United States District Court, District of Columbia
JERRY W. JONES JR. Plaintiff,
BENJAMIN CARSON, SR.,  Secretary of Housing and Urban Development Defendant. Item No. HUD's Withholding Assertions Findings of the Court Decision
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
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].
August 17, 2017, the undersigned was referred Plaintiff's
pending Motion to Compel for resolution pursuant to Local
Civil Rule 72.2(a). 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.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,
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].
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.
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.
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].
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
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.
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
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
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.
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).
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)).
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
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)).
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).
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,
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.
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.”).
Sufficiency of Defendant's Privilege Log
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)).
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.
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].
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.
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
Application of ...