231 F.R.D. 13 | D.D.C. | 2005
MEMORANDUM ORDER
This case was referred to me by Judge Kessler for the resolution of discovery disputes. Currently pending before me is the issue of whether defendant must produce certain documents, claimed to be privileged and submitted for in camera review, to plaintiff. Also before me is Plaintiff’s Motion to Require Defendant to File Privilege Log in Public Record and Memorandum of Points and Authorities in Support Thereof [# 322]. For the reasons stated herein and in accordance with this Memorandum Order, defendant need not produce any of the documents listed in its privilege log but must file the privilege log within 5 days of the date of this Order. If plaintiff believes that she has new arguments to advance in light of the privilege log, plaintiff will then have 10 days to submit any additional arguments regarding the privilege log and the documents described therein, and defendant will have 10 days to respond.
I. BACKGROUND
In 1991, Lavonne Jinks-Umstead (“Jinks-Umstead” or “plaintiff’) began working for the Department of the Navy (“Navy” or “defendant”). In February 1997, she was assigned to work at Carderock as a Head Contracting Officer. At some point after her assignment to Carderock, the Navy decided to reduce the number of staff at that office. Defendant also removed plaintiffs supervisory status. Plaintiff claims that these restructuring decisions were discriminatory and retaliatory, in violation of Title VII of the Civil Rights Act. Defendant, however, maintains that the decisions were based on legitimate business reasons.
Many discovery issues have arisen in this matter. Currently ripe and ready for resolution is the issue of whether certain documents, submitted by defendant for in camera
II. PRIVILEGES CLAIMED BY DEFENDANT
A. The Work-Product Privilege
The work-product privilege exists because “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). A lawyer’s work product is reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways____Were such materials 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.
Because of these important interests, Federal Rule of Civil Procedure 26(b)(3) provides 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 undue hardship. Fed.R.Civ.P. 26(b)(3). Moreover, even if the work-product privilege yields to a showing of need, the court must still 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 (D.C.Cir.1988).
In reviewing documents claimed to be protected by the work-produet 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 Nesse v. Pittman, 202 F.R.D. 344, 349 (quoting In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998)). As I have previously noted, “the concept of ‘in anticipation of litigation’ contains two related, but nevertheless distinct, concepts. One is temporal. The other is motivational.” Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181, 189 (D.D.C. 1998) (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 314).
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.” 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 extends to “communications from attorneys to their clients if the communications ‘rest on confidential information obtained from the client’ ” and therefore tends to disclose it. 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. COURT RULINGS
I have summarized my rulings in the following charts. The first chart indicates the abbreviations I have utilized when determining whether each document is protected by the privilege or privileges defendant has asserted. The second chart contains my determinations as to each document produced for in camera review.
*16 Abbreviated Notation Explanation
Not for Trial Based on information provided by defendant, the document cannot fairly be said to have been prepared or obtained because of the prospect of litigation or for trial. Defendant’s claim of work-product privilege is denied.
Opinion Work Product Document can fairly be said to have been prepared for trial or in anticipation of litigation, and it reflects counsel’s mental impressions. Defendant’s claim of work-product privilege is sustained.
Ordinary Work Product/ Document can fairly be said to have been prepared for trial or in anticipation of litigation, but it does not reflect counsel’s mental impressions. It is clear from the document that plaintiff cannot make a showing of substantial need because the document conveys trivial information. Defendant’s claim of work-product privilege is sustained.
Not Confidential Document does not disclose information that the client intended to be confidential. Defendant’s claim of attorney-client privilege is denied.
Does Not Seek Legal There is no indication that the document reflects communications made by Advice the client for the purpose of seeking legal advice. Defendant’s claim of attorney-client privilege is denied.
Confidential and Seeks Document reflects communications that the client intended to be confidential Legal Advice and that were made for the purposes of seeking legal advice. The attorney-client privilege is sustained.
Bates Nos./Document Description Claim Ruling Reason for Ruling
0000000001-0000000002 WP Sustained Opinion Work Product Notes from conversation with AC Denied Not Confidential David Ball (AUSA)
0000000003-0000000004 WP Sustained Opinion Work Product Draft of Holleran declaration (eventually filed with a pleading in this case)
0000000005 WP Sustained Ordinary Work Product/No Substantial Need1 Email from Patricia Chalfant AC Denied Not Confidential (agency counsel) to William Vindal (Information Systems Director) re: email records
0000000006-0000000023 WP Sustained Ordinary Work Produci/No Substantial Need2 Legal memoranda from Patri- AC Denied Not Confidential cia Chalfant (agency counsel) to various Navy employees and potential witnesses re: Jinks-Unstead case
Sustained Opinion Work Product Denied Does Not Seek Legal Advice 0000000024 WP AUSA Ball’s notes from con- AC versation with potential witness
0000000025-0000000045; WP Sustained 0000000135-0000000143 Draft Responses and Objections to Plaintiffs First Opinion Work Product*17 Request for Admissions (prepared by AUSA Ball)
0000000046-0000000066 WP Sustained Opinion Work Product Draft Responses and Objections to Plaintiffs First Request for Production of Documents (prepared by AUSA Ball)_
0000000067 WP Sustained Ordinary Work Produet/No Substantial Need3 Memo from Vindal to Chalfant re: Response to Interrogatory 6
0000000068-0000000074 WP Sustained Opinion Work Product AUSA Ball’s marked-up copy of Plaintiffs First Interrogatories
0000000075-0000000078; 0000000112; 0000000255-0000000256 Fax transmittal sheets from AUSA Ball to David Caron, Esq. and Chalfant (some of which contain Ball’s handwrit ten notes) WP Sustained Ordinary Work Product/No Substantial Need4 AC Denied Not Confidential Does Not Seek Legal Advice
0000000079-0000000098 WP Sustained Opinion Work Product AUSA Ball’s marked-up copy of Plaintiffs Second Request for Production of Documents
0000000099-0000000111 WP Sustained Opinion Work Product Counsel’s notes regarding discovery questions
0000000113-0000000134 WP Sustained Opinion Work Product Draft Responses and Objections to Plaintiffs Second Request for Production of Documents (with handwritten edits by AUSA Ball)
0000000144-0000000148 WP Sustained Opinion Work Product Draft Defendant’s First Requests for Admission
0000000149-0000000162; WP Sustained Opinion Work Product 0000000187-0000000200 Draft Defendant’s Responses and Objections to Plaintiffs First Interrogatories
0000000163-0000000186; WP Sustained Opinion Work Product 0000000201-0000000224; 0000000225-0000000248 Draft Defendant’s Responses and Objections to Plaintiffs Second Request for Production of Documents
*18 0000000249-0000000254 WP Sustained Opinion Work Product AUSA Ball’s marked-up copy of Plaintiffs Rule 30(b)(6) Notice of Deposition of Defendant Richard Danzig
0000000257-0000000265 WP Sustained Opinion Work Product Handwritten notes about the case (prepared for trial)
0000000266-0000000454 WP AUSA Ball’s notes regarding AC trial preparation, including witness preparation and examination, and notes regarding motions in limine, motions to compel, and court rulings (notes also evaluate plaintiffs case and defendant’s defenses, and some notes were taken at trial) Sustained Opinion Work Product as to work product
0000000501-0000000511 WP Sustained Opinion Work Product AUSA BaU’s table of plaintiffs claims, defendant’s responses, and proof
0000000512-0000000519; 0000000520-0000000526; 0000000527-0000000541; 0000000550-0000000561 Notes for and draft of closing argument WP Sustained Opinion Work Product AC as to (for work 50-61) product
0000000542-0000000549 WP Sustained Opinion Work Product Notes for closing, (including AC as to notes of examination of wit- work nesses, cross of witnesses) product
0000000562-0000000563 WP Sustained Ordinary Work Product/No Substantial Need5 Emails between Chad Miller AC Denied Does Not Seek Legal Advice and Cynthia Guill re: request for production
0000000564-0000000574 WP Sustained Opinion Work Product AUSA BaU’s notes from depositions of Navy agency counsel
0000000575-0000000582; WP Sustained Opinion Work Product 0000000611-0000000617; 0000000618-0000000624; 0000000625-0000000639; 0000000640-0000000643; 0000000649-0000000653 Drafts of defendant’s pleadings
0000000583-0000000596; WP Sustained Opinion Work Product 0000000597-0000000610 AUSA BaU’s marked-up copies of plaintiffs pleadings
0000000644 WP Sustained Ordinary Work ProducUNo Substantial Need6 *19 Email from AUSA Uldric Fiore to Weinstein re: supplemental response to Interrogatory # 4
0000000645-0000000648 WP Sustained Opinion Work Product Draft Defendant’s Supplemental Response to Interrogatory #4
0000000654 WP Sustained Ordinary Work Product/No Substantial Need7 Email from Chalfant to Guill AC Sustained One sentence is confidential and seeks legal re: Chalfant deposition in part advice
IV. CONCLUSION
For the reasons stated herein, it is, hereby, ORDERED that defendant need not produce any of the documents submitted for in camera review. However, until plaintiff filed her motion to require the Navy to file its privilege log on the public record, the court was unaware that plaintiff had not received a copy of the privilege log. Defendant has since notified the court that it does not object to providing the privilege log to plaintiff.
Accordingly, it is, hereby ORDERED that Plaintiff’s Motion to Require Defendant to File Privilege Log in Public Record and Memorandum of Points and Authorities in Support Thereof [# 322] is GRANTED. Defendant shall file the privilege log it submitted to the court within 5 days of the date of this Order. If plaintiff believes that she has new arguments to advance in light of the privilege log, plaintiff will then have 10 days to submit any additional arguments regarding the privilege log and the documents described therein, and defendant will have 10 days to respond.
SO ORDERED.
. It is clear from the face of the document that there can be no substantial need for the information because this email merely requests general information about the email system, and plaintiff has already received the emails that were maintained on the system and produced during discovery.
. There can be no substantial need for these documents because they simply request that the recipients do certain innocuous things to prepare for litigation.
. There can be no substantial need for the information because this document merely provides general information about the email system, and plaintiff has already received the emails that were maintained on the system and produced during discovery.
. Each document is a fax transmittal sheet asking for information by a date certain. There can be no substantial need for this information.
. There can be no substantial need for this document because the email merely requests that the recipient produce responsive documents, and the recipient indicates that he has no such information.
. The document is a generic email asking for an attorney's input on a litigation matter. There can be no substantial need for this information,
. There can be no substantial need for this document because, with the exception of one sentence that is protected by the attorney-client privilege, the document discusses scheduling matters.