The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Currently pending and ready for resolution is Defendants' Motion to Assert Attorney Client Privilege and Motion for Protective Order ("Defs. 2nd Mot.") [#56]. For the reasons stated herein, the motion will be denied.
Plaintiff, Christopher Sanders, worked as a police officer for the District of Columbia Metropolitan Police Department ("MPD") from 1990 until 2002. Complaint ("Compl.")*fn1 [#1] ¶ 3. In 1996, the MPD created the Special Emphasis Unit (SEU) in order to combat gang activity and illegal drug trafficking. Compl. ¶ 9. Plaintiff was one of two sergeants tasked with supervising the officers in the SEU. Compl. ¶ 10. According to plaintiff, during his tenure as a supervisor, he noticed abuses of the MPD's time and attendance policies and subsequently reported those to his supervisors. Compl. ¶ 11. Plaintiff claims that following his whistleblowing activity, he was adversely treated by the MPD. Compl. ¶ 12. Specifically, plaintiff claims he was denied overtime pay, physically threatened, and reassigned to a different position. Compl. ¶ 12. Plaintiff therefore brought suit against the MPD in 1997 for violations of his free speech rights. Compl. ¶ 13. In August of 2002, plaintiff settled his free speech case (Civil Action No. 97-2938) against the MPD.*fn2 Compl. ¶¶ 13, 16. According to plaintiff, following the settlement of his first case, the MPD refused to accept his request to rescind a resignation he had tendered earlier and manufactured falsehoods about plaintiff in retaliation for his filing of the previous lawsuit. Compl. ¶¶ 21-34. Plaintiff responded to these events by filing the current suit.
By order dated April 16, 2008, Judge Friedman granted Plaintiff's Motion to Compel Responses From the District of Columbia to His Interrogatories and Document Requests and For Sanctions [#21]. While not ruling on the merits of plaintiff's motion, Judge Friedman deemed the District's objections to plaintiff's motion as having been waived since the District failed to either file objections by the February 6, 2008 deadline or move to extend the time within which it had to file its responses. Memorandum Opinion and Order [#28] ("PLF Order") at 2-3. In an effort to allow the District to redeem itself however, Judge Friedman gave the District until April 28, 2008 to request permission to be able to assert specific privilege objections to plaintiff's discovery requests. Id. at 4. Inexplicably, the District again failed to file anything within the allotted time-frame. Instead, the District waited until October 17, 2008, the date of the current motion, before attempting to revive its privilege claims.
As a result of its recently locating new information responsive to plaintiff's discovery requests, the defendants now seeik to assert the attorney client privilege as to written communications by and between counsel for the defendants and MPD's general counsel's office.
Defs. Mot. at 4. In addition, the District also seeks a protective order that would preclude Terry Ryan, General Counsel to the MPD from having to testify as to his mental impressions and trial strategy. Id. at 5.
I. Assertion of Attorney Client Privilege
According to defendants, on October 9, 2008, they discovered "a box full of documents within which were files from Plaintiff's prior whistleblower case which was settled with the District in June of 2002." Defs. Mot. at 8. It is these communications, consisting mostly of "electronic mail from Thomas Foltz to Terry Ryan and other attorneys within the attorney general's office, including Robert Utiger and Andy Saidon," that defendants seek to protect. Id. Defendants argue that the documents are not relevant to plaintiff's current case and that their disclosure would cause irreversible prejudice to their case. Id.
Plaintiff counters that defendants' failure to locate and produce these documents earlier evidences their failure to meet their discovery obligations and that in any event, defendants are precluded from asserting any privileges at this late date. Plaintiff's Opposition to Defendants' Motion to Assert Attorney Client Privilege and Motion for Protective Order ("Plains. Opp.") [#62] at 11-12. Plaintiff also notes that defendants failed to produce a privilege log in violation of Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure. Id.
A timeline is helpful in resolving this dispute. The late Tom Foltz represented the defendants in the prior case, Civil Action No. 97-2938, and also represented the defendants in this action from its inception on August 9, 2006 until Foltz's untimely death on July 20, 2008. Although Darrell Chambers, Esq., joined Foltz in the representation of the defendants, Foltz remained active in the case, filing a document on July 17, 2008 [#49], three days before he died.
On April 16, 2008, Judge Friedman issued an order giving the District until April 28, 2008 to request that "specific objections based on privilege be excluded from the waiver found under this Order." (Order of April 16, 2008).
On April 28, 2008, Foltz filed a motion that sought to preclude from disclosure personnel information, said to be protected from disclosure by provisions of the D.C. Code. The motion indicated that the defendants sought a protective order pertaining to "the disclosure of any such personnel information [i.e. information protected by the D.C. Code] not otherwise objected to on the grounds of relevance or burden." Defendants' Motion to Assert Privilege and for Entry of a Protective Order ("Defs. Mot.") [#31] at 1. Foltz noted that the "[d]efendants continue to object on the grounds of relevance and burden to the ...