F.2d 531, 545 (D.C. Cir. 1977); accord Schiller v. The City of New York, 244 F.R.D. 273, 276 (S.D.N.Y. 2007). In balancing these interests, courts weight a number of factors, including these articulated in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973):
(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental [sic] disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case.In re Sealed Case, 856 F.2d at 272 (quoting Frankenhauser, 59 F.R.D. at 344). "A `demonstrated, specific need' for material may prevail over a generalized assertion of privilege, but the claimant must make `a showing of necessity sufficient to outweigh the adverse effects the production would engender.'" Black, 564 F.2d at 545 (citation omitted). Unless the government, through affidavits, demonstrates the nature of the harm that would result by disclosure, "the court cannot conduct a meaningful balancing analysis. And because the burden of justification must be placed on the party invoking the privilege, a court that cannot conduct a meaningful balancing analysis because the government has not provided the necessary information would have no choice but to order disclosure." Kelly, 114 F.R.D. at 669. "[T]he [c]ourt is ill-equipped to make any intelligent decisions as to discoverability during an in camera inspection when it has insufficient information from the resisting party as to why disclosure should not be permitted." Miller, 141 F.R.D. at 301.
In the April 18, 2008 letter, the government contends e-mail communications: (a) item Nos. 4, 5, 6 and 9 are communications among the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") agents and the Department of Justice ("DOJ") attorneys, either from the Office of International Affairs ("OIA") or the Office of the United States Attorney for the Southern District of New York ("USASDNY"); (b) item Nos. 1, 2, 7 and 8 are internal ICE communications between special agents; and (c) item Nos. 4, 5 and 6 attach and discuss item No. 3, "which is a communication from OIA to a representative of the French Ministry of Justice, International Assistance Bureau ("Bureau [de l'entraide pénale internationale]") and a representative of the French magistrate de liaison in Washington D.C., who is the equivalent to the [DOJ] attaché at the U.S. Embassy in Paris." The government contends all nine e-mail communications concern its response to a 2003 letter rogatory request transmitted by France to the United States, pursuant to a Mutual Legal Assistance Treaty ("MLAT") between the two countries. According to the plaintiff, the French government asked the United States to investigate whether an artwork by Camille Pissarro, entitled "Le Marche" or "Le Marche aux Poissons," which had been consigned to Sotheby's New York for a May 2003 auction, was the one stolen in 1981 from the Faure Museum in France. Furthermore, the French government also requested that the artwork be safeguarded pending any restitution proceedings in accordance with the laws of both countries. The government contends nine e-mail communications reflect "internal Government communications regarding our response to the MLAT request, including which investigative and litigation avenues the Government could or should pursue as part of that response." According to the government, these "internal deliberations should not be subject to discovery," as well as e-mail communication item No. 3, which "is a sensitive and highly confidential communication between the law enforcement authorities of two sovereign countries concerning the investigation into criminal activity." Moreover, the government maintains, the communications between ICE agents should be protected by the law enforcement privilege because "[t]o disclose this information would reveal pre-decisional communications among government personnel such as discussions of various litigation issues, alternatives, and strategies. Such disclosure would jeopardize the candid and comprehensive considerations essential for efficient and effective agency decision-making."
"A letter rogatory is a formal request from a court in one country to `the appropriate judicial authorities' in another country requesting compulsion of testimony or documentary or other evidence or effect service of process." http://travel.state.gov/law/info/judicial/judicial_683.html.
Under Mutual Legal Assistance Treaties, "[e]ach country designates a central authority, generally the two Justice Departments, for direct communication. The treaties include the power to summon witnesses, to compel the production of documents and other real evidence, to issue search warrants, and to serve process. Generally, the remedies offered by the treaties are only available to the prosecutors. The defense must usually proceed with the methods of obtaining evidence in criminal matters under the laws of the host country, which usually involve letters rogatory. http://travel.state.gov/law/info/judicial/judicial_690.html.
The Court notes that the government's argument includes language that suggests a claim of deliberative process privilege. However, the government has not asserted the deliberative process privilege on its privilege log. Therefore, the Court will not address it.
The documents submitted to the Court, in connection with the government's assertion of the law enforcement privilege, namely the April 18, 2008 joint letter by the parties and the nine e-mail communications submitted for the Court's in camera review, as well as the parties' joint letter, dated April 7, 2008, do not support a finding that the government has made the threshold showing required to be made when invoking the law enforcement privilege. No affidavits have been submitted to the Court and no affidavits appear to have been served on Davis, along with the government's privilege log, or at any other time, making an official claim of privilege by the executive level officials of the departments having control over the requested information, i.e. ICE, OIA and USASDNY, based on personal consideration by those officials of the matter, specifying the information for which the privilege is claimed and explaining why it falls properly within the scope of the privilege. In the April 7, 2008 joint letter, Davis contends she requested, on April 4, 2008, that additional information be provided to her by the government, but the government failed to do so. The reason for requiring the government to provide a situation-specific affidavit is "to provide the [adversary] with a fair opportunity to challenge the bases for the assertion of the privilege. Providing that opportunity is important to the court as well because in our adversary system the court looks to opposing parties to help it probe and measure the strength of [the parties'] submissions." Kelly, 114 F.R.D. at 670. No such opportunity was provided to Davis by the government. Neither an unofficial invocation of the law enforcement privilege by counsel representing the government nor that counsel's assertions, with respect to the privilege, can be used to meet the threshold requirements imposed on the party invoking the law enforcement privilege. Although the Court has been provided with the nine e-mail communications at issue, it is unable to make a reasoned assessment of the weight of the interests at stake without the information required to be provided by the party invoking the privilege. Therefore, because the government has failed to carry its initial burden, imposed by the threshold requirements, in invoking the law enforcement privilege, the nine e-mail communications are not entitled to be withheld from disclosure to Davis pursuant to the law enforcement privilege.
Attorney-Client Privilege
"The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Swidler Berlin v. United States, 524 U.S. 399, 403, 118 S. Ct. 2081, 2084 (1998). The privilege, designed to facilitate openness and full disclosure between the attorney and the client, shields from discovery advice given by the attorney as well as communications from the client to the attorney. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682 (1981). However, the attorney-client privilege should be construed narrowly, "because it renders relevant information undiscoverable" and it should be applied "only where necessary to achieve its purpose." In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007). "A document is not privileged merely because it was sent or received between an attorney and client. The document must contain confidential communication relating to legal advice." Dep't of Econ. Dev. v. Arthur Andersen, et al., 139 F.R.D. 295, 300 (S.D.N.Y. 1991). A party invoking the attorney-client privilege has the burden of establishing: "(1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice." United States v. Constr. Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996). "[L]egal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct" and "the privilege of nondisclosure is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice." In re County of Erie, 473 F.3d at 419-20. "So long as the predominant purpose of the communication is legal advice [the nonlegal] considerations and caveats" form part of that legal advice and cannot be severed from it. Id. at 420. The predominant purpose of a communication "should be assessed dynamically and in light of the advice being sought or rendered, as well as the relationship between advice that can be rendered only by consulting the legal authorities and advice that can be given by a non-lawyer." Id. at 420-21.
The government contends "the agency with responsibility for investigating and seizing the Artwork was ICE, for whom the DOJ attorneys are serving in the role of counsel." According to the government, e-mail communications, item Nos. "4, 5, 6 and 9 thus are communications protected by the attorney-client privilege." Furthermore, the government contends, "[a]s with all MLAT requests, the U.S. Attorney's Office and ICE was [sic] and is [sic] required to coordinate their activities in response to the MLAT through the attorneys and staff of the Department of Justice's Office of International Affairs ("OIA"), which communicates directly with representatives of the French government." Davis contends the government failed to assert the attorney-client privilege originally, and only upon Davis' objection to the law enforcement privilege claims, did the government amend its privilege log to add the attorney-client privilege. Davis maintains the government privilege log "fails to lay a foundation for the attorney-client privilege."
Although the government, in its privilege log, indicated that e-mail communication item No. 3 is protected by the attorney-client privilege, the government does not argue, in the April 18, 2008 letter, that this communication is so privileged. E-mail communication item No. 3 is designated in the government's privilege log as follows:
06-21-06 Email From Amy Olson, OIA to Dominique Laffont, Attorney-Client; Law copies to Jean-Pierre Picca, Kenneth J. Harris, Enforcement; Work OIA, and Ellisson Craig regarding Emile Guelton Product Notwithstanding the government's failure to argue that e-mail communication item No. 3 is protected from disclosure by the attorney-client privilege, the Court has reviewed it and finds that it consists of the OIA's apprising a French official and a senior liaison legal adviser in Washington, D.C., representing the French Ministry of Justice in the United States, of the status of the investigation concerning the MLAT request. The OIA's function is to provide advice and assistance on international criminal matters to DOJ, see http://www.usdoj.gov/criminal/links/oia.html, and does not include providing advice or assistance to foreign officials. Moreover, updating foreign officials on the status of an investigation, pursuant to a MLAT request, is not the same as providing legal advice. Accordingly, the Court finds that e-mail communication item No. 3: (i) is not a communication between counsel and client; and (ii) does not have as its predominant purpose ascertaining or rendering legal advice, and, as such, it is not entitled to be withheld from disclosure because of the attorney-client privilege.The e-mail communication item No. 4, dated June 26, 2006, is a communication within OIA, of copies to two ICE agents, bearing "RE: Emile GUELTON" in the subject field. The content of the communication is a suggestion by one OIA employee to another to speak by telephone with an ICE agent and a USASDNY attorney because a possibility exists of "some confusion here." Although the subject matter of the e-mail communication item No. 4 appears to be Emile Guelton, the communication is vague because it does not identify the nature of the confusion suspected or the specific issue to which the suspected confusion refers. This communication within OIA, copied to ICE, neither appears to involve nor to have as its predominant purpose seeking or rendering legal advice. Therefore, the Court finds that the e-mail communication item No. 4 is not entitled to be withheld from disclosure by virtue of the attorney-client privilege.
The e-mail communication item No. 5, dated June 26, 2006, is a response from one of the ICE agents, to whom e-mail communication item No. 4 was copied, to OIA, concerning the suggestion from the e-mail communication item No. 4, described above. The e-mail communication item No. 5 does not indicate that it was exchanged between ICE and OIA at the direction of the USASDNY attorney in charge of the instant action, or with that attorney's knowledge. Instead, the content of the communication is the ICE agent's narration to OIA of the factual background related to the subject painting's connection with Emile Guelton, as well as the reason why French authorities could not prosecute Emile Guelton. Therefore, the Court finds that the e-mail communication item No. 5 is not between counsel and client and its primary purpose is neither to obtain nor to render legal advice. Accordingly, it is not shielded from disclosure by the attorney-client privilege.
The e-mail communication item No. 6, dated June 28, 2006, referencing Emile Guelton in the subject field, includes the e-mail communication item No. 5 in its body, and the words "per your request." Since the Court finds the e-mail communication item No. 5 lacks the protection afforded by the attorney-client privilege, and the e-mail communication item No. 6 does not contain any text on its own, other than the words "per your request," and the content of the e-mail communication item No. 5, the Court finds the e-mail communication item No. 6 is not shielded from disclosure by the attorney-client privilege.
The e-mail communication item No. 9, dated January 5, 2006, is from the USASDNY attorney, in charge of the instant action, to two ICE agents, concerning "response to letters rogatory request." The Court finds that: (i) the communication is between counsel and client; (ii) was intended to be kept and was kept confidential; and (iii) contains legal advice. Accordingly, the e-mail communication item No. 9 is protected from disclosure by the attorney-client privilege.
Work-Product Doctrine
The work-product doctrine prohibits a litigant from making unwarranted inquiries into the files and the mental impressions of an adverse party's legal counsel. See Hickman v. Taylor, 329 U.S. 495, 510, 67 S. Ct. 385, 393 (1947). It is set forth in Rule 26 of the Federal Rules of Civil Procedure:
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.
Fed.R.Civ.P. 26(b)(3)(A).
A document is created in anticipation of litigation "if `in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). The work-product doctrine does not protect "documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation." Id. "Even if such documents might also help in preparation for litigation, they do not qualify for protection because it could not fairly be said that they were created `because of actual or impending litigation." Id. The burden is on the party claiming protection to establish that the work-product doctrine applies.See United States v. Constr, Products Research, 73 F.3d 464, 473 (2d Cir. 1996). The work-product doctrine protection is qualified and may be overcome if the party seeking disclosure makes "an adequate showing of substantial need for the document and an inability to obtain its contents elsewhere without undue hardship." Adlman, 134 F.3d at 1202-03.
The government contends the e-mail communications, item Nos. 3, 4, 5, 7, 8, and 9, contain "mental impressions, conclusions, opinions or legal theories" and are protected from disclosure by the work-product doctrine. Davis contends that all e-mail communications, claimed to be protected by the work-product doctrine, "must be produced and are necessary to the defense of [her] case."
The e-mail communication item No. 3, as indicated above, consists of OIA apprising French authorities of the status of the investigation concerning the MLAT request. Nothing in this document suggests that it was prepared in anticipation of litigation, rather than in the regular course of OIA's business of updating a foreign official on a MLAT request he or she has made. Therefore, the Court finds that the e-mail communication item No. 3 is not protected by the work-product doctrine. The e-mail communication item No. 4, as discussed above, is vague and does not appear to reflect, in any way, it was prepared by its author, in anticipation of litigation. Therefore, the e-mail communication item No. 4 is not protected by the work-product doctrine. The e-mail communication item No. 5, as discussed above, narrates the factual background concerning the investigation related to the French letter request for assistance with its investigation of a stolen artwork and the person who allegedly stole it, Emile Guelton. Nothing in the government's submissions indicates to the Court that this communication was prepared in anticipation of litigation, rather than in the ordinary course of ICE's business, or that it would not have been created in essentially similar form irrespective of the instant litigation. Therefore, the e-mail communication item No. 5 is not protected by the work-product doctrine. The e-mail communication item No. 7, dated January 4, 2006, is from one ICE agent to another, "regarding closing of ICE's case." In that communication the ICE agent in charge of the investigation is asking the other ICE agent to close his "collateral case" so that the entire investigation related to the MLAT request can be closed. The communication was prepared in the regular course of ICE's business and it would have been created in the same form, irrespective of the instant litigation. While the ICE agent who created the communication expressed his opinion about the course of action the French authorities would have to undertake, if they wished to proceed with their attempt to recover the subject artwork, this opinion does not indicate that the ICE agent created the communication in anticipation of the instant litigation or in preparation for it. Therefore, the e-mail communication item No. 7 is not protected by the work-product doctrine. The e-mail communication item No. 8, dated January 4, 2006, is a response from the ICE agent in charge of the "collateral case" to the ICE agent in charge of the investigation related to the MLAT request, "regarding response to letters rogatory request," and, like e-mail communication item No. 7, was not prepared in anticipation of the instant litigation. Accordingly, the e-mail communication item No. 8 is not protected by the work-product doctrine. The e-mail communication item No. 9, dated January 5, 2006, from the USASDNY attorney to the ICE agents, "regarding response to letters rogatory request," was created by the attorney for the client, in anticipation of litigation, and, therefore, is protected from disclosure by the work-product doctrine.
Davis' assertion, that "all nine documents must be produced" because they "are necessary to the defense" of her case, is not an adequate showing of substantial need for the documents and her inability to obtain the contents of the nine documents elsewhere, without undue hardship. However, even if Davis did not fail to meet the burden imposed on her to overcome the work-product doctrine's protection, the e-mail communication item No. 9 remains shielded from disclosure by the attorney-client privilege.
CONCLUSION
For the reasons set forth above, e-mail communication item No. 9, listed in the government's privilege log included in the April 18, 2008 letter, is shielded from disclosure by the attorney-client privilege and the work-product doctrine. E-mail communication item Nos. 1-8, listed in the government's privilege log included in the April 18, 2008 letter, are not protected by the privileges claimed and must be disclosed to Davis.
SO ORDERED: