Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Banks v. Office of the Senate Sergeant-at-Arms

November 1, 2005

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



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

MEMORANDUM OPINION

This case was referred by Judge Kennedy for full case management. There are currently seven motions pending that I will now resolve.

I. BACKGROUND

This is a Title VII action consisting of three consolidated brought by plaintiff, Roy Banks, against his former employer, theOffice of the Senate Sergeant-at-Arms and Doorkeeper, alleging that: (1) he was denied a promotion to branch manager because of his race; (2) he was retaliated against for seeking counseling with the Office of Compliance; (3) he was subjected to a hostile work environment based on his race, age, alleged disability, or sex; (4) he was discriminated against because of his sex; (5) he was denied leave under the Family and Medical Leave Act because of his sex, race, or the fact that he filed complaints of discrimination; (6) he was denied an accommodation for his disability; (7) he was denied disability leave; (8) he was terminated because of his race, age, alleged disability, sex, or in retaliation; and (9) defendant improperly handled his compensation claims. Banks v. Senate Sergeant-at-Arms, 222 F.R.D. 7, 9 (D.D.C. 2004).

II. DISCUSSION

A. Procedural Posture

The parties in this case have engaged in substantial litigation over the discovery process. Currently before the court are five additional discovery motions concerning the attorney-client privilege and work product doctrine. Also before the court are two non-discovery motions brought by plaintiff: one concerning the redaction of previously filed motions and the other requesting leave to file a supplemental memorandum in support of a motion that has since been resolved.

B. Defendant's Motion for Protective Order and Plaintiff's Cross-Motion to Compel

Defendant has moved the court for a protective order regarding questions asked at the depositions of K.C. and M.K., two employees of the Senate Sergeant-at-Arms. Defendant's Motion for and Memorandum in Support of a Protective Order ("Def.'s Mot. for Protective Order") at 2. Specifically, plaintiff's counsel asked K.C. and M.K. about statements made by and to defendant's counsel during interviews and deposition preparation meetings. Id. Defendant seeks a protective order on the ground that the answers to the questions would reveal work product and attorney-client privileged information. Id. Plaintiff filed a cross-motion to compel answers to his questions arguing that defendant waived any privilege by not asserting a specific claim of privilege after each question posed and that defendant has not adequately shown that the answers would reveal work product or attorney-client privileged information. Plaintiff's Cross-Motion to Compel and Opposition ("Pl.'s Cross-Mot.") at 2-3; Plaintiff's Reply in Support of His Rule 37 Cross-Motion to Compel ("Pl.'s Reply") at 1-2.

1. Waiver

As a threshold matter, plaintiff argues that defendant waived its privilege for many of the questions by not asserting a specific objection at the time the questions were asked. Pl.'s Reply at 1-2. Rule 30 of the Federal Rules of Civil Procedure provides that, "[a]ny objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner," and that an attorney "may instruct a deponent not to answer only when necessary to preserve a privilege." Fed. R. Civ. P. 30(d)(1). At both depositions, defendant's counsel expressly objected to the questions at issue on attorney-client privilege and work product grounds at the beginning of plaintiff's line of questioning. Def.'s Mot. for Protective Order, Exh. A at 10-12; Pl.'s Cross-Mot., Exh. A at 2-4. For the remaining questions, defendant's counsel either objected by stating that he was making the "same objection" or instructed the witness not to answer. Def.'s Mot. for Protective Order, Exh. A at 17, 82-84; Pl.'s Cross-Mot., Exh. A at 2-7. Furthermore, as reflected in the deposition transcripts, counsel engaged in extensive discussions regarding defendant's attorney-client and work product objections. See Def.'s Mot. for Protective Order, Exh. A at 10-15; Pl.'s Cross-Mot., Exh. A at 2-7. The parties even called chambers during K.C.'s deposition in an attempt to have the court resolve defendant's objections. Def.'s Mot. for Protective Order, Exh. A at 12-16.

Taking together defendant's explicit objections, defendant's instruction to M.K. and K.C. not to answer in light of Rule 30, and the extensive discussion between counsel regarding defendant's objections, this court finds that defendant's objections were sufficiently clear. Accordingly, defendant did not waive the attorney-client privilege or work product protection for the deposition questions at issue.

2. The Attorney-Client Privilege

As to defendant's assertion of the attorney-client privilege, I have already ruled in this case that the privilege protects communications made by employees of the client when the client's attorney is interviewing those employees for the purpose of rendering legal services to the client. Banks v. Senate Sergeant-at-Arms, 222 F.R.D. 1, 3 (D.D.C. 2004) (citing Evans v. Atwood, 177 F.R.D. 1, 3 (D.D.C. 1997)). Therefore, any question in which plaintiff asks the employee what she told counsel during an interview or a deposition preparation session seeks privileged information.

Under this rubric, the following questions were unquestionably objectionable and the attorney-client privilege properly claimed:

No.*fn1QuestionRuling 2Did the attorneys tell you that if you have a conflict of interest at the Sergeant-at-Arms, that someone else could represent you?Attorney-client privileged because, if answered in the affirmative, would disclose that attorney and client discussed this topic and client would expect such a communication to be confidential. 12And did you tell [the attorney] that [S.R.] believed Hispanics were subservient?Attorney-client privileged because it specifically demanded to know what an employee of the client told a lawyer in confidence. 13Did you tell [the attorney] that [S.R.]'s first four ... four of his first five hires were Hispanic people?Same 14When you met with [the attorney], did you tell her that you had conversations with [K.C.] concerning discrimination?Same 15When you met with [the attorney], did you tell her that you knew why Mr. Banks had been terminated?Same 16Did you talk about Mr. Banks?Same 24What do you recall discussing with the attorneys?Same 25Did you tell the attorneys that [M.K.] stated Hispanics were subservient?Same 26Did you tell the attorneys that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.