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Cobell v. Norton

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 17, 2005

ELOUISE PEPION COBELL, ET AL., ON HER OWN BEHALF AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, PLAINTIFFS,
v.
GALE 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 the defendants' Motion [2832] to Strike Plaintiffs' Notice of Supplemental Information in Support of Plaintiffs' Renewed Request for Emergency Status Conference. Upon consideration of the defendants' motion, the opposition thereto, the reply, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be denied. The Court's reasoning is set forth below.

BACKGROUND

On December 5, 2001, having been presented with extensive evidence of the lack of security for Individual Indian Trust data housed on or accessed by information technology systems at Interior, the Court entered a temporary restraining order requiring "that defendants shall immediately disconnect from the Internet all information technology systems that house or provide access to individual Indian trust data [and] that defendants shall immediately disconnect from the Internet all computers within the custody and control of the Department of the Interior, its employees and contractors, that have access to individual Indian trust data." Temporary Restraining Order [1036], issued Dec. 5, 2001, at 2.*fn1 At Interior's urging, the Court entered a consent order on December 17, 2001, outlining a procedure by which Interior could reconnect its IT systems to the Internet only after satisfying the Special Master that those systems were secure. See Consent Order [1063], issued Dec. 17, 2001. The December 17, 2001 Consent Order, not having been modified by any subsequent Order, remains in effect today.

The Special Master's process for reviewing Interior's IT security broke down in late spring, 2003, see Cobell v. Norton, 274 F. Supp. 2d 111, 114--24 (recounting the events surrounding the disintegration of this process), and as a result the Court issued a preliminary injunction on June 28, 2003, requiring that Interior "immediately disconnect from the Internet all Information Technology Systems within [its] custody or control ... until such time as the Court approves their reconnection to the Internet." Id. at 135. The Court allowed Interior IT systems connected to the Internet as of the date the preliminary injunction was issued to remain connected if they "impact[ed] life or property," or if Interior certified to Court that the connected systems either did not house or access Individual Indian Trust data or were secure from unauthorized access from the Internet. See id. at 135--36.

Upon reviewing Interior's certifications for Internet-connected IT systems submitted in accordance with the June 28, 2003 preliminary injunction and finding them to be both procedurally and substantively defective, the Court, on March 15, 2004, entered a preliminary injunction that required Interior to disconnect (or to keep disconnected) from the Internet Interior's IT systems at certain bureaus and offices, including the BIA, regardless of whether or not they housed or accessed Individual Indian Trust Data. See Cobell v. Norton ("Cobell XII"), 310 F. Supp. 2d 77 (D.D.C. 2004). The March 15, 2004 preliminary injunction superseded and replaced the Court's June 28, 2003 preliminary injunction. See Preliminary Injunction Order [2531], issued Mar. 15, 2004, at 1.

The D.C. Circuit vacated the Court's March 2004 preliminary injunction by opinion issued December 3, 2004. See Cobell v. Norton, 391 F.3d 251 (D.C. Cir. Dec. 3, 2004). In the wake of the decision of the Court of Appeals, the plaintiffs requested that the Court hold an emergency status conference to determine how to proceed in addressing Interior's Indian trust-related IT security issues going forward. See Pls.' Request [2776] for Emergency Status Conference Regarding the Security of Electronic Trust Records, filed Dec. 3, 2004; Pl's Renewed Request [2804] for Emergency Status Conference Regarding the Security of Electronic Trust Records, filed Jan. 4, 2005.

The plaintiffs subsequently filed, as an attachment to their Notice of Supplemental Information in Support of Plaintiffs' Renewed Request for Emergency Status Conference ("Pls.' Notice"), a copy of a May 7, 2004 memorandum from Kaniah Konkoly-Thege, an attorney in Interior's Office of the Solicitor, to BIA Chief Information Officer Brian Burns ("the memorandum"). See Pls.' Notice [2810], filed Jan. 11, 2005, at Ex. 1 (Mem. from KonkolyThege to Burns, May 7, 2004). That memorandum recounts the advice of both the Department of Justice ("DOJ") and the Solicitor's Office regarding the Secretary of the Interior's conclusion that the proposal of the Assistant Secretary of the Interior for Indian Affairs and the BIA to "implement Lotus Notes remote dial-up" on BIA IT systems would not violate "any of the Cobell court orders."*fn2

The defendants make two arguments in support of their motion to strike the plaintiffs' Notice and the memorandum. First, the defendants contend that the allegation in the plaintiffs' Notice-that the Lotus Notes remote dial-up system at BIA would constitute an illicit Internet connection-has no basis in fact and that the Notice should be stricken for that reason. The Court finds, however, that the truth of the plaintiffs' contention in this regard is a question of fact that may only be resolved after the current evidentiary hearing is completed. It follows that the Court cannot summarily strike the plaintiffs' Notice for lack of evidentiary support on the basis of the unsupported assertions in the defendants' motion alone.

The defendants' second argument is that the memorandum is shielded by the attorney-client privilege and thus should not be discoverable or subject to public release by the plaintiffs. Thus, the defendants claim, the memorandum, the plaintiffs' Notice (which recounts the content of the memorandum in some detail), and any other of the plaintiffs' filings referencing the content of the memorandum, should be stricken from the record in this case. The plaintiffs respond that the memorandum falls within the "fiduciary exception" to the attorney-client privilege. There is no need to address the applicability of the fiduciary exception, however, as the Court concludes that the defendants have failed, as a threshold matter, to demonstrate that any part of the memorandum is protected by the attorney-client privilege.

DISCUSSION

Federal Rule of Civil Procedure 12(f) provides, in relevant part, that "upon motion made by a party within 20 days of service of the pleading upon the party ..., the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). An allegation may be stricken as "scandalous" under this standard if it is found to be wholly lacking in evidentiary support. See, e.g., Alexander v. FBI, 186 F.R.D. 21, 53 (D.D.C. 1998) (striking as scandalous charges that an attorney "threatened Plaintiffs' counsel and family" for lack of evidentiary support); Pigford v. Veneman, 215 F.R.D. 2, 4--5 (D.D.C. 2003) (striking as scandalous accusations that attorney displayed a "racist attitude" as devoid of evidentiary foundation); In re Johnson, 236 B.R. 510, 523 (D.D.C. 1999) (striking as scandalous allegations that bankruptcy trustee was a "liar" because they were "so devoid of necessary evidence ... that they amount to little more than name-calling). Resolution of motions to strike lies firmly within the discretion of the Court, Cobell v. Norton, 2004 WL 2008937 at *1 (D.D.C.); and such motions are generally disfavored, being regarded as "time wasters." 2A MOORE'S FEDERAL PRACTICE § 12.21, at 2419. As such, motions to strike should be denied unless the movant can show either that there exists no evidence to support the allegations in question, or that "no evidence in support of the allegations would be admissible." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976).

The plaintiffs' Notice alleges that the BIA Lotus Notes remote dial-up system "clandestinely enable[s] thousands of employees and contractors to reconnect to the Internet in direct violation of this Court's orders"; Pls.' Notice at 3; and that various Interior and DOJ personnel and officials participated or were complicit in the alleged violation. See, e.g., id. at 1--2. The defendants deny that the Court's Orders would be violated, insisting that the BIA Lotus Notes remote dial-up system neither constitutes an Internet connection nor requires any Internet connectivity in order to function. In support of this argument, the defendants cite only the memorandum itself, in which various offices conclude that the BIA Lotus Notes remote dial-up system would not violate this Court's Orders. See Defs.' Reply [2861] to Pls.' Opp. to Defs.' Mot. to Strike ("Defs.' Reply"), filed Mar. 3, 2005, at 2 (concluding that plaintiffs' failure to cite evidence for allegations in plaintiffs' Notice renders those allegations rebuttable by citation to the memorandum alone).

Unfortunately, the statements in the memorandum, which are unsworn and unverified, are not proper evidence to support the necessary factual predicate for the defendants' argument-that the BIA Lotus Notes remote dial-up system does not constitute a connection to the Internet within the meaning of this Court's Orders. No facts are recited in the memorandum in support of this conclusion, the memorandum merely asserts the conclusion and details various agencies' positions regarding the conclusion's validity.

Indeed, the only fact in the record related to this issue is the fact that the BIA either has implemented or plans to implement a Lotus Notes remote dial-up system. Because this fact, without more, is insufficient to establish either the defendants' conclusion that the system does not constitute an Internet connection or the plaintiffs' conclusion that it does; and because the implementation of Lotus Notes remote dial-up does not, on its face, tend to make either conclusion more likely to be true than the other; it follows that both conclusions are equally likely to be true on the present record. Put differently, the single relevant fact in the record lends equal support to both parties' assertions. Thus, the Court cannot conclude that the allegations in the plaintiffs' Notice should be stricken as wholly devoid of factual support.

The defendants' second argument in favor of striking the plaintiffs' Notice and the memorandum is that the content of the memorandum is protected by the attorney-client privilege. This Court has previously removed from the public record in this case documents shown to contain privileged material. See, e.g., Cobell v. Norton, 213 F.R.D. 69, 77--79 (D.D.C. 2003) (striking various filings from the record where contents were shown to be protected by deliberative process privilege and work-product doctrine).

According to Federal Rule of Evidence 501, "the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." FED. R. EVID. 501. The attorney-client privilege-the most venerable of these common law evidentiary privileges, see Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citing 8 J. WIGMORE, EVIDENCE § 2290 (1961))-is intended to "encourage full and frank communication between attorneys and their clients ... [because] sound legal advice or advocacy serves public ends and ... such advice or advocacy depends upon the lawyer's being fully informed by the client." Id.; see also Trammel v. United States, 445 U.S. 40, 51 (1980) ("The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.").

Generally, the attorney-client privilege will apply where:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Cobell v. Norton, 226 F.R.D. 67, 87 (D.D.C. 2005) (quoting Alexander v. FBI, 193 F.R.D. 1, 4 (D.D.C. 2000); Alexander v. FBI, 192 F.R.D. 42, 45 n.2 (D.D.C. 2000); Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999) (citing In re Sealed Case, 737 F.2d 94, 98--99 (D.C. Cir. 1984))). It is well established that "the party claiming the privilege bears the burden of proving that the communications are protected." In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998). Each and every element of the privilege must be proved by "competent evidence," and the proponent's burden "cannot be 'discharged by mere conclusory or ipse dixit assertions.'" Cobell, 213 F.R.D. at 71 (quoting Martin v. Valley Nat'l Bank of Ariz., 140 F.R.D. 291, 302 (S.D.N.Y. 1991)).

Both the DOJ and the Solicitor's Office are in attorney-client relationships with Interior-DOJ is Interior's trial counsel in this litigation and the Solicitor's Office is Interior's general counsel. This observation entails the conclusion that both DOJ and the Solicitor's Office are in attorney-client relationships with each of Interior's bureaus, divisions, offices, officials, and employees. See Mead Data Central, Inc. V. United States Dep't of the Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977). Thus the Bureau of Indian Affairs, the Office of the Secretary, and the Office of the Assistant Secretary of the Interior for Indian Affairs, all of which are defendants in this litigation insofar as the Department of Interior is a defendant in this litigation, are all effectively clients of both the DOJ (Ms. Spooner) and Interior's Office of the Solicitor (Ms. Konkoly-Thege). See Tax Analysts v. IRS, 117 F.3d 607, 618--620 (D.C. Cir. 1997).

Given the nature of these attorney-client relationships, the attorney-client privilege hypothetically extends to: (1) communications between Interior's attorneys in the Solicitor's Office and DOJ and Brian Burns, an Interior employee, because ""[w]here the client is an organization, the [attorney-client] privilege extends to those communications between attorneys and all agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication[;]" Mead Data Cent., 566 F.2d at 253 n.24; and (2) communications between DOJ and the Solicitor's Office, as communications between multiple attorneys representing the same client may also be privileged. See id. at 253 n.21. Thus, if Interior demonstrates that all the requirements for the application of the privilege are satisfied, the privilege will not be destroyed by the specific nature of, or parties to, the communications embodied in the memorandum.

Having found that these attorney-client relationships exist, it is also clear from the face of the memorandum that Interior, the client, sought and received legal advice from the DOJ and the Solicitor's Office relating to the activation of a Lotus Notes remote dial-up system at the BIA, a fact about which DOJ and the Solicitor's Office were undoubtably informed by Interior for the purpose of obtaining the legal advice transmitted in the memorandum. The Court is willing to assume that Interior did not seek the advice given in the memorandum in furtherance of any crime, fraud, or tort; and Interior has clearly asserted the privilege in its motion to strike. Thus, the memorandum facially satisfies the test for privileged attorney-client communications set forth in Alexander.

The Alexander test is incomplete, however, when applied to communications made by attorneys to clients, like the communications relayed in the memorandum at issue here, as opposed to communications made by clients to attorneys. In the case of attorney-to-client communications, attorney-client privilege may only properly be invoked if the communications "rest on confidential information obtained from a client." In re Sealed Case, 737 F.2d at 99 (quoting Mead Data Central, 566 F.2d at 254) (emphasis added). The attorney-client privilege does not protect an attorney's opinion or advice, but only "the secrecy of the underlying facts" obtained from the client. Mead Data Central, 566 F.2d at 254 n.28. To establish the existence of the privilege for any attorney-to-client communication, as opposed to a client-to-attorney communication, "the claimant must demonstrate with reasonable certainty ... that the lawyer's communication rested in significant and inseparable part on the client's confidential disclosure." In re Sealed Case, 737 F.2d at 99 (citing Brinton v. Department of State, 636 F.2d 600, 603--04 (D.C. Cir. 1980); Mead Data Central, 566 F.2d at 254).

Thus the proponent must make two additional showings when asserting the privilege for an attorney-to-client communication. First, the claimant must establish that the communication was predicated on information obtained from the client; and second, the claimant must demonstrate that this information obtained from the client was confidential. The prototypical case would involve a client confessing some act to his attorney and asking for advice on his possible criminal liability for having committed that act. Because "[t]he first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant[,]" Upjohn, 449 U.S. at 390--91, the attorney's responsive advice will usually satisfy the first requirement as a matter of course.*fn3 If the attorney can also show that the information about the subject act communicated to the attorney by the client was confidential, then attorney-client privilege will permit nondisclosure of the attorney's communication of advice to the client.

As in the prototypical case, the memorandum at issue here contains legal advice concerning the client's possible liability for committing an act-the implementation of Lotus Notes remote dial-up at BIA. Any competent legal advice on this question must be based on the knowledge of DOJ and the Solicitor's Office concerning BIA's plan to implement Lotus Notes remote dial-up the detailed workings of such a system in the BIA's IT environment. Assuming the attorneys whose opinions are relayed in the memorandum exercised the appropriate level of diligence in formulating their opinions, the memorandum facially satisfies the first requirement of the expanded Alexander privilege test for attorney-to-client communications.

What remains is to determine whether the information communicated to DOJ and the Solicitor's Office by Interior--the fact that BIA was planning to implement Lotus Notes remote dial up and the details concerning how that system would work--was confidential at the time it was communicated. In order for client information to be confidential, the client must communicate the information to the attorney "with the expectation of secrecy," and the information must not have been "known or disclosed to any third party" at the time it was communicated. Mead Data Central, 566 F.2d at 254. Furthermore, any expectation of secrecy must be reasonable in order to support a claim of privilege. The Fifth Circuit adheres to this view. In United States v. Robinson, that court explained that "[t]he assertor of the [attorney-client] privilege must have a reasonable expectation of confidentiality [for the client information], either because the information disclosed is intrinsically confidential, or by showing that [the assertor] had a subjective intent of confidentiality." 121 F.3d 971, 976 (5th Cir. 1997) (emphasis added). After finding on the facts of Robinson that the allegedly privileged information was not "intrinsically" confidential, the Fifth Circuit rejected the proponent's assertion of a subjective expectation of confidentiality as "manifestly unreasonable," endorsing the corollary idea that any subjective expectation of confidentiality, in order to support a claim of privilege, must be reasonable. See Robinson, 121 F.3d at 976.

Bearing in mind that "'[t]he proponent must conclusively prove each element of the [attorney-client] privilege[,]'" In re Lindsey, 148 F.3d at 1106 (quoting SEC v. Gulf & Western Indus., 518 F. Supp. 675, 682 (D.D.C. 1981)), the Court notes that Interior has offered no evidence that the client information on which the legal opinions communicated in the memorandum were based was confidential. See Mead Data Cent., 566 F.2d at 254 (similarly rejecting attorney-client privilege claims in the FOIA context for lack of evidence that the underlying client information was confidential). Therefore, the Court concludes that the memorandum is not protected by the attorney-client privilege under the expanded Alexander privilege test applicable to attorney-to-client communications.

Moreover, it is unlikely that Interior could produce evidence to support the proposition that the information regarding BIA's Lotus Notes remote dial-up system was confidential within the meaning of our privilege law. The Court of Appeals recently reaffirmed prior holdings that Interior, as trustee-delegate of the Individual Indian Money Trust, is subject to all the common law fiduciary duties that govern trusteeships generally, so long as the fiduciary duties have some statutory basis. See Cobell v. Norton ("Cobell XIII"), 392 F.3d 461, 470--73 (D.C. Cir. 2004). Once the Court determines that Interior owes certain fiduciary duties because those duties are "rooted in and outlined by the relevant statutes and treaties," Cobell v. Norton (Cobell VI), 240 F.3d 1081, 1099 (D.C. Cir. 2003), those obligations are then to be "defined in traditional equitable terms," by reference to the common law of trusts. See Cobell XIII, 392 F.3d at 472.

Interior's statutory duty under the 1994 Indian Trust Fund Management Reform Act, codified in relevant part at 25 U.S.C. §162a(d), to provide a full and accurate accounting of the Trust to the Indian beneficiaries, recognized by this Court and affirmed by the Court of Appeals, see Cobell v. Babbit, 91 F. Supp. 2d 1, 32--33 (D.D.C. 1999), aff'd Cobell v. Norton, 240 F.3d 1081, 1190--91 (D.C. Cir. 2001), seems necessarily to establish Interior's more general fiduciary duty to disclose to the trust beneficiaries all information relevant to trust administration. In the common law of trusts, a trustee's duty to keep and render accounts to trust beneficiaries is simply one of the obligations imposed by the trustee's broader duty to furnish to trust beneficiaries all material information concerning trust administration. See BOGERT'S TRUSTS & TRUSTEES § 961 (2d ed. 1983) (explaining the general duty to provide information to trust beneficiaries and how that duty requires, among other things, the provision of full and accurate accountings of the trust)*fn4; Restatement (Second) of Trusts §§ 173, 173 cmt. d (referencing RESTATEMENT (SECOND) OF TRUSTS § 172, which explains the trustee's specific duty to keep and render accounts).

Thus, the Court has no doubt that Interior, as trustee-delegate of the Individual Indian Trust, has a common law fiduciary duty to fully and accurately inform the Indian Trust beneficiaries about Interior's management of the trust. See Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750 (D.C. Cir. 1990) ("The duty to disclose material information is the core of a fiduciary's responsibility, animating the common law of trusts ...."); RESTATEMENT (SECOND) OF TRUSTS § 173 (common law trustee "is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know ...").*fn5 Put differently, "[i]n a trustee relationship, ... there exists no legitimate need for a trustee to shield his actions from those he is obligated to serve." Washington-Baltimore Newspaper Guild, Local 35 v. Washington Star Co., 543 F. Supp. 906, 909 n.5 (D.D.C. 1982).

It has become abundantly clear in the course of this litigation that the security of Interior's IT systems and the data housed on those systems is of vital interest to the Individual Indian Trust beneficiaries. Indeed, this Court disconnected Interior's IT systems from the Internet in 2001 precisely because the security weaknesses found to exist in those systems threatened the integrity of Individual Indian Trust data, which data is of immeasurable importance to the beneficiaries for a variety of reasons. Records of transactions involving trust assets, appraisals of trust land, and the progression of ownership of the trust corpus are stored on Interior's IT systems. If this data is corrupted or lost, the beneficiaries will have no way of knowing the value of their trust assets or what the government is doing with those assets.

Furthermore, loss or corruption of trust data guarantees that Interior will be forever unable to render the full and accurate accounting of the Trust mandated by this Court, by the Court of Appeals, by federal statute, and by Interior's common-law fiduciary duties as trustee-delegate. Indeed, the Court of Appeals has affirmed these propositions more than once, recently reiterating its previous conclusion that "maintaining adequate computer systems, along with staff and document retention policies, is critical to the completion of an adequate accounting." Cobell XII, 391 F.2d at 257 (citing Cobell v. Norton ("Cobell VI"), 334 F.3d 1081, 1110 (D.C. Cir. 2003)). It is beyond dispute that any modification to Interior IT systems that potentially impacts the security of Individual Indian Trust data is both directly related to Interior's administration of the trust and of immense importance to the plaintiff-beneficiaries.*fn6

Accordingly, at the time the information about BIA's implementation of Lotus Notes remote dial-up was communicated to DOJ and the Solicitor's Office, Interior, as trustee-delegate of the Indian trust, was under a common-law, statutory, and case-law imposed duty to disclose that same information to the Indian Trust beneficiaries. Of course, the existence of a duty to disclose does not guarantee disclosure; and this Court cannot guarantee proper disclosure by coercive Order, as Interior's duty to disclose is not at issue in this case. See Cobell v. Norton, 226 F.R.D. 67, 80--81 (D.D.C. 2005) (discussing the general fiduciary duty to disclose but explaining that "while the defendants in this case may owe a variety of statutorily-based fiduciary duties to the plaintiff-beneficiaries, many of them drawn from the common law of trusts, only one such duty is currently before this Court in this case--the duty of the defendants to render a complete and accurate historical accounting of the trust"). Whether the duty to disclose is fulfilled by this particular trustee-delegate, however, is irrelevant for these purposes.

What is dispositive of the present motion, leaving aside the defendants' failure to conclusively prove that each requirement for applicability of the privilege is satisfied here, is the observation that the existence of Interior's duty to disclose this information to the beneficiaries, who are also the plaintiffs in this case, entails that Interior could not have had any reasonable expectation of secrecy at the time the information about BIA's plans to implement a Lotus Notes remote dial-up system was communicated to the Solicitor's Office and DOJ. Cf. Cobell, 213 F.R.D. at 73--74 (emphasizing the importance of the client's expectation that the information communicated to the attorney will remain confidential in determining whether information is protected by attorney-client privilege). Recalling the two possible bases for claiming that client information is confidential set forth in Robinson, 121 F.3d at 976, it is clear that the client information at issue here cannot be "intrinsically" confidential in light of Interior's fiduciary duty to disclose. To the contrary, information falling within such a disclosure obligation would seem to be intrinsically "public," at least as regards those to whom disclosure is owed.

If Interior nevertheless subjectively expected to keep this information secret and thereby breach its fiduciary duty to disclose, the Court can only conclude that such an expectation was "manifestly unreasonable" and cannot support a finding that the information was "confidential" within the meaning of the governing law. After all, the attorney-client privilege is designed to protect the privacy interests of clients in general and thereby promote "the best possible" representation by attorneys. See Mead Data Cent., 566 F.2d at 252; see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (purpose of attorney-client privilege is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice"). To avoid overprotecting client interests at the expense of the competing interests of adverse parties, legal fact-finders, and the general public in having unfettered access to material information, see Jafee v. Redmond, 518 U.S. 1, 9 (1996) (quoting United States v. Bryan, 339 U.S. 323, 331 (1950) for the established principle, standing in opposition to assertions of evidentiary privilege, "'that the public ... has a right to every man's evidence'"), the law of attorney-client privilege must be narrowly tailored to effectuate its purposes.

For example, where a client's expectation of confidentiality is unreasonable because the information communicated to the attorney is likely to be made public through another channel, such as the discovery process, denying that information the protection of the attorney-client privilege "is in accordance with the purposes of the privilege; a client will not be less likely to show his lawyer important documents, because those documents do not become more easily discoverable by their revelation to the lawyer." Robinson, 121 F.3d at 976. While it is certainly true that the balance of the interests supporting application of the privilege on the one hand and those supporting disclosure of information on the other will vary from case to case,*fn7 it is at least clear from the premises presented here that in cases where a client's expectation of confidentiality is unreasonable because the information communicated is subject to disclosure independent of its transmission to an attorney, application of the attorney client privilege does no service to the interests supporting non-disclosure. In such cases, the interests supporting public access to "every man's evidence," weighed against nothing at all, cannot help but dictate that the privilege should not apply.

Here, Interior's fiduciary duties mandate that the information concerning BIA's Lotus Notes remote dial-up system should be disclosed to the plaintiff-beneficiaries, and revealing that information to an attorney does not make it any more "discoverable"-the beneficiaries already have a right to the information. Placing this information outside the attorney-client privilege does not provide any disincentive for clients in general to disclose information to their attorneys, meaning that the underlying purposes of the attorney-client privilege do not support application of the privilege in this instance. Because the client-information underpinning the substance of the attorney-to-client communications in the memorandum at issue here is not itself confidential, the attorney-client privilege does not apply to those communications,*fn8 and no basis exists for this Court to strike it from the public record in this case.

CONCLUSION

The defendants have failed to satisfy the Court that the plaintiffs' Notice makes allegations lacking any basis in fact; and the attorney-to-client communications contained in the memorandum are not protected by the attorney-client privilege. Thus, the Court will not strike from the public record in this case the plaintiffs' Notice, the memorandum, or any subsequently filed document that quotes or references the plaintiffs' Notice or the memorandum.

Accordingly, it is hereby

ORDERED that the defendants' Motion [2832] to Strike Plaintiffs' Notice of Supplemental Information in Support of Plaintiffs' Renewed Request for Emergency Status Conference is DENIED.

SO ORDERED.


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