Roy Banks v. Office of Senate Sergeant-At-Arms

MEMORANDUM ORDER

FACCIOLA, United States Magistrate Judge.

This case was referred to me by Judge Kennedy for full case management. Currently pending before me is the issue of whether the Office of the Senate Sergeant-at-Arms and Doorkeeper (“SAA” or “defendant”) must produce certain documents, claimed to be privileged and submitted for in camera, review, to Roy Banks (“Banks” or “plaintiff’). For the reasons stated herein and in accordance with this Memorandum Order, the SAA must produce to plaintiff several of the documents submitted for in camera review.

I. BACKGROUND

Plaintiff brought this lawsuit alleging that his employer, the SAA, engaged in several unlawful employment actions. See Banks v. Office of the Senate Sergeant-at-Arms, 222 F.R.D. 7, 9 (D.D.C.2004). The parties have engaged in substantial litigation regarding discovery. In this memorandum, I resolve the issue of whether certain documents, submitted by the defendant for in camera review, can be withheld because they are covered by the work-product doctrine, the attorney-client privilege, or both.

II. PRIVILEGES CLAIMED BY THE DEFENDANT

A. The Work-Product Privilege

As the Supreme Court has stated, “it is essential [to our adversarial system] that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). If a lawyer’s work product were “open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own.” Id. at 511, 67 S.Ct. 385.

In light of these important interests, Federal Rule of Civil Procedure 26(b)(3) and the work-product doctrine provide that materials prepared in anticipation of litigation or for *26trial by an attorney or a party are protected from disclosure, and they may be subject to discovery only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. Fed. R.Civ.P. 26(b)(3). In addition, the court must protect the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Id. See also Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 619 (D.C.Cir.1997). These materials, known as opinion work product, “are entitled to special protection and require a stronger showing of necessity to justify release ... although the precise contours of this showing have not been resolved.” Byers v. Burleson, 100 F.R.D. 436, 439 (D.D.C.1983) (citing Fed. R.Civ.P. 26(b)(3) and Upjohn Co. v. United States, 449 U.S. 383, 400-01,101 S;Ct. 677, 66 L.Ed.2d 584 (1981)). See also In re Sealed Case, 856 F.2d 268, 273 (D.C.Cir.1988).

In reviewing 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.” Equal Employment Opportunity Comm’n v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C.Cir.1999) (emphasis added). See also Willingham v. Ashcroft, Civ. A. No. 02-1972, 2005 WL 873223, at *2 (D.D.C. Apr.15, 2005). As I have recently noted,

[t]o be protected by the work-product doctrine, a document must have been created for use at trial or because a lawyer or party reasonably anticipated that specific litigation would occur and prepared the document to advance the party’s interest in the successful resolution of that litigation. Motivation is key. In ways that cannot often be foreseen when they are created, documents may prove useful in litigation because they record an event or memorialize an occurrence. But, their creation at a time when litigation was anticipated does not automatically render them privileged. The purpose of preparing for the anticipated litigation is critical, lest the rule be interpreted to protect everything a lawyer or party does when litigation is anticipated even though the lawyer or party did not create the document to advance the client’s interest in the litigation.

Willingham, 2005 WL 873223, at *2. Hence, if the same or essentially similar documents would have been created whether or not litigation was foreseen, “ ‘it [cannot] fairly be said that they were created “because of’ actual or impending litigation.’” Id. (quoting United States v. Adlman, 134 F.3d 1194, 1202-03).

B. The Attorney-Client Privilege

In this Circuit, “the attorney-client privilege is narrowly circumscribed to shield from disclosure only those communications from a client to an attorney made in confidence and for the purpose of securing legal advice.” Willingham, 2005 WL 873223, at *6 (quoting Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 204 (D.D.C.1998)). See also Tax Analysts, 117 F.3d at 618; In re Sealed Case, 737 F.2d 94, 98 (D.C.Cir.1984). The privilege also applies to communications from attorneys to their clients if the communications “‘rest on confidential information obtained from the client.’ ” Tax Analysts, 117 F.3d at 618 (quoting In re Sealed Case, 737 F.2d at 99 and citing Mead Data Central, Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 254 (D.C.Cir.1977)).

III. SPECIFIC ISSUES REGARDING SUBSETS OF THE DOCUMENTS

A. Documents Revealing How Counsel Investigated the Case and Prepared the Government’s Defense

Many of the documents submitted for in camera review concern a matter that defense counsel investigated when developing the facts of the case and preparing its defense. These documents were clearly prepared because of the prospect of litigation, and they reveal counsel’s mental impressions and litigation strategy. Accordingly, the documents that reflect the process by which defense counsel prepared this ease constitute highly protected opinion work product. Defendant’s claim of work-product privilege is sustained, and defendant need not produce these documents. In the chart summarizing my rulings on each document submitted for *27in camera review, these materials are identified by the terms “Case Investigation and Preparation.”

B. Jane and John Doe Documents

Several documents submitted for in camera review concern SAA employees other than Banks and the individuals who made decisions concerning the terms of his employment. Indeed, most of these documents memorialize conversations with and about a certain SAA employee, whom I shall call Jane Doe I. Other documents concern SAA employees to whom I will refer as Jane Doe II, Jane Doe III, John Doe I, and John Doe II.

For many of these documents, the defendant claims the work-product privilege. But, neither on the face of the documents nor in the privilege log is there any showing that the documents were created because of the prospect of litigation by Banks or anyone else. Without such a showing, any claim of work-product privilege simply cannot be sustained.

For the majority of these documents, the SAA has also claimed the attorney-client privilege. An analysis of the Jane Doe I documents reveals that the materials fall into two categories. In the first group are documents that reflect communications between the client (the SAA) and its counsel when the SAA sought legal advice regarding how to handle Jane Doe I’s continued use-and possible abuse-of her sick and disability leave. A review of these documents indicates that the SAA intended the communications to be confidential, at least while the government made a determination as to whether to take disciplinary or other action. This group of documents, in which the client specifically seeks legal guidance with the understanding that its communications are confidential, is clearly protected under the attorney-client privilege.

The second group of materials concerns the same situation. However, each of these materials does not, on its face, disclose that the client sought or an attorney rendered specific legal advice. Rather, in these documents, the SAA recounts facts so that its counsel may continue to be apprised of the developing situation and the SAA may receive continued advice from its attorneys. If the court were to deny the privilege as to these documents, it would reveal the nature of the guidance SAA sought from its counsel and, in effect, nullify the privilege that the court sustained as to the first group. Indeed, when read as a whole, it is clear that these communications were intended to be confidential and were part of the process by which the SAA sought legal advice from counsel. Indeed, “[i]t is not essential ... that [a] request for advice be express. Client communications intended to keep the attorney generally apprised of continuing business developments, with an implied request for legal advice thereon ... may also be protected.” Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 144-45 (D.Del.1977). In addition, although “it is essential that communications between client and attorney deal with legal assistance and advice in order to be privileged, it is not essential that such requests by the client for legal advice be expressed____ [Rather,] there must be a finding that each document is involved in the rendition of legal assistance.” Burlington Indus, v. Exxon Corp., 65 F.R.D. 26, 37-39 (D.Md.1974). Because it can fairly be said that the documents in the second group were created to keep SAA’s counsel apprised of the very situation about which the SAA sought legal assistance, the SAA’s claim of attorney-client privilege, as to the second group of documents, is sustained.

C. Chart and Abbreviated Notations

In the interest of clarity, I have included in this memorandum two charts. The first summarizes various abbreviations I have used to describe my analysis of the materials. The second lists each document submitted for in camera review and my rulings on each privilege claim.

Abbreviated Notation Explanation_

Not for Trial Based on information provided by defendant, the document cannot fairly be said to have been prepared or obtained because *28of the prospect of litigation or for trial. Defendant’s claim of _work-product privilege is denied._

Opinion Work Product Document can fairly be said to have been prepared for trial or in anticipation of litigation, and it reflects counsel’s mental impressions. Defendant’s claim of work-product privilege is _sustained._

Ordinary Work Product Document can fairly be said to have been prepared for trial or in anticipation of litigation, but it does not reflect counsel’s mental impressions. Defendant’s claim of work-product privilege is sustained, but plaintiff will have the opportunity to make _a showing of substantial need and undue hardship._

Not Confidential Document does not disclose information that the client intended to be confidential. Defendant’s claim of attorney-client privi_lege is denied._

Confidential and Seeks Document reflects communications that the client intended to Legal Advice be confidential and that were made for the purposes of seeking _legal advice. The attorney-client privilege is sustained._

Case Investigation and These documents reveal the manner in which defense counsel Preparation investigated and prepared the government’s defense. The documents were prepared in anticipation of litigation and reveal counsel’s mental impressions and litigation strategy. Defen_dant’s claim of work-product privilege is sustained._

Jane Doe I, Jane Doe II, These documents relate to SAA employees other than Banks. Jane Doe III, John Doe Defendant has failed to indicate whether these documents were I, or John Doe II prepared for trial or in anticipation of litigation, either because they are related to the instant case or to adversarial proceedings involving other employees. Because defendant failed to make a sufficient showing that these documents qualify as work product, the claim of work-product privilege is denied. However, these documents do reflect confidential communications made from a client (the government) to its attorney (defense counsel). Therefore, where the attorney-client privi_lege has been claimed, the privilege is sustained._

Privilege Bates #_Claimed_Ruling_Reason_

RB 001735 Attorney-client Denied Not Confidential