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Banneker Ventures, LLC v. Graham

United States District Court, District of Columbia

May 16, 2017

BANNEKER VENTURES, LLC, Plaintiff,
v.
JIM GRAHAM, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER United States District Judge

         Plaintiff Banneker Ventures, LLC brings this action against Jim Graham, Joshua A. Adler, Robb M. LaKritz, LaKritz Adler Development, LLC, and Washington Metropolitan Area Transit Authority (WMATA) for breach of contract, breach of implied covenant of good faith and fair dealing, tortious interference, unjust enrichment, unlawful restraint of commerce, fraud, and civil conspiracy. During fact discovery, Banneker issued a request for documents to WMATA which included the production of 51 witness interview memoranda prepared by the law firm Cadwalader Wickersham & Taft, LLP. Banneker also subpoenaed Cadwalader directly. WMATA now moves for a protective order precluding the production of the 51 witness interview memoranda because they are protected by the work-product and attorney-client privileges. The Court will grant in part and deny in part WMATA's motion for a protective order.

         I. BACKGROUND

         The facts of this case are set forth in detail in the Court's order on Mr. Graham's second motion to dismiss and will be repeated here only as necessary. See Banneker Ventures, LLC v. Graham, No. 13-391, 2016 WL 7408825 (D.D.C. December 22, 2016). This case springs from the breakdown of negotiations between Banneker and WMATA regarding the development of the Shaw-Howard/Florida Avenue Joint Development Site (Florida Avenue Project). See Mem. in Supp. of Mot. for PO [Dkt. 104-1] at 1 (WMATA Mem.). After Banneker's successful bid and over a year of negotiations, WMATA terminated its partnership with Banneker for the development of the Florida Avenue Project on March 25, 2010. WMATA Mem. at 2. One month later, on April 27, 2010, Banneker's attorney A. Scott Bolden sent a letter to WMATA detailing what Banneker believed to be the improper actions of WMATA and its Board of Directors. See WMATA Mem., Ex. A, April 27, 2010 Letter from A. Scott Bolden to WMATA [Dkt. 104-3] (Bolden Letter). The letter requested an opportunity to restart negotiations and move forward with the Florida Avenue Project. See id. at 10 (“Banneker requests a meeting as soon as possible with the appropriate WMATA officials, including members from the WMATA Joint Development & Retail Estate Committee, in order to expedite WMATA's action on the Project and formal consideration of Banneker's amended Term Sheet.”). The Bolden Letter also indicated that Banneker may seek further remedies if negotiations were not restarted. See id. (“If the parties are unable to successfully move forward with action on Banneker's amended Term Sheet, given the foregoing, Banneker is prepared to seek any and all available remedies at law or in equity to address Banneker's damages and concerns regarding the selection process in this instance.”). WMATA briefly responded to Banneker's letter, but did not reopen negotiations on the Florida Avenue Project. See Opp'n, Ex. B, Cadwalader Report of Investigation for the Board of Directors for the Washington Metropolitan Area Transit Authority [Dkt. 105-3] at 7 n.1 (Bondi Report) (indicating that WMATA's General Counsel responded to some allegations in the 2010 letter from Mr. Bolden, but took no further action).

         Over two years later, WMATA retained Cadwalader, Wickersham & Taft LLP to “provide investigative and legal services regarding the actions of WMATA's Board in connection with the Florida Avenue Project.” WMATA Mem. at 3. During the investigation, which lasted five months, Cadwalader attorneys interviewed approximately 34 individuals, 19 of whom were current or former WMATA employees or Board members. See id. The interviews resulted in the creation of 51 interview memoranda-the documents which are at issue in this motion for protective order. See id. The Cadwalader attorney who created each memorandum marked the documents “attorney work product.” Id.

         At the end of Cadwalader's investigation, Bradley Bondi of Cadwalader released an investigative report to WMATA. See Bondi Report. On October 11, 2012, WMATA adopted a Board Resolution which recommended the public release of the Bondi Report. See Opp'n, Ex. M, WMATA Board Resolution 2012-25 [Dkt. 105-14]. The Bondi Report includes references to and citations from interview memoranda prepared by Cadwalader attorneys.

         II. LEGAL STANDARD

         A. Motion for Protective Order

         The general rule in discovery is that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). The party claiming a privilege bears the burden to prove the communication or document is protected. See Fed. R. Civ. P. 26(b)(5). The proponent of a privilege in federal court bears the burden of demonstrating facts sufficient to establish the privilege's applicability. In re Subpoena Duces Tecum, 439 F.3d 740, 750 (D.C. Cir. 2006). The “basis of privilege” must be “adequately established in the record, ” Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1303 (D.C. Cir. 1988), through evidence “sufficient . . . to establish the privilege . . . with reasonable certainty.” FTC v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980).

         Although not necessary to prevent disclosure, a party may seek a protective order to prevent the disclosure of specific privileged materials upon a showing of good cause. Fed.R.Civ.P. 26(c). A valid claim of privilege is considered “good cause” to justify a protective order. See Navajo Nation v. Peabody Holding Co., 209 F.Supp.2d 269, 283 (D.D.C. 2002), aff'd, 64 Fed. App'x 783 (D.C. Cir. 2003).

         B. Work-Product Privilege

         The Federal Rules of Civil Procedure protect from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed.R.Civ.P. 26(b)(3). The purpose of the doctrine is to protect the adversary process by ensuring that lawyers work with a “degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). The work-product doctrine “protects factual materials prepared in anticipation of litigation.” Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997). Thus, “[a]ny part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work[-]product doctrine.” Id. Courts employ a “because of” test to determine whether a document was created in anticipation of litigation, determining “whether, 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.” United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010). “For a document to meet this standard, the lawyer 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) (noting litigation must be the “primary object of attention”). “The inquiry contains two related, but nevertheless distinct concepts-one a question of timing and the other a question of intent.” In re Veiga, 746 F.Supp.2d 27, 35 (D.D.C. 2010).

         Work-product immunity is held by the lawyer, not the client, although either may assert the doctrine during discovery. “The party invoking the privilege, however, has the burden of proving that the memoranda qualify as work product.” Hager v. Bluefield Regional Medical Center, Inc., 170 F.R.D. 70, 76 (D.D.C. 1997). “In reviewing the documents claimed to be protected by the work-product privilege, 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.” Jinks-Umstead v. England, 231 F.R.D. 13, 19 (D.D.C. 2005). Protection for attorney work product is not absolute and can be overcome if a 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.” Fed.R.Civ.P. 26(b)(3)(A)(ii). The work-product doctrine relies, in the first instance, on the existence of an attorney-client relationship.

         C. ...


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