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Cobell v. Norton

March 3, 2003

ELOUISE PEPION COBELL, ET AL., PLAINTIFFS,
v.
GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter comes before the Court on defendants' motion to file under seal a portion of their response to the Seventh Report of the Court Monitor ("Seventh Report") [1304-1], which was filed on May 16, 2002 and defendants' unopposed motion to file under seal their notice of filing the original declaration of James E. Cason [1315-1], which was filed on May 30, 2002. Also before the Court is defendants' motion for a protective order regarding allegedly privileged documents that were referenced in the Seventh Report [1320-1], which was filed on May 31, 2002. Upon consideration of defendants' motions, plaintiffs' opposition thereto, defendants' reply briefs, and the applicable law in this case, the Court finds that defendants' motions should be granted.

I. PROCEDURAL BACKGROUND

On May 2, 2002, the Court Monitor (now Special Master-Monitor) ("Monitor") filed the Seventh Report. *fn1 The attachments submitted with the Seventh Report included four letters between Justice Department attorneys and Interior Department officials, and two interdepartmental memoranda from the Office of the Special Trustee to the Office of the Solicitor (collectively, "the Six Documents"). On May 16, defendants filed their response to the Seventh Report. On the same date, defendants moved to file under seal a portion of their response that discussed the Six Documents, claiming that the documents fell under the protection of the attorney-client privilege and the work product doctrine. Attachment 3 of defendants' response contained a facsimile copy of a declaration that was composed by Associate Deputy Interior Secretary James E. Cason. Plaintiffs filed their opposition brief on May 30, and defendants submitted their reply brief on June 11. On May 30, defendants filed an unopposed motion seeking to file under seal the original declaration of James E. Cason.

On May 31, defendants moved for a protective order regarding the Six Documents, again asserting that the documents were protected by attorney-client privilege and the work product doctrine. The relief sought in the order included (1) striking the copies of the Six Documents attached to the Seventh Report from the record and ordering them to be returned to defendants, (2) striking from the record portions of the Seventh Report that discussed the Six Documents, (3) ordering the Monitor, plaintiffs, and plaintiffs' counsel to return all copies of the Six Documents to defendants, and (4) barring use or publication of the Six Documents without permission from defendants or a court order. Plaintiffs submitted an opposition brief on June 14, and defendants filed a reply brief on June 26.

II. LEGAL ANALYSIS

A. Attorney-Client Privilege

1. Applicability

"The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In re Lindsey, 148 F.3d 1100, 1103 (D.C. Cir. 1998). The party that asserts the existence of the attorney- client privilege possesses the burden of demonstrating its applicability. Federal Trade Commission v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980). Not only the privileged relationship but all essential elements of the privilege must be shown "by competent evidence and cannot be 'discharged by mere conclusory or ipse dixit assertions.'" See Martin v. Valley National Bank of Arizona, 140 F.R.D. 291, 302 (S.D.N.Y. 1991) (internal citation omitted).

In a recent opinion, this Court explained the applicability of the attorney-client privilege to the instant litigation, in which trust beneficiaries are asserting claims against a trustee:

The Court will, consistent with logic and prevailing authority, recognize the existence of an attorney-client privilege where a trustee seeks legal advice solely in his own personal interest or where the discovery material has been shown to relate exclusively to non-fiduciary matters. But the Court will not immunize every communication with counsel simply because it involved some incidental interest, or benefit distinguishable from, but ancillary to, that of the trust beneficiaries. With regard to litigation-related communications, the Court will not recognize the existence of an attorney-client privilege except where a trustee obtained legal advice solely to protect himself personally or the government from civil or criminal liability, an objective that is inherently inconsistent with his or her fiduciary capacity. Mem. and Order dated Dec. 23, 2002 at 10 (emphasis in original) (footnotes and citations omitted).

Accordingly, the Court must determine (1) whether any of the Six Documents fall under the protection of the attorney-client privilege and (2) if so, whether the fiduciary exception applies to any of the Six Documents.

After examining the Six Documents, the Court concludes that the four letters and one of the memoranda fall within the scope of the attorney-client privilege. The letters from Justice Department counsel to the Office of the Solicitor provide legal advice in the form of recommendations about the steps that Interior Department officials should take in order to respond to the document requests of Special Master Balaran ("Master"). The first of the two memoranda from the Office of the Special Trustee to the Office of the Solicitor, which is dated April 12, 2002 (the "first memorandum" or "earlier memorandum"), seeks answers to a series of questions about how to comply with these document requests. The second of the two memorandum, which is dated April 24, 2002 (the "second memorandum" or "later memorandum"), discusses and responds to one of the four letters from Justice Department Counsel to the Solicitor's Office. Two of the letters appear to have been originally accompanied by a cover letter stating that their contents may be "privileged, confidential, or otherwise protected from disclosure under applicable law." Additionally, the four letters and the earlier memorandum were submitted to the Master accompanied by a transmittal letter explaining that they were being provided for his in camera review, and requesting that they not be publicly disclosed without first providing defendants an opportunity to seek a final ruling on the issue of whether they were protected under attorney-client privilege or as work product. See Dept. of the Interior's Resp. to the Seventh Report of the Ct. Monitor ("Resp. to Seventh Report") at 14 & Attach. A-E. Defendants have also submitted an affidavit representing that the four letters were treated by their senders and recipients as confidential communications. See Interior Defs.' Mot. for Protective Order Regarding Privileged Docs. Referenced in the Seventh Report of the Ct. Monitor ("Mot. for Protective Order"), Attach. A (Declaration of Larry Jensen) ¶¶ 5-7.

However, the Court is unable to conclude that the second memorandum merits protection under the attorney-client privilege. Although it arguably "provides legal advice or services," in that it quotes from and summarizes one of the four letters and opines as to the credibility of the opinions expressed in that letter, defendants have failed to demonstrate that the recipient and sender expected that the memorandum would remain confidential. In Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C. Cir. 1993), the D.C. Circuit explained that "the critical factor for purposes of the attorney-client privilege was that the communication be made 'in confidence for the purpose of obtaining legal advice from the lawyer.'") (quoting FTC v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980)) (emphasis in original). But there is no statement accompanying the letter indicating that its contents were to remain confidential. Defendants' briefs contain only the conclusory statement that although the memorandum was produced to the Master without a transmittal letter informing him that its contents should remain confidential, it "is privileged nonetheless." Resp. to Seventh Report at 13; Mot. for Protective Order at 4. Defendants provide no basis for this legal conclusion. Finally, although the declaration of Justice Department attorney Larry Jensen does state that after he received a copy of the memorandum, its recipient and he "did not further disseminate [it], and thus we made appropriate efforts to preserve [its] confidentiality," his declaration provides no evidence that the sender and recipient had an expectation of confidentiality when the letter was originally transmitted. Mot. for Protective Order, Attach. A, ¶ 8. Accordingly, the Court is unable to find that this memorandum warrants the protection of the attorney-client privilege. However, the Court does find that the four letters and the earlier memorandum constitute confidential communications between a client (the Interior Department) and its attorneys (the Office of the Solicitor and Justice Department) made for the purpose of providing or securing legal advice, and are therefore protected under attorney-client privilege.

The second issue is whether the fiduciary exception, as it applies in the instant case, applies to these five documents. The Court must determine whether the advice contained in the letters and the first memorandum was not provided solely to protect the recipient personally, or the Interior Department generally, from the threat of civil or criminal liability, but instead related in some way to trust administration. As stated above, the subject matter of these documents is the proposed response of the Interior Department to the document requests of the Master. On their face, they do not appear to relate to administration of the trust even in the most tangential way. Moreover, nothing in plaintiffs' briefs indicate that these documents bear any relation to trust administration. The Court therefore concludes that these five documents do not fall within the scope of the fiduciary exception to the attorney-client privilege.

2. Waiver

The next issue is whether defendants have waived the protection afforded by the privilege. Defendants assert that the production of the Six Documents to the Master and the Monitor was not voluntary and therefore did not constitute a valid waiver of attorney-client privilege. Additionally, defendants assert that the publication of the Six Documents in the Seventh Report, and their subsequent dissemination, also did not constitute a valid waiver of attorney-client privilege. The Court will examine each of these claims in turn.

The leading case in the D.C. Circuit on the inadvertent waiver of privileged materials is In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989). In that case, Judge Silberman declared that "[s]hort of court-compelled disclosure, or other equally extraordinary circumstances, we will not distinguish between varying degrees of 'voluntariness' in waivers of the attorney-client privilege." Id. at 980 (citation omitted). However, the case law that discusses inadvertent waiver in the context of privileged documents that were obtained by adversary parties manifestly does not apply to the instant situation, in which the Six Documents were not obtained by a party to this litigation but by an officer of the Court. Moreover, another court in this Circuit has clarified that "[v]oluntary disclosure means the documents [at issue] were not judicially compelled." ...


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