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Willingham v. Ashcroft

April 4, 2005


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me by Judge Huvelle for the resolution of discovery disputes. Currently pending before me is the issue of whether defendant must produce certain documents, claimed to be privileged and submitted for in camera review, to plaintiff. For the reasons stated herein and in accordance with this Memorandum Order, defendant must produce to plaintiff several of the documents submitted for in camera review.


Plaintiff, an attorney who was an Attorney-Advisor in the Drug Enforcement Administration ("DEA"), an agency within the Department of Justice ("DOJ"), claims that her termination from that position was motivated by a retaliatory and discriminatory animus. The defendant, the Attorney General ("AG"), will defend on the grounds that an investigation of plaintiff's behavior on the night she was arrested in Fairfax County for assault and statements she made thereafter justified her removal from federal service, even though she was acquitted of the charges that led to her arrest.

On January 25, 2005, I resolved several discovery disputes. I also ordered defendant to produce, for the court's in camera review, all documents claimed to be privileged. Defendant has complied with that Order, and I have reviewed all of the allegedly privileged documents that plaintiff claims ought to be produced.*fn1 The documents fall into three categories: (1) documents that contain information outside the scope of discovery; (2) documents that can fairly be said to have been prepared in anticipation of litigation and also constitute opinion work product because they reflect an attorney's "mental impressions, conclusions, opinions, or legal theories;" and (3) documents prepared for other purposes and not protected by any privilege.


A. Outside the Scope of Discovery

As I stated in a previous Opinion in this case, the discovery restrictions originally set by Judge Huvelle are entirely reasonable, and discovery will remain limited to disciplinary actions taken against DEA personnel between February 1998 and November 2001. Willingham v. Ashcroft, 226 F.R.D. 57, 60-62 (D.D.C. 2005). Two documents submitted for in camera review contain information outside the scope of discovery. The document bearing Bates numbers DEA 0010-0026 contains only non-discoverable information, and defendant will not be required to produce it. The majority of the other document (numbered DEA 0696-0730) also contains information outside the scope of discovery, except for three entries that pertain to disciplinary actions taken against plaintiff within the relevant time period. Thus, defendant need not produce the majority of the document because it is irrelevant, and the three relevant entries will be addressed later in this memorandum.

B. The Work-Product Privilege

1. Overview

The work-product privilege exists because "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). A lawyer's work product is reflected in "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.... Were such materials 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.

Because of these important interests, Federal Rule of Civil Procedure 26(b)(3) provides 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 undue hardship. Fed. R. Civ. P. 26(b)(3). Moreover, even if the work-product privilege yields to a showing of need, the court must still 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 (D.C. Cir. 1988).

2. Documents Prepared in Anticipation of Litigation or for Trial

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. Serv., 186 F.3d 959, 968 (D.C. Cir. 1999) (emphasis added). See also Nesse v. Pittman, 202 F.R.D. 344, 349 (quoting In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)). As I have previously noted, "the concept of 'in anticipation of litigation' contains two related, but nevertheless distinct, concepts. One is temporal. The other is motivational." Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181, 189 (D.D.C. 1998) (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 314).

To 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.

Hence, if documents "would have been created in essentially similar form irrespective of the litigation[,]... it [cannot] fairly be said that they were created 'because of' actual or impending litigation." United States v. Adlman, 134 F.3d 1194, 1202-03 (citation omitted). See also Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc. 690 N.W.2d 38, 48 (Iowa 2004) (citing Adlman). Cf. In re Grand Jury Subpoena, 357 F.3d 900, 909-10 (9th Cir. 2004) (noting that, if certain documents were prepared for both litigation and non-litigation purposes and " the two purposes cannot be discretely separated from the factual nexus as a whole," the documents may be protected under the work-product doctrine); Jumpsport, Inc. v. Jumpking, Inc., 213 F.R.D. 329,347-48 (N.D. Cal. 2003) (refining the "because of" standard articulated in Adlman to protect documents when litigation was a substantial factor in their creation and disclosure would offend the policies animating the work-product doctrine). As the advisory committee notes to Rule 26 point out, "materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes" are not protected. Fed. R. Civ. P. 26(b), advisory committee note (1970 amendment). See also Hertzberg v. Veneman, 273 F. Supp. 2d 67, 78 (D.D.C. 2003). To conclude otherwise would be to ignore the motivational dimension of the work-product doctrine.

In this case, in early 1999, the DEA became aware that plaintiff might litigate the decision to place her on indefinite suspension. Specifically, on March 18, 1999, plaintiff appealed the agency's decision to place her on indefinite suspension to the Merit Systems Protection Board ("MSPB"). On May 7, 1999, plaintiff filed an administrative complaint based on her indefinite suspension. While neither of these actions initiated judicial proceedings against the DEA, the Special Masters' Guidelines for the Resolution of Privilege Claims rightly define "litigation" to include "a proceeding in court or administrative tribunal in which the parties have the right to cross-examine witnesses or to subject an opposing party's presentation of proof to equivalent disputation." Epstein, supra, at 504 (quoting the special masters Paul R. Rice and Geoffrey C. Hazard, Jr.). In other words, to constitute "litigation," the proceeding must be adversarial. Id. See also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997) (stating that courts have applied the work-product doctrine in a variety of legal contexts and that the "essential element of each case" was that "the attorney was preparing for or anticipating some sort of adversarial proceeding involving his or her client").

When plaintiff challenged the DEA's decision to discipline her by appealing its decision to the MSPB, she initiated an adversarial action against the agency. The adversarial proceedings continued when she filed her administrative complaint, which, under Title VII of the Civil Rights Act of 1964, is a jurisdictional prerequisite to suit against an agency of the United States. As I have previously indicated, reasonable lawyers know that, if the EEO process results in a determination favorable to the agency, plaintiff will likely bring litigation in the District Court. McPeek v. Ashcroft, 202 F.R.D. 332, 339 (D.D.C. 2001). In addition, "if anonymous complaints of discrimination raise the sufficient potential of litigation to make a lawyer's work investigating those complaints 'in anticipation of litigation,' see Lutheran Social Services, 186 F.3d at 959, a lawyer's work responding to a specific claim of retaliation filed with an agency EEO office has to be 'in anticipation of litigation.'" McPeek, 202 F.R.D. at 339. Thus, all of the documents created because of or in preparation for a potential challenge to plaintiff's indefinite suspension, either to the MSPB or through EEO proceedings, were prepared in reasonable anticipation of litigation. These materials include documents with the following Bates numbers: DEA 1790, DEA 1854-1855, DEA 1862-1866, DEA 1867-1871, DEA 1872-1877, DEA 1979-2081, DEA 2096, DEA 2108, DEA 2132, DEA 2137-2139, DEA 2193, and the redacted portions of DEA 2102, DEA 2133, DEA 2136, DEA 2142, and DEA 2143.

In each of these instances, the documents that were prepared in anticipation of litigation clearly reflect the DEA's or its attorneys' mental processes because they contain counsel's analysis of the merits of the agency's imposition of indefinite suspension, their assessment of the importance of the case from an agency-wide point of view, or their thoughts regarding possible settlement. Thus, these materials constitute opinion work product because they reflect the DEA's or the attorneys' "mental impressions, conclusions, opinions, or legal theories," and they are entitled to almost absolute protection. See Fed. R. Civ. P. 26(b)(3). Therefore, in order to justify the production of these documents, plaintiff would have to make a stronger showing of need than is normally required of ordinary work product. See Byers, 100 F.R.D. at 439. After reviewing the documents, I am confident that plaintiff can make no showing that would be strong enough to justify the release of the DEA attorneys' pure legal analysis of this case, and these documents need not be produced. Indeed, she has made no such showing in Plaintiff's Second Motion to Compel the Production of Documents. To rule otherwise and order production of the ...

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