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WILLINGHAM v. ASHCROFT

April 15, 2005.

GLORIA J. WILLINGHAM, Plaintiff,
v.
JOHN ASHCROFT, Defendant.



The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

MEMORANDUM ORDER

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.

I. BACKGROUND

  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.

  II. DEFENDANT'S OBJECTIONS TO PRODUCING CERTAIN DOCUMENTS

  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. Servs., 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 ...


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