Banks v. Office of the Senate Sergeant-At-Arms and Doorkeeper of the United States Senate

District of Columbia, dcd-1:2003-cv-00056

MEMORANDUM ORDER regarding documents submitted for in camera review. Signed by Magistrate Judge John M. Facciola on 5/9/2005. Associated Cases: 1:03-cv-00056-HHK-JMF,1:03-cv-00686-HHK-JMF,1:03-cv-02080-HHK-JMF(lcjf1,)

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7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROY BANKS, Plaintiff, Civil Action No. 03-56 (HHK/JMF) v. Civil Action No. 03-686 (HHK/JMF) Civil Action No. 03-2080(HHK/JMF) OFFICE OF THE SENATE SERGEANT- AT-ARMS and DOORKEEPER, Defendant. MEMORANDUM ORDER This case was referred to me by Judge Kennedy for full case management. Currently pending before me is the issue of whether the Office of the Senate Sergeant-at-Arms and Doorkeeper ("SAA" or "defendant") must produce certain documents, claimed to be privileged and submitted for in camera review, to Roy Banks ("Banks" or "plaintiff"). For the reasons stated herein and in accordance with this Memorandum Order, the SAA must produce to plaintiff several of the documents submitted for in camera review. I. BACKGROUND Plaintiff brought this lawsuit alleging that his employer, the SAA, engaged in several unlawful employment actions. See Banks v. Office of the Senate Sergeant at Arms, 222 F.R.D. 7, 9 (D.D.C. 2004). The parties have engaged in substantial litigation regarding discovery. In this memorandum, I resolve the issue of whether certain documents, submitted by the defendant for in camera review, can be withheld because they are covered by the work-product doctrine, the attorney-client privilege, or both. II. PRIVILEGES CLAIMED BY THE DEFENDANT A. The Work-Product Privilege 7 As the Supreme Court has stated, "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 (1947). If a lawyer's work product were "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. In light of these important interests, Federal Rule of Civil Procedure 26(b)(3) and the work-product doctrine provide 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 inability to obtain the substantial equivalent without undue hardship. Fed. R. Civ. P. 26(b)(3). In addition, the court must 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 (1981)). See also In re Sealed Case, 856 F.2d 268, 273 (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 Willingham v. Ashcroft, Civ. A. No. 2 7 02-1972, 2005 WL 873223, at *2 (D.D.C. Apr. 15, 2005). As I have recently noted, [t]o be protected by the work-product doctrine, a document must have been created for use at trial or because a lawyer or party reasonably anticipated that specific litigation would occur and prepared the document to advance the party's interest in the successful resolution of that litigation. Motivation is key. In ways that cannot often be foreseen when they are created, documents may prove useful in litigation because they record an event or memorialize an occurrence. But, their creation at a time when litigation was anticipated does not automatically render them privileged. The purpose of preparing for the anticipated litigation is critical, lest the rule be interpreted to protect everything a lawyer or party does when litigation is anticipated even though the lawyer or party did not create the document to advance the client's interest in the litigation. Willingham, 2005 WL 873223, at *2. Hence, if the same or essentially similar documents would have been created whether or not litigation was foreseen, "'it [cannot] fairly be said that they were created 'because of' actual or impending litigation.'" Id. (quoting United States v. Adlman, 134 F.3d 1194, 1202-03). 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." Willingham, 2005 WL 873223, at *6 (quoting 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 also applies to communications from attorneys to their clients if the communications "'rest on confidential information obtained from the client.'" 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 3 7 242, 254 (D.C. Cir. 1977)). III. SPECIFIC ISSUES REGARDING SUBSETS OF THE DOCUMENTS A. Documents Revealing How Counsel Investigated the Case and Prepared the Government's Defense Many of the documents submitted for in camera review concern a matter that defense counsel investigated when developing the facts of the case and preparing its defense. These documents were clearly prepared because of the prospect of litigation, and they reveal counsel's mental impressions and litigation strategy. Accordingly, the documents that reflect the process by which defense counsel prepared this case constitute highly protected opinion work product. Defendant's claim of work-product privilege is sustained, and defendant need not produce these documents. In the chart summarizing my rulings on each document submitted for in camera review, these materials are identified by the terms "Case Investigation and Preparation." B. Jane and John Doe Documents Several documents submitted for in camera review concern SAA employees other than Banks and the individuals who made decisions concerning the terms of his employment. Indeed, most of these documents memorialize conversations with and about a certain SAA employee, whom I shall call Jane Doe I. Other documents concern SAA employees to whom I will refer as Jane Doe II, Jane Doe III, John Doe I, and John Doe II. For many of these documents, the defendant claims the work-product privilege. But, neither on the face of the documents nor in the privilege log is there any showing that the documents were created because of the prospect of litigation by Banks or anyone else. Without such a showing, any claim of work-product privilege simply cannot be sustained. 4 7 For the majority of these documents, the SAA has also claimed the attorney-client privilege. An analysis of the Jane Doe I documents reveals that the materials fall into two categories. In the first group are documents that reflect communications between the client (the SAA) and its counsel when the SAA sought legal advice regarding how to handle Jane Doe I's continued use–and possible abuse–of her sick and disability leave. A review of these documents indicates that the SAA intended the communications to be confidential, at least while the government made a determination as to whether to take disciplinary or other action. This group of documents, in which the client specifically seeks legal guidance with the understanding that its communications are confidential, is clearly protected under the attorney-client privilege. The second group of materials concerns the same situation. However, each of these materials does not, on its face, disclose that the client sought or an attorney rendered specific legal advice. Rather, in these documents, the SAA recounts facts so that its counsel may continue to be apprised of the developing situation and the SAA may receive continued advice from its attorneys. If the court were to deny the privilege as to these documents, it would reveal the nature of the guidance SAA sought from its counsel and, in effect, nullify the privilege that the court sustained as to the first group. Indeed, when read as a whole, it is clear that these communications were intended to be confidential and were part of the process by which the SAA sought legal advice from counsel. Indeed, "[i]t is not essential. . . that [a] request for advice be express. Client communications intended to keep the attorney generally apprised of continuing business developments, with an implied request for legal advice thereon. . . may also be protected." Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 144-45 (D. Del. 1977). In addition, although "it is essential that communications between client and attorney deal with legal 5 7 assistance and advice in order to be privileged, it is not essential that such requests by the client for legal advice be expressed. . . . [Rather,] there must be a finding that each document is involved in the rendition of legal assistance." Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 37-39 (D. Md. 1974). Because it can fairly be said that the documents in the second group were created to keep SAA's counsel apprised of the very situation about which the SAA sought legal assistance, the SAA's claim of attorney-client privilege, as to the second group of documents, is sustained. C. Chart and Abbreviated Notations In the interest of clarity, I have included in this memorandum two charts. The first summarizes various abbreviations I have used to describe my analysis of the materials. The second lists each document submitted for in camera review and my rulings on each privilege claim. 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. Defendant's claim of work-product privilege is sustained, but plaintiff will have the opportunity to make a showing of substantial need and undue hardship. 6 7 Not Confidential Document does not disclose information that the client intended to be confidential. Defendant's claim of attorney-client privilege is denied. Confidential and Seeks Document reflects communications that the client intended to be Legal Advice confidential and that were made for the purposes of seeking legal advice. The attorney-client privilege is sustained. Case Investigation and These documents reveal the manner in which defense counsel Preparation investigated and prepared the government's defense. The documents were prepared in anticipation of litigation and reveal counsel's mental impressions and litigation strategy. Defendant's claim of work-product privilege is sustained. Jane Doe I, Jane Doe These documents relate to SAA employees other than Banks. II, Jane Doe III, John Defendant has failed to indicate whether these documents were Doe I, or John Doe II prepared for trial or in anticipation of litigation, either because they are related to the instant case or to adversarial proceedings involving other employees. Because defendant failed to make a sufficient showing that these documents qualify as work product, the claim of work-product privilege is denied. However, these documents do reflect confidential communications made from a client (the government) to its attorney (defense counsel). Therefore, where the attorney-client privilege has been claimed, the privilege is sustained. Bates # Privilege Ruling Reason Claimed RB 001735 Attorney-client Denied Not Confidential Work-product Denied Not for Trial RB 001793 Attorney-client Denied Not Confidential Work-product Denied Not for Trial RB 001808 Attorney-client Denied Not Confidential Work-product Denied Not for Trial RB 001885 Attorney-client Denied Not Confidential Work-product Denied Not for Trial RB 002004 Attorney-client Denied Not Confidential Work-product Denied Not for Trial RB 002012 Attorney-client Denied Not Confidential Work-product Sustained Ordinary Work Product 7 7 RB 002408 Attorney-client Denied Not Confidential Work-product Sustained Ordinary Work Product RB 002501 Attorney-client Denied Not Confidential RB 002502 Attorney-client Denied Not Confidential RB 002538 Attorney-client Denied Not Confidential RB 002541 Work-product Denied While technically prepared in anticipation of litigation, the document recounts conversations with plaintiff's counsel regarding the Initial Scheduling Conference. The court will not sustain defendant's claim of work product as to this document because to do so would trivialize the privilege. RB 002557 Attorney-client Denied Not Confidential RB 003049 Work-product Sustained Case Investigation and Preparation RB 003050- Work-product Sustained Case Investigation and Preparation RB 003051 RB 003056- Work-product Sustained Case Investigation and Preparation RB 003058 RB 003060- Work-product Sustained Case Investigation and Preparation RB 003062 RB 003066 Work-product Sustained Case Investigation and Preparation RB 003067 Work-product Sustained Case Investigation and Preparation RB 003068 Work-product Sustained Case Investigation and Preparation RB 003095 Work-product Sustained Case Investigation and Preparation RB 003096 Work-product Sustained Case Investigation and Preparation RB 003111 Work-product Sustained Case Investigation and Preparation RB 003112 Work-product Sustained Case Investigation and Preparation RB 002417 Work-product Denied Not for Trial RB 002993- Work-product Sustained Opinion Work Product RB 002994 8 7 RB 003113- Work-product Sustained Case Investigation and Preparation RB 003122 RB 003123 Work-product Sustained Case Investigation and Preparation RB 003129- Work-product Sustained Opinion Work Product RB 003131 RB 003687 Work-product Sustained Opinion Work Product RB 003738 Attorney-client Denied Not Confidential RB 003757 Attorney-client Denied Not Confidential Work-product Denied Insufficient showing of whether this draft letter to an unnamed individual was prepared in anticipation of litigation RB 004186- Work-product Sustained Opinion Work Product RB 004187 RB 004604- Attorney-client Denied Case Investigation and Preparation RB 004608 Work-product Sustained RB 004612 Work-product Sustained Opinion Work Product RB 006235- Work-product Sustained Case Investigation and Preparation RB 006239 RB 007037 Attorney-client Denied Case Investigation and Preparation Work-product Sustained RB 007038- Work-product Sustained Case Investigation and Preparation RB 007040 RB 007041- Work-product Sustained Case Investigation and Preparation RB 007042 RB 007043 Work-product Sustained Case Investigation and Preparation RB 007044 Attorney-client Denied Not Confidential Work-product Denied Not for Trial RB 008418 Work-product Denied Not for Trial RB 004188- Work-product Sustained Opinion Work Product RB 004193 RB 008542- Attorney-client Sustained Jane Doe I RB 008543 Work-product Denied 9 7 RB 008552- Attorney-client Sustained Jane Doe I RB 008554 Work-product Denied RB 008559- Attorney-client Sustained Jane Doe I RB 008562 Work-product Denied RB 008563- Attorney-client Sustained Jane Doe I RB 008564 Work-product Denied RB 008570 Attorney-client Sustained Jane Doe I Work-product Denied RB 008587 Attorney-client Sustained Jane Doe I Work-product Denied RB 008588- Attorney-client Sustained Jane Doe I RB 008589 Work-product Denied RB 008592 Attorney-client Sustained Jane Doe I Work-product Denied RB 008593 Attorney-client Sustained Jane Doe I RB 008594 Attorney-client Sustained Jane Doe I RB 008626 Attorney-client Sustained Jane Doe I RB 008627 Attorney-client Sustained Jane Doe I RB 008663 Attorney-client Sustained Jane Doe I RB 008907- Attorney-client Sustained Jane Doe I RB 008908 Work-product Denied RB 008909 Attorney-client Sustained Jane Doe I Work-product Denied RB 008558 Attorney-client Sustained Jane Doe I Work-product Denied RB 008919 Attorney-client Denied Not Confidential RB 008925 Attorney-client Denied Not Confidential RB 008928- Work-product Denied Jane Doe II RB 008930 RB 008931- Work-product Denied Jane Doe II RB008932 10 7 RB 008941 Attorney-client Denied Case Investigation and Preparation Work-product Sustained RB 008942 Work-product Sustained Case Investigation and Preparation RB 008944 Attorney-client Denied Not Confidential RB 008956 Work-product Denied Jane Doe III RB 008957- Work-product Denied John Doe I RB 008962 RB 009415 Attorney-client Denied Case Investigation and Preparation Work-product Sustained RB 009416 Attorney-client Denied Case Investigation and Preparation Work-product Sustained RB 009417- Attorney-client Denied Case Investigation and Preparation RB 009419 Work-product Sustained RB 012245 Attorney-client Sustained John Doe II RB 013332 Attorney-client Denied Not Confidential RB 013352- Work-product Sustained Opinion Work Product RB 013353 RB 013451- Work-product Sustained Case Investigation and Preparation RB 013452 RB 013714 Work-product Sustained Case Investigation and Preparation RB 013793 Attorney-client Sustained Confidential and Seeks Legal Advice Work-product Sustained Opinion Work Product RB 013794 Attorney-client Denied Not Confidential Work-product Sustained (in part) Opinion Work Product (in part)1 RB 013804 Work-product Sustained Opinion Work Product RB 013805 Work-product Sustained Opinion Work Product RB 013806- Work-product Sustained Opinion Work Product RB 013812 1 The first sentence of the second paragraph is opinion work product. Therefore, the document must be produced, but only after that sentence has been redacted. 11 7 RB 013813- Work-product Sustained Opinion Work Product RB 013823 RB 013824- Work-product Sustained Opinion Work Product RB 013828 RB 013829- Work-product Sustained Opinion Work Product RB 013830 RB 013863- Work-product Sustained Opinion Work Product RB 013864 RB 013865- Work-product Sustained Opinion Work Product RB 013866 RB 013873- Attorney-client Denied Not Confidential RB 013874 Work-product Sustained (in part) Opinion Work Product (in part)2 RB 013875- Work-product Sustained Opinion Work Product RB 013878 RB 013879- Attorney-client Sustained Confidential and Seeks Legal Advice RB 013880 RB 014815- Attorney-client Denied Not Confidential RB 014816 RB 014937 Work-product Sustained Opinion Work Product RB 014939- Work-product Sustained Opinion Work Product RB 014940 RB 015144 Attorney-client Denied Not Confidential RB 015147 Work-product Sustained Ordinary Work Product RB 008476 Work-product Denied Jane Doe I RB 008439 Attorney-client Sustained Jane Doe I RB 008477 Attorney-client Sustained Jane Doe I Work-product Denied RB 008478 Attorney-client Sustained Jane Doe I Work-product Denied 2 The first sentence of the second paragraph is opinion work product. Therefore, the document must be produced, but only after that sentence has been redacted. 12 7 RB 008483 Work-product Denied Jane Doe I RB 008487 Attorney-client Sustained Jane Doe I RB 008488- Work-product Denied Jane Doe I RB 008490 RB 008491- Attorney-client Sustained Jane Doe I RB 008493 Work-product Denied RB 008499 Attorney-client Sustained Jane Doe I RB 008507 Attorney-client Sustained Jane Doe I RB 008508 Attorney-client Sustained Jane Doe I RB 008509 Attorney-client Sustained Jane Doe I Work-product Denied RB 008510 Attorney-client Sustained Jane Doe I RB 008511 Attorney-client Sustained Jane Doe I Work-product Denied RB 008512 Attorney-client Sustained Jane Doe I Work-product Denied RB 008479 Attorney-client Sustained Jane Doe I RB 008480 Attorney-client Sustained Jane Doe I Work-product Denied RB 008481 Attorney-client Sustained Jane Doe I RB 008482 Attorney-client Sustained Jane Doe I RB 008484 Attorney-client Sustained Jane Doe I RB 008485 Attorney-client Sustained Jane Doe I RB 008486 Attorney-client Sustained Jane Doe I RB 008494 Attorney-client Sustained Jane Doe I RB 008495 Attorney-client Sustained Jane Doe I RB 008496 Attorney-client Sustained Jane Doe I RB 008497 Attorney-client Sustained Jane Doe I Work-product Denied 13 7 RB 008498 Attorney-client Sustained Jane Doe I RB 008500 Attorney-client Sustained Jane Doe I RB 008502 Attorney-client Sustained Jane Doe I RB 008503 Attorney-client Sustained Jane Doe I RB 008504 Attorney-client Sustained Jane Doe I RB 008505 Attorney-client Sustained Jane Doe I RB 008506 Attorney-client Sustained Jane Doe I RB 008513 Attorney-client Sustained Jane Doe I RB 008443- Attorney-client Sustained Jane Doe I RB 008444 Work-product Denied RB 008445 Attorney-client Sustained Jane Doe I RB 008446 Attorney-client Sustained Jane Doe I Work-product Denied RB 008447 Attorney-client Sustained Jane Doe I RB 008448 Work-product Denied Jane Doe I RB 008449 Work-product Denied Jane Doe I RB 008455- Attorney-client Sustained Jane Doe I RB 008456 Work-product Denied RB 008457 Attorney-client Sustained Jane Doe I RB 008458 Attorney-client Sustained Jane Doe I RB 008459 Attorney-client Sustained Jane Doe I RB 008460 Attorney-client Sustained Jane Doe I RB 008461 Attorney-client Sustained Jane Doe I RB 008462 Attorney-client Sustained Jane Doe I RB 008465 Attorney-client Sustained Jane Doe I RB 008467 Attorney-client Sustained Jane Doe I Work-product Denied 14 7 RB 008468 Attorney-client Sustained Jane Doe I Work-product Denied RB 008469- Attorney-client Sustained Jane Doe I RB 008470 Work-product Denied RB 008471 Attorney-client Sustained Jane Doe I work product Denied RB 008472 Attorney-client Sustained Jane Doe I RB 008473 Attorney-client Sustained Jane Doe I RB 008474 Attorney-client Sustained Jane Doe I Work-product Denied RB 008475 Attorney-client Sustained Jane Doe I Work-product Denied RB 008441 Work-product Denied Jane Doe I RB 008451 Attorney-client Sustained Jane Doe I RB 008452 Attorney-client Sustained Jane Doe I RB 008453 Attorney-client Sustained Jane Doe I RB 008454 Attorney-client Sustained Jane Doe I RB 008463 Attorney-client Sustained Jane Doe I RB 008464 Attorney-client Sustained Jane Doe I RB 008466 Attorney-client Sustained Jane Doe I RB 014230- Work-product Sustained Opinion Work Product RB 014236 RB 014241- Work-product Sustained Opinion Work Product RB 014247 RB 014263- Attorney-client Sustained as to Opinion Work Product RB 014269 Work-product work product RB 014289- Attorney-client Sustained as to Opinion Work Product RB 014290 Work-product work product E-mail from Work-product Sustained Opinion Work Product Pence dated 5/28/04 15 7 Memo to Work-product Sustained Opinion Work Product file dated 7/15/03 Memo to Work-product Sustained Opinion Work Product file dated 7/25/03 III. CONCLUSION For the reasons stated herein, the defendant is, hereby, ORDERED to, within 10 days of this Memorandum Order, produce all of the documents as to which its claim of privileges have been denied. As to those documents for which the court has sustained the claims of privilege in part, defendant shall produce redacted versions of the materials to plaintiff. For documents determined to be ordinary work product, the court has provided a more detailed description than appears in the privilege log so that plaintiff, if he chooses, may articulate his substantial need for the materials and his inability to secure the substantial equivalent without undue hardship.3 Any such showing must be made, in writing, by May 16, 2005. Defendant may respond by May 23, 2005. The court notes that these documents are hardly earth-shattering in their significance and hopes that, in a case in which so much money has already been spent on discovery, the parties can work together to determine whether additional litigation over these three documents is in anyone's interest. SO ORDERED. _____________________________ Dated: JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE 3 These descriptions appear in Appendix A. 16 7 Appendix A The following contains a description of all the documents found to be ordinary work product. RB 002012 This document is a memorandum from Catherine Brooks ("Brooks"), Administrator, Senate Workers' Compensation Program, to Brenda Pence, Senior Counsel. The memorandum concerns an inventory log that Brooks received from S.R. RB 002408 This document is an email from Claudia Kostel to Jean McComish. It concerns how to follow up with Banks regarding his FMLA forms. RB 015147 This document is an email from Brenda Pence to Kathleen Joseph. It concerns Banks' appeals of his workers' compensation claims. 17