The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Currently pending and ready for resolution are the following five motions: 1) Plaintiff's Motion For an Order that Plaintiff's First Request for Admissions to Defendant Office of the Senate Sergeant at Arms and Doorkeeper are Deemed Admitted and the Matters Therein are Conclusively Established and Memorandum of Points and Authorities in Support of His Motion ("Plains. Req. for Admissions"), 2) Plaintiff's Motion to Strike Affidavit submitted by Ronald Tisch In Support of Defendant's Reply in Support of Defendant's Motion for Reconsideration of Portions of Magistrate Judge Facciola's Order Dated May 3, 2004, 3) defendant's Motion to Seal, 4) Defendant's Motion for Leave to File Surreply to Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for an Order that Plaintiff's First Request for Admissions to Defendant Office of the Senate Sergeant at Arms and Doorkeeper are Deemed Admitted, and 5) defendant's Request for Oral Hearing on Order to Show Cause.
I. Counseling and Mediation Documents
As I indicated in my earlier opinion,*fn1 when Congress subjected agencies within the legislative branch to monetary liability for claims of race and other discrimination, it created a mandatory mediation and conciliation process. Congress required, however, that all counseling and mediation be "strictly confidential." 2 U.S.C. § 1416(a)&(b).*fn2
The defendant, the Senate Sergeant-at-Arms ("SSA"), "served a subpoena upon the Office of Compliance ("OC"), created by Congress to, inter alia, supervise the counseling and mediation processes," demanding the production of "the documents plaintiff submitted to the Office of Compliance, including his requests for counseling and mediation." Banks v. Office of Senate Sergeant-At-Arms, 222 F.R.D. at 12. Ultimately, I sought briefs from the OC and the SSA as to whether the OC should be compelled to comply with the SSA's subpoena.
OC reasons that Congress meant what it said and that its statutory obligations would be impossible to fulfill unless the strict confidentiality Congress imposed is honored by precluding SSA from securing the documents it wants. For its part, SSA argues that it will be denied due process if it is denied the documents; without them, it cannot establish whether or not plaintiff exhausted his administrative remedies as to the claims he now brings before this court and is therefore prevented from establishing, if it can, that the court lacks jurisdiction over any unexhausted claim.
I will exercise my discretion and not resolve this matter. Both OC and SSA are creatures of the Congress, its agents, and its employees. As I have just noted, OC was created by Congress to, inter alia, supervise the counseling and mediation process. Indeed, the statute creating the office indicates that it has been created as an independent office "within the legislative branch." 2 U.S.C. § 1381. The SSA is, of course, an employee of the Senate. The controversy over access to the records is therefore an intramural battle between an agency "within the legislative branch" and an employee of the legislative branch as to the meaning of a congressional statute.*fn3 To resolve it would be to "meddle in the internal affairs of the legislative branch." Congress itself can resolve this battle between its agent and one of its employees if it sees fit. Until it does, this court will not interfere with or attempt to supercede Congress's power to resolve disputes among its agents or employees.
II. Timeliness of Privilege Log
In a previous opinion, I concluded that SSA's privilege log was not timely filed. While there is no need to revisit that determination, it is first important to note that, in each of its requests for production, plaintiff insisted that if the SSA claimed that any document sought was privileged, it "furnish a list describing each document for which privilege is claimed, together with the following information... (d) the subject matter of the document; (e) the basis on which the privilege is claimed." Plaintiff's Motion to Compel Defendant to Provide Privilege Log and Motion for an Order That Defendant has Waived Privilege as to Responsive Documents not Produced at Exhibit A, page 2. While SSA claimed that certain documents were privileged, it did not file a motion for a protective order, either to be relieved of the obligation plaintiff was purporting to impose upon it or, if it was ready to concede it had such an obligation, seeking an enlargement of time within which to respond.
Additionally, when, by letter of January 16, 2004, plaintiff's counsel demanded production of a privilege log as to the withheld documents, SSA's then-counsel responded, in her letter of January 20, 2004, that she was "in the process of preparing the requested privilege log." Letter of January 20, 2004 from Brenda J. Pence to William Farley, attached to Defendant's Response to the Court's Order to Show Cause Regarding the Imposition of Sanctions. Again, the SSA never indicated that it was not going to comply with its obligation to produce the privilege log that Farley was demanding until its objections to plaintiff's request for production of documents were first resolved. Instead, SSA indicated that it was in the process of preparing the log. When Ms. Pence was replaced, SSA's new counsel also indicated that the log was being prepared in his letters to Farley and again never indicated that SSA was objecting to producing the log until its earlier objections were resolved. To the contrary, in his letter to Farley of March 12, 2004, new counsel for SSA "assured [Farley] in writing that the privilege log was forthcoming." Declaration of Ronald I. Tisch in Support of Defendant's Response to the Court's Order to Show Cause Regarding the Imposition of Sanctions, ¶ 5. Plaintiff filed the motion to compel on March 12 and the privilege log was produced on March 23, 2004.
I also previously concluded that the privilege log's untimely production justified the imposition of sanctions. Notably, at no point in the briefing of the many issues resolved by that earlier opinion did SSA argue that it had no obligation to produce the privilege log until I resolved its objections to the plaintiff's request for production. Now, however, that plaintiff has moved for sanctions and the waiter has brought the bill, SSA insists, for the first time, that its obligation to file a privilege log did not even arise until the court had first ruled on its other objections to the production sought.
First, and to put it mildly, this argument comes awfully late. It was not made when I initially ruled on plaintiff's complaint that the privilege log was overdue and, perhaps more significantly, it was not asserted by SSA's counsel in the correspondence with plaintiff's counsel pertaining to the SSA's obligation to produce a privilege log. At no point did SSA's counsel ever tell plaintiff's counsel that it was taking the position that it would not produce a privilege log until its objections were resolved. Surely, a central principle of American jurisprudence is that a court will not consider a belated argument that could and should have been made sooner. This principle, of course, animates the refusal of courts of appeals to consider arguments not made in the courts below and the refusal of lower courts to consider arguments made for the first time on a motion for reconsideration. See, e.g., Hutchinson v. CIA, 393 F.3d 226 (D.C. Cir. 2005). Surely, it mocks every notion of fair, efficient, and orderly procedure to permit a party to raise for the first time, when sanctions are sought, an argument it had an obligation to make earlier.
Furthermore, SSA's assertion that the law justifies the position it now takes, besides being a transparent post hoc rationalization, is incorrect. SSA now indicates that the law is unclear as to when a privilege log must be filed and, in the absence of clarity, it was, at the time, entitled to rely on a statement in a district court decision in the Eastern District of California. Defendant's Reply to Plaintiff's Reply to Defendant's Response to the Court's Order to Show Cause Regarding the Imposition of Sanctions ("Defs. Reply to Show Cause") at 4 (quoting Jackson v. County of Sacramento, 175 F.R.D. 653, 656 (E.D. Cal. ...