Hugler v. Bat Masonry Company, Inc. et al

Brief / Memorandum in Support re MOTION to Compel Production of Non-Privileged Documents .

W.D. Va.March 20, 2017

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Lynchburg Division EDWARD HUGLER, UNITED STATES SECRETARY OF LABOR, The Department, v. BAT MASONRY COMPANY, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 6:15-cv-00028-EKD DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF NON-PRIVILEGED DOCUMENTS Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 1 of 20 Pageid#: 1744 2 Defendants Gregory Booth, M.H. Masonry Associates, Inc., and Melvin Hinton (“Defendants”) respectfully submit the following memorandum of law in support of their Motion to Compel Plaintiff Edward Hugler, Acting Secretary of the United States Department of Labor’s (“Department”) Production of Non-Privileged Documents, as required by Fed. R. Civ. P. 26(b)(1). I. INTRODUCTION As set forth below, the Department’s claim of attorney-client privilege does not protect underlying facts and therefore the factual information contained in the Statute of Limitations Analysis identified in the privilege log should be produced. The Department’s claim of work product privilege is improper because none of the documents were created by attorneys, contain mental impressions or were created in anticipation of litigation and, regardless, Defendants have a substantial need for them. The Department’s claim of law enforcement privilege is improper because, among other reasons, the Department has not identified any person or entity who would be harmed by disclosure of the disputed documents, and the information sought is vital to Defendants’ statute of limitations defense and cannot be obtained any other way. Finally, the Department’s claim of deliberative process privilege is wholly improper. The privilege should not apply at all to the documents that would have been discovered in a private party lawsuit. To the extent the privilege arguably applies, the disputed documents do not satisfy the elements of the privilege because most of them are not “deliberative” by their definitions alone. And regardless, Defendants have demonstrated a compelling need for all the disputed documents because the information pertains directly to their statute of limitations defense. II. BACKGROUND On March 3, 2017, in accordance with the Court’s February 22, 2017 Order (Dkt. No 107), the Department served a privilege log on Defendant James Joyner. See Exhibit A, attached Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 2 of 20 Pageid#: 1745 3 hereto. After counsel for Mr. Hinton inquired about the Department providing a privilege log for discovery served by other defendants, as requested in those discovery requests and in accordance with Federal 26 of the Federal Rules of Civil Procedure, the Department represented, by letter dated March 13, that the privilege log provided by Court Order was an omnibus log and applied to the Department’s responses to all of Defendants’ written discovery. See Exhibits B and C, attached hereto. In its privilege log, the Department asserted the following privileges: deliberative process (“DP”); attorney work product (“WP”); attorney-client (“AC”); law enforcement (“LE”); and Rule 26(b). See id. On March 14, 2017, the Court held a conference call with the parties. During the call, Defendants indicated that they had reviewed the Department’s privilege log, and that, based on the document descriptions provided, Defendants disputed the privilege designations for certain of the withheld documents. The Court instructed Defendants to provide a list of the disputed documents to the Department. The Court further instructed the parties to meet and confer over the disputed documents and, if the parties could not reconcile their differences, the Court ordered the Department to provide copies of any withheld documents to the Court for in camera review. In such event, the Court set a motion to compel briefing schedule and a telephonic hearing date concerning the motion. On March 15, in accordance with the Court’s instructions, Defendants emailed the Department the following list of documents from the Department’s privilege log that have been improperly designated and should be produced: From the Category “Memoranda” Document description Date Author/From To Privilege Case Opening letter and related correspondence 7/25/2012 Colleen McKee Regional Director DP, WP Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 3 of 20 Pageid#: 1746 4 Case Opening and Conversion Memo and supporting documents 7/11/2012 Colleen McKee Regional Director DP, WP Statute of Limitations Analysis 9/30/2014 Joanne Roskey (RSOL) RSOL AC, WP Major Case Milestones 6/25/2014 Colleen McKee (Investigator) Office of Enforcement DP, WP Short memo requesting Documents 9/18/2015 Samantha Truppi (Investigator) Deponent's Counsel DP, WP Investigative Plan 10/22/2014 Colleen McKee (Investigator) Cristina O'Brien, Supervisor DP, WP, LE Document receipts Drafts 8/7/2014 Colleen McKee (Investigator) Internal DP Records Examination Memo 2/4/2014 Colleen McKee (Investigator) Internal DP, WP, LE History and Custody of Documents Memo 2/7/2014 Colleen McKee (Investigator) Internal DP, WP Document Index Undated Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DP, WP From the Category “Investigator Charts” Document description Date Author/From To Privilege Investigator generated ESOP 5/2/2013 Colleen McKee (Investigator) Internal DP, WP Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 4 of 20 Pageid#: 1747 5 transaction chart Investigator generated timeline of ESOP transaction events 9/13/2013 Colleen McKee (Investigator) Internal DP, WP Document Indices July‐Dec 2013 Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DP, WP Chart of when Documents Received Aug – 2 Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DP, WP Investigator Generated chart of persons involved with transaction Undated Colleen McKee (Investigator) Internal DP, WP Communication Log 8/13/2012 Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DP, WP From the Category “Expert Procurement Documents” Document description Date Author/From To Privilege Expert Witness Contract 4/27/2016 Office of Procurement Services Internal DP, WP, and Rule 26(b) Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 5 of 20 Pageid#: 1748 6 From the Category “Invoices” Document description Date Author/From To Privilege Kirkland Messina Invoices July 2016 and Feb 2017 Consulting Expert EBSA DP, WP, and Rule 26(b) See Exhibit D, attached hereto. On March 17, 2017 at 4:00 p.m., Defendants’ counsel met and conferred with the Department’s counsel via telephone conference, in a good faith attempt to resolve this dispute. The Department agreed to produce a number of documents previously withheld, and the Department produced those documents to Defendants later that same day and the following Monday. However, as confirmed by email dated March 17, 2017 from the Department’s counsel, see Exhibit E, attached hereto, the Department continues to claim a privilege as to the documents listed below. The Department should have provided copies of these documents to the Court for its in camera review in accordance with the Court’s order during its March 14, 2017 conference call with the parties. From the Category “Memoranda” Document description Date Author/From To Privilege Pages DOL PRIV_00001334- 1335, 1336, 1337-1338, 1345, 1377-1379, 1380, 1467-1494 of the Case Opening and Conversion Memo and supporting documents 7/11/2012 Colleen McKee Regional Director DP, WP Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 6 of 20 Pageid#: 1749 7 Statute of Limitations Analysis1 9/30/2014 Joanne Roskey (RSOL) RSOL AC, WP Major Case Milestones 6/25/2014 Colleen McKee (Investigator) Office of Enforcement DP, WP Investigative Plan 10/22/2014 Colleen McKee (Investigator) Cristina O'Brien, Supervisor DP, WP, LE From the Category “Investigator Charts” Document description Date Author/From To Privilege Investigator generated ESOP transaction chart 5/2/2013 Colleen McKee (Investigator) Internal DP, WP Investigator generated timeline of ESOP transaction events 9/13/2013 Colleen McKee (Investigator) Internal DP, WP Investigator Generated chart of persons involved with transaction Undated Colleen McKee (Investigator) Internal DP, WP Communication Log 8/13/2012 Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DP, WP 1 Defendants seek production of only the factual information contained in that document, with any legal analysis redacted for privilege. Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 7 of 20 Pageid#: 1750 8 From the Category “Emails and Correspondence” Document description Date Author/From To Privilege Investigator Emails: regarding case strategy and case status2 7/19/2012 - 2/24/2015 Colleen McKee (Investigator) Internal DP, WP, AC Defendants intend to raise a statute of limitations defense that they raised in their answers and affirmative defenses at summary judgment or at trial. (Dkt. No. 27 at pg. 10; Dkt. No. 34 at pg. 22; Dkt. No. 35 at pg. 24.) The dates and descriptions of the disputed documents identified above strongly indicate that the Department had actual knowledge of the ERISA violations it has claimed more than three years before it filed suit on August 28, 2015. As such, the disputed documents would be directly relevant to show that this action is time-barred by ERISA § 413(2), 29 U.S.C. § 1113(2). III. ARGUMENT The Court should grant Defendants’ motion to compel production of the disputed documents because they are not covered by any applicable privilege, and they appear to be directly relevant to Defendants’ statute of limitations defense. 2 On March 15, Defendants additionally asked the Department to provide dates for the emails listed in the “Emails and Correspondence” category of the privilege log. See Exhibit D, attached hereto. On March 20, the Department did so. See Exhibit F, attached hereto. Based on this information, Defendants now seek any emails included in the document titled “Investigator Emails: regarding case strategy and case status” dated between July 19, 2012 and August 28, 2012. Emails within this date range are clearly relevant to Defendants’ statute of limitations defense, and are not covered by the attorney-client privilege, the attorney work product privilege, or the deliberative process privilege for the reasons stated below, including in particular that these communications do not include attorneys. The Department should be providing copies of these documents to the Court for its in camera review. Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 8 of 20 Pageid#: 1751 9 A. The Federal Rules Require Production Of The Disputed Documents. The Federal Rules of Civil Procedure require the production of all non-privileged documents that are relevant to the claims and defenses at issue. Fed. R. Civ. P. 26(b)(1). Further, Rule 37(a) permits a party to move to compel the production of documents as a part of discovery after a good faith attempt to confer with opposing counsel. Fed. R. Civ. P. 37(a)(1); (3). Here, although the parties met and conferred in a good faith attempt to resolve this dispute, they were unable to come to a full resolution. Left without any explanation for why the Department will not produce the remaining disputed documents, and in need of these documents to establish their statute of limitations defense, the Court should compel their production. B. The Attorney-Client Privilege Does Not Protect The Underlying Facts In The Disputed Documents. The Department has claimed that the attorney-client privilege covers the Statute of Limitations Analysis. Although certain portions of this document may be privileged, those portions can be redacted, and the underlying facts contained in the document should be produced. “[T]he party asserting a privilege bears the burden of establishing that privilege.” In re Grand Jury Proceedings, Thursday Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 352 (4th Cir. 1994). The Fourth Circuit has adopted the “classic test” for determining whether attorney- client privilege exists. Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998); Bethune-Hill v. Virginia State Bd. of Elections, 114 F. Supp. 3d 323, 346 (E.D. Va. 2015). The privilege applies if: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 9 of 20 Pageid#: 1752 10 assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Hawkins, 148 F.3d at 383. Because the attorney-client privilege “impedes the full and free discovery of the truth,” it “is to be narrowly construed, and recognized only to the very limited extent that excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. at 383 (internal citations and punctuation omitted). Importantly, even where attorney-client communications are privileged, the facts underlying the privileged communication are not. Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). The Department’s privilege log identifies the author of the Statute of Limitations Analysis as Joanne Roskey, an attorney with the Regional Solicitor’s Office. While portions of the Statute of Limitations Analysis that relate to facts of which Ms. Roskey was informed by her client “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding” may be protected, Hawkins, 148 F.3d at 383, the facts underlying the analysis are not. See Upjohn, 449 U.S. at 396. Defendants therefore ask the Court to order the Department to produce the Statute of Limitations Analysis in a redacted form that preserves privileged portions, and discloses any underlying facts.3 C. The Work Product Privilege Does Not Apply To The Disputed Documents. The Department has claimed that the work product privilege covers the following documents: certain pages of the Case Opening and Conversion Memo and supporting 3 Defendants note that the Department offered to provide a summary of the facts in the Statute of Limitations Analysis during the parties’ meet and confer. The Department’s offer seems to only substantiate Defendants’ belief that the analysis contains non-privileged information that is relevant to their statute of limitations defense. Defendants therefore reject the Department’s offer and seek production of the analysis in redacted form. Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 10 of 20 Pageid#: 1753 11 documents; Statute of Limitations Analysis; Major Case Milestones; Investigative Plan; Investigator generated ESOP transaction chart; Investigator generated timeline of ESOP transaction events; Investigator Generated chart of persons involved with transaction; and Communication Log. On their face, none of these documents were created by attorneys, contain attorney mental impressions, or were created in anticipation of litigation. The work product privilege therefore does not shield them from production.4 Regarding the attorney work product privilege, Federal Rule of Civil Procedure 26(b)(3) provides, “[o]rdinarily, 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.” The materials may be discoverable if the party seeking them shows a “substantial need” for them, but the court ordering production “must protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” The Fourth Circuit has recognized that work product is divided “into two parts, one of which is absolutely immune from discovery and the other only qualifiedly immune.” Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992). Part one covers documents that contain an attorney’s “mental impressions, conclusions, opinions, or legal theories concerning the litigation.” Id. These documents are known as “opinion work product.” In re Grand Jury Proceedings #5 Empanelled January 28, 2004, 401 F.3d 247, 250 (4th Cir. 2005). Attorney opinion work product may be created by a non-attorney working for an attorney “in preparation for or in anticipation of litigation or for trial.” Koch v. Specialized Care Servs., 4 For the same reasons set forth in Section II.B, Defendants ask the Court to order the Department to produce the Statute of Limitations Analysis in a redacted form that preserves privileged portions, and discloses any underlying facts. Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 11 of 20 Pageid#: 1754 12 Inc., 437 F. Supp. 2d 362, 388 n.39 (D. Md. 2005). However, the work of a non-attorney that is not done for an attorney under those circumstances is not attorney work product. Part two covers “[a]ll other documents and tangible things prepared in anticipation of litigation or for trial” – i.e., “fact work product.” Nat’l Union Fire Ins. Co., 967 F.2d at 984; In re Grand Jury Proceedings #5 Empanelled January 28, 2004, 401 F.3d at 250. The documents “must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.” Nat’l Union Fire Ins. Co., 967 F.2d at 984 (emphasis in original). “An assertion that a document is protected by the work-product doctrine must be established by specific facts and not conclusory statements. Those facts must establish a nexus between the preparation of the document and specific litigation.” Adair v. EQT Prod. Co., 294 F.R.D. 1, 4 (W.D. Va. 2013) (internal citations and punctuation omitted). These documents “may be discovered . . . on a showing of substantial need.” Nat’l Union Fire Ins. Co., 967 F.2d at 984. The work product privilege does not apply to documents “assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes.” Fed. R. Civ. P. 26(b)(3), advisory committee note to the 1970 amendments. Rather, it applies “only when the evidence is gathered because of the prospect of litigation.” Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996) (citing Nat’l Union Fire Ins. Co., 967 F.2d at 984). Here, the disputed documents clearly are not opinion work product. As a threshold matter, none of them were created by attorneys: the authors, Investigators Colleen McKee and Samantha Truppi, are not attorneys. Moreover, none of them were prepared in anticipation of litigation: dated as early as 2012, the documents presumably relate to an investigation by the Department as to whether violations had been committed. To the extent the Department is Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 12 of 20 Pageid#: 1755 13 contending that they were prepared in conscious anticipation of litigation, any such contention calls into question the timeliness of the complaint. Some of the documents over which the Department asserts the attorney work product privilege date back to July 2012, which is more than three years before the complaint’s filing. Further, even if the Court finds that the disputed documents constitute “fact work product,” Defendants’ “substantial need” for them overcomes the privilege. Solis v. Bruister, No. 4:10-CV-77-DPJ-FKB, 2012 WL 12829683, at *8 (S.D. Miss. Dec. 26, 2012) (overruling the Department’s claim of work product protection on the grounds that “Defendants clearly have a ‘substantial need’ for the requested information pertaining to their statute of limitations defense”). Defendants’ statute of limitations defense hinges on pinpointing when the Department first had “actual knowledge” of the alleged ERISA violations set forth in its complaint. The documents Defendants seek, many of which date back more than three years prior to the complaint’s filing, go directly to the question of when the Department first had “actual knowledge.” Without them, Defendants will be at a disadvantage as they will be unable to fully evaluate the timeliness of the Department’s claim and effectively assert their affirmative defense. D. The Law Enforcement Privilege Does Not Apply To The Disputed Documents. The Department’s privilege log asserts that the Investigative Plan5 is protected from disclosure under the law enforcement privilege. The Fourth Circuit has not yet formally recognized or directly addressed the law enforcement privilege. United States v. Matish, 193 F. 5 To the extent the Court determines that the “Investigative Plan” contains privileged attorney work product, Defendants seek production of the document redacted for privilege. Defendants contest, however, that this document is in any way protected under the law enforcement privilege, for the reasons explained in this section. Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 13 of 20 Pageid#: 1756 14 Supp. 3d 585, 597 (E.D. Va. 2016). Caselaw from other circuits, however, makes clear that the party asserting the privilege “bears the burden of showing that the privilege applies to the documents in question.” In re The City of New York, 607 F.3d 923, 944 (2d Cir. 2010). The Department has failed to meet that burden. The purpose of the law enforcement privilege is “to protect witness and enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” In re Dept. of Investigation, 856 F.2d 481, 484 (2d Cir. 1988). The privilege fits most readily with respect to criminal investigations, in which safety of witnesses or others could be jeopardized, or justice impeded, by disclosure of investigative information. See In re The City of New York, 607 F.3d at 944 (“[T]he party asserting the law enforcement privilege must show that the documents contain information that the law enforcement privilege is intended to protect. Such protected information includes information pertaining to law enforcement techniques and procedures ....”) (citation and internal punctuation omitted). Further the privilege is “qualified,” and “[t]he public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information.” In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988). The factors a court must consider in evaluating the privilege are: (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 disciplinary proceedings have arisen or may arise from the investigation; (8) whether the Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 14 of 20 Pageid#: 1757 15 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. Id. Each of the applicable factors weighs against a finding that the law enforcement privilege applied to the Investigative Plan. Factors 1 and 2 weigh in favor of disclosure because the Department has not identified any person or entity who provided information in connection with this case and who would be harmed if their identity were disclosed. Indeed, the identities of everyone who provided information are already known and part of the public record, and, to Defendants’ knowledge, no one has suffered an adverse consequence as a result of providing information. Nor is there any reason to believe that anyone would be discouraged from participating in future Department investigations based on the release of information related to this case. Factor 3 is not relevant because governmental self-evaluation and program improvement is not at issue here. Factor 4 weighs in favor of disclosure because Defendants seek only purely factual data – specifically, the dates on which the Department acquired “actual knowledge” of the alleged ERISA violations at issue – and there is no reason to believe that any “evaluative summary” contained in the Investigative Plan cannot be redacted. Factors 5 and 6 weigh in favor of disclosure because there are no criminal proceedings at issue, and there has been no police investigation; to the extent the Department’s investigation is relevant, it has already been completed. Factors 7 and 8 also weigh in favor of disclosure, as no interdepartmental disciplinary proceedings are at issue, and Defendants are not using the information in question to sue the Department, much less to file a frivolous lawsuit. Defendants seek information only for the purposes of asserting an affirmative defense. Finally, factors 9 and 10 weigh heavily in favor of disclosure; the information relating to Defendants’ statute of Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 15 of 20 Pageid#: 1758 16 limitations argument is vital, as it is potentially dispositive of this case, and Defendants have no way of acquiring this information short of reviewing documents in the Department’s possession. For all these reasons, the Court should reject the Department’s assertion that the law enforcement privilege, which is routinely applied in the context of police investigations, applies to shield any information from discovery in this civil litigation. E. The Deliberative Process Privilege Does Not Apply To The Disputed Documents. The Department has asserted the deliberative process privilege over the following documents: certain pages of the Case Opening and Conversion Memo and supporting documents; Major Case Milestones; Investigative Plan; Investigator generated ESOP transaction chart; Investigator generated timeline of ESOP transaction events; Investigator Generated chart of persons involved with transaction; and Communication Log. As an initial matter, courts in this Circuit have held that the deliberative process privilege should not apply at all if the documents at issue would be subject to discovery if the government were a private plaintiff. In fact, courts in this circuit have recognized that where “the Government seeks affirmative relief, it is fundamentally unfair to allow it to evade discovery of materials that a private plaintiff would have to turn over, thus allowing the government to ‘play with defendant’s hole card upturned and its hole card down under any claim of governmental or executive privilege.’” E.E.O.C. v. Citizens Bank, 117 F.R.D. 366, 366 (D. Md. 1987) (finding in government plaintiff case that “there is every reason for the balancing test associated with the qualified privilege at issue to come out in favor of discovery and against privilege.”).6 The reasoning informing these holdings 6 Courts in other jurisdictions have held that government-initiated litigation waives the deliberative process privilege entirely. See Brock v. Weiser, No. 86 C 2129, 1987 WL 12686, at *2 (N.D. Ill. June 15, 1987) (holding that, by filing suit against defendants in this case, “[T]he government has waived the deliberative process privilege.”) (collecting cases). Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 16 of 20 Pageid#: 1759 17 is directly applicable here, where the Department has initiated suit. Therefore, with respect to the following documents, the Court should order their production on these grounds alone: certain pages of the Case Opening and Conversion Memo and supporting documents; Major Case Milestones; Investigative Plan; Investigator generated ESOP transaction chart; Investigator generated timeline of ESOP transaction events; and Communication Log. To the extent that the deliberative process privilege does apply, the Department has not provided any explanation as to how the disputed documents qualify for protection under that privilege. The deliberative process privilege protects certain documents containing “advisory opinions, recommendations and deliberations” on which governmental decisions and policies are based. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Significantly, however, in order to invoke the privilege, a party must show that the documents in question are both (1) predecisional and (2) deliberative. City of Virginia Beach v. U.S. Dept. of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993). “Predecisional documents are prepared in order to assist an agency decisionmaker in arriving at his decision.” Id. (citation and internal punctuation omitted). Deliberative documents reflect “the give-and-take of the consultative process” and “the manner in which the agency evaluates possible alternative policies or outcomes.” Id. (internal citation omitted). The deliberative process privilege “is to be construed narrowly, and the burden rests on the government to be precise and conservative in its privilege claims.” Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1248 (4th Cir. 1994). Far from being precise or conservative, the Department has broadly asserted that almost all of the documents on its privilege log fall within the deliberative process privilege. Based on the Department’s own descriptions, however, many of these documents are not “deliberative.” Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 17 of 20 Pageid#: 1760 18 Rather, they clearly appear to be compilations of the sort of information the Department routinely keeps in connection with its investigations. For example, the Investigator generated ESOP transaction chart, Investigator Generated Timeline of ESOP Transaction Events, Investigator Generated chart of persons involved with transaction, and Communication Log would appear to be nothing more than compilations of factual information. It is difficult to imagine how these and other documents described on the log reflect any “consultative process” or any evaluation of potential outcomes. Regardless, the date(s) on which a Department investigator learned of the facts underlying the Department’s claims are themselves “discoverable facts” that are “not protected by the investigator files privilege or government deliberative process privilege.” Bruister, 2012 WL 12829683, at *8. The Court should reject the Department’s bald assertion that so many of the documents relevant to this case fall within a narrow privilege intended to protect administrative decisionmaking processes. See City of Virginia Beach, 995 F.2d at 1252-53. Importantly, the deliberative process privilege is overcome when there is a “compelling need” for the documents in question, and is subject to judicial oversight. Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed. Cir. 2006). Defendants have a compelling need for the documents in question: they go directly to Defendants’ statute of limitations defense, and may therefore be dispositive of this case. See, e.g., Bruister, 2012 WL 12829683, at *8 (overruling the Department’s claim of work product protection on the grounds that “Defendants clearly have a ‘substantial need’ for the requested information pertaining to their statute of limitations defense”). At a minimum, the Court should conduct an in-camera review of these documents to determine the extent to which they contain any privileged information, and direct the Department to produce all other information to Defendants. See Marriott Int’l Resorts, L.P, Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 18 of 20 Pageid#: 1761 19 437 F.3d at 1307 (holding that since “[t]he qualified deliberative process privilege is subject to judicial oversight,” “a trial court may conduct in-camera review of documents”). IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant their motion to compel production of the disputed documents. Dated: March 20, 2017 Respectfully submitted, /s/ Lars Calvin Golumbic Lars Calvin Golumbic GROOM LAW GROUP, CHARTERED 1701 Pennsylvania Avenue, NW Washington, DC 20006 202-861-6615 Fax: 202-659-4503 Email: lgolumbic@groom.com Counsel for Melvin Hinton /s/ John Wood Francisco John Wood Francisco EDMUNDS & WILLIAMS, P.C. 828 Main Street, 19th Floor Lynchburg, VA 24504 434-846-9000 Fax: 434-846-0337 Email: jfrancisco@ewlaw.com Counsel for Gregory Booth /s/ George Edgar Dawson, III George Edgar Dawson, III PETTY LIVINGSTON DAWSON & RICHARDS Post Office Box 1099 Lynchburg, VA 24505 434-846-2768 Fax: 434-847-0141 Email: edawson@pldrlaw.com Counsel for M.H. Masonry & Associates, Inc. Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 19 of 20 Pageid#: 1762 20 CERTIFICATE OF SERVICE I hereby certify that on March 20, 2017, I electronically served the foregoing DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF NON-PRIVILEGED DOCUMENTS on the following: Geoffrey Forney UNITED STATES DEPARTMENT OF LABOR 170 South Independence Mall West, Ste. 630E Philadelphia, PA 19106 215-861-5137 Fax: 215-861-5162 Email: forney.geoffrey@dol.gov Attorney for The Department Andrew S. Goldstein MAGEE GOLDSTEIN LASKY & SAYERS, P.C. P.O. Box 404 Roanoke, VA 24003-0404 540-343-9800 Fax: 540-343-9898 Email: agoldstein@mglspc.com Attorney for Wayne Booth James F. Joyner, III CPA, CVA/ABV, CPC, AJFA, CRM, CPVA 157 Henson Street Spartanburg, SC 29304 864-316-9346 Email: jjoyner@integrabc.com Pro Se /s/ Lars Calvin Golumbic Lars Calvin Golumbic GROOM LAW GROUP, CHARTERED 1701 Pennsylvania Avenue, NW Washington, DC 20006 202-861-6615 Fax: 202-659-4503 Email: lgolumbic@groom.com Counsel for Melvin Hinton Case 6:15-cv-00028-EKD-RSB Document 118 Filed 03/20/17 Page 20 of 20 Pageid#: 1763 EXHIBIT A Case 6:15-cv-00028-EKD-RSB Document 118-1 Filed 03/20/17 Page 1 of 3 Pageid#: 1764 Document Category Document Name/ Description Date Author/ From To BATES number Privilege Memoranda Case Opening letter and related correspondence 7/25/2012 Colleen McKee Regional Director DOL PRIV 0001320‐1333 DP; WP Case Opening and Conversion Memo and supporting documents 7/11/2012 Colleen McKee Regional Director DOL PRIV 0001334‐1494 DP; WP Statute of Limitations Analysis 9/30/2014 Joanne Roskey (RSOL) RSOL DOL PRIV 0001496‐1497 AC; WP Report of Investigation and Litigation Memo Signed 3/31/2015 Colleen McKee, Samantha Truppi, (ROI) Marc Machiz, Kim Langer (LIT Memo) RSOL DOL PRIV 0000905‐949 DP; WP [ROI produced in redacted form] RSOL Cover sheet 3/31/2015 Samantha Truppi RSOL DOL PRIV 0004550 DP; WP; AC Report of Investigation Drafts 1st Q 2015 Colleen McKee and Samantha Truppi Internal DOL PRIV 0000001‐81 DP; WP Exibit Log for Report of Investigation 3/31/2015 Samantha Truppi (Investigator) RSOL DOL PRIV 00001668 DP; WP Exhibit List for AROI 3/31/2015 Samantha Truppi (Investigator) RSOL DOL PRIV 0004540 DP: WP Litigation Memo 3/31/2105 Marc Machiz (Regional Director), Kim Langer (Acting Regional Director) RSOL DOL PRIV 0000950‐972 DP; WP; AC Ltigation Memo Drafts 1st Q 2015 Samantha Truppi (Investigator), Colleen McKee (Investigator) Internal DOL PRIV 0001669‐1745 DP; WP Major Case Memo 1/11/2013 Marc Machiz (Regional Director) Office of Enforcement DOL PRIV 0001254‐1257 DP; WP Major Case Memo Draft 1/10/2013 Colleen McKee (Investigator) Office of Enforcement DOL PRIV 0004544‐4545 DP; WP Major Case Milestones 6/25/2014 Colleen McKee (Investgator) Office of Enforcement DOL PRIV 0001509 DP: WP Litigation Hold Notice 10/6/2014 Joanne Roskey (RSOL) Marc Machiz DOL PRIV 0001783‐1786 AC; WP Memo re. Fiduciary Bar from Recovery 1/28/2015 Colleen McKee (Investigator) Internal DOL PRIV 0001495 DP; WP Short memo requesting Documents 9/18/2015 Samantha Truppi (Investigator) Deponent's Counsel DOL PRIV 0004541 DP; WP Case Status memo 4/25/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001787‐1789 DP: WP Investigative Plan 10/22/2014 Colleen McKee (Investigator) Cristina O'Brien, Supervisor DOL PRIV 0001498‐1501 DP: WP; LE Investigative Plan Draft Oct‐14 Colleen McKee (Investigator) Supervisor DOL PRIV 0001790‐1794 DP; WP Document receipts for Company and W. Booth July/August 2014 Colleen McKee (Investigator) Internal DOL PRIV 0001502‐1508 produced Document receipts Drafts 8/7/2014 Colleen McKee(Investigator) Internal DOL PRIV 0001795‐1796 DP Records Examination Memo 2/4/2014 Colleen McKee (Investigator) Internal DOL PRIV 0001510‐1520 DP; WP; LE History and Custody of Documents Memo 2/7/2014 Colleen McKee (Investigator) Internal DOL PRIV 0001521‐1522 DP: WP SMK Knowing Participant Memo 9/16/2015 Samantha Truppi (Investigato)r Regional Director DOL PRIV 0001797‐1799 DP: WP Proof of Claim ‐ Wayne B. Booth Chapter 7 7/8/2015 Samantha Truppi(Investigator) Federal Bankruptcy Court DOL PRIV 0001178‐1183 public Draft POC Jul‐15 Samantha Truppi (Investigator) Internal DOL PRIV 0001184‐1195 DP: WP Memo re. Wells Fargo Production and related correspondence 7/22/2013 Colleen McKee (Investigator) , Marc Machiz (Regional Director) Internal DOL PRIV 0001569‐1578 DP: WP; LE Memo re. Wells Fargo Production and related correspondence 6/21/2013 Colleen McKee (Investigator) , Marc Machiz (Regional Director) Internal DOL PRIV 0001584‐1585 DP; WP; LE Memo re. Wells Fargo Production and related correspondence 5/8/2013 Colleen McKee (Investigator) , Marc Machiz (Regional Director) Internal DOL PRIV 0001608‐1619 DP; WP; LE Memo re. Wells Fargo Production and related correspondence 4/18/2013 Colleen McKee (Investigator) , Marc Machiz (Regional Director) Internal DOL PRIV 0001628‐1649 DP; WP; LE Memo re. Wells Fargo Production and related correspondence 4/4/2013 Colleen McKee (Investigator) , Marc Machiz (Regional Director) Internal DOL PRIV 0001652‐1661 DP; WP; LE Document Index Colleen McKee (Investigator), Samantha Truppi (Investigator) Internal DOL PRIV 0004542‐4543 DP; WP Preliminary Expert Research ESOP Power point Presentation Jun‐13 Consulting Expert EBSA DOL PRIV 0000973‐994 DP: WP; Rule 26(b) Copy ESOP Power Point Presentation Jun‐13 Consulting Expert EBSA DOL PRIV 0001586‐1607 DP: WP; Rule 26(b) Questions for Office of Enforcement re. Expert Presentation 11/25/2014 EBSA Internal DOL PRIV 0002032‐2040 DP: WP; Rule 26(b) Expert cost Proposal 10/16/2015 EBSA Internal DOL PRIV 0001746‐1751 DP; WP; Rule 26(b) Investigator Notes Investigator Notes on Depositions 2/27/2015 Samantha Truppi (Investigator) Internal DOL PRIV 0001752‐1774 DP; WP Investigator notes on Quarterly Backlog 4/20/2015 Samantha Truppi (Investigator) Internal DOL PRIV 0001801 DP; WP; LE Investigator notes regarding expert witness draft report 1/13/2017 Samantha Truppi (Investigator) Internal DOL PRIV 0001800 DP; WP Investigator produced spreadsheet on Wayne Booth financial transactions after ESOP 8/6/2015 Samantha Truppi (Investigator) Internal DOL PRIV 0001802 DP; WP Investigator notes from Jess Wright Interview 5/8/2015 Samantha Truppi (Investigator), Cristina O'Brien (Supervisor) Internal DOL PRIV 0000995‐1010 DP; WP Investigator notes on trustee financial position 2nd Q 2015 Samantha Truppi (Investigator) Internal DOL PRIV 0001803 DP; WP Investigator notes on requests for RSOL attorney 11/30/2016 Samantha Truppi (Investigator) Internal DOL PRIV 0002047 DP; WP; AC Draft Interview questions and notes for Jess Wright Interview 5/6/2015 Samantha Truppi (Investigator) Internal DOL PRIV0001196‐1252 DP; WP Draft questions for trustee depositions Jan‐15 Samantha Truppi (Investigator), Cristina O'Brien (Supervisor) Internal DOL PRIV 0001804‐1815 DP; WP Investigator Notes Misc. Feb‐15 Colleen McKee (Investigator) Internal DOL PRIV 0001111‐1156 DP; WP Investigator Notes 4/25/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001625‐1627 DP; WP Investigator Notes ‐ Discussions with RD 1/9/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001258‐1259 DP; WP Coffee Depositions Questions 7/16/2015 Samantha Truppi (Investigator) Internal DOL PRIV 0001816‐1830 DP; WP Investigator Interview Notes and report 9/18/2012 Colleen McKee (Investigator) Internal DOL PRIV 0001261‐1319 DP; WP Investigator Interview notes 9/24/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001525‐1568 DP; WP Document Category Document Name/ Description Date Author/ From To BATES number Investigator Charts Investigator generated ESOP transaction chart 5/2/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001831 DP; WP Investigator generated timeline of ESOP transaction events 9/13/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001832 DP; WP Document Indicies July‐Dec 2013 Colleen McKee (Investigator), Samantha Truppi (Investigator) Internal DOL PRIV 0002009‐2028 DP; WP Chart of when Documents Received Aug‐12 Colleen McKee (Investigator), Samantha Truppi (Investigator) Internal DOL PRIV 0002029‐2031 DP; WP Investigator Generated chart of persons involved with transaction Colleen McKee (Investigator) Internal DOL PRIV 0001253 DP; WP Communication Log 8/13/2012 Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DOL PRIV 0002007‐2008 DP; WP News Briefs DOL News Brief Internal DOL PRIV 0001775‐1778 DP; WP News Brief Drafts Internal DOL PRIV 0004546‐4549 DP; WP DOL Privilege Log - 1 Sec'y of Labor v. BAT Masonry, 15-cv-00028Case 6:15-cv-00028-EKD-RSB Document 118-1 Filed 03/20/17 Page 2 of 3 Pageid#: 1765 Document Category Document Name/ Description Date Author/ From To BATES number Privilege Legal Research Westlaw 2013‐2014 Internal DOL PRIV 0000160‐904 DP; WP Choicepoint 2013‐2014 Internal DOL PRIV 0001833‐2005 DP; WP Investigator generated list of W. Booth Business Affiliations 7/26/2013 Internal DOL PRIV 0001781‐1782 DP; WP Investigator generated list of W. Booth Properties 12/2/2013 Internal DOL PRIV 0001779 DP; WP Investigator generated list of W. Booth Real Estate Assets 12/2/2013 Internal DOL PRIV 0001780 DP; WP Corporation Search ‐ Pisgah 11/13/2012 Internal DOL PRIV 0001260 DP; WP Corporation Search ‐ MH Masonry 5/6/2013 Internal DOL PRIV 0001620‐1624 DP; WP Request of Wayne Booth Tax Returns 6/26/2013 RD Marc MachInternal Revenue Service DOL PRIV 0001580‐1583 DP; WP; LE Wells Farge Resigetered Agent Search 2/28/2013 Internal DOL PRIV 0001664 DP; WP Wayne Booth Bankruptcy Information 11/12/2014 Internal DOL PRIV 0000098‐109 public Wayne Booth Bankruptcy Information 1/14/2016 Internal DOL PRIV 0001162‐1177 public Wayne Booth Bankruptcy 10/4/2012 Internal DOL PRIV 0000134‐159 public; produced Wayne Booth Bankruptcy 10/18/2016 Internal DOL PRIV 0001011‐1042 public Wayne Booth Bankruptcy 1/15/2015 Internal DOL PRIV 0004537‐4539 public Wayne Booth Discharge 12/9/2015 Internal DOL PRIV 0001158‐1161 public Fidelity Lawsuit Info Aug‐Dec 2012 Internal DOL PRIV 0000110‐133 public; produced Bonding Company Complaint Aug‐Dec 2012 Internal DOL PRIV 0000092‐97 public; produced Bonding Company Default Judgement Aug‐Dec 2012 Internal DOL PRIV 0000083 public; produced Bonding Company Litigation Exhibit Aug‐Dec 2012 Internal DOL PRIV 0000085‐91 public; produced Case Law research Internal DOL PRIV 0004551‐4556 DP; WP Expert Procurement Documents Expert Witness Contract 4/27/2016 Office of Procurement Services Internal DOL PRIV 0005011‐0005031 DP; WP; Rule 26(b) Procurement Package 2/5/2016 Michael Schloss (Regional Director) Office of Procurement Services DOL PRIV 0001048‐1077 DP: WP; Rule 26(b) Procurement Package 2/5/2016 Michael Schloss (Regional Director) Office of Procurement Services DOL PRIV 0001083‐1110 DP: WP; Rule 26(b) Drafts of Procurement Documents Dec 2015‐Feb 2016 Samantha Truppi (Investigator) Internal DOL PRIV 0002048‐2118 DP: WP; Rule 26(b) Contract Modification Paperwork 2/24/2017 Michael Schloss (Regional Director) Office of Procurement Services DOL PRIV 0002119‐2136 DP: WP; Rule 26(b) Memos regarding de‐oligation and re‐obligation of $60,000 at start of fiscal year July 2016 and Nov. 2016 Michael Schloss (Regional Director) Office of Enforcement DOL PRIV 0001082 DP: WP; Rule 26(b) Government Technical Review 4/11/2016 Michael Schloss (Regional Director) Office of Enforcement DOL PRIV 00001043‐1407 DP: WP; Rule 26(b) Government Technical Review 3/24/2016 Michael Schloss (Regional Director) Office of Enforcement DOL PRIV 0001078‐1081 DP: WP; Rule 26(b) Invoices Court Reporter 7/31/2015 DOL PRIV 00000082 DP Court Reporter 7/31/2015 DOL PRIV 0001157 DP Kirkland Messina Invoices July 2016 and Feb 2017 Consulting Expert EBSA DOL PRIV 0002041‐2046 DP; WP; Rule 26(b) Emails and Corrsepondence Investigator Emails: regarding case strategy and case status Samantha Truppi (Investigator) Internal & RSOL DOL PRIV 0002160‐0004536 DP; WP; AC Internal & RSOL Samantha Truppi (Investigator) same as above DP; WP; AC Investigator Emails: regarding case strategy and case status Colleen McKee (Investigator) Internal DOL PRIV 0005032‐6325 DP; WP; AC Misc. emails to and from Marc Machiz regarding case strategy and case status Marc Machiz Office of Enforcement DOL PRIV 0002138‐0002159 DP; WP Correspondence re. document production Richard Sayer (Booth Counsel) Colleen McKee DOL PRIV 0001523‐1524 produced Cover Letter from James Joyner w/ document production James Joyner Colleen McKee DOL PRIV 0001650‐1651 produced Fax form Peter Doyle regarding timing of doc production Peter Doyle Colleen McKee DOL PRIV 0001662‐1663 produced Peter Doyle letter re Department subpoena Peter Doyle Marc Machiz DOL PRIV 0001666‐1667 produced Subpoenas and Drafts Subpoenas and drafts: Gentry Locke, Financial Designs, Joyner, Booth, Hinton Colleen McKee (Investigator) Internal/RSOL DOL PRIV 0004550‐5010 DP: WP MH Masonry, Rosser, Wells Fargo [final issued subpoenas already produced in hard drive production] Key Terms RSOL Regional Solicitor of Labor's Office Internal Employee Benefits Security Administration RD Regional Director, Employee Benefits Security Administration EBSA Employee Benefits Security Administration DP Deliberative Process WP Work Product AC Attorney‐Client LE Law Enforcement/ Investigative Techniques Rule 26(b) Federal Rule of Civil Procedure 26(b) DOL Privilege Log - 2 Sec'y of Labor v. BAT Masonry, 15-cv-00028Case 6:15-cv-00028-EKD-RSB Document 118-1 Filed 03/20/17 Page 3 of 3 Pageid#: 1766 EXHIBIT B Case 6:15-cv-00028-EKD-RSB Document 118-2 Filed 03/20/17 Page 1 of 3 Pageid#: 1767 GROOM LAW GROUP, CHARTERED 1701 Pennsylvania Ave., N.W. • Washington, D.C. 20006-5811 202-857-0620 • Fax: 202-659-4503 • www.groom.com Lars C. Golumbic (202) 861-6615 lgolumbic@groom.com March 9, 2017 VIA ELECTRONIC MAIL (forney.geoffrey@dol.gov) Geoffrey Forney Senior Trial Attorney Office of the Solicitor United States Department of Labor The Curtis Center, Ste. 630 East 170 S. Independence Mall West Philadelphia, PA 19106 Re: Perez v. BAT Masonry Company, Inc., et al. Case No. 6:15-cv-00028-EKD (W.D. Va.) Dear Geoff, In the responses of the Department of Labor (“DOL”) to Melvin Hinton’s First Set of Interrogatories (“Hinton Interrogatories”), you objected to interrogatories 2, 4, and 7 on privilege grounds, citing the attorney work product privilege, the government informant’s privilege, and the investigation file privilege. In turn, request 2 of Defendants’ First Requests for Production of Documents (“Defendants’ Document Requests”) asked for production of “a copy of any documents you identified in your responses to [the Hinton Interrogatories] Directed to Plaintiff.” You responded as follows: “[s]ee . . . Plaintiffs’ response to Defendant Hinton’s Interrogatories . . . .” Also, you responded to requests 12 and 13 of Defendants’ Document Requests on the grounds that you had sent all responsive “non-privileged documents” to Defendants’ counsel. To date, the DOL has not provided a privilege log in connection with your responses to requests 2, 12 and 13 of Defendants’ Document Requests notwithstanding your obligations under Federal Rule of Civil Procedure 26 and the instructions set forth in Defendants’ Document Requests. In light of your obligation to provide us with a log describing the information that you have withheld from your responses to Defendants’ Document Requests, we request that you produce a log to us by no later than close of business on Monday, March 13, 2017. Thank you for your attention to this matter. Case 6:15-cv-00028-EKD-RSB Document 118-2 Filed 03/20/17 Page 2 of 3 Pageid#: 1768 Geoffrey Forney March 9, 2017 Page 2 Sincerely, Lars C. Golumbic Counsel for Defendant Melvin Hinton cc: Ed Dawson John Francisco Andy Goldstein James Joyner Jessica Brown Case 6:15-cv-00028-EKD-RSB Document 118-2 Filed 03/20/17 Page 3 of 3 Pageid#: 1769 EXHIBIT C Case 6:15-cv-00028-EKD-RSB Document 118-3 Filed 03/20/17 Page 1 of 3 Pageid#: 1770 United States Department of Labor Office of the Regional Solicitor 170 S. Independence Mall West The Curtis Center, Ste. 630E Philadelphia, PA 19106 215-861-5137 forney.geoffrey@dol.gov March 13, 2017 Via Email (lgolumbic@groom.com) Lars C. Golumbic Groom Law Group 1701 Pennsylvania Ave. N.W. Washington, D.C. 20006 RE: Hugler v. BAT Masonry, 15-cv-00028 (W.D. Va.) The Department of Labor’s Privilege Log Dear Lars, I received your letter, dated March 9, 2017, regarding my purported failure to provide you with a privilege log. But on March 3, 2017, I already provided by email a comprehensive privilege log to you and all of the other defendants in this case. For your convenience, I attach the privilege log to this correspondence. This privilege log also applies to the Department’s responses to Melvin Hinton’s interrogatories and requests for production of documents. I also note that the Department already provided an answer to Hinton’s Interrogatory Number 4. The response was “none.” To date, the response to Interrogatory Number 4 is still “none.” Similarly, the Department responded to Hinton’s Interrogatory Number 7. As indicated, a targeted run of the ESOP’s filed Forms 5500 revealed substantial indebtedness, which gave rise to the Department’s inquiries. Hinton’s Interrogatory Number 7 is completely irrelevant to the claims and defenses in this case, but to avoid contending over a trifle, the Department informed you why the ESOP transaction gave rise to the agency’s inquiries. Any further information on this point is privileged, as indicated on the attached privilege log. Regarding the Department’s responses to Hinton’s Document Requests Numbers 12 and 13, as you know, the Department provided you with its expert’s report on March 1, 2017, addressing these issues. To the extent you seek the agency’s internal deliberations or work product on this issue, any such documents are privilege, as noted in the attached privilege log. Case 6:15-cv-00028-EKD-RSB Document 118-3 Filed 03/20/17 Page 2 of 3 Pageid#: 1771 2 I trust that the forgoing and attached privilege log sufficiently address the issues in your letter. Sincerely, s/ Geoffrey Forney Senior Trial Attorney cc (by email): John Francisco Andy Goldstein Ed Dawson James Joyner Case 6:15-cv-00028-EKD-RSB Document 118-3 Filed 03/20/17 Page 3 of 3 Pageid#: 1772 EXHIBIT D Case 6:15-cv-00028-EKD-RSB Document 118-4 Filed 03/20/17 Page 1 of 3 Pageid#: 1773 From: Golumbic, Lars (lgolumbic@groom.com) To: "Forney, Geoffrey - SOL" Cc: Brown, Jessica R - SOL; "Francisco, John"; "Edawson@pldrlaw.com"; "jfjoyner3"; "agoldstein@mglspc.com"; Fedder, Natasha (nfedder@groom.com); Martin, Sarah (SMartin@groom.com) Subject: RE: Perez v. BAT Masonry, et al (W.D. Va.) Date: Wednesday, March 15, 2017 1:04:40 PM Geoff, In accordance with Judge Ballou’s instructions, below please find a list of the documents from your omnibus privilege log that we believe have been improperly designated and should be produced. Our understanding is that you will provide copies of these documents to Judge Ballou for his possible in camera review if we cannot reach an agreement. Please let me know your availability for a call to discuss these documents tomorrow or Friday. If we cannot resolve our differences on the call, we will file a motion to compel on Monday. In addition, it appears that the descriptions provided for the documents listed in your “Emails and Correspondence” category do not include dates. Please provide a revised log that includes dates for the emails in that category; Lars *** Privilege Log: From “Memoranda” category: Case Opening letter and related correspondence 7/25/2012 Colleen McKee Regional Director DOL PRIV 0001320‐1333 DP; WP Case Opening and Conversion Memo and supporting documents 7/11/2012 Colleen McKee Regional Director DOL PRIV 0001334‐1494 DP; WP Statute of Limitations Analysis 9/30/2014 Joanne Roskey (RSOL) RSOL DOL PRIV 0001496‐1497 AC; WP (only to the extent it contains factual information, and redacting any legal analysis of those facts) Major Case Milestones 6/25/2014 Colleen McKee (Investigator) Office of Enforcement DOL PRIV 0001509 DP; WP (only to the extent it contains factual information, and redacting any legal analysis of those facts) Short memo requesting Documents 9/18/2015 Samantha Truppi (Investigator) Deponent's Counsel DOL PRIV 0004541 DP; WP Investigative Plan 10/22/2014 Colleen McKee (Investigator) Cristina O'Brien, Supervisor DOL PRIV 0001498‐1501 DP: WP; LE (only to the extent it contains factual information, and redacting any legal analysis of those facts) Case 6:15-cv-00028-EKD-RSB Document 118-4 Filed 03/20/17 Page 2 of 3 Pageid#: 1774 Document receipts Drafts 8/7/2014 Colleen McKee(Investigator) Internal DOL PRIV 0001795‐1796 DP Records Examination Memo 2/4/2014 Colleen McKee (Investigator) Internal DOL PRIV 0001510‐1520 DP; WP; LE History and Custody of Documents Memo 2/7/2014 Colleen McKee (Investigator) Internal DOL PRIV 0001521‐1522 DP: WP Document Index Colleen McKee (Investigator), Samantha Truppi (Investigator) Internal DOL PRIV 0004542‐4543 DP; WP From “Investigator Charts” category: Investigator generated ESOP transaction chart 5/2/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001831 DP; WP Investigator generated timeline of ESOP transaction events 9/13/2013 Colleen McKee (Investigator) Internal DOL PRIV 0001832 DP; WP Document Indices July‐Dec 2013 Colleen McKee (Investigator), Samantha Truppi (Investigator) Internal DOL PRIV 0002009‐2028 DP; WP Chart of when Documents Received Aug‐12 Colleen McKee (Investigator), Samantha Truppi (Investigator) Internal DOL PRIV 0002029‐2031 DP; WP Investigator Generated chart of persons involved with transaction Colleen McKee (Investigator) Internal DOL PRIV 0001253 DP; WP Communication Log 8/13/2012 Colleen McKee (Investigator) and Samantha Truppi (Investigator) Internal DOL PRIV 0002007‐2008 DP; WP From “Expert Procurement Documents” category: Expert Witness Contract 4/27/2016 Office of Procurement Services Internal DOL PRIV 0005011‐0005031 DP; WP; Rule 26(b) From “Invoices” category: Kirkland Messina Invoices July 2016 and Feb 2017 Consulting Expert EBSA DOL PRIV 0002041‐2046 DP; WP; Rule 26(b) Case 6:15-cv-00028-EKD-RSB Document 118-4 Filed 03/20/17 Page 3 of 3 Pageid#: 1775 EXHIBIT E Case 6:15-cv-00028-EKD-RSB Document 118-5 Filed 03/20/17 Page 1 of 3 Pageid#: 1776 From: Forney, Geoffrey - SOL To: Golumbic, Lars (lgolumbic@groom.com); Fedder, Natasha (nfedder@groom.com) Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com; Kooi, Ryan M - MSHA Subject: RE: BAT DOL Production Date: Friday, March 17, 2017 5:04:59 PM Third email of three. I list below (by category and Bates number) the documents withheld in response to your email of March 15, 2017, in connection with DOL’s privilege log: Case Opening and Conversion Memo and supporting documents. 1334-1335, 1336, 1337-1338, 1345, 1377-1379, 1380, 1467-1494 Statute of Limitations Analysis 1496-1497 Major Case Milestones 1509 Investigative Plan 1498-1501 Investigator Generated ESOP transaction chart 1831 Investigator Generated Timeline of ESOP transaction events 1832 Investigator Generated Chart of Persons Involved with Transaction 1253 Communication Log 2007-2008 Expert Witness Contract We will inform you Monday morning about DOL’s final decision to withhold or produce Geoff Forney 215-861-5137 From: Forney, Geoffrey - SOL Sent: Friday, March 17, 2017 4:50 PM To: 'Golumbic, Lars (lgolumbic@groom.com)'; 'Fedder, Natasha (nfedder@groom.com)' Cc: 'jfjoyner3'; 'jfrancisco@woodsrogers.com'; 'Ed Dawson'; 'agoldstein@mglspc.com'; Kooi, Ryan M - MSHA Case 6:15-cv-00028-EKD-RSB Document 118-5 Filed 03/20/17 Page 2 of 3 Pageid#: 1777 Subject: RE: BAT DOL Production Second email. Geoff Forney 215-861-5137 From: Forney, Geoffrey - SOL Sent: Friday, March 17, 2017 4:36 PM To: Golumbic, Lars (lgolumbic@groom.com); 'Fedder, Natasha (nfedder@groom.com)' Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com Subject: BAT DOL Production Lars, As we discussed during our telephone call this afternoon, I’m producing several documents in a series of email. I mentioned that some of these documents were already produced in the hard drive production from March 2016, including tax filings, audited financial statements, Forms 5500, and Melvin Hinton’s interview. In addition, I provided you with Messina’s invoices yesterday. In a final email, I’ll catalogue the documents by page number that we are withholding. Geoffrey Forney Senior Trial Attorney Office of the Solicitor United States Department of Labor The Curtis Center, Ste. 630 East 170 S. Independence Mall West Philadelphia, PA 19106 215-861-5137 ___________________________________________________________________________ This message (including any attachments) contains confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and are hereby notified that any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited. If you are not the intended recipient, you must contact the sender immediately to inform him of the error. Case 6:15-cv-00028-EKD-RSB Document 118-5 Filed 03/20/17 Page 3 of 3 Pageid#: 1778 EXHIBIT F Case 6:15-cv-00028-EKD-RSB Document 118-6 Filed 03/20/17 Page 1 of 3 Pageid#: 1779 From: Kooi, Ryan M - MSHA To: Forney, Geoffrey - SOL; Fedder, Natasha (nfedder@groom.com) Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com; Golumbic, Lars (lgolumbic@groom.com); Martin, Sarah (SMartin@groom.com) Subject: RE: BAT DOL Production Date: Monday, March 20, 2017 1:45:03 PM Attachments: doc.BAT Masonry.DOL PRIV 5011-5031.pdf All: Attached, please find a copy of the “Expert Witness Contract” Bates stamped DOL PRIV 5011-5031. Additionally, the emails being withheld range in dates as follows: Document Author To Bates Pages Start Date End Date Investigator Emails: regarding case strategy and case status Samantha Truppi (Investigator) Internal DOL PRIV 2160-4536 2377 2/23/2015 2/28/2017 Investigator Emails: regarding case strategy and case status Colleen McKee (Investigator) Internal DOL PRIV 5032-6325 1294 7/19/2012 2/24/2015 Misc. emails to and from Marc Machiz regarding case strategy and case status Office of Enforcement DOL PRIV 2138-2159 22 11/3/2015 2/28/2017 If you have any difficulties with the attachment, please feel free to contact me. Thank you. Ryan M. Kooi Trial Attorney U.S. Department of Labor Office of the Regional Solicitor 201 12th Street South, Suite 401 Arlington, Virginia 22202-5450 kooi.ryan.m@dol.gov 202-693-9373 (voice) 202-693-9392 (fax) CONFIDENTIAL: This message may contain information that is privileged and exempt from disclosure under applicable law. Do not disclose without consulting the Office of the Regional Solicitor. If you think you have received this e-mail in error, please notify the sender immediately. From: Forney, Geoffrey - SOL Sent: Monday, March 20, 2017 1:26 PM To: Fedder, Natasha (nfedder@groom.com) Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com; Kooi, Ryan M - MSHA; Golumbic, Lars (lgolumbic@groom.com); Martin, Sarah (SMartin@groom.com) Subject: RE: BAT DOL Production Ryan should be sending it to you shortly. Geoff Forney 215-861-5137 From: Fedder, Natasha (nfedder@groom.com) [mailto:NFedder@groom.com] Sent: Monday, March 20, 2017 1:04 PM To: Forney, Geoffrey - SOL Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com; Kooi, Ryan M - MSHA; Golumbic, Lars (lgolumbic@groom.com); Martin, Sarah (SMartin@groom.com) Subject: RE: BAT DOL Production Geoff, Following up on the below, could you please advise on whether you intend to withhold or produce the Expert Witness Contract? We will assume you intend to withhold if we do not hear differently. Thank you, Natasha Natasha S. Fedder / 1701 Pennsylvania Ave., NW / Washington, DC 20006 / Phone: 202-861-5437 / Fax: 202-659-4503 / www.groom.com / nfedder@groom.com From: Forney, Geoffrey - SOL [mailto:forney.geoffrey@DOL.GOV] Sent: Friday, March 17, 2017 5:05 PM To: Golumbic, Lars (lgolumbic@groom.com); Fedder, Natasha (nfedder@groom.com) Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com; Kooi, Ryan M - MSHA Subject: RE: BAT DOL Production Third email of three. I list below (by category and Bates number) the documents withheld in response to your email of March 15, 2017, in connection with DOL’s privilege log: Case Opening and Conversion Memo and supporting documents. 1334-1335, 1336, 1337-1338, 1345, 1377-1379, 1380, 1467-1494 Statute of Limitations Analysis 1496-1497 Major Case Milestones 1509 Investigative Plan 1498-1501 Investigator Generated ESOP transaction chart 1831 Investigator Generated Timeline of ESOP transaction events 1832 Investigator Generated Chart of Persons Involved with Transaction Case 6:15-cv-00028-EKD-RSB Document 118-6 Filed 03/20/17 Page 2 of 3 Pageid#: 1780 1253 Communication Log 2007-2008 Expert Witness Contract We will inform you Monday morning about DOL’s final decision to withhold or produce Geoff Forney 215-861-5137 From: Forney, Geoffrey - SOL Sent: Friday, March 17, 2017 4:50 PM To: 'Golumbic, Lars (lgolumbic@groom.com)'; 'Fedder, Natasha (nfedder@groom.com)' Cc: 'jfjoyner3'; 'jfrancisco@woodsrogers.com'; 'Ed Dawson'; 'agoldstein@mglspc.com'; Kooi, Ryan M - MSHA Subject: RE: BAT DOL Production Second email. Geoff Forney 215-861-5137 From: Forney, Geoffrey - SOL Sent: Friday, March 17, 2017 4:36 PM To: Golumbic, Lars (lgolumbic@groom.com); 'Fedder, Natasha (nfedder@groom.com)' Cc: jfjoyner3; jfrancisco@woodsrogers.com; Ed Dawson; agoldstein@mglspc.com Subject: BAT DOL Production Lars, As we discussed during our telephone call this afternoon, I’m producing several documents in a series of email. I mentioned that some of these documents were already produced in the hard drive production from March 2016, including tax filings, audited financial statements, Forms 5500, and Melvin Hinton’s interview. In addition, I provided you with Messina’s invoices yesterday. In a final email, I’ll catalogue the documents by page number that we are withholding. Geoffrey Forney Senior Trial Attorney Office of the Solicitor United States Department of Labor The Curtis Center, Ste. 630 East 170 S. Independence Mall West Philadelphia, PA 19106 215-861-5137 ___________________________________________________________________________ This message (including any attachments) contains confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and are hereby notified that any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited. If you are not the intended recipient, you must contact the sender immediately to inform him of the error. Notice: This message is intended only for use by the person or entity to which it is addressed. Because it may contain confidential information intended solely for the addressee, you are notified that any disclosing, copying, downloading, distributing, or retaining of this message, and any attached files, is prohibited and may be a violation of state or federal law. If you received this message in error, please notify the sender by reply mail, and delete the message and all attached files. Case 6:15-cv-00028-EKD-RSB Document 118-6 Filed 03/20/17 Page 3 of 3 Pageid#: 1781