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Alexander v. Federal Bureau of Investigation

March 6, 2000


The opinion of the court was delivered by: Royce C. Lamberth United States District Court


This matter comes before the court on Plaintiffs' Motion to Compel Further Deposition Testimony and Production of Documents from Thomas F. McLarty, III. Upon consideration of the written submissions of the parties and the relevant law, the court will GRANT IN PART and DENY IN PART plaintiffs' motion, as discussed and ordered below.

I. Background

The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations.

The current dispute revolves around the deposition of Thomas F. McLarty, III, White House Chief of Staff from January 1993 to June 1994, and thereafter Counselor to the President and Special Envoy for the Americas until July 1998. Plaintiffs deposed McLarty on August 5, 1998. At the beginning of this deposition, McLarty produced a privilege log listing 52 documents that he was withholding based on the attorney-client and work-product privileges. However, the log was incomplete with respect to many of the documents listed. *fn1 In addition, the log included several documents prepared by external sources, such as newspaper articles and White House memoranda. Accordingly to the log, these documents were not produced on the basis that they also contained McLarty's handwritten notations for counsel.

After reviewing the privilege log, the plaintiffs filed this motion to compel McLarty to submit all documents listed on the log to the court for in camera inspection. In their motion, the plaintiffs petition the court to compel McLarty to produce to them all documents not protected by the asserted privileges. They further request that, if necessary, McLarty be compelled to appear for a second deposition to testify regarding any documents withheld improperly. On January 28, 2000, the court directed that McLarty submit the documents to the court for in camera inspection. The documents were subsequently filed with the court on February 4, 2000. Upon its in camera review of the documents, the court will now consider the plaintiffs' request to compel further deposition testimony and the production of documents from Thomas McLarty.

II. Analysis

A. Relevancy

Plaintiffs can only obtain "discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action" or "information reasonably calculated to lead to the discovery of admissible evidence." F ED. R. CIV. P. 26(b)(1). McLarty argues that several of the documents at issue are irrelevant, and therefore undiscoverable as they relate to the White House Travel Office investigation (also known as "Travelgate"). This court has previously ruled that most matters regarding Travelgate are not relevant to the instant case. See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 5 (D.D.C. Dec. 7, 1998). As this court stated:

the only apparent connection in substance between it [Travelgate] and the current case is the possible misuse of the government file of Billy Dale, a former Travel Office employee. Although the plaintiffs are certainly entitled to inquire into the obtaining and misuse of Dale's government file, this common thread cannot lead to the discoverability of any and all Travelgate matter. Id.

Per review of the privilege log and in camera review of the documents, most of the documents pertain only to Travelgate and do not involve Billy Dale's file. Therefore, they are irrelevant to the pending action, and they are not discoverable by the plaintiffs. Accordingly, the court will now turn its analysis only to the remaining documents.

B. Attorney-Client Privilege

The following documents listed on the privilege log are relevant to the pending case: Bates No. P287, P289-91, P293-300, P302, and P304- 14. Therefore, the plaintiffs have met their initial burden as to these documents, and the burden now shifts to McLarty to prove that the documents are privileged. As the party asserting the attorney-client privilege, McLarty must demonstrate "the applicability of the privilege by way of affidavits or other competent evidence." Alexander v. FBI, 186 F.R.D. 102, 111 (D.D.C. 1998) (citing Odone v. Croda Int'l PLC, 950 F.Supp. 10, 12 (D.D.C. 1997)). At a minimum, McLarty must provide the court with evidence supporting each of the essential elements necessary to sustain a claim of privilege. *fn2 See Alexander, 186 F.R.D. at 107.

As noted above, McLarty produced a privilege log at the beginning of his deposition in this case. This court has previously addressed what a privilege log must identify. In its Memorandum and Order of July 27, 1998, the court held that the essential elements a ...

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