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

May 23, 2006


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


These consolidated cases were referred to me by Judge Kennedy for full case management. Currently pending before me is the issue of whether defendant, the Office of the Senate Sergeant-at-Arms and Doorkeeper (the "SSA"), must produce certain documents claimed to be privileged and submitted for in camera review pursuant to my November 1, 2005 order. See Banks v. Office of the Senate Sergeant-at-Arms, No. 03-56 (D.D.C. Nov. 1, 2005) (order). For the reasons stated herein, I find that most, but not all, of the documents are shielded from discovery by either the work product doctrine or the attorney-client privilege or both.

Also pending before me is Plaintiff's Unopposed Motion to Expedite Decision for Production of Non-Privileged Documents and to Set Schedule for Summary Judgment Briefing and Memorandum in Support ("Motion to Expedite and Set Schedule"). For the reasons stated herein, plaintiff's motion will be denied.


Plaintiff brought these now consolidated lawsuits alleging that his employer, the SSA, 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 SSA for in camera review, can be withheld from discovery because they are covered by the work-product doctrine, the attorney-client privilege, or both.



A. The Work-Product Doctrine

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, Rule 26(b)(3) of the Federal Rules of Civil Procedure 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 the inability to obtain the substantial equivalent without undue hardship. Fed. R. Civ. P. 26(b)(3). The court must take particular care to 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). Attorney mental impressions, conclusions, opinions, and legal theories may be reflected in interviews, statements, memoranda, correspondence and in countless other tangible and intangible ways. Hickman, 329 U.S. at 511. 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 doctrine, 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 Willingham v. Ashcroft, No. 02-1972, 2005 WL 873223, at *2 (D.D.C. Apr. 15, 2005). 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.'" Willingham, 2005 WL 873223, at *2 (quoting United States v. Adlman, 134 F.3d 1194, 1202-03 (2d Cir. 1998)).

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." Evans v. Atwood, 177 F.R.D. 1, 3 (D.D.C. 1997) (citing Tax Analysts, 117 F.3d at 617); In re Sealed Case, 737 F.2d 94, 98 (D.C. Cir. 1984). Communications from the attorney to the client are protected only insofar as the attorney's communication discloses an attorney-client privileged communication from the client. Evans, 177 F.R.D. at 3 (citing Briton v. U.S. Dep't of State, 636 F.2d 600, 603-04 (D.C. Cir. 1980)). The purpose of the privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and administration of justice." ...

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