United States District Court, District of Columbia
FELTON A. SPEARS, JR., et al, Plaintiffs,
FIRST AMERICAN EAPPRAISEIT, (a/k/a eAppraiseIT, LLC), Defendant
For FELTON A. SPEARS, JR., SIDNEY SCHOLL, on behalf of themselves and all others similarly situated, Plaintiffs: Joseph N. Kravec, Jr., LEAD ATTORNEY, FEINSTEIN DOYLE PAYNE & KRAVEC, LLC, Pittsburgh, PA.
For OFFICE OF THE COMPTROLLER OF THE CURRENCY, Respondent: Christopher A. Sterbenz, LEAD ATTORNEY, OFFICE OF THE COMPTROLLER OF THE CURRENCY, Washington, DC.
Royce C. Lamberth, United States District Judge.
This matter comes before the Court after this Court issued an order deferring plaintiffs' Motion to Compel Compliance with Subpoena Duces Tecum served on the Office of the Comptroller of Currency (" OCC") [ECF No. 1]. Upon review of the parties' supplemental memoranda summarizing their arguments regarding plaintiffs' Motion, this Court DENIES plaintiffs' Motion for the reasons stated below.
The relevant facts are as follows: on January 30, 2013, plaintiff served the OCC with a subpoena duces tecum seeking documents cited and summarized by the U.S. Senate Permanent Subcommittee on Investigations (" Senate PSI") in its 2011 report on the 2007-2008 financial crisis. Pl.s' Supp. Mem. in Support of Motion 1. These documents were provided under seal and without waiver of any privileges to the Senate PSI by the Office of Thrift Supervision (" OTS")--which has since been succeeded by the OCC--pursuant to the Senate PSI's subpoena. OCC's Supp. Mem. 2-3. The OCC objected to the plaintiffs' subpoena and noted that many of the documents sought may be subject to various privileges. Id. at 3. After months of conferring between plaintiffs and the OCC, plaintiffs narrowed their search to " 15 specific Bates-stamped documents." Id. After OCC claimed that it could not locate the documents, plaintiffs filed a Motion to Compel Compliance with the subpoena on October 16, 2013, specifying that plaintiffs are only seeking the 15 Bates-stamped documents referenced by the Senate PSI report. Id. This Court deferred a decision on the motion and ordered an OCC representative to submit to a deposition so plaintiffs could determine what steps the OCC took to locate the documents. Id. at 3-4. The OCC later retrieved the 15 Bates-stamped documents from the Senate PSI. Id. at 4. After reviewing the documents, the OCC sent a letter to plaintiffs noting that the OCC was withholding three documents from plaintiffs based on claims of the attorney-client privilege, the attorney work product doctrine, and the deliberative process privilege. Id.
This Court again notes that the parties appear to be in contention over only a few documents even though the plaintiffs' Motion to Compel Compliance is directed towards a subpoena that requests a broad range of documents. See May 29, 2014 Mem. and Order 2. This Court addresses plaintiffs' Motion and the supplemental briefing as concerning only the three documents that the OCC withheld from the plaintiffs.
II. LEGAL STANDARDS
A. Attorney-Client Privilege
The attorney-client privilege is the " oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). This privilege protects communications between client and attorney when the communication is for the purpose of securing an opinion on the law, legal advice or services, or assistance in a legal proceeding. In re Lindsey, 158 F.3d 1263, 1270, 332 U.S.App.D.C. 357 (D.C. Cir. 1998) (internal quotations marks and citations omitted). " In the governmental context, the client may be the agency and the attorney may be an agency lawyer." Tax Analysts v. I.R.S., 117 F.3d 607, 618, 326 U.S.App.D.C. 53 (D.C. Cir. 1997).
B. Work Product Protection
The work product protection privilege extends to " written materials that lawyers prepare in anticipation of litigation, ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials." United States v. Thompson., 562 F.3d 387, 393, 385 U.S.App.D.C. 234 (D.C. Cir. 2009) (internal quotation marks and citations omitted). There are two relevant inquiries for applying this doctrine. The first is whether there was " a subjective belief that litigation was a real possibility" when the document was created and whether that belief was " objectively reasonable." Equal Emp't Opportunity Comm'n v. Lutheran Soc. Servs., 186 F.3d 959, 968, 337 U.S.App.D.C. 373 (D.C. Cir. 1999) (internal quotation marks omitted). The second demands that the document have been prepared because of the prospect of litigation, meaning that the document was prepared " for the purpose of assisting an attorney in preparing for litigation, and not some other reason." Alexander v. F.B.I., 192 F.R.D. 42, 46 (D.D.C. 2000).
C. Deliberative Process Privilege
The deliberative process privilege protects " advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). A document must be both " predecisional" and part of the " deliberative process" in order to qualify for the privilege. Nat'l Inst. of Military Justice v. U.S. Dep't of Def., 512 F.3d 677, 680 n.4, 379 U.S.App.D.C. 243 (D.C. Cir. 2008) (internal quotation marks and citations omitted). A document is predecisional " if it was generated before the adoption of an agency policy and deliberative if it reflects the give-and-take of the consultative process." Judicial Watch, Inc. v. Food & Drug. Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (internal quotation marks omitted). Moreover, for a document to be ...