The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge
This case has been referred to me by the U.S. Court of Appeals for the D.C. Circuit in my capacity as a special master. Now pending are the parties' remaining discovery disputes. See Memorandum in Support of Motion to Compel [#14] ("MTC") and Memorandum in Support of Privileges Asserted Pursuant to Federal Rule of Civil Procedure 26(b)(5) [#12] (" Mem. Sup.").
The United Steelworkers of America, AFL-CIO-CLC ("the Union") filed charges with the National Labor Relations Board ("NLRB") under the National Labor Relations Act, 29 U.S.C. § 151*fn1 et seq. ("NLRA" or "the Act"), against Jackson Hospital Corporation, doing business as Kentucky River Medical Center ("KRMC"). The Union alleged that KRMC was engaging in unfair labor practices, including refusing to meet and bargain with the Union; threatening, punishing, and discharging employees who participated in Union activities; taking action without consulting with the Union; videotaping Union activities; and posting anti-Union signs. The NLRB General Counsel decided to issue complaints based on the charges filed by the Union and by individual members. Those complaints were tried before Administrative Law Judge David Evans on various dates throughout 2001, and Judge Evans issued his voluminous decision on February 20, 2002.
Judge Evans concluded that KRMC had engaged in various types of unfair labor practices in violation of the Act and that KRMC "must be ordered to cease and desist therefrom and to take certain affirmative action that is designed to effectuate the policies of the Act." Jackson Hosp. Corp. d/b/a Ky. River Med. Ctr. & United Steelworkers of Am., AFL-CIO-CLC & Anita Turner, 340 NLRB No. 71 at 72. He then issued the detailed order that is attached as Appendix A to this opinion.
KRMC appealed the decision to a three-member panel of the NLRB, and the panel adopted the ALJ's decision with slight modifications on September 30, 2003. Id. at 1-2. On January 14, 2004, KRMC brought a petition for review of the NLRB's decision in the U.S. Court of Appeals for the D.C. Circuit. The NLRB filed a cross-petition for enforcement of the NLRB's Order. The Circuit Court granted several motions for an extension of time for KRMC to respond to the NLRB's petition, but KRMC did not file its response or seek another extension when the deadline ultimately came. Accordingly, NLRB filed a motion for default judgment on its enforcement claim. The court granted the NLRB's motion and thus dismissed the petition for review and granted the petition for enforcement on June 3, 2005.
A year and a half later, on January 27, 2007, the NLRB filed a petition to adjudge KRMC in contempt, alleging that KRMC had failed to comply with the Order in various respects. The NLRB further moved that the controversy be referred to a special master who could resolve the various issues of fact present in this case and make a recommendation to the court, and the court granted that motion.
The discovery process in this case has proceeded largely without incident, but the parties have now reached an impasse regarding assertions of privilege. After a series of telephonic conferences, the parties submitted briefing on the issues that divide them and KRMC tendered documents for in camera review.
KRMC takes issue with NLRB's assertions of privilege as they relate to (1) the deliberative process privilege; (2) the informer's privilege; and (3) the so-called "de facto" attorney-client privilege. NLRB in turn argues that assertions of attorney-client privilege are inappropriate as applied to (1) the "Rules of Engagement" and Union brochures; and (2) documents that reflect bargaining strategy.
A. The Sufficiency of the Privilege Log
The privilege log submitted by the NLRB in this case leaves much to be desired. The rule requires that the party who is claiming privilege expressly make the claim and "describe the nature of the documents . . . not produced . . . and do so in a manner that, without revealing information, itself privileged or protected, will enable other parties to address the claim." Fed. R. Civ. P. 26(b)(5). All too many of the NLRB's entries fail to meet this requirement.
The inadequacy of a privilege log can be remedied in four ways:
1. Permit the party another chance to submit a more detailed log;
2. Deem the inadequate log a waiver of the privilege;
3. In camera inspection of the withheld documents; or
4. In camera inspection of a select sample of the withheld documents.
Of the four, deeming the log a waiver is the most draconian but the least consumptive of judicial resources while in camera inspection of all of the withheld documents is the most forgiving but the most consumptive of judicial resources. Indeed, the determination by the trial judge that a document is or is not privileged may have to be reviewed by an appellate court, using additional judicial resources. That expenditure of resources can be particularly wasteful when, as often happens, the documents will never be offered into evidence.
An additional concern, presented by this case, is that the finder of fact will see documents that are privileged and, despite the fact that judges, for example, routinely disregard inadmissible evidence,*fn2 it may be difficult to "unring the bell."*fn3 Caution and the need to eliminate even the potential for prejudice to the holder of the privilege, require that in camera inspection never be any greater than absolutely necessary.
Shaping a remedy may also be a function of how inadequate the log is when viewed against other factors. The context of the creation of the document, for example, viewed from the perspective of the history of the litigation, may permit reasonable inferences about the document that eliminate any need for in camera inspection. Stated in another way, the Court does not leave its common sense at the door when it examines a privilege log and the legitimate inferences that it draws from an entry in a privilege log may rescue that entry from being condemned as inadequate in the first place-relieving the Court of any obligation to review it in camera-even though the privilege log as to that entry could and should have been more specific.
For example, in many cases there is a group of documents that are amenable to a categorical approach that relieves the Court of unnecessary in camera review. Rule 26(b)(3) protects from discovery "documents and tangible things that are prepared in anticipation of litigation or for trial" by a party or its lawyer. Fed. R. Civ. P. 26(b)(3). While this privilege is defeasible upon a showing of substantial need and the inability to secure their substantial equivalent without undue hardship, Rule 26(b)(3)(A)(i)-(ii), even then the Court must "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B).
Additionally, potentially privileged work product must, like any other information, be "otherwise discoverable." Fed. R. Civ. P. 26(b)(3)(A)(i). In most cases, information generated by lawyer and client in prosecuting or defending a case years after the events that led to the lawsuit occurred will not be relevant or likely to lead ...