Opinion
John F. Karl, Jr., C. Michael Tarone, McDonald & Karl, Washington, DC, for Plaintiff.
Rolando N. Valdez, Uldric L. Fiore, Jr., Laurie J. Weinstein, U.S. Attorney's Office, Washington, DC, for Defendant.
MEMORANDUM ORDER
FACCIOLA, United States Magistrate Judge.
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 plaintiff's 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 review, are protected from disclosure by the work-product and attorney-client privileges.
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-product 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.
Abbreviated Notation
Explanation
Not for Trial
Based on information provided by defendant, thedocument cannot fairly be said to have been prepared orobtained because of the prospect of litigation or fortrial. Defendant's claim of work-product privilegeis denied.
Opinion Work Product
Document can fairly be said to have been prepared fortrial or in anticipation of litigation, and it reflectscounsel's mental impressions. Defendant's claimof work-product privilege is sustained.
Ordinary Work Product/
Document can fairly be said to have been prepared fortrial or in anticipation of litigation, but it does notreflect counsel's mental impressions. It is clearfrom the document that plaintiff cannot make a showingof substantial need because the document conveystrivial information. Defendant's claim ofwork-product privilege is sustained.
Not Confidential
Document does not disclose information that the clientintended to be confidential. Defendant's claim ofattorney-client privilege is denied.
Does Not Seek Legal Advice
There is no indication that the document reflectscommunications made by the client for the purpose ofseeking legal advice. Defendant's claim ofattorney-client privilege is denied.
Confidential and Seeks Legal Advice
Document reflects communications that the clientintended to be confidential and that were made for thepurposes of seeking legal advice. The attorney-clientprivilege is sustained.
Bates Nos./Document
Description
Claim
Ruling
Reason for Ruling
0000000001-0000000002
WP
Sustained
Opinion Work Product
Notes from conversation with David Ball (AUSA)
AC
Denied
Not Confidential
0000000003-0000000004
WP
Sustained
Opinion Work Product
Draft of Holleran declaration (eventually filed with apleading in this case)
0000000005
WP
Sustained
Email from Patricia Chalfant (agency counsel) toWilliam Vindal (Information Systems Director) re: emailrecords
AC
Denied
Not Confidential
0000000006-0000000023
WP
Sustained
Legal memoranda from Patricia Chalfant (agency counsel)to various Navy employees and potential witnesses re:Jinks-Unstead case
AC
Denied
Not Confidential
0000000024
WP
Sustained
Opinion Work Product
AUSA Ball's notes from conversation with potentialwitness
AC
Denied
Does Not Seek Legal Advice
0000000025-0000000045;
WP
Sustained
Opinion Work Product
0000000135-0000000143
Draft Responses and Objections to Plaintiff's FirstRequest for Admissions (prepared by AUSA Ball)
0000000046-0000000066
WP
Sustained
Opinion Work Product
Draft Responses and Objections to Plaintiff's FirstRequest for Production of Documents (prepared by AUSABall)
0000000067
WP
Sustained
Memo from Vindal to Chalfant re: Response toInterrogatory 6
0000000068-0000000074
WP
Sustained
Opinion Work Product
AUSA Ball's marked-up copy of Plaintiff's FirstInterrogatories
0000000075-0000000078;
WP
Sustained
0000000112;
AC
Denied
Not Confidential
0000000255-0000000256
Does Not Seek Legal Advice
Fax transmittal sheets from AUSA Ball to David Caron,Esq. and Chalfant (some of which contain Ball'shandwritten notes)
0000000079-0000000098
WP
Sustained
Opinion Work Product
AUSA Ball's marked-up copy of Plaintiff'sSecond 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 Plaintiff'sSecond Request for Production of Documents (withhandwritten 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 toPlaintiff's First Interrogatories
0000000163-0000000186;
WP
Sustained
Opinion Work Product
0000000201-0000000224;
0000000225-0000000248
Draft Defendant's Responses and Objections toPlaintiff's Second Request for Production ofDocuments
0000000249-0000000254
WP
Sustained
Opinion Work Product
AUSA Ball's marked-up copy of Plaintiff's Rule30(b)(6) Notice of Deposition of Defendant RichardDanzig
0000000257-0000000265
WP
Sustained
Opinion Work Product
Handwritten notes about the case (prepared for trial)
0000000266-0000000454
WP
Sustained
Opinion Work Product
AUSA Ball's notes regarding trial preparation,including witness preparation and examination, andnotes regarding motions in limine, motions to compel,and court rulings (notes also evaluate plaintiff'scase and defendant's defenses, and some notes weretaken at trial)
AC
as to work product
0000000501-0000000511
WP
Sustained
Opinion Work Product
AUSA Ball's table of plaintiff's claims,defendant's responses, and proof
0000000512-0000000519;
WP
Sustained
Opinion Work Product
0000000520-0000000526;
AC
as to
0000000527-0000000541;
(for
work
0000000550-0000000561
50-61)
product
Notes for and draft of closing argument
0000000542-0000000549
WP
Sustained
Opinion Work Product
Notes for closing, (including notes of examination ofwitnesses, cross of witnesses)
AC
as to work product
0000000562-0000000563
WP
Sustained
Emails between Chad Miller and Cynthia Guill re:request for production
AC
Denied
Does Not Seek Legal Advice
0000000564-0000000574
WP
Sustained
Opinion Work Product
AUSA Ball's notes from depositions of Navy agencycounsel
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 Ball's marked-up copies of plaintiff'spleadings
0000000644
WP
Sustained
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 toInterrogatory # 4
0000000654
WP
Sustained
IV. CONCLUSION
Email from Chalfant to Guill re: Chalfant deposition
AC
Sustained in part
One sentence is confidential and seeks legal advice
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.
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.