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Jones v. Castro

United States District Court, District of Columbia

March 30, 2018

JERRY W. JONES JR. Plaintiff,
BENJAMIN CARSON, SR., [1] Secretary of Housing and Urban Development Defendant. Item No. HUD's Withholding Assertions Findings of the Court Decision



         Plaintiff Jerry Jones is an employee of the United States Department of Housing and Urban Development (“HUD”) and was formerly the Director of Alternative Dispute Resolution (“ADR”) in the Office of Departmental Equal Employment Opportunity (“ODEEO”) at HUD. He brings this action under Title VII of the Civil Rights Act of 1964, as amended, claiming that HUD discriminated against him on the basis of his race (African-American), his gender, or the combination of his race and gender, by imposing a five-day suspension and reassigning him to a position outside his career field in 2012. [Dkt. 38 at 1; Dkt. 53 at 4].

         On August 17, 2017, the undersigned was referred Plaintiff's pending Motion to Compel for resolution pursuant to Local Civil Rule 72.2(a).[2] See Minute Entry dated Aug. 17, 2017. Plaintiff claims Defendant withheld as privileged documents that he needs to explore alleged inconsistencies between Department officials' deposition testimony as to the reasons for Plaintiff's discipline and their contemporaneous reasoning memorialized in the withheld documents.[3]Plaintiff asks this Court to compel production of all documents identified in Defendant's privilege log. [Dkt. 53 at 1; Dkt. 72 at 42-43]. Defendant-after several revisions of its privilege log since the commencement of this action-ultimately asserts work-product protection and attorney-client privilege over 127 emails or documents listed by “item” number in its log. [Dkt. 73-1]. The Court will identify documents in this Memorandum Opinion by the item numbers in the log Defendant filed with the Court on November 30, 2017.[4] Id.

         The Court held a hearing on October 23, 2017, to address the parties' arguments. [Dkt. 72]. After a thorough review of record, including an in camera review of all of the withheld documents, the Court will grant in part and deny in part Plaintiff's Motion to Compel. [Dkt. 53].

         I. BACKGROUND

         A. Factual History

         According to the Complaint, Plaintiff began his service as the Director of HUD's ADR program in February 2005. [Dkt. 1, ¶ 18]. On June 10 or 11, 2010, a HUD employee (“D.B.”) informed Michelle Cottom, then the deputy director of the ODEEO at HUD, that Plaintiff had sexually assaulted her in July 2009, prior to the time that D.B. joined HUD. Id. ¶¶ 39, 42. Plaintiff denies that allegation. Id. ¶ 42.

         On June 16, 2010, Ms. Cottom placed Plaintiff on paid administrative leave prior to giving him notice of the charges against him. Id. ¶ 50. He was immediately escorted out of the HUD facility. Id. He was initially placed on paid administrative leave for a period of two weeks, and at that time, Ms. Cottom and/or other senior management officials asked HUD's Office of Inspector General (“OIG”) to investigate him. Id. ¶ 51. While the investigation was ongoing, the agency renewed Plaintiff's paid administrative leave periodically through January 24, 2012, for a period of twenty months total. Id. ¶¶ 51-52.

         In a written notice dated January 6, 2011, Ms. Cottom proposed to terminate Plaintiff's employment with HUD. Id. ¶ 55. The notice charged Plaintiff with several instances of misconduct but did not include the allegation of sexual assault. Id. ¶¶ 55-56. It did include claims that Plaintiff had harassed or acted inappropriately towards four other women and that he lacked candor by denying those allegations to OIG. Id. ¶¶ 63, 68. HUD also engaged in disciplinary proceedings against D.B., proposing her termination and ultimate removal in 2011. [Dkt. 73-2].

         At a meeting on March 29, 2011, Plaintiff replied to HUD's charges orally for the first time. [Dkt. 1, ¶ 67]. The meeting was attended by Daniel Lurie, the Deciding Official[5] and a Special Assistant to the Deputy Secretary of HUD, and by George Corsoro, the responsible official representative of HUD's Employee and Labor Relations division (“HUD-ELR”). Id. On October 3, 2011, and after Mr. Lurie's retirement, HUD informed Plaintiff that it had appointed a new Deciding Official, Patricia Hoban-Moore, who was at that time the Director of HUD Field Policy and Management. Id. ¶ 72. On October 11, 2011, Plaintiff appeared before Ms. Hoban-Moore for a second oral reply. Id. ¶ 73. No later than November 2011, Ms. Hoban-Moore determined that Plaintiff was to be restored to active duty and reinstated in a suitable position. Id. ¶ 74.

         HUD issued Ms. Hoban-Moore's decision on the Notice of Proposed Removal on January 24, 2012. Id. ¶ 82. It rejected Plaintiff's removal from the agency and instead suspended him for five days. Id. Ms. Hoban-Moore dismissed five of the seven charges against Plaintiff and sustained two of the charges. Id. ¶¶ 83-84. She also reassigned Plaintiff from his former position as Director of the ODEEO ADR program into a non-supervisory position in a separate HUD division. Id. ¶ 86. Plaintiff alleges that the reassignment into a position outside of his career field with fewer and less important responsibilities and fewer opportunities for advancement was a result of race and/or gender discrimination. Id. ¶ 89; [Dkt. 53 at 4].

         B. Procedural History

         Following this Court's decision on Defendant's motion for judgment on the pleadings, the only claims remaining are those challenging as discriminatory Plaintiff's five-day suspension and subsequent reassignment. [Dkt. 21 at 26; Dkt. 38 at 1]. Discovery on those claims began in October 2016 and closed on July 20, 2017. [Dkt. 42]; Minute Order dated July 12, 2017. On July 11, 2017, Plaintiff filed the instant motion seeking to compel HUD's production of a more detailed privilege log and copies of all items identified in the log. [Dkt. 53]. The primary focus of Plaintiff's motion is its request for the production of drafts of the documents proposing his removal from HUD, as well as documents proposing removal or other adverse action as to three other HUD employees, D.B., D.T., and S.C. Id. at 15. In response to Plaintiff's motion to compel, HUD revised its initial privilege log twice and requested in camera review of the materials it continues to withhold as protected under either the work-product doctrine or the attorney-client privilege. [Dkt. 62 at 4; Dkt. 62-1; Dkt. 73-1]. The Court held a hearing on October 23, 2017, to address the parties' arguments on the motion. Thereafter, it ordered all the material identified in Defendant's revised privilege log be submitted for in camera review.[6] [Dkt. 72 at 97]. In total, the Court reviewed 127 emails or documents-approximately two large binders of material-withheld by Defendant as protected by either the work-product doctrine or attorney-client privilege.


         A. Work-Product Protection

         The work-product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3), which provides, in relevant part:

(A) Documents and Tangible Things. Ordinarily, a party may not discover 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). But, subject to Rule 26(b)(4), those materials may be discovered 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.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it 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)(A)-(B). The Supreme Court has observed that the work-product doctrine is “an intensely practical one, grounded in the realities of litigation in our adversary system.” United States v. Nobles, 422 U.S. 225, 238 (1975).

         Importantly, under Rule 26, the party asserting work-product protection must first show that the document in question was prepared “in anticipation of litigation.” Fed.R.Civ.P. 26(b)(3)(A). In this Circuit, we apply the “because of” test, which asks “‘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.'” F.T.C. v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). “Where a document would have been created ‘in substantially similar form' regardless of the litigation, work product protection is not available.” Id. (quoting Deloitte, 610 F.3d at 138). “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). “While litigation need not be imminent or certain, ” it must be “‘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 (D.C. Cir. 1980)).

         B. Attorney-Client Privilege

         The attorney-client privilege is the oldest of the common law privileges. It exists to encourage “full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). It protects confidential communications between clients and their attorneys made for the purpose of securing or providing legal advice or services. See Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). The privilege applies only if:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984) (quoting United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358-59 (D. Mass. 1950)).

         The fact that an attorney is counsel for a government agency does not dilute the attorney-client privilege. Where the requirements for it are met, this Court has held-and, indeed, Plaintiff concedes [Dkt. 72 at 11]-legal communications between government agency counsel and his or her government client are entitled to the protection of the attorney-client privilege (and work-product doctrine). General Elec. Co. v. Johnson, No. Civ. A 00-2855 (JDB), 2006 WL 2616187, at *14 (D.D.C. Sept. 12, 2006) (the “contention that government lawyers are categorically less entitled than private lawyers to invoke the attorney-client privilege as a basis for withholding information is without merit”); see also In re Sealed Case, 737 F.2d at 99 (“The lawyer whose testimony the government seeks in this case served as in-house attorney. That status alone does not dilute the privilege.”). “In the government context, the holder of the privilege, or the ‘client, ' is the agency or department.” Gangi v. U.S. Postal Serv., 97 M.S.P.R. 165, 176 (M.S.P.B. 2004); see also Coastal States, 617 F.2d at 863 (an agency can be a “client” and agency lawyers can function as “attorneys” for purpose of the privilege). As such, the agency is “dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors.” Cuban v. S.E.C., 744 F.Supp.2d 60, 78 (D.D.C. 2010), on reconsideration in part, 795 F.Supp.2d 43 (D.D.C. 2011).

         Like many lawyers in the private sector who serve in multiple capacities, agency lawyers' communications are protected so long as they “relate to some legal strategy, or to the meaning, requirements, allowances, or prohibitions of the law.” General Elec. Co., 2006 WL 2616187, at *15. To determine whether a communication was made for a legal as opposed to a business purpose, courts in this Circuit apply the “primary purpose test.” This test asks whether “one of the significant purposes” of the communication was to obtain or give legal advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757-60 (D.C. Cir. 2014). In further defining the contours of this test in Kellogg, our Court of Appeals rejected a strict “but for” analysis under which a communication would not be deemed privileged if there was any purpose behind it other than seeking or providing legal advice. Id. at 759. As the D.C. Circuit instructed in Kellogg:

Under the [but-for test], the attorney-client privilege apparently would not apply unless the sole purpose of the communication was to obtain or provide legal advice. That is not the law. . . [That] novel approach to the attorney-client privilege would eliminate the attorney-client privilege for numerous communications that are made for both legal and business purposes and that heretofore have been covered by the attorney-client privilege.

Id. Rather, the primary purpose test in this Circuit asks the question, “[w]as obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?” Id. at 760. As the Kellogg Court explained, this test:

cannot and does not draw a rigid distinction between a legal purpose on the one hand and a business purpose on the other. After all, trying to find the one primary purpose for a communication motivated by two sometimes overlapping purposes (one legal and one business, for example) can be an inherently impossible task. It is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B.

Id. at 759.

         Nevertheless, this Court and the D.C. Circuit have consistently emphasized that “attorney-client privilege must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.'” In re Lindsey, 158 F.3d 1263, 1272 (D.C. Cir. 1998) (quoting In re Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982)). This privilege “carries costs, ” including the withholding of potentially critical evidence from the factfinder. Kellogg, 756 F.3d at 764. Courts tolerate the privilege only to the extent necessary “to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'” Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (quoting Upjohn, 449 U.S. at 389); W. Trails, Inc. v. Camp Coast to Coast, Inc., 139 F.R.D. 4, 8 (D.D.C. 1991) (“The privilege is an exception . . . to the fundamental principle that discovery should be liberal and broad in furtherance of the search for truth.”).


         A. Sufficiency of Defendant's Privilege Log

         Plaintiff claims the privilege log is insufficient under the Federal Rules to allow him to assess the applicability of attorney-client privilege or work-product protection. [Dkt. 53 at 11; Dkt. 72 at 38]. Federal Rule of Civil Procedure 26(b)(5)(A)(ii) requires that when a party withholds otherwise discoverable information, the party must “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.” F.R.C.P. 26(b)(5)(A)(ii). As that rule recognizes, creating a privilege log is not a simple task. Proponents of the privilege must give enough information so that the party seeking production of the materials in question can assess the proper applicability of the privilege, but not say so much in the log that the privileged material is disclosed and protection potentially waived. In this Court, privilege logs generally should “state the basis upon which the privilege is claimed, state the subject matter, number of pages, author, date created, and the identity of all persons to whom the original or any copies of the document were shown or provided.” Loftin v. Bande, 258 F.R.D. 31, 33 (D.D.C. 2009) (quoting Dir. of Office of Thrift Supervision v. Ernst & Young, 795 F.Supp. 7, 11-12 (D.D.C. 1992)).

         Measured by these standards, the government's original privilege log, filed on May 25, 2017, was insufficient. [Dkt. 53-3]. For each of its 177 entries, it identified only the author and recipients of the document in question, and provided only very general descriptions of the basis for the privilege asserted such as “[p]roviding guidance on Jones case, ” “[p]rovides guidance re case, ” or “[d]iscussion between HUD counsel re case.” Id. at 2-3. These descriptions are too brief to adequately “inform the requestor of the character of the information being withheld from him or her.” Alexander v. F.B.I., 198 F.R.D. 306, 312 (D.D.C. 2000).

         The government submitted a revised privilege log on July 25, 2017, together with its response to Plaintiff's motion to compel (the “revised log”). [Dkt. 62-1]. The revised log dropped claims of privilege as to approximately 50 items listed on the original privilege log, but added claims of work-product protection to approximately 95 items where the government had previously asserted only attorney-client privilege. [Dkt. 53-3; Dkt. 62-1]. Adding to the information contained in its initial log, the revised log provided for each item the subject header of the communications or emails being withheld and a more detailed description of the basis of the privilege asserted, e.g., “[e]mail from agency employee to counsel seeking legal advice re conditions of administrative leave for Jones, ” “[e]mail from counsel providing legal advice re responding to Plaintiff's counsel's request to extend administrative leave, ” or “[d]raft of notice of proposed removal for Jones prepared at direction of counsel and in reasonable anticipation of litigation.” [Dkt. 62-1 at 3-5].

         Plaintiff nevertheless maintained at the October 23, 2017, hearing that certain entries in the revised log remained insufficient, specifically items 37, 51-55, 58, 61-62, 65-68, 98-100, 119- 122, and 127. [Dkt. 72 at 44-47, 102]. These included drafts of Notices of Proposed Removal, as well as drafts of the Decisions on Removal that were prepared by, and circulated among, non-attorney HUD-ELR employees involved in the decision-making process. Id. At the direction of the Court, Defendant filed a second revised privilege log on November 30, 2017 (the “second revised log”) providing more detailed descriptions of the items on the revised log that Plaintiff challenged at the October 23, 2017 hearing. [Dkt. 72 at 102; Dkt. 73-1]. For example, item 37, which Defendant described in the revised log as a “[d]raft of notice of proposed removal for Jones prepared at direction of counsel and in reasonable anticipation of litigation, ” [Dkt. 62-1 at 5], is described in the second revised log as a “[d]raft of notice of proposed removal for Jones prepared at direction of counsel and in reasonable anticipation of litigation. The draft was also sent to [HUD's Office of General Counsel or “HUD-OGC”] the same day (tab 29) for legal review (See Harrison affidavit).” [Dkt. 73-1 at 6; Dkt. 73-5, ¶ 5]. Similarly, item 98 was previously described in the revised log as a “[d]raft of decision on proposal to remove Jones prepared at direction of counsel and in reasonable anticipation of litigation, ” [Dkt. 62-1 at 14], but is now described as “[d]raft of decision on proposal to remove Jones prepared at direction of counsel and in reasonable anticipation of litigation. Email states that Bratten forwarded the attached draft to HUD-OGC for legal sufficiency review. (See Bratten affidavit.).” [Dkt. 73-1 at 16; Dkt. 73-2, ¶ 14]. In both cases, the declarations submitted with Defendant's second revised log, referenced in these entries, provide further explanation and context for the assertions of privilege for the items challenged, including the Human Resources (“HR”) Specialists' and HUD-OGC counsel's understanding of the process of legal sufficiency review of those documents.

         The Court has reviewed each of the challenged entries on the second revised log, as well as Defendant's supplemental declarations, and together finds them sufficient under Rule 26(b)(5)(A)(ii). While it admonishes the government for not including in its original log the level of detail found in its second revised log and supplemental declarations, the Court finds that the deficiencies have now been cured. The descriptions in the second revised log and supplemental declarations are more than sufficient to “inform the requestor of the character of the information being withheld from him or her, ” Alexander, 198 F.R.D. at 312, and to permit the requestor a fair opportunity to formulate legal arguments for why the information should be disclosed-which Plaintiff has certainly had here.[7]

         B. Application of ...

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