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Banks v. Office of the Senate Sergeantat-Arms and Doorkeeper

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


May 9, 2005

ROY BANKS, PLAINTIFF,
v.
OFFICE OF THE SENATE SERGEANTAT-ARMS AND DOORKEEPER, DEFENDANT.

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

MEMORANDUM ORDER

This case was referred to me by Judge Kennedy for full case management. Currently pending before me is the issue of whether the Office of the Senate Sergeant-at-Arms and Doorkeeper ("SAA" or "defendant") must produce certain documents, claimed to be privileged and submitted for in camera review, to Roy Banks ("Banks" or "plaintiff"). For the reasons stated herein and in accordance with this Memorandum Order, the SAA must produce to plaintiff several of the documents submitted for in camera review.

I. BACKGROUND

Plaintiff brought this lawsuit alleging that his employer, the SAA, engaged in several unlawful employment actions. See Banks v. Office of the Senate Sergeant at Arms, 222 F.R.D. 7, 9 (D.D.C. 2004). The parties have engaged in substantial litigation regarding discovery. In this memorandum, I resolve the issue of whether certain documents, submitted by the defendant for in camera review, can be withheld because they are covered by the work-product doctrine, the attorney-client privilege, or both.

II. PRIVILEGES CLAIMED BY THE DEFENDANT

A. The Work-Product Privilege

As the Supreme Court has stated,"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). If a lawyer's work product were "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. In light of these important interests, Federal Rule of Civil Procedure 26(b)(3) and the work-product doctrine provide 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 inability to obtain the substantial equivalent without undue hardship. Fed. R. Civ. P. 26(b)(3). In addition, the court must 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, 273 (D.C. Cir. 1988).

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 Willingham v. Ashcroft, Civ. A. No. 02-1972, 2005 WL 873223, at *2 (D.D.C. Apr. 15, 2005). As I have recently noted,

[t]o 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.

Willingham, 2005 WL 873223, at *2. Hence, if the same or essentially similar documents would have been created whether or not litigation was foreseen, "'it [cannot] fairly be said that they were created'because of' actual or impending litigation.'" Id. (quoting United States v. Adlman, 134 F.3d 1194, 1202-03).

B. The Attorney-Client Privilege

In this Circuit,"the attorney-client privilege is narrowly circumscribed to shield from disclosure only those communications from a client to an attorney made in confidence and for the purpose of securing legal advice." Willingham, 2005 WL 873223, at *6 (quoting Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 204 (D.D.C. 1998)). See also Tax Analysts, 117 F.3d at 618; In re Sealed Case, 737 F.2d 94, 98 (D.C. Cir. 1984). The privilege also applies to communications from attorneys to their clients if the communications "'rest on confidential information obtained from the client.'" Tax Analysts, 117 F.3d at 618 (quoting In re Sealed Case, 737 F.2d at 99 and citing Mead Data Central, Inc. v. United States Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977)).

III. SPECIFIC ISSUES REGARDING SUBSETS OF THE DOCUMENTS

A. Documents Revealing How Counsel Investigated the Case and Prepared the Government's Defense

Many of the documents submitted for in camera review concern a matter that defense counsel investigated when developing the facts of the case and preparing its defense. These documents were clearly prepared because of the prospect of litigation, and they reveal counsel's mental impressions and litigation strategy. Accordingly, the documents that reflect the process by which defense counsel prepared this case constitute highly protected opinion work product. Defendant's claim of work-product privilege is sustained, and defendant need not produce these documents. In the chart summarizing my rulings on each document submitted for in camera review, these materials are identified by the terms "Case Investigation and Preparation."

B. Jane and John Doe Documents

Several documents submitted for in camera review concern SAA employees other than Banks and the individuals who made decisions concerning the terms of his employment. Indeed, most of these documents memorialize conversations with and about a certain SAA employee, whom I shall call Jane Doe I. Other documents concern SAA employees to whom I will refer as Jane Doe II, Jane Doe III, John Doe I, and John Doe II.

For many of these documents, the defendant claims the work-product privilege. But, neither on the face of the documents nor in the privilege log is there any showing that the documents were created because of the prospect of litigation by Banks or anyone else. Without such a showing, any claim of work-product privilege simply cannot be sustained.

For the majority of these documents, the SAA has also claimed the attorney-client privilege. An analysis of the Jane Doe I documents reveals that the materials fall into two categories. In the first group are documents that reflect communications between the client (the SAA) and its counsel when the SAA sought legal advice regarding how to handle Jane Doe I's continued use-and possible abuse-of her sick and disability leave. A review of these documents indicates that the SAA intended the communications to be confidential, at least while the government made a determination as to whether to take disciplinary or other action. This group of documents, in which the client specifically seeks legal guidance with the understanding that its communications are confidential, is clearly protected under the attorney-client privilege.

The second group of materials concerns the same situation. However, each of these materials does not, on its face, disclose that the client sought or an attorney rendered specific legal advice. Rather, in these documents, the SAA recounts facts so that its counsel may continue to be apprised of the developing situation and the SAA may receive continued advice from its attorneys. If the court were to deny the privilege as to these documents, it would reveal the nature of the guidance SAA sought from its counsel and, in effect, nullify the privilege that the court sustained as to the first group. Indeed, when read as a whole, it is clear that these communications were intended to be confidential and were part of the process by which the SAA sought legal advice from counsel. Indeed, "[i]t is not essential... that [a] request for advice be express. Client communications intended to keep the attorney generally apprised of continuing business developments, with an implied request for legal advice thereon... may also be protected." Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 144-45 (D. Del. 1977). In addition, although "it is essential that communications between client and attorney deal with legal assistance and advice in order to be privileged, it is not essential that such requests by the client for legal advice be expressed.... [Rather,] there must be a finding that each document is involved in the rendition of legal assistance." Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 37-39 (D. Md. 1974). Because it can fairly be said that the documents in the second group were created to keep SAA's counsel apprised of the very situation about which the SAA sought legal assistance, the SAA's claim of attorney-client privilege, as to the second group of documents, is sustained.

C. Chart and Abbreviated Notations

In the interest of clarity, I have included in this memorandum two charts. The first summarizes various abbreviations I have used to describe my analysis of the materials. The second lists each document submitted for in camera review and my rulings on each privilege claim.

Abbreviated Notation Explanation

Not for Trial Based on information provided by defendant, the document cannot fairly be said to have been prepared or obtained because of the prospect of litigation or for trial. Defendant's claim of work-product privilege is denied.

Opinion Work Product Document can fairly be said to have been prepared for trial or in anticipation of litigation, and it reflects counsel's mental impressions. Defendant's claim of work-product privilege is sustained.

Ordinary Work Product Document can fairly be said to have been prepared for trial or in anticipation of litigation, but it does not reflect counsel's mental impressions. Defendant's claim of work-product privilege is sustained, but plaintiff will have the opportunity to make a showing of substantial need and undue hardship.

Not Confidential Document does not disclose information that the client intended to be confidential. Defendant's claim of attorney-client privilege is denied.

Confidential and Seeks Legal Advice

Document reflects communications that the client intended to be confidential and that were made for the purposes of seeking legal advice. The attorney-client privilege is sustained.

Case Investigation and Preparation

These documents reveal the manner in which defense counsel investigated and prepared the government's defense. The documents were prepared in anticipation of litigation and reveal counsel's mental impressions and litigation strategy. Defendant's claim of work-product privilege is sustained.

Jane Doe I, Jane Doe II, Jane Doe III, John Doe I, or John Doe II

These documents relate to SAA employees other than Banks. Defendant has failed to indicate whether these documents were prepared for trial or in anticipation of litigation, either because they are related to the instant case or to adversarial proceedings involving other employees. Because defendant failed to make a sufficient showing that these documents qualify as work product, the claim of work-product privilege is denied. However, these documents do reflect confidential communications made from a client (the government) to its attorney (defense counsel). Therefore, where the attorney-client privilege has been claimed, the privilege is sustained.

Bates # Privilege

Claimed

Ruling Reason

RB 001735 Attorney-client

Work-product

Denied

Denied

Not Confidential

Not for Trial

RB 001793 Attorney-client

Work-product

Denied

Denied

Not Confidential

Not for Trial

RB 001808 Attorney-client

Work-product

Denied

Denied

Not Confidential

Not for Trial

RB 001885 Attorney-client

Work-product

Denied

Denied

Not Confidential

Not for Trial

RB 002004 Attorney-client

Work-product

Denied

Denied

Not Confidential

Not for Trial

RB 002012 Attorney-client

Work-product

Denied

Sustained

Not Confidential

Ordinary Work Product

RB 002408 Attorney-client

Work-product

Denied

Sustained

Not Confidential

Ordinary Work Product

RB 002501 Attorney-client Denied Not Confidential

RB 002502 Attorney-client Denied Not Confidential

RB 002538 Attorney-client Denied Not Confidential

RB 002541 Work-product Denied While technically prepared in anticipation of litigation, the document recounts conversations with plaintiff's counsel regarding the Initial Scheduling Conference. The court will not sustain defendant's claim of work product as to this document because to do so would trivialize the privilege.

RB 002557 Attorney-client Denied Not Confidential

RB 003049 Work-product Sustained Case Investigation and Preparation

RB 003050-RB 003051

Work-product Sustained Case Investigation and Preparation

RB 003056-RB 003058

Work-product Sustained Case Investigation and Preparation

RB 003060-RB 003062

Work-product Sustained Case Investigation and Preparation

RB 003066 Work-product Sustained Case Investigation and Preparation

RB 003067 Work-product Sustained Case Investigation and Preparation

RB 003068 Work-product Sustained Case Investigation and Preparation

RB 003095 Work-product Sustained Case Investigation and Preparation

RB 003096 Work-product Sustained Case Investigation and Preparation

RB 003111 Work-product Sustained Case Investigation and Preparation

RB 003112 Work-product Sustained Case Investigation and Preparation

RB 002417 Work-product Denied Not for Trial

RB 002993-RB 002994

Work-product Sustained Opinion Work Product

RB 003113-RB 003122

Work-product Sustained Case Investigation and Preparation

RB 003123 Work-product Sustained Case Investigation and Preparation

RB 003129-RB 003131

Work-product Sustained Opinion Work Product

RB 003687 Work-product Sustained Opinion Work Product

RB 003738 Attorney-client Denied Not Confidential

RB 003757 Attorney-client

Work-product

Denied

Denied

Not Confidential

Insufficient showing of whether this draft letter to an unnamed individual was prepared in anticipation of litigation

RB 004186-RB 004187

Work-product Sustained Opinion Work Product

RB 004604-RB 004608

Attorney-client

Work-product

Denied

Sustained

Case Investigation and Preparation

RB 004612 Work-product Sustained Opinion Work Product

RB 006235-RB 006239

Work-product Sustained Case Investigation and Preparation

RB 007037 Attorney-client

Work-product

Denied

Sustained

Case Investigation and Preparation

RB 007038-RB 007040

Work-product Sustained Case Investigation and Preparation

RB 007041-RB 007042

Work-product Sustained Case Investigation and Preparation

RB 007043 Work-product Sustained Case Investigation and Preparation

RB 007044 Attorney-client

Work-product

Denied

Denied

Not Confidential

Not for Trial

RB 008418 Work-product Denied Not for Trial

RB 004188-RB 004193

Work-product Sustained Opinion Work Product

RB 008542-RB 008543

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008552-RB 008554

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008559-RB 008562

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008563-RB 008564

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008570 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008587 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008588-RB 008589

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008592 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008593 Attorney-client Sustained Jane Doe I

RB 008594 Attorney-client Sustained Jane Doe I

RB 008626 Attorney-client Sustained Jane Doe I

RB 008627 Attorney-client Sustained Jane Doe I

RB 008663 Attorney-client Sustained Jane Doe I

RB 008907-RB 008908

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008909 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

Jane Doe I

RB 008919 Attorney-client Denied Not Confidential

RB 008925 Attorney-client Denied Not Confidential

RB 008928-RB 008930

Work-product Denied Jane Doe II

RB 008558 Attorney-client

Work-product

Sustained

Denied

RB 008931-RB008932

Work-product Denied Jane Doe II

Case Investigation and Preparation

RB 008942 Work-product Sustained Case Investigation and Preparation

RB 008944 Attorney-client Denied Not Confidential

RB 008956 Work-product Denied Jane Doe III

RB 008957-RB 008962

Work-product Denied John Doe I

RB 009415 Attorney-client

Work-product

Denied

Sustained

Case Investigation and Preparation

RB 008941 Attorney-client

Work-product

Denied

Sustained

RB 009416 Attorney-client

Work-product

Denied

Sustained

Case Investigation and Preparation

Case Investigation and Preparation

RB 012245 Attorney-client Sustained John Doe II

RB 013332 Attorney-client Denied Not Confidential

RB 013352-RB 013353

Work-product Sustained Opinion Work Product

RB 009417-RB 009419

Attorney-client

Work-product

Denied

Sustained

RB 013451-RB 013452

Work-product Sustained Case Investigation and Preparation

RB 013714 Work-product Sustained Case Investigation and Preparation

RB 013793 Attorney-client

Work-product

Sustained

Sustained

Confidential and Seeks Legal Advice

Opinion Work Product

RB 013794 Attorney-client

Work-product

Denied

Sustained (in part)

Not Confidential

Opinion Work Product (in part)*fn1

RB 013804 Work-product Sustained Opinion Work Product

RB 013805 Work-product Sustained Opinion Work Product

RB 013806-RB 013812

Work-product Sustained Opinion Work Product

RB 013813-RB 013823

Work-product Sustained Opinion Work Product

RB 013824-RB 013828

Work-product Sustained Opinion Work Product

RB 013829-RB 013830

Work-product Sustained Opinion Work Product

RB 013863-RB 013864

Work-product Sustained Opinion Work Product

RB 013865-RB 013866

Work-product Sustained Opinion Work Product

RB 013873-RB 013874

Attorney-client

Work-product

Denied

Sustained (in part)

Not Confidential

Opinion Work Product (in part)*fn2

RB 013875-RB 013878

Work-product Sustained Opinion Work Product

RB 013879-RB 013880

Attorney-client Sustained Confidential and Seeks Legal Advice

RB 014815-RB 014816

Attorney-client Denied Not Confidential

RB 014937 Work-product Sustained Opinion Work Product

RB 014939-RB 014940

Work-product Sustained Opinion Work Product

RB 015144 Attorney-client Denied Not Confidential

RB 015147 Work-product Sustained Ordinary Work Product

RB 008476 Work-product Denied Jane Doe I

RB 008439 Attorney-client Sustained Jane Doe I

RB 008477 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008478 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008483 Work-product Denied Jane Doe I

RB 008487 Attorney-client Sustained Jane Doe I

RB 008488-RB 008490

Work-product Denied Jane Doe I

Jane Doe I

RB 008499 Attorney-client Sustained Jane Doe I

RB 008507 Attorney-client Sustained Jane Doe I

RB 008508 Attorney-client Sustained Jane Doe I

RB 008509 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008510 Attorney-client Sustained Jane Doe I

RB 008511 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008491-RB 008493

Attorney-client

Work-product

Sustained

Denied

RB 008512 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008479 Attorney-client Sustained Jane Doe I

RB 008480 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008481 Attorney-client Sustained Jane Doe I

RB 008482 Attorney-client Sustained Jane Doe I

RB 008484 Attorney-client Sustained Jane Doe I

RB 008485 Attorney-client Sustained Jane Doe I

RB 008486 Attorney-client Sustained Jane Doe I

RB 008494 Attorney-client Sustained Jane Doe I

RB 008495 Attorney-client Sustained Jane Doe I

RB 008496 Attorney-client Sustained Jane Doe I

RB 008497 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008498 Attorney-client Sustained Jane Doe I

RB 008500 Attorney-client Sustained Jane Doe I

RB 008502 Attorney-client Sustained Jane Doe I

RB 008503 Attorney-client Sustained Jane Doe I

RB 008504 Attorney-client Sustained Jane Doe I

RB 008505 Attorney-client Sustained Jane Doe I

RB 008506 Attorney-client Sustained Jane Doe I

RB 008513 Attorney-client Sustained Jane Doe I

RB 008443-RB 008444

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008445 Attorney-client Sustained Jane Doe I

RB 008446 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008447 Attorney-client Sustained Jane Doe I

RB 008448 Work-product Denied Jane Doe I

RB 008449 Work-product Denied Jane Doe I

RB 008455-RB 008456

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008457 Attorney-client Sustained Jane Doe I

RB 008458 Attorney-client Sustained Jane Doe I

RB 008459 Attorney-client Sustained Jane Doe I

RB 008460 Attorney-client Sustained Jane Doe I

RB 008461 Attorney-client Sustained Jane Doe I

RB 008462 Attorney-client Sustained Jane Doe I

RB 008465 Attorney-client Sustained Jane Doe I

RB 008467 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008468 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008469-RB 008470

Attorney-client

Work-product

Sustained

Denied

Jane Doe I

Jane Doe I

RB 008472 Attorney-client Sustained Jane Doe I

RB 008473 Attorney-client Sustained Jane Doe I

RB 008474 Attorney-client

Work-product

Sustained

Denied

Jane Doe I

RB 008471 Attorney-client

work product

Sustained

Denied

Jane Doe I

RB 008441 Work-product Denied Jane Doe I

RB 008451 Attorney-client Sustained Jane Doe I

RB 008452 Attorney-client Sustained Jane Doe I

RB 008453 Attorney-client Sustained Jane Doe I

RB 008454 Attorney-client Sustained Jane Doe I

RB 008463 Attorney-client Sustained Jane Doe I

RB 008464 Attorney-client Sustained Jane Doe I

RB 008466 Attorney-client Sustained Jane Doe I

RB 014230-RB 014236

Work-product Sustained Opinion Work Product

RB 008475 Attorney-client

Work-product

Sustained

Denied

RB 014241-RB 014247

Work-product Sustained Opinion Work Product

RB 014263-RB 014269

Attorney-client

Work-product

Sustained as to work product

Opinion Work Product

RB 014289-RB 014290

Attorney-client

Work-product

Sustained as to work product

Opinion Work Product

E-mail from Pence dated 5/28/04

Work-product Sustained Opinion Work Product

Work-product Sustained Opinion Work Product

Work-product Sustained Opinion Work Product

III. CONCLUSION

For the reasons stated herein, the defendant is, hereby, ORDERED to, within 10 days of this Memorandum Order, produce all of the documents as to which its claim of privileges have been denied. As to those documents for which the court has sustained the claims of privilege in part, defendant shall produce redacted versions of the materials to plaintiff. For documents determined to be ordinary work product, the court has provided a more detailed description than appears in the privilege log so that plaintiff, if he chooses, may articulate his substantial need for the materials and his inability to secure the substantial equivalent without undue hardship.*fn3 Any such showing must be made, in writing, by May 16, 2005. Defendant may respond by May 23, 2005. The court notes that these documents are hardly earth-shattering in their significance and hopes that, in a case in which so much money has already been spent on discovery, the parties can work together to determine whether additional litigation over these three documents is in anyone's interest.

SO ORDERED.

Memo to file dated 07/15/2003

Memo to file dated 07/25/2003

Appendix A

The following contains a description of all the documents found to be ordinary work product.

RB 002012 This document is a memorandum from Catherine Brooks ("Brooks"), Administrator, Senate Workers' Compensation Program, to Brenda Pence, Senior Counsel. The memorandum concerns an inventory log that Brooks received from S.R.

RB 002408 This document is an email from Claudia Kostel to Jean McComish. It concerns how to follow up with Banks regarding his FMLA forms.

RB 015147 This document is an email from Brenda Pence to Kathleen Joseph. It concerns Banks' appeals of his workers' compensation claims.


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