Banneker Ventures, LLC v. Graham
253 F. Supp. 3d 64
| D.D.C. | 2017Background
- Banneker Ventures sued WMATA and several individuals alleging breach of contract, fraud, tortious interference and related claims arising from termination of a joint-development deal for the Florida Avenue Project.
- After Banneker’s lawyer sent a demand/notice letter in April 2010, WMATA retained Cadwalader in 2012 to investigate Board conduct; Cadwalader interviewed ~34 people and produced 51 interview memoranda and a Bondi investigative report.
- Cadwalader stamped the 51 interview memoranda as attorney work product; the Bondi Report cited and relied on many of those memoranda and WMATA’s Board publicly released the Report.
- During discovery Banneker sought production of the 51 interview memoranda; WMATA moved for a protective order claiming work-product and attorney-client privileges.
- The court analyzed (1) whether the memoranda were prepared in anticipation of litigation (work-product) and (2) whether WMATA waived attorney-client privilege by publicly disclosing the Bondi Report.
- Court ruled the memoranda were not protected by the work-product doctrine but found WMATA waived attorney-client privilege over memoranda to the extent they relate to subjects disclosed in the Bondi Report; memoranda may be redacted for topics outside the Report and for attorney mental impressions/credibility opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cadwalader interview memoranda are protected by the work-product doctrine | Not anticipated litigation because long delay after demand letter and investigation was for business governance | Litigation was reasonably anticipated (demand letter) and memos were prepared as internal attorney work product | Denied: memoranda not work product (timing and primary purpose were business/governance, not litigation) |
| Whether WMATA waived attorney-client privilege by publicly releasing the Bondi Report | Waiver: public disclosure of Report that cites memoranda waived privilege as to same subject matter | No subject-matter waiver; privilege still protects underlying memoranda | Held: WMATA waived privilege for memoranda on subjects disclosed in Bondi Report; must produce those, though redactions allowed for topics outside Report and for attorneys’ mental impressions/credibility |
| Scope of any protective order/redactions | Produce all non-privileged memoranda | Seek protection for all 51 memoranda | Compromise: produce memoranda concerning non-WMATA interviewees (21) and those subjects covered by Bondi Report; allow redactions for unrelated topics and attorney mental impressions |
| Burden of proof for privilege | N/A | Privilege claimant must prove elements and zealously protect materials | Court applied plaintiff-friendly standard: WMATA failed to sustain privilege burden and to show materials were created primarily for litigation |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (1947) (work-product doctrine protects materials prepared in anticipation of litigation)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege protects confidential communications, not underlying facts)
- In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) (elements of attorney-client privilege)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) ("because of" test for anticipation of litigation)
- FTC v. Boehringer Ingelheim Pharm., 778 F.3d 142 (D.C. Cir. 2015) (documents created in substantially similar form regardless of litigation are not work product)