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Center v. Post Properties

January 24, 2008

EQUAL RIGHTS CENTER, PLAINTIFF,
v.
POST PROPERTIES, INC., ET AL, DEFENDANTS.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION*fn1

Pending before the Court is Plaintiff's Motion to Compel Discovery [69], Defendants' Opposition [70] and Plaintiff's Reply [71].

I. Background

On November 21, 2006, Plaintiff Equal Rights Center ("ERC") filed a Complaint alleging that Defendants (collectively "Post") engaged in "ongoing and systematic violations" of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq. (Compl. ¶ 2.) Specifically, ERC alleges that Post violated these civil rights statutes in the "design, construction and/or operation of covered multifamily dwellings, including residential complexes" in various states and the District of Columbia. (Id.) ERC, a non-profit organizations focusing on civil rights issues, asserts that it "tested" twenty-seven Post properties and discovered FHA and ADA violations in the properties' construction and design. (Compl.¶¶ 7, 18, 21.)

ERC served its First Set of Interrogatories and Second Request to Produce Documents on September 14, 2007. (Pl.'s Mem. Supp. Mot. Compel ("Pl.'s Mem.") [69] at 10.) Interrogatories Nos. 6-8, 12 and 13 and Document Request No. 4 relate to compliance reviews of Post properties performed by accessibility experts. (Id. at 11.) Post argued that the compliance reviews were protected by the attorney-client and work product privileges, and produced a privilege log in lieu of responsive documents. (Def.'s Opp'n [70] at 6. See also Privilege Log [69-2].) Post also asserted these privileges, as well as an objection on relevance grounds, to Document Requests Nos. 6 and 7, which seek information about prior accessibility complaints filed against Post. (Pl.'s Mem. at 18.) After attempting to resolve the matter without judicial intervention, ERC brought the instant motion for an order compelling Post to answer Interrogatories Nos. 6-8 and 12-13 and provide responsive documents to Document Requests Nos. 4, 6 and 7.

II. Discussion

In general, a party "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1). The scope of discovery under Rule 26 is broad; "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. If a party withholds otherwise discoverable material by claiming that it is privileged or should be protected as trial-preparation material, "the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." FED. R. CIV. P. 26(b)(5)(A).

A. Compliance Reviews

Interrogatories Nos. 6-8, 12 and 13 and Document Request No. 4 seek information and documents regarding compliance reviews of various Post properties. (Pl.'s Mem. at 11.) ERC asserts that since it filed its Complaint in 2006, Post conducted these compliance reviews and "[b]ased on those compliance reviews, Post has either completed alternations of the units and buildings (in an apparent attempt to remedy or conceal the violations) or is in the process of making such alterations." (Id. at 5.) According to Post's privilege log, Theresa Kitay conducted forty-seven of these compliance reviews. (Privilege Log [69-2].) Post retained Ms. Kitay, and her law firm, on December 6, 2005 "in connection with an accessibility analysis of existing projects in anticipation of potential litigation under the Americans with Disabilities Act and the Fair Housing Act." (Def.'s Opp'n at 70.) ERC also seeks work performed by five other consultants who Post retained to determine compliance at its properties. (Pl.'s Mem. at 8.) These individuals have not been identified as attorneys and the documents that they created were not included in Post's privilege log. (Id.; Def.'s Opp'n at 17.) Post objects to disclosure of the compliance reviews that Ms. Kitay and the other consultants conducted based on the work product and attorney-client privileges.

The work product privilege protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." FED. R. CIV. P. 26(b)(3)(A). Trial preparation materials are discoverable, however, "if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." Id. The purpose of the work product doctrine "is the promotion of the adversary system by safeguarding the fruits of an attorney's trial preparations from the opponent." Fago v. M & T Mortgage Corp., 242 F.R.D. 16, 19 (D.D.C. 2007). See also United States v. Adlam, 68 F.3d 1495, 1501 (2d Cir. 1995) ("The purpose of the doctrine is to establish a zone of privacy for strategic litigation planning and to prevent one party from piggybacking on the adversary's preparation.").

ERC argues that the work product privilege does not protect Ms. Kitay's compliance reviews for two reasons. First, ERC asserts that "several of Ms. Kitay's accessibility reports were prepared prior to the filing of the Complaint in this case" and therefore "cannot have been prepared 'in anticipation of litigation." (Pl.'s Mem. at 12-13.) Second, ERC argues that "the work product doctrine does not permit Post to withhold underlying facts," such as "measurements, photograhs, and evidence of the conditions at the properties, and the alterations made there." (Id. at 13 (emphasis in original).) Finally, ERC points out that the work product privilege is not absolute, and asserts that it may obtain these materials upon a showing of substantial need. (Id. at 14.)

1. "In Anticipation of Litigation"

The phrase "in anticipation of litigation" has both temporal and motivational components. Fago, 242 F.R.D. at 18. First, at the time she prepared the document, the attorney "must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). Second, the party claiming the privilege must demonstrate that "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Senate of P.R. v. Dep't of Justice, 823 F.2d 574, 587 n.42 (D.C. Cir. 1987). Although "need not be imminent or certain in order to satisfy the anticipation-of-litigation prong of the" work product doctrine, the D.C. Circuit "has held that 'at the very least some articulable claim, likely to lead to litigation, must have arisen,' such that litigation was 'fairly foreseeable at the time' the materials were prepared." Hertzberg v. Veneman, 273 F.Supp.2d 67, 75 (D.D.C. 2003) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 865)).

In United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998), the Second Circuit addressed the applicability of the work product doctrine, and specifically the "in anticipation of litigation" prong. Adlman involved a company called Sequa Corporation that contemplated merging two of its subsidiaries but was concerned that the merger would be challenged by the IRS. Id. at 1195. At the request of the company's Vice President of Taxes, an accountant prepared a Memorandum detailing the tax implications of the merger. Id. During an ensuing audit, the IRS issued a summons for the Memorandum, which Sequa withheld on the basis of ...


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