United States District Court, District of Columbia
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE
Victoria Mannina (“Plaintiff” or “Ms.
Mannina”) filed a Motion to Compel Production of
Documents Withheld by Defendant as Privileged, or in the
Alternative, for In Camera Review of Withheld Documents
(“Motion”). See generally Pl.'s Mot., ECF No.
83. In that motion, Ms. Mannina challenges Defendant District
of Columbia's (“Defendant” or “the
District”) assertion of the deliberative process and
attorney-client privileges to redact and withhold several
documents. On March 29, 2019, the Court issued an Order that
partially granted and partially denied the Motion. See ECF.
No. 118. This Memorandum Opinion provides the rationale for
that ruling in greater detail.
case arises from the suicide of Paul Mannina (“Mr.
Mannina”), while he was in the custody of the District
of Columbia Department of Corrections (“DOC”).
Mr. Mannina was arrested on June 7, 2013, after being
admitted to a hospital emergency room with high levels of
alcohol, opiates, and Tylenol in his system and for a
“change in mental state.” 2d Am. Compl.
¶¶ 14, 16, ECF No. 33. On June 13, 2013, Mr.
Mannina was arraigned, before the D.C. Superior Court, for
one count of first-degree burglary while armed and one count
of third degree sexual abuse while armed. Id.
¶¶ 11, 18. The Pretrial Services Agency
(“PSA”) officer, who had met with Mr. Mannina
prior to the arraignment, reported that Mr. Mannina had
thoughts and attempts regarding harming himself. Id.
¶ 18. The court denied release, and Mr. Mannina returned
to D.C. Superior Court on June 17, 2013 for a preventive
detention hearing. Id. ¶¶ 19, 24. In an
updated report, the PSA officer restated concerns regarding
Mr. Mannina's attempts to harm himself. Id.
¶ 24. The court ultimately ordered detention.
Id. ¶ 25. On June 18, 2013, Mr. Mannina
committed suicide while in DOC custody, using a razor.
Id. ¶ 35.
Mannina brings this action as Mr. Mannina's widow and the
representative of Mr. Mannina's estate. Id.
¶ 1. Ms. Mannina alleges that the District of Columbia
violated Mr. Mannina's civil rights under 42 U.S.C.
§ 1983 by depriving him of his Fifth Amendment due
process rights and also raises tort claims under theories
including negligence and wrongful death. See Id.
¶¶ 36-54. Several of those claims rest on the
premise that the District failed to adequately respond to or
mitigate the risk that Mr. Mannina would attempt to commit
Relevant Procedural Background
instant dispute concerns the District's assertion of
privilege to withhold and redact records that were produced
in response to Ms. Mannina's informal discovery requests.
Pursuant to Federal Rule of Civil Procedure 34, Ms. Mannina
served two sets of requests for production of documents on
the District, comprising twenty-five requests. See Joint Status
Report, Ex. E(“Def.'s Resp. to 1st Set RFP”),
ECF No. 52-6 (filed under seal) (the District's Responses
to Plaintiff's First Set of Request for Production of
Documents: Requests # 1-21) & Ex. F (“Def's
Resp. to 2nd Set RFP”), ECF No. 52-7 (filed under seal)
(the District's Response to Plaintiff's Second
Request for Production of Documents: Requests #
22-25). The District responded to these requests
on December 19, 2016 and March 8, 2017, respectively, and
produced additional material in July 2017. See id.; see also
Def.'s Opp'n to Pl.'s Mot. (“Def.'s
Opp'n”) at 2, ECF No. 85.
Mannina then continued to request information from the
District, including between March 2017 and May 2017, through
a series of “informal discovery
requests.” See Def.'s Opp'n at 3; Def.'s
Notice Regarding Pl.'s Informal Doc. Requests
(“Def.'s Notice I”) at 2, ECF No. 58;
Pl.'s Report to Ct. Regarding Informal Doc. Request
Spreadsheet, Ex. 1, ECF No. 82-1. Ms. Mannina contends that
these additional requests correspond to and sought additional
information regarding her formal requests for production. See
Pl.'s Notice Regarding Informal Disc. Requests to Def.
(“Pl.'s Notice I”), ECF No. 56; Pl.'s
Notice Regarding Def.'s Deficient Doc. Resps.
(“Pl.'s Notice II”) at 3-4, ECF No. 68. The
District contends that the informal requests went “far
beyond” Ms. Mannina's formal document requests.
Def.'s Notice I at 2. Nevertheless, the District
responded to Ms. Mannina's informal requests, including
those made between March and May 2017. See Def.'s
Opp'n at 3. The District initially produced records in
response to these informal requests in August and September
2017, and the District included a privilege log with its
September 2017 production. See Id. In November and
December 2017, the District produced additional documents
previously withheld, including a revised privilege log. See
Id. The instant motion concerns documents that the
District redacted and withheld on the December 2017 privilege
log. See Def.'s Sur-Reply to Pl.'s Mot.
(“Def.'s Sur-Reply”) at 3, ECF No. 88.
October 27, 2017, the Honorable Ketanji Brown Jackson
referred this matter to the undersigned for management of
discovery. See 10/27/2017 Min. Order; 10/27/2017 Random Case
Referral. After several status reports from the parties and a
discovery status conference held on January 17, 2018, the
Court set a schedule to assist the parties in clearly
identifying the scope and nature of their numerous discovery
disputes. See Order, ECF No. 53. In response to this Order,
the parties filed several notices concerning Ms.
Mannina's interrogatories and requests for production,
and the District's assertions of privilege. After reviewing
these filings, the Court set a briefing schedule for the
instant Motion to Compel, which has been fully briefed. See
5/24/2018 Min. Order; see generally Pl.'s Mot.;
Def.'s Opp'n; Pl.'s Reply to Def.'s Opp'n
(“Pl.'s Reply”), ECF No. 86; Def.'s
briefing was completed, the Court requested additional
information from the District and reviewed the withheld
documents in camera. See Order, ECF No. 99 (requesting
clarification and supplementation of affidavits); Order, ECF
No. 110 (requesting additional information and documents for
in camera review); 3/18/2019 Min. Order (requesting
information regarding Docs. 74, 75, and 76). The District
timely provided all requested information, and Ms. Mannina
responded to some of the District's supplemental filings.
See Def.'s Resp. Regarding Privilege Designations, ECF
No. 106; Def.'s Notice of Filing, ECF No. 111; Def.'s
Resp. to Ct.'s Feb. 21, 2019 Order, ECF No. 114;
Pl.'s Resp. to Def.'s Resp. to Ct.'s Feb. 12 and
Feb. 21, 2019 Order, ECF No. 115.
Federal Rule of Civil Procedure 37, a party propounding
discovery may request an order from the court compelling
disclosure or discovery from the opposing party when, inter
alia, the opposing party does not produce documents requested
under Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iv). The moving party
“bears the initial burden of explaining how the
requested information is relevant, ” and of proving
that the challenged discovery responses were incomplete.
Jewish War Veterans of the U.S., Inc. v. Gates, 506
F.Supp.2d 30, 42 (D.D.C. 2007); Equal Rights Ctr. v. Post
Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007); see also
Alexander v. FBI, 193 F.R.D. 1, 3 (D.D.C. 2000). The
non-moving party must then explain “why discovery
should not be permitted.” Jewish War Veterans, 506
F.Supp.2d at 42.
party claims a privilege as the basis for withholding
documents, that party “bears the burden of proving the
communications are protected.” Felder v. Washington
Metro. Area Transit Auth., 153 F.Supp.3d 221, 224
(D.D.C. 2015) (internal quotation marks omitted) (quoting In
re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998)). To carry
that burden, the party asserting the privilege must
“present the underlying facts demonstrating the
existence of the privilege, ” and “conclusively
prove each element of the privilege.” In re Lindsey,
158 F.3d at 1270 (internal quotation marks and citations
omitted). “[T]he proponent of a privilege . . .
‘must offer more than just conclusory statements,
generalized assertions, and unsworn averments of its
counsel.'” United States v. ISS Marine Servs.,
Inc., 905 F.Supp.2d 121, 127 (D.D.C. 2012) (internal
quotation marks omitted) (quoting In re Veiga, 746
F.Supp.2d 27, 33-34 (D.D.C. 2010). If the party asserting the
privilege fails to present sufficient facts to allow the
Court to “state with reasonable certainty that the
privilege applies, this burden is not met.” FTC v.
TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980) (emphasis
may be Compelled Under Rule 37
Rule of Civil Procedure 37 governs motions to compel
discovery responses, and provides in relevant part that:
A party seeking discovery may move for an order compelling an
answer, designation, production, or inspection. This motion
may be made if:
(iv) a party fails to produce documents or fails to respond
that inspection will be permitted -- or fails to permit
inspection -- as requested under Rule 34.
Fed. R. Civ. P. 37(a)(3)(B). By its express terms, Rule 37
only authorizes the Court to compel a party to respond to
document requests issued under Rule 34. See Id.
Consequently, “before a party may succeed on a motion
to compel discovery, that party ‘must first prove that
it sought discovery' in the manner required by the rules
of procedure.” Camiolo v. State Farm Fire &
Cas. Co., 334 F.3d 345, 359-60 (3d Cir. 2003) (quoting
Petrucelli v. Bohringer & Ratzinger, GMBH, 46
F.3d 1298, 1310 (3d Cir. 1995)); cf. Koehler v. United
States, No. 90-2384 (RCL), 1991 WL 277542, at *2 (D.D.C.
Dec. 9, 1991) (denying motion to compel where plaintiff
sought production of nine documents withheld as privileged
where plaintiff had never requested those documents through
Mannina's motion does not identify the specific discovery
request or requests to which the motion to compel pertains,
the Court must first confirm whether and to what extent the
documents that the District has withheld or redacted as
privileged correspond to a discovery request propounded in
accordance with Federal Rule of Civil Procedure 34. This task
is complicated by the fact that the District has produced
numerous documents in response to Ms. Mannina's informal
discovery requests whose relation to formally served
discovery is in dispute. Thus the Court must resolve two
questions: (1) which document requests are at issue in the
parties' dispute about privilege? and (2) does Rule 34
require the District to produce non-privileged records in
response to that document request?
District asserts that its December 2017 privilege log
contains all the disputed privilege designations, and Ms.
Mannina has not disputed that assertion. See Def.'s
Sur-Reply at 3 & n.4. The District further explains that
the documents on its December 2017 privilege log were
produced in August and September 2017 in response to informal
document requests that Ms. Mannina made between March and May
2017. See Def.'s Opp'n at 3. The parties' email
correspondence from May 2017 reveals that the search terms
used to identify the documents that the District released in
August and September 2017 match the search terms that Ms.
Mannina asked the District to use to find records responsive
to certain April 2017 Informal Requests.
the Court concludes that the discovery requests at issue in
this Motion originate from Ms. Mannina's April 2017
Informal Requests. See Def.'s Notice I, Ex. 1 at 7-8,
rows 25-29, ECF No. 58-1; Pl.'s Report to the Ct.
Regarding Informal Doc. Req. Spreadsheet, Ex. at 12-13
(“Informal Req. Chart”), ECF No. 82-1. The
relevant April 2017 Informal Requests sought:
• All email correspondence from 2008 to the present
regarding suicide prevention, training, and suicide attempts
• All email correspondence regarding the Leslie [sic]
Hayes Report from 2013 to present
• All email correspondence regarding the suicide task
force from 2008 to present
• [A]ll email correspondence regarding the distribution,
use, or control of razor blades from 2008 to present
• All email correspondence regarding Paul Mannina from
June 2013 to present
Informal Req. Chart at 12-13.
the Court must determine whether any of these informal
discovery requests fall within the scope of Ms. Mannina's
formally served Rule 34 document requests. If the District
produced records voluntarily outside of any formal request,
Rule 37 does not authorize the Court to compel a further
response regardless of the applicability of any privileges
asserted by the District. Ms. Mannina contends that the
informal requests constitute a narrowing of her formal
discovery requests. See Pl.'s Reply at 3 (noting
that “[i]n almost all instances, the so-called informal
requests were not new requests but merely attempts to prod
the District to do what it had failed to do”). The
District disagrees, indicating that many of the informal
requests were outside the scope of the original requests.
See Def.'s Opp'n at 3 & n.3 (citing
Def.'s Responsive Notice Regarding Pl.'s Doc. Reqs.,
ECF No. 65) (noting with respect to the informally requested
“nine years' worth of emails” that
“Plaintiff s original requests plainly did not seek
evaluate which, if any, of the pertinent informal requests
are within the scope of Ms. Mannina's formal document
requests, the Court looks to the parties' submissions
identifying the informal document requests and any allegedly
corresponding formal document requests; the District's
chart identifying the document requests to which the
challenged documents on the privilege log respond; and the
content of each request. See Order at 4-5,
¶¶ D. 1-D.7, ECF No. 53; Informal Req. Chart. The
District has confirmed that most of the disputed documents
were produced in response to the April 2017 informal requests
regarding (1) suicide prevention, training, and suicide
attempts; and (2) the DOC Suicide Prevention Task Force
(“Task Force”). See Notice of Filing,
Ex. A (“Def.'s Suppl. Chart”), ECF No. 111-1.
The remaining documents were produced voluntarily because
they were located through email search terms but were not
actually responsive to any of the informal requests.
See Def.'s Resp. to Ct.'s Feb. 21, 2019
Order at 1, ECF No. 114.
Mannina alleges that the pertinent April 2017 informal
requests correspond to the following formal Requests for
April 2017 Informal Request
Alleged Corresponding Document Request
All email correspondence from 2008 to the
present regarding suicide prevention, training,
and suicide attempts.
13 - All Documents identifying, discussing or
describing Decedent's suicide.
15 - All Documents describing mental health and
suicide prevention training requirements for
The District, including records of such
16 - All Documents, written materials, and
protocols used by The District in mental health
or suicide prevention training.
17 - All audits, reports or evaluations of the
effectiveness of mental health and suicide
prevention training of The District and
employee of The District, including any
evaluation identifying (a) whether the required
training was effective; (b) whether the
required training failed in any way to meet The
District' requirements; (c) whether
Defendant met its own training requirements;
(d) what criticisms or failures The District
identified in its mental health and suicide
training; (e) identifying any Person or Persons
who received mental health and suicide
prevention training; (f) identifying any Person
or Persons who received mental health and
suicide prevention training but did not receive
all of the required training; and (g) any
Person or Persons who should have received
mental health and suicide prevention training
but did not receive it.
April 2017 Informal Request
Alleged Corresponding Document Request
All email correspondence regarding the suicide
task force from 2008 to present
13, 15, 16, 17
6 - All Documents and Communications, whether
in Person, by telephone, or by some other
means, whether in a discussion, meeting or
other setting, relating to the subject matter
of this litigation, the Complaint, the Answer,
the Documents requested herein, and/or the
Subject Products, between, among, by, or with
any Persons, including but not limited to:
Defendants; Defendants' employees, former
employees, agents, and/or representatives; and
customers or users.
Informal Req. Chart at 12, rows 25, 27; see also
Def.'s Resp. to 1st Set RFP, ECF No. 52-6.The Court agrees
that both informal requests are within the scope of at least
one formal document request, and therefore, may be compelled;
however, the Court makes this determination without deciding
which formal request(s), as Plaintiff failed to make this
argument in her briefing. Therefore, the District has an
obligation to produce the non-privileged documents responsive
to those requests and may be compelled to produce or
un-redact any improperly withheld documents.
privilege log entries concern documents that “were not
directly responsive to the informal requests, ” and
therefore are outside the scope of Rule 37. Def.'s Resp.
to Ct.'s Feb. 21, 2019 Order at 1, ECF No. 114. Although
Ms. Mannina contends that the fact that the District found
these documents and included them on the privilege log proves
that they are responsive to a document request, she has
neither identified the formal or informal document requests
to which those documents pertain, nor provided any evidence
that rebuts the District's description of its search and
production. See Pl.'s Resp. to Def.'s Resp.
to Ct.'s Orders of Feb. 12 & Feb. 21, 2019 at 1-2,
ECF No. 115. As the District voluntarily produced those