OPINION AND ORDER
This matter is before the Court for consideration of Defendants’ Privilege Log (Doc. # 774-1), Defendants’ Supplemental Privilege Log (Doc. # 777-1), and Plaintiffs’ Memo in Opposition to Defendants’ Privilege Log and Claims (Doc. # 794). For the reasons that follow, the Court finds that the documents are privileged or protected by the work product doctrine.
I. BACKGROUND
This is a federal civil rights case concerning Ohio’s lethal injection policy and procedures. (Doe. # 794, at 7.) Plaintiffs Jonathan Monroe, Brett Hartman, and Jerome Henderson (“Plaintiffs”) served discovery requests on Defendants on March 5, 2010. (Doc. # 745, at 3.) Defendants produced some answers and documents, but declined to provide other answers or documents regarding the November 30, 2009 execution policy, claiming that the deliberative-process privilege, the attorney-client privilege, and/or the work-product doctrine protected these answers and documents from disclosure. (Doc. # 745, at 3.) Following additional correspondence between the parties, the defendants produced some additional documents, but the plaintiffs determined that the additional responses were inadequate. (Doc. # 745, at 3.)
On April 28, 2010, the parties filed an agreement that they had reached regarding the discovery dispute, which called for Defendants to produce some additional information, to file under seal and for an in camera inspection copies of all documents that Defendants contended to be privileged along with a privilege log, and to allow Plaintiffs to subsequently file a response to the claims of privilege with the Court. (Doc. # 745, at 4.) The parties agreed that the Court would review Defendants’ claims of privilege and determine to what extent, if any, Defendants would be required to produce additional information.
Defendants’ privilege log was filed with the Court on May 18, 2010. (Doc. # 774-1.) The privilege log initially asserted that attorney-client privilege protected most of the communications and that the work-product doctrine protected seven others. (Doc. # 774-1.) After a reassessment of the information, Defendants assert that most of the communications are protected by the attorney-client privilege and that only one of the documents is covered by the work-produet doctrine. (Doc. #794, at 24-25.) Defendants no longer assert that any information is protected by the deliberative-process privilege. (Doc. # 794, at 25.)
Plaintiffs argue that Defendants have not carried their burden of establishing that any privilege applies to protect the communications in question. (Doc. # 794, at 26.) Plaintiffs further assert that even if any privileges do apply, Defendants have not proved that the privileges were not waived or dissolved (Doc. # 794, at 26).
According to the Federal Rules of Civil Procedure, courts may issue protective orders regarding specific matters relating to disclosure or discovery. Fed.R.Civ.P. 26(c). A protective order may, among other things, forbid the disclosure or discovery, specify terms of any discovery ordered, prescribe an alternate method of discovery, or limit the scope of discovery to certain matters. Fed. R.Civ.P. 26(c)(l)(A)-(D). If a motion for a protective order is wholly or partially denied, the court may order any party to provide discovery. Fed.R.Civ.P. 26(c)(2). A district court’s decision regarding discovery will only be reversed upon a showing of abuse of discretion that results in substantial prejudice to a party. Scales v. J.C. Bradford & Co.,
III. DISCUSSION
A. Attorney Work-Product Doctrine
The work-produet doctrine “protects from discovery documents and tangible things prepared in anticipation of litigation by or for a party or by or for that party’s representative.” United States v. Roxworthy,
Furthermore, the “because of’ test includes both a subjective inquiry and an objective inquiry into the reasonableness of the party’s actions. A court considering the matter must consider “(1) whether a document was created because of a party’s subjective anticipation of litigation, as contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of litigation was objectively reasonable.” Id. at 594.
Defendant’s maintain that Item # 215 is protected by the attorney work-produced doctrine. This Court has reviewed Item # 215 and finds that the document is protected by the attorney work-product doctrine. The letter was prepared because of the pending litigation. In fact, the letter specifically refers to the method of execution proceedings. And, this Court finds that it was objectively reasonable to anticipate the need for the information requested because of the ongoing litigation.
B. Relevance
Plaintiffs argue that Defendants’ relevance objections to items 63-70 are improper. (Doc. #794, at 28-29.) Specifically, Plaintiffs argue that because relevance is a substantive objection not related in any way to privilege, the defendants’ failure to raise the objection within the time frame prescribed by Rule 34(b) of the Federal Rules of Civil Procedure has resulted in a waiver of that objection. Id.
Rule 34(b) gives parties thirty days from the date of service to respond to discovery requests. Fed.R.Civ.P. 34(b)(2). This thirty-day period includes the time that a party has to raise objections to discovery requests. Cleveland Indians Baseball Co. v. United States, No. 96-2240,
However, other courts have left this matter to the discretion of the reviewing court when the objection concerns relevance of the information sought. See Shenker v. Sportelli,
This Court has reviewed the Items 63-70. There is absolutely no relevance to the disputed items and the ongoing litigation. The Court further finds that the contents of the items could not lead to any relevant information. Plaintiffs objections are overruled.
C. Attorney-Client Privilege
Plaintiffs assert that the attorney-client privilege does not apply to protect the requested information from disclosure.
The attorney-client privilege is recognized as the oldest privilege relating to confidential communications. Upjohn v. United States,
Corporate clients may assert the attorney-client privilege, Upjohn,
According to the Sixth Circuit, the elements of the privilege are as follows:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) unless the protection is waived.
Reed,
Plaintiffs contend that Defendants have not satisfied their burden of proving that all elements of the attorney-client privilege are met. (Doc. #794, at 31.) In the instant matter, Defendants agreed to supply the court with a privilege log according to the standards set forth in In re Universal Ser
1. A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.;
2. The date upon which the document was prepared;
3. The date of the document (if different from # 2);
4. The identity of the person(s) who prepared the document;
5. The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, “including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;”
6. The purpose of preparing the document, including an evidentiary showing, based on competent evidence, “supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;” a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, “that the documents do not contain or incorporate non-privileged underlying facts;”
7. The number of pages of the document;
8. The party’s basis “for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and
9. Any other pertinent information necessary to establish the elements of each asserted privilege.”
In re Universal Serv.,
The privilege log must be detailed enough to prove that the communications in question were in fact confidential communications relating to legal advice. In re Search Warrant Executed at Law Offices of Stephen Garea, No. 97-4112,
The Court finds that the privilege log is sufficiently specific. A review of each of the items indicates that the identifying information provides sufficient detail. The in camera inspection of the items confirms the specificity needed.
The plaintiffs assert that the defendants have not met the general elements of the attorney-client privilege because “[a]n attorney is not acting in his or her capacity as a ‘legal advisor’ when the attorney is ‘drafting or establishing broad policy
[T]he privileged role of an attorney does not encompass the establishment of broad agency policy, adjudication of responsibilities, assessment of penalties, or other functions that create law ... [so] when an attorney is acting more in the nature of a business advisor, legislator, adjudicator, or regulator, the attorney-client privilege generally does not apply.
Johnson,
Participation in policy matters does not automatically render a communication unprivileged, however. When communications contain both legal advice and nonlegal considerations, a court must consider “whether the predominant purpose of the communication is to render or solicit legal advice.” Pritchard v. County of Erie (In re County of Erie),
The In re County of Erie court recognized that the attorney-client privilege should apply “with special force” in the governmental setting. Id. at 419 (“It is crucial that government officials, who are expected to uphold and execute the law ... be encouraged to seek out and receive fully informed legal advice.”). The court noted that “[a]ccess to legal advice by officials responsible for formulating, implementing and monitoring governmental policy is fundamental to ‘pro-mot[ing] broader interests in the observance of law and administration of justice.’ ” Id. (quoting Upjohn,
This Court finds that the In re County of Erie case more closely conforms to the instant matter than National Council of La Raza or Johnson.
The attorney-client privilege was not available to protect disclosure of the memorandum at issue in National Council of La Raza.
In Johnson, the court found some of the disputed documents to be protected by the attorney-client privilege while others were not. Johnson,
In contrast, the In re County of Erie court found that contested documents at issue could be protected by the attorney-client privilege. In re County of Erie,
The items in question contain emails and communication, the predominant purpose of which was to schedule meetings or telephone calls and to provide or solicit legal advice. The attorney-client privilege applies to all of the withheld documents.
Plaintiffs alternatively claim that if the attorney-client privilege does apply to protect the communications at issue, Defendants waived that privilege when communications were disclosed to non-essential agency personnel outside of the attorney-client relationship (Doc. # 794, at 36).
Voluntary disclosure of communications made with one’s attorney to a third party generally waives the attorney-client privilege. Libbey Glass, Inc. v. Oneida Ltd.,
The privilege “must include all the persons who act as the attorney’s agents.” United States v. Kovel,
The common-interest doctrine also operates to protect information disclosed to other parties, expanding coverage of the attorney-client privilege to include situations in which two or more clients with a common interest in a matter agree to exchange information regarding the matter. Reed,
It is not necessary that a common legal interest be derived from legal action; it is possible for two or more parties to share a common interest without becoming parties to the same litigation. MPT, Inc. v. Marathon Labels, Inc., No. 1:04-cv-2347,
The common-interest doctrine does have limitations. First, the doctrine applies only when all attorneys and clients have agreed to take a joint approach in the matter at issue. Id. It is not necessary that parties express this agreement in writing; so long as the parties clearly and specifically agree to the joint venture in some manner, the doctrine will apply. Id. Communications made before an agreement to proceed jointly are not privileged. Id. (citing United States v. Melvin,
There has been no waiver of the attorney-client privilege in this case. A review of the items withheld indicates that the attorneys involved in this matter communicated among themselves with a common interest and were proceeding jointly to analyze Ohio’s existing and proposed execution protocols.
Plaintiffs next contend that Defendants have waived any attorney-client privilege because the substance of the communications have been adopted as company policy (Doc. #794, at 36). Plaintiffs claim that Defendants have adopted a new agency policy based upon the research done by in-house counsel, and Defendants have “not demonstrated that the substance of the communication has not been adopted as part of the new execution policy” (Doc. # 794, at 36).
As previously stated, the common interest doctrine applies and Defendants have not waived the attorney-client privilege. In fact, this Court finds that the attorneys scrupulously avoided any contact that would potentially waive the privilege.
Plaintiffs also argue that Defendants have waived any attorney-client privilege by Defendants’ disclosure to Plaintiffs of a draft version of what became DRC Policy 01-COM-11 (DRC’s execution policy). (Doc. # 794, at 37.) They claim that the research, consideration, and development of a new execution policy is the “subject matter” of the draft, and thus disclosure of the draft acts as a waiver on any other communication that relates to the same subject matter. (Doc. # 794, at 37.)
Federal Rules of Evidence Rule 502 limits subject-matter waiver. Fed.R.Evid. 502. The rule states:
(a) Disclosure made in a Federal proceeding or to a Federal office or agency; scope of a waiver. When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
Id. The Advisory Committee Note to Rule 502 explains that “subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.” Fed.R.Evid. 502 advisory committee’s note.
The Sixth Circuit considered a few cases in support of subject-matter waiver in In re Grand Jury Proceedings October 12, 1995,
See e.g., United States v. Jones,696 F.2d 1069 , 1072 (4th Cir.1982) (“Any voluntary disclosure by the client to a third party waives the privilege not only as to the specific communication disclosed, but often as to all other communications relating to the same subject matter.”); In re Sealed Case,676 F.2d 793 , 818 (D.C.Cir.1982) (“When a party reveals part of a privileged communication in order to gain an advantage in litigation, it waives the privilege as to all other communications relating to the same subject matter....”); Edwards v. Whitaker,868 F.Supp. 226 , 229 (M.D.Tenn. 1994) (“Voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.”).
In re Sealed Case,877 F.2d 976 , 981 (D.C.Cir.1989) (remanding district court decision finding company waived privilege on six documents by inadvertently disclosing one of the documents, because lower court “did not fully explain why the communications were related”); United States v. (Under Seal),748 F.2d 871 , 875 n. 7 (4th Cir.1984) (“If any of the non-privileged documents contain client communications not directly related to the published data, those communications, if otherwise privileged, must be removed by the reviewing court before the document may be produced.”); United States v. Cote,456 F.2d 142 , 145 n. 4 (8th Cir.1972) (requiring in camera review of documents to protect information not already published, for “too broad an application of the rule of waiver requiring unlimited disclosure ... might tend to destroy the salutary purpose of the privilege”); Weil v. Investment/Indicators, Research & Management, Inc.,647 F.2d 18 , 25 (9th Cir.1981) (finding waiver “only as to communications about the matter actually disclosed”); Schenet v. Anderson,678 F.Supp. 1280 , 1284 (E.D.Mich.1988) (“The privilege is waived only as to those portions of the preliminary drafts ultimately revealed to third parties.”).
Id. at 256. A court considering how broadly to construe the scope of a waiver of attorney-client privilege must make its decision “dependant on the factual circumstances presented” to it. N. Am. Rescue Prods. v. Bound Tree Med., LLC, No. 2:08-cv-101,
This Court finds that the disclosure of the final protocol did not waive the attorney-client privilege as to the items withheld. The attorneys in this case participated in the legal issues involved in drafting the new protocol and provided advice concerning the ongoing litigation. The disclosure of the final protocol did nothing to destroy the attorney-client privilege.
IV. CONCLUSION
This Court has reviewed each of the withheld documents. In the end, the Court finds that the documents are all privileged or subject to the work product doctrine. It should be noted that the in camera review revealed very little substantive information that is relevant to this matter. That which is relevant is protected from disclosure.
IT IS SO ORDERED.
Notes
. Although the Ross court noted that the case at hand involved a claim of privilege made by a municipal government, other Circuits considering the issue did not differentiate among the varying levels of government in determining whether the privilege should apply. Ross,