UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES EQUAL )
EMPLOYMENT OPPORTUNITY )
COMMISSION, )
)
Plaintiff, ) Case No. 17-cv-1978 (CKK/GMH)
)
v. )
)
THE GEORGE WASHINGTON )
UNIVERSITY, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
The Equal Employment Opportunity Commission (“Plaintiff” or the “EEOC”) filed this
action on behalf of Sara Williams, née Mutalib, against The George Washington University
(“Defendant” or the “University”) pursuant to the Equal Pay Act, 29 U.S.C. § 206(d), and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. EEOC alleges that Ms. Williams,
who was employed as Executive Assistant to the University’s Director of Athletics, Patrick Nero,
was treated less favorably—by being paid less for equal work and being denied employment
opportunities and advancement—than a male comparator, Michael Aresco, who was hired as
Special Assistant to Mr. Nero. The kernel of the present discovery dispute asks whether an
attorney for the EEOC violated rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, the
protective order entered in this case (the “Protective Order”), or her ethical obligations when, after
Defendant informed her that the EEOC was in possession of two email chains that allegedly
reflected communications among University personnel seeking legal advice from the University’s
General Counsel’s office, that EEOC attorney nevertheless reviewed those documents. While
there is a fairly straightforward answer to that question—yes, she, at least, violated Rule
26(b)(5)(B)—it has sprouted another dispute over whether the documents counsel reviewed were,
indeed, privileged and whether the University has waived privilege. This Memorandum Opinion
and Order addresses all three issues.
For the reasons that follow, the University’s motion, which is styled a “Motion for an Order
Requiring the EEOC to Return or Destroy the University’s Privileged Documents,” is granted in
part and denied in part. Furthermore, the Court finds that many of the communications over which
the University claims attorney-client privilege are protected and that the University has not waived
privilege. 1
I. BACKGROUND
The seeds of this dispute were sown months ago, when in November 2019, without
authorization from the University, Ms. Williams provided the EEOC with certain work-related
emails from her University email account that presumably supported the allegations in the
Complaint. 2 ECF No. 58-5 at 2. In December 2019, as they were hashing out certain discovery
disputes, the University asked the EEOC to confirm that it had produced all responsive,
discoverable emails collected from Ms. Williams’ University email account. ECF No. 47-5 at 27–
28; ECF No. 58-9 at 3, 7. The EEOC resisted providing such confirmation. See id. That issue
was eventually brought before Judge Kollar-Kotelly as one of a series of discovery disputes that
1
The docket entries most relevant to this Memorandum Opinion and Order are (1) Minute Order dated March 13,
2020; (2) the University’s “Motion for an Order Requiring the EEOC to Return or Destroy the University’s Privileged
Documents” and its exhibits (ECF No. 58); (3) the EEOC’s opposition to that motion and its exhibits (ECF No. 61
(redacted opposition with non-confidential exhibits); ECF No. 64 (sealed, unredacted opposition with sealed
exhibits)); (4) the University’s reply and its exhibits (ECF No. 65).
2
Ms. Williams continued to have access to her University email account during this litigation because she was still
employed by the University, although no longer in the Athletics Department. ECF No. 47-4 at 2. As of July 2020,
the University no longer employs her. Joint Statement Regarding Discovery Disputes dated Oct. 21, 2020 (on file
with the Chambers of the undersigned).
2
was then referred to the undersigned. ECF No. 38 at 27–36 (Transcript of February 19, 2020
Hearing before Judge Kollar-Kotelly); ECF No. 39 (Referral Order dated February 25, 2020);
Transcript of March 12, 2020 Hearing at 114–19 (“Mar. 12, 2020 Tr.”) (on file with the Chambers
of the undersigned). The undersigned held a hearing on the disputes on March 12, 2020, and the
next day issued a Minute Order requiring the EEOC to produce those emails (or supplement its
discovery responses to state its basis for withholding any such emails) by March 20, 2020 (the
“March 13 Minute Order”). Minute Order dated March 13, 2020.
On March 20, 2020, the EEOC made its supplemental production of documents and
“certifie[d] that it ha[d] produced all non-privileged, responsive documents in its possession,
custody, or control.” ECF No. 61-19 at 2. To allow Defendant time to designate any of the emails
“as subject to the Protective Order” entered in this case near the beginning of discovery, the EEOC
stated it would “treat the entirety of [the supplemental] production of emails from Ms. Williams’
[University] account as though it were subject to the Protective Order for the next 30 days.” Id.
That protective order outlines procedures to follow when a party seeks to mark appropriate
materials as “confidential,” as well as when a party who has produced documents discovers “that
certain inadvertently produced material is subject to a claim of privilege or other protection.” ECF
No. 33 at 7, 14.
On May 22, 2020, the University sent counsel for the EEOC a letter stating that two email
chains that the EEOC had produced as part of its March 20, 2020 production contained material
protected by attorney-client privilege. ECF No. 58-2 at 3. It requested that the EEOC (1) “explain
in writing its willful and prolonged failure to bring [those] documents to the University’s
attention,” (2) “identify all persons who reviewed the documents and any others with the same or
similar content,” (3) “clarify how long it has been in possession of [those] documents,” and (4)
3
“immediately sequester and destroy all copies of [those] documents . . . , as well as all notes
concerning [the] documents, and confirm in writing that this has been done.” Id. at 3–4. After the
EEOC received that letter, counsel for the agency “reviewed the headers and glanced at or
skimmed portions” of the identified emails and “determined that they are not privileged.” 3 ECF
No. 61-30, ¶ 4; ECF No. 58-7 at 2; ECF No. 57 at 12. After briefly reviewing the emails, counsel
for the EEOC marked them with a note reading, “Do not look at.” ECF No. 57 at 14. The agency
had not previously reviewed the emails. ECF No. 58-5 at 2.
The EEOC did not provide a substantive response in writing to the University’s May 22,
2020 letter, or to its follow-up emails. ECF Nos. 58-3, 58-4; ECF No. 57 at 21. The record reflects
that the parties had a phone conference on July 14, 2020, but were unable to resolve the matter.
ECF No. 58-4 at 2; ECF No. 58-5 at 2. Consequently, they brought it before Judge Kollar-Kotelly
on July 21, 2020. ECF Nos. 58-6, 58-7. The University characterized the dispute as involving
“the EEOC’s refusal to sequester or destroy the University’s privileged documents” that were
produced as required by the March 13 Minute Order; the EEOC asserted that the issue “concerns
whether two emails EEOC produced on March 20, 2020,” pursuant to that Order “contain any of
Defendant’s privileged information, and, if so, what, if any, redactions need to be made,” further
arguing that, even if the documents are attorney-client communications subject to privilege,
“Defendant long ago waived privilege.” 4 ECF No. 58-6 at 2; ECF No. 58-7 at 2. The next day,
3
The EEOC also asserts that those emails had been subject to “a limited responsiveness review” between March 13,
2020, the date the undersigned ordered the EEOC to produce responsive emails collected from Ms. Williams’
University email account, and March 20, 2020, the date those emails were produced to the University. ECF No. 64 at
38; ECF No. 57 at 10–11.
4
Although the parties and most of the cases speak of “waiver” of privilege, a more accurate term is “forfeiture.” See,
e.g., Trs. of the Elec. Workers Local No. 26 Pension Tr. Fund v. Tr. Fund Advisors, Inc.. 266 F.R.D. 1, 11 n.10 (D.D.C.
2010). Nevertheless, the Court will follow the parties’ practice and use the term “waiver.”
4
Judge Kollar-Kotelly referred the dispute to the undersigned in light of the fact that the “dispute
arises from documents produced pursuant to” the March 13 Minute Order. 5 ECF No. 55 at 1.
In an order dated July 23, 2020, the undersigned noted that “[b]oth parties agree[d]” that it
was appropriate to submit the two relevant documents for in camera review and directed the
University to lodge them with Chambers. Minute Order dated July 23, 2020. The undersigned
held a hearing on the dispute on July 28, 2020, and thereafter ordered the parties to submit further
briefing (ECF Nos. 56–57), which was completed on September 14, 2020. The University argues
that Melanie M. Peterson, Senior Trial Attorney with the EEOC and an attorney of record in this
case, violated Rule 26(b)(5)(B), the Protective Order, and the D.C. Rules of Professional Conduct
by reviewing the emails after having been put on notice that the University considered them
privileged. ECF No. 58 at 15–21. It further contends that the two email chains at issue—one of
which spans July 15, 2016, to July 18, 2016 (identified by Bates numbers EEOC0001110–
EEOC001112) (the “July 2016 Email Chain”), and one of which spans July 19, 2016, to September
26, 2016 (identified by Bates numbers EEOC0001075–EEOC0001086) (the “July–September
2016 Email Chain”)—are protected in part by attorney-client privilege, asserting that they “contain
confidential communications between [Ms. Williams] and University Associate General Counsel
Stephanie Baldwin” that “were made for the purpose of securing legal advice.” ECF No. 58 at
12–15. Finally, it asserts that it did not waive privilege over these documents pursuant to Rule
502(b) of the Federal Rules of Evidence or by selectively disclosing or putting privileged materials
5
The referral clearly covers only the disputes raised by the parties that relate to the two email chains that were produced
pursuant to the undersigned’s March 13 Minute Order. The EEOC attempts to inject an unrelated issue into this
morass, asking the Court to opine as to whether attorney-client privilege attaches to two documents that Ms. Williams
provided to the EEOC during the administrative investigation of her claims and that were “produced to Defendant as
part of the Investigative File on October 21, 2019.” ECF No. 64 at 9, 23; ECF No. 64-2 at 2–3 (EEOC000796–
EEOC000797). The University objected to the EEOC raising that issue here (ECF No. 62, ¶8) and does not respond
to the EEOC’s substantive argument in its papers. The undersigned finds that the question of whether the documents
identified as EEOC000796–EEOC000797 are privileged is not properly before the Court and therefore does not
address it in this Memorandum Opinion and Order.
5
at issue in this case. Id. at 22–26; ECF No. 65 at 8–15. The University seeks an order compelling
the EEOC to immediately destroy or return the July 2016 Email Chain and the July–September
2016 Email Chain, prohibiting the EEOC from using those documents in this case, requiring the
EEOC to submit a sworn statement providing details of its review of those documents, and
imposing sanctions on the EEOC, including payment of the attorney’s fees and costs the University
has incurred in connection with this dispute. ECF No. 58 at 26–27.
The EEOC counters that the University has not submitted sufficient proof to establish that
the two email chains are protected attorney-client communications. ECF No. 64 at 29–33. It next
argues that the University waived any potential privilege by asserting a defense that argues the
jobs of Ms. Williams and Mr. Aresco were not substantially similar in part because only Mr.
Aresco performed substantive work on legal issues, which places the allegedly privileged material
at issue; by selectively disclosing privileged materials in relying on other communications between
Ms. Williams or Mr. Aresco and the University’s Office of General Counsel; and by failing to take
reasonable steps to protect its privilege. Id. at 33–38. The EEOC further contends that it did not
violate any ethical rules by reviewing the relevant email chains after the University asserted they
were privileged because their privileged nature was not readily apparent and the EEOC had a
reasonable basis for concluding that the University had waived privilege; it did not violate the
Federal Rules of Civil Procedure because Rule 26(b)(5) allowed it to review and then sequester
the documents at issue; and it did not violate the Protective Order because that document by its
terms does not cover this situation and because it incorporates the standards of Rule 26(b)(5)(B),
with which the EEOC allegedly complied. Id. at 38–49. It ends by arguing that, even if there was
a violation of some sort, sanctions are not warranted. Id. at 49–52.
6
II. DISCUSSION
A. Rule 26(b)(5)(B)
Rule 26(b)(5)(B) states:
If information produced in discovery is subject to a claim of privilege or of
protection as trial-preparation material, the party making the claim may notify any
party that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information until the
claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to the
court under seal for a determination of the claim. The producing party must
preserve the information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5)(B). The EEOC’s “threshold” argument (ECF No. 64 at 43 n.17)—
although squirreled away in a footnote, which is no place to raise a substantive point, as courts in
this Circuit have frequently warned, see, e.g., Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 36
(D.D.C. 2018) (“[H]iding an argument [in a footnote] and then articulating it in only a conclusory
fashion results in forfeiture.” (second alteration in original) (quoting CTS Corp. v. EPA, 759 F.3d
52, 64 (D.C. Cir. 2014))—deserves some brief attention. The EEOC states that “it is unclear
whether” Rule 26(b)(5)(B) applies to the disclosure at issue here because the documents did not
come into its possession through the University’s inadvertent production in response to a request
for documents. ECF No. 64 at 43 n.17. As support, it cites, without further explanation,
Eaglesmith v. Ray, No. 2:11-cv-0098, 2012 WL 1554922 (E.D. Cal. May 1, 2012). In that case,
during a deposition of one of the defendants’ witnesses, the plaintiffs presented four documents
belonging to the defendants that contained allegedly confidential information. Id. at *1. On the
defendants’ motion for a protective order, the court found that Rule 26(b)(5) did not apply because
the documents had not been exchanged as part of the normal discovery process—rather, the
defendants had become aware that the plaintiffs had possession of the documents only because
7
they were included as exhibits at the deposition. 6 Id. at *2–3. That is not the case here. To be
sure, the circumstances of the production here are unusual: the EEOC accessed these documents
when Ms. Williams provided them (conduct to which the University has objected) rather than by
the University disclosing them to the EEOC. However, the documents were exchanged as part of
the discovery process when, pursuant to the March 13 Order, the EEOC produced the University’s
own documents back to it. That fact brings them comfortably within the purview of the Federal
Rules of Civil Procedure governing discovery. See, e.g., Talismanic Props., LLC v. Tipp City, 309
F. Supp. 3d 488, 496 (S.D. Ohio 2017) (finding that Rule 26(b)(5)(B) applied where the plaintiff
originally gained access to a privileged document of the defendant through a public records
request, but the plaintiff thereafter produced that same record to the defendant in response to the
defendant’s discovery requests). Moreover, the plain language of the rule allows “any party” to
make a claim of privilege, which in turn requires “any party that received the information” to
“promptly return, sequester, or destroy” that information. Fed. R. Civ. P. 26(b)(5)(B) (emphasis
added). Here, the University—a party to this litigation—made a claim of privilege to the EEOC—
a party who received the information and then produced it in discovery. The text of the rule
therefore covers this situation.
The University argues that the plain text of Rule 26(b)(5)(B) establishes that the EEOC’s
counsel violated the rule when she reviewed the July 2016 Email Chain and the July–September
2016 Email Chain after she had been informed that the University claimed those documents
6
In the end, the court in Eaglesmith relied on its inherent power to order the plaintiffs to return the documents to the
defendants and the defendants to thereafter produce redacted versions to the plaintiffs. See id. at *3. Other courts
have similarly relied on their “inherent authority to control and preserve the integrity of [ ] judicial proceedings” to
“remedy any unfair advantage” gained by a party that obtains documents outside of the discovery process. In re Shell
Oil Refinery, 143 F.R.D. 105, 108–09 (E.D. La. 1992). Thus, even if Rule 26(b)(5)(B) did not apply by its terms to
the situation here, the Court could nevertheless remedy the issues raised by the University’s motion pursuant to its
inherent power. See, e.g., Reinsdorf v. Skechers U.S.A., No. CV 10-7181, 2013 WL 12116415, at *4 (C.D. Cal. May
31, 2013) (looking to Rule 26(b)(5)(B) for guidance in resolving dispute regarding a claim of privilege over material
not exchanged in formal discovery).
8
contained privileged information. The University points out that the rule requires a party put on
notice that it is in possession of another party’s allegedly privileged materials to “promptly return,
sequester, or destroy” the information and nowhere mentions that review is permitted. ECF No.
58 at 17; ECF No. 65 at 6. The EEOC has its own textual argument, derived from the canons of
statutory interpretation known as noscitur a sociis, which holds that “a word is known by the
company it keeps,” Yates v. United States, 574 U.S. 528, 543 (2015), and the rule against
surplusage, which “dictates that when construing a statute courts ‘give effect, if possible, to every
clause and word,’” Great Lakes Comnet, Inc. v. FCC, 823 F.3d 998, 1003 (D.C. Cir. 2016) (quoting
Duncan v. Walker, 533 U.S. 167, 174 (2001)). According to Plaintiff, the term “sequester”—
which it claims it accomplished when, after its counsel scanned the documents, she pasted a note
on them stating, “Do not look at”—when interpreted along with the terms “return” and “destroy”—
which are the other two options in Rule 26(b)(5)(B) for a party who has learned it is in possession
of another party’s allegedly privileged documents—“do[es] not require that the documents are
never reviewed; those terms merely dictate who has possession or control of the documents.” ECF
No. 64 at 44. That is the agency’s noscitur a sociis argument. Deploying the rule against
surplusage, the EEOC contends that the clause requiring the party in possession of the assertedly
privileged documents to “return, sequester, or destroy” the documents must be given a meaning
independent of the clause that prohibits the party in possession of those document from “us[ing]
or disclos[ing] the information until the claim is resolved.” Id. at 43–44. The agency indicates
that interpreting Rule 26(b)(5)(B) to allow it to review the relevant documents even after being
informed of the claim of privilege avoids the bane of surplusage, although it fails to spell out that
argument with any clarity. See id. (“[G]eneral principles of statutory interpretation
provide . . . that each of the words in the clause—‘return, destroy, or sequester’ [sic]—are given
9
an independent and complementary meaning[ ] and that the clause is not duplicative of the clause
prohibiting ‘use.’”).
But the canons the EEOC cites better support the opposite of its position. As to noscitur a
sociis, a party who, when informed of a claim of privilege, “promptly return[ed] . . . or destroy[ed]
the specified information and any copies” it had would necessarily no longer be able to review that
information. It follows, then, that sequestration should similarly ban further review. That also
follows from the rule against surplusage, which asks that (1) the clause requiring the prompt return,
sequestration, or destruction of the allegedly privileged information and (2) the clause prohibiting
the party in possession of the material from “us[ing] or disclos[ing] the information until the claim
is resolved” be given “independent meaning[s] to avoid redundancy or surplusage,” Ass’n for
Cmty. Affiliated Plans v. Dept. of Treasury, 392 F. Supp. 3d 22, 42 (D.D.C. 2019). If, as the EEOC
argues, the sole purpose of Rule 26(b)(5)(B) is to prevent the party in possession of the potentially
privileged material from “providing the [ ] communications to third parties” (ECF No. 64 at 45),
that goal is accomplished by the clause prohibiting the “use or disclos[ure]” of that information.
That is, the clause requiring the party in possession to “promptly return, sequester, or destroy”
does no independent work under the EEOC’s interpretation. If, however, the “return, sequester,
or destroy” clause is read to prohibit the party in possession from further review of the material
once a claim of privilege is made, there is no issue of surplusage or redundancy, because that
clause then has a meaning independent from the prohibition on use or disclosure.
Indeed, the EEOC’s overarching argument that, even after the University made its claim
of privilege over the July 2016 Email Chain and the July–September 2016 Email Chain, the agency
was entitled to review them to determine if they were, indeed, privileged (ECF No. 64 at 38–47),
is further undermined by the structure of Rule 26(b)(5)(B). As noted, the rule states that after a
10
party in possession of a document has been notified that the opposing party has made a claim of
privilege over that document, the party in possession must “promptly return, sequester, or destroy
the specified information,” must refrain from using or disclosing it, and may “promptly present
the information to the court under seal for a determination of the claim [of privilege].” Fed. R.
Civ. P. 26(b)(5)(B). Thus, the rule itself provides that the claim of privilege, if disputed, will be
resolved by the court; it does not contemplate that the party in possession of the allegedly
privileged material will or should make that determination on its own. See, e.g., Radiance
Aluminum Fence, Inc. v. Marquis Metal Material, Inc., 335 F.R.D. 371, 377 (E.D. Mich. 2020)
(holding that, once a disputed claim of privilege is made pursuant to Rule 26(b)(5)(B), the question
of the applicability of the privilege, including whether privilege has been waived, “is for the
Court’s determination”); Woodard v. Victory Recs., Inc., No. 11-CV-7594, 2013 WL 4501455, at
*3 (N.D. Ill. Aug. 23, 2011) (“The rule does not provide for the non-asserting party to make the
determination [of privilege] on its own. If it disputes the assertion of the privilege . . . , it can
invoke the decision making authority of the court, but cannot divine justice on its own.” (quoting
Piasa Com. Interiors, Inc. v. J.P. Murray Co., No. 07-CV-617, 2010 WL 1241563, at *2 (S.D. Ill.
Mar. 23, 2010))); Regions Bank v. Chi. Title Ins. Co., No. 10-CV-80043, 2011 WL 13225147, at
*6 (S.D. Fla. Nov. 7, 2011) (holding that once Rule 26(b)(5)(B) is invoked, the resolution of the
claim of privilege is in the hands of the court, “regardless of [the party in possession’s] . . . belief
that the documents were not privileged, and regardless of whether the documents were in fact
privileged”); Coleman v. Sterling, No. 09-CV-1594, 2011 WL 13177041, at *3 (S.D. Cal. Nov. 4,
2011) (finding that “a party who intends to challenge a claim” of privilege pursuant to Rule
26(b)(5)(B) must “promptly present it to the court” in order “to allow parties to know whether a
challenge is being made to a claim and have a determination of the claim so that they know whether
11
the information may be used to litigate the case.”). That is, when a party makes a claim of privilege
pursuant to Rule 26(b)(5)(B), the opposing party has two choices: it may accept the claim or it
may challenge the claim by providing the material under seal to the Court for determination of the
issue of privilege; it may not, however, review the material to determine for itself whether the
claimed privilege applies. See In re Disposable Contact Lens Antitrust Litig., No. 3:15-md-2626,
2016 WL 7115998, at *4 (M.D. Fla. Oct. 24, 2016) (indicating that Rule 26(b)(5)(B) does not
“provide[ ] that the receiving party is able to review the inadvertently-produced material for the
purpose of determining whether to move the Court to compel it,” but, rather, means that “a review
of the documents is not permitted” (emphasis added)); cf. Greater New York Taxi Ass’n v. City of
New York, No. 13-CV-3089, 2018 WL 2316629, at *5–6 (S.D.N.Y. May 8, 2018) (interpreting a
protective order closely tracking the provisions of Rule 26(b)(5)(B) to require a party, “[u]pon
being notified that [certain] documents were privileged,” to “immediately cease[d] [ ] review of
the clawed back documents” and noting an “attorney’s ethical responsibilities to refrain from
examining or disclosing materials that the attorney knows or reasonably should know to be
privileged”); N’Jai v. Bentz, No. 13-cv-1212, 2016 WL 1535074, at *2 (W.D. Pa. Apr. 15, 2016)
(finding that a law firm that “immediately shredded and digitally erased all copies” of documents
over which the opposing party claimed privilege “prior to anyone viewing them” acted in
compliance with Rule 26(b)(5)(B)).
Although exacting, a rule prohibiting review of putatively privileged material makes sense.
The attorney-client privilege is “rooted in the imperative need for confidence and trust,” Jaffee v.
Redmond, 518 U.S. 1, 10 (1996) (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)), in
order 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,’”
12
Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (quoting Upjohn Co. v. United States,
449 U.S. 383, 389 (1981)). As the undersigned noted in connection with a prior discovery dispute
in this case, it is a “‘common sense observation’ that ‘[i]f an adverse party is provide[d] access to
privileged material’”—as would often be the case under the EEOC’s reading of Rule
26(b)(5)(B)—“‘then a pertinent aspect of confidentiality will be lost.’” 7 EEOC v. George
Washington Univ., No. 17-cv-1978, 2020 WL 3489478 at *11 (D.D.C. June 26, 2020) (some
internal quotation marks omitted) (first alteration in original) (quoting In re Dow Corning Corp.,
261 F.3d 280, 284 (2d Cir. 2001)). Prohibiting further review of material over which a claim of
privilege has been made so that a court may determine the issue serves the goal of safeguarding
attorney-client confidentiality.
7
The EEOC cites two cases in particular to support its argument that it was justified in reviewing the documents at
issue even after it was informed of the claim of privilege. Both are easily distinguishable. Irth Solutions, LLC v.
Windstream Commc’ns LLC, concerned allegedly privileged documents that the defendant had produced to the
plaintiff not once, but twice, and that the defendant attempted to claw back after the plaintiff had “thoroughly
reviewed” them. No. 2:16-cv-219, 2017 WL 3276021, at *2–5 (S.D. Ohio Aug. 2, 2017). The primary issue before
that court was whether those productions waived privilege over the documents. Id. at *5–15. In addressing the
defendant’s argument that, notwithstanding any waiver, the plaintiff had violated Rule 26(b)(5)(B), the court held that,
in light of ambiguous wording in the clawback agreement between the parties, the plaintiff complied with the rule by
sequestering the allegedly privileged material and marking it “attorney eyes only.” Id. at *15. Thus, Irth Solutions
did not address a situation, like that at issue here, in which counsel reviewed material for the first time after having
been put on notice that it was potentially privileged. Moreover, the undersigned disagrees with any suggestion that
limiting review of material over which privilege has been claimed to attorneys alone satisfies Rule 26(b)(5)(B).
Williams v. District of Columbia also concerned whether the defendant had waived privilege over documents
that it had produced to the opposing party. 806 F. Supp. 2d 44, 46–48 (D.D.C. 2011). Judge Kollar-Kotelly was
unimpressed by the defendant’s “efforts to detract from its failure to demonstrate” that it had not waived privilege by
accusing the plaintiff of violating Rule 26(b)(5)(B). Id. at 52 n.9. Addressing that argument “[p]arenthetically,” the
court stated only that the plaintiff had not disseminated or used the allegedly privileged material “since being notified
of the [defendant’s] error.” Id. It did not, that is, state or otherwise indicate that an attorney is at liberty to review
information after it has been put on notice that the opposing party has made a claim of privilege.
It is worth noting, too, that like the defendant in Williams, the EEOC has attempted to “detract from its
failures”—here, the failure to comply with Rule 26(b)(5)(B)—by contending that the University “read an email that
[Ms. Williams] sent to EEOC counsel after [the] EEOC asserted privilege. ECF No. 64 at 9–10. Like Judge Kollar-
Kotelly in Williams, the undersigned is unimpressed. Not only has the University adequately rebutted that charge
(ECF No. 65 at 22–25), but also any dispute as to the propriety of the University’s conduct in that regard is not properly
before the Court and will therefore not be further addressed.
13
Protecting client confidences is also a basic tenet of the ethical rules governing attorney
conduct in this district. See D.C. Rules of Pro. Conduct 1.6. 8 Guidance from the Legal Ethics
Committee of the D.C. Bar interpreting the District of Columbia Rules of Professional Conduct
support the interpretation that an attorney who has been informed that she possesses material over
which a claim of privilege has been made must not review that material. Ethics Opinion 256
addresses, among other things, the situation in which an attorney receives material and is put on
notice before it has been reviewed that the disclosure of the material was inadvertent because, for
example, it was subject to a claim of privilege. D.C. Bar Ethics Opinion No. 256 (May 1995)
(“Ethics Opinion 256”). The Legal Ethics Committee held that, under those circumstances, the
receiving attorney “should, at a minimum, seek guidance from the sending lawyer and, if that
lawyer confirms the inadvertence of the disclosure and requests return of the material, unread, the
receiving lawyer should do so.” Id. In other words, when an attorney has been put on notice that
she has received material to which she is not entitled, her review of that material “would be
unethical.” 9 Id.; see also D.C. Bar Ethics Opinion No. 318 (Dec. 2002) (“Ethics Opinion 318”)
8
“[T]his Court has adopted the District of Columbia Rules of Professional Conduct to govern the practice of law in
this district.” Brooks v. Berryhill, No.1:15-cv-00436 (CKK/GMH), 2017 WL 10716887, at *4 (D.D.C. Oct. 26, 2017)
(citing Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17, 20 (D.D.C. 2008), and Local Civil Rule 83.15), report and
recommendation adopted, 2019 WL 120767 (D.D.C. Jan 7, 2019). The Advisory Committee’s note to Rule
26(b)(5)(B) make clear that the Rule 26(b)(5)(B) incorporates “the applicable law of . . . professional responsibility.”
Fed. R. Civ. P. 26(b)(5)(B) advisory committee note to 2006 amendments; see, e.g., In re Keurig Green Mountain
Single Serve Coffee Antitrust Litig., No. 14 MD 2542, 2019 WL 2003959, at *3 (S.D.N.Y. May 7, 2019) (looking to
rules of professional responsibility to interpret responsibilities under Rule 26(b)(5)(B)); United States v. Basic Rsch.,
LLC, No. 2:09-cv-972, 2010 WL 11693231, at *3 (D. Utah Mar. 18, 2010) (looking to ethics opinions to interpret
responsibilities under Rule 26(b)(5)(B)). Ethics opinions, while not binding on a court, are “worthy of consideration
and [ ] entitled to such weight, if any, [a court] desire[s] to accord [them].” United States v. Nicholson, 475 F.3d 241,
250 n.10 (4th Cir. 2007).
9
The EEOC argues that Ethics Opinion 256 allowed it to review the materials at issue because it, like Rule 26(b)(5)(B),
“incorporates substantive privilege law, including waiver.” ECF No. 61 at 41. To be sure, the opinion states, “Thus,
where (as in this jurisdiction) the underlying law holds that inadvertently disclosed information is no longer protected,
there would appear to be no justification for requiring the receiving lawyer to accord it special treatment.” Ethics
Opinion 256. However, that statement comes during the opinion’s discussion of an attorney’s responsibilities when
there is no indication of confidentiality on inadvertently-disclosed documents, not when the attorney has been notified
that she is in possession of material for which a claim of privilege has been made. Moreover, the rule that it cites—
that mere inadvertent disclosure waives privilege—no longer governs in federal courts since the advent of Rule 502(b)
14
(“Under [Ethics Opinion 256] . . . , [ ] receiving lawyers must return privileged documents without
reviewing them if they learn about their privileged nature before reviewing the documents.”).
Specifically, the opinion held that such conduct violates Rule 8.4 of the Rules of Professional
Conduct, which states that it is professional misconduct to “[e]ngage in conduct involving
dishonesty”; and Rule 1.15, which requires an attorney who receives property belonging to a third
party to notify the third party and deliver the property to it upon request. Ethics Opinion 256.
The EEOC objects that Ethics Opinion 256 “is inapposite because it deals with inadvertent
disclosures, not with disclosures from clients.” ECF No. 64 at 41. The EEOC provides no clues
as to how it interprets “inadvertence,” but it is clear from Ethics Opinion 256 (as well as from
cases discussing the concept in the context of discovery) that “inadvertence” is to be determined
from the point of view of the party whose privileged or otherwise protected material has been
disclosed. See Ethics Opinion 256 (“Where a lawyer has inadvertently included documents
containing client secrets or confidences in material delivered to an adversary lawyer, and the
receiving lawyer in good faith reviews the documents before the inadvertence of the disclosure is
brought to that lawyer’s attention, the receiving lawyer engages in no ethical violation by retaining
and using those documents. Where, on the other hand, the receiving lawyer knows of the
inadvertence of the disclosure before the documents are examined, Rule 1.15(a) requires the
receiving lawyer to return the documents to the sending lawyer; the receiving lawyer also violates
Rule 8.4(c) if the lawyer reads and/or uses the material.”); see also In re Grand Jury (Impounded),
138 F.3d 978, 981 (3d Cir. 1998) (discussing “inadvertent or involuntary disclosures” of
of the Federal Rules of Evidence. See, e.g., George Washington Univ., 2020 WL 3489478, at *8. Finally, the EEOC’s
argument ignores the principle that, once a litigant makes a claim of privilege pursuant to Rule 26(b)(5)(B), as here,
the determination of that dispute—including whether the privilege was waived—is for the court. See Radiance
Aluminum Fence, 335 F.R.D. at 377.
15
information during discovery); Amobi v. D.C. Dep’t of Corr., 262 F.R.D. 45, 53–54 (D.D.C. 2009)
(discussing “inadvertence” from the perspective of the party whose privileged material has been
disseminated). This focus on “inadvertence” grows from prior precedent in this Circuit and others
that a court “will grant no greater protection to those who assert the privilege than their own
precautions warrant,” such that production of privileged material to an opposing party waived the
protection “even if the disclosure [was] inadvertent.” In re Sealed Case, 877 F.2d 976, 980 (D.C.
Cir. 1989) (quoting In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984)). Rule
502 of the Federal Rules of Evidence abrogated that “strict construction of waiver” to allow the
privilege to be preserved as long as its holder did not intentionally disclose privileged material and
took steps to protect the privilege. George Washington Univ., 2020 WL 3489478, at *8 (quoting
Amobi, 262 F.R.D. at 52). Thus, an opposing party gains access to privileged material
“inadvertently” if the holder of the privilege did not intend for that material to be disclosed. See,
e.g., Amobi, 262 F.R.D. at 53 (defining “inadvertent” disclosure as “unintended” or “mistaken”
disclosure); see also In re Tier 1 JEG Telecommc'ns Cases, No. 4:07-CV-00043, 2013 WL
12158598, at *7 (S.D. Iowa Nov. 25, 2013) (“In ordinary usage something is ‘inadvertent’ if it is
not intended or planned.”); First Tech. Cap., Inc. v. JPMorgan Chase Bank, No. 5:12-CV-289,
2013 WL 7800409, at *2 (“[A]ny mistaken, or unintentional, production of privileged material is
‘inadvertent.’”); Coburn Grp., LLC v. Whitecap Advisors LLC, 640 F. Supp. 2d 1032, 1038 (N.D.
Ill. 2009) (stating that to determine whether production of privileged material was “inadvertent,”
a court should ask “whether the party intended [the] privileged . . . document to be produced”).
Here, even the EEOC stops short of suggesting that the University intentionally provided the
agency access to the materials at issue and the Court would reject any such suggestion out of hand.
It is clear that the EEOC gained such access without any action at all on the University’s part when
16
in November 2019, Ms. Williams provided a sampling of emails from her University account to
the agency. See, e.g., ECF No. 38 at 27–33; Mar. 12, 2020 Tr. at 114–119. Indeed, the University
has repeatedly asserted that the EEOC should not have had possession of the documents that it
collected from Ms. Williams’ University email account at all. See, e.g., ECF No. 58-2 at 3; ECF
No. 58-9 at 3; Mar. 12, 2020 Tr. at 117. Admittedly, the EEOC received the material at issue in
an unconventional way, not through mistaken production by Defendant, but rather through
(apparently unauthorized) disclosure by Ms. Williams. Nonetheless, the EEOC’s access to the
material at issue qualifies as inadvertent as contemplated by Ethics Opinion 256, as it was neither
intended nor sanctioned by the University.
The EEOC further argues that a different ethics opinion is more germane to this dispute.
In 2002, building on Ethics Opinion 256, the Legal Ethics Committee in Ethics Opinion 318
addressed the situation in which “counsel in an adversary proceeding receives a privileged
document from a client or other person that may have been stolen or taken without authorization
from an opposing party.” Ethics Opinion 318. According to the EEOC, Ethics Opinion 318 is
applicable (and Ethics Opinion 256 is inapplicable) because “Ethics Opinion 256 . . . deals with
inadvertent disclosures, not with disclosures from clients,” as does Ethics Opinion 318. ECF No.
61 at 41. There are at least two problems with that assertion. First, as discussed above, the receipt
of these documents by the EEOC fits comfortably into a definition of “inadvertent” as
“unintentional.”
Second, the EEOC appears to fundamentally misinterpret the teaching of Ethics Opinion
318. The opinion holds that, when an attorney receives materials of unknown provenance that
might be privileged, review of those materials violates her ethical responsibilities if (1) the
materials are “privileged on their face” and (2) the attorney has “a reasonable basis to conclude”
17
both that (a) “the privilege has not been waived,” and (b) the materials “have been obtained without
authorization.” Id. Conversely, “[a] receiving lawyer would not violate” the ethical rules “by
reviewing and using the document whose source is unknown if: 1) its privileged status is not
readily apparent on its face; and 2) receiving counsel did not know that the document came from
someone who was unauthorized to disclose it.” Id. The opinion further explains that “[i]f the
privileged status of the document does not become apparent to receiving counsel until after the
document has been reviewed, . . . it is too late for receiving counsel to take corrective action
because the information cannot be purged from his mind.” Id. Thus, Ethics Opinion 318 takes as
a given that the receiving attorney has not been put on notice that she has received an opposing
party’s privileged material. Indeed, Ethics Opinion 318 expressly reaffirms that an attorney who
reviews material known to be privileged may be “engaging in a dishonest act” in violation of the
Rules of Professional Conduct and that “lawyers must return privileged documents without
reviewing them if they learn about their privileged nature before reviewing the documents.” Id.
That is the situation here. As discussed above, having been informed of the University’s claim of
privilege, the EEOC had the options of accepting the University’s representation or bringing the
dispute to the Court for determination without reviewing the material. It did neither. The path it
chose— reviewing the emails at issue after the University informed the agency that it claimed
privilege over those communications— violated Rule 26(b)(5)(B) of the Federal Rules of Civil
Procedure. 10
10
The University also contends that the EEOC should be sanctioned for violation of the Protective Order. Section 10
of the Protective Order covers the inadvertent production of privileged or otherwise protected material. ECF No. 33,
§ 10. It begins by stating that “[w]hen a Producing Party”—defined, as one might expect, as a party or non-party that
produces material in disclosures or responses to discovery requests—“gives notice to Receiving Parties”—that is, any
parties who receive the disclosure or discovery materials produced—“that certain inadvertently produced material is
subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B).” Id., ¶¶ 2.13, 2.16, 10.1. The careful reader will have spied the pitfall for the
University’s argument: the Protective Order appears to envision a situation in which the Producing Party has disclosed
its own potentially privileged material to the Receiving Party. Here, however, the Producing Party (the EEOC)
18
B. Attorney-Client Privilege
As shown above, under Rule 26(b)(5)(B), the EEOC was prohibited from reviewing the
documents at issue once the University made its claim of privilege—whether or not those
documents were, in fact, privileged. See, e.g., Regions Bank, 2011 WL 13225147, at *6 (holding
that once Rule 26(b)(5)(B) is invoked, the resolution of the claim of privilege is in the hands of
the court, “regardless of [the party in possession’s] . . . belief that the documents were not
privileged, and regardless of whether the documents were in fact privileged”). That issue is thus
separate from the EEOC’s remaining contentions that the July 2016 Email Chain and the July-
September 2016 Email Chain were not covered by the attorney-client privilege in the first place
or, if they were, the University waived that privilege. The Court now answers those follow-up
questions, which will determine if, notwithstanding its violation of the Federal Rules of Civil
Procedure, the EEOC may further review and use the two email chains at issue and certain related
material that the University has so far withheld.
“The attorney-client privilege protects confidential communications between clients and
their attorneys made for the purpose of securing legal advice or services.” FTC v. Boehringer
Ingelheim Pharms., Inc., 180 F. Supp. 3d 1, 16 (D.D.C. 2016), aff’d, 892 F.3d 1264 (D.C. Cir.
2018). The D.C. Circuit has “rejected a strict ‘but for’ requirement under which a communication
could not be privileged if there was any purpose behind it other than seeking or providing legal
advice”; instead, a communication is entitled to attorney-client privilege if “‘one of the significant
provided to the Receiving Party (the University) the Receiving Party’s potentially privileged material. Therefore, the
EEOC argues that, by its terms, the Protective Order does not apply to the situation at hand. ECF No. 61 at 47–48.
Even the University acknowledges that the EEOC is “technically correct” that the Protective Order “was not intended
to cover the situation at issue here,” although it nevertheless argues that the EEOC has violated its spirit. ECF No. 65
at 19–20. In light of that concession and the finding above that the EEOC has violated Rule 26(b)(5)(B), the Court
need not, and does not, address whether the agency has violated the Protective Order and, if so, whether such a
violation would merit sanctions.
19
purposes’ of the communication was to obtain or give legal advice.” Id. (quoting In re Kellogg
Brown & Root, Inc., 756 F.3d 754, 757–60 (D.C. Cir. 2014)). “[T]he [attorney-client] privilege
covers not only communications between an attorney and high-level corporate officers, . . . but
also between the attorney and any corporate employee acting at the direction of corporate superiors
in order to secure legal advice for the corporation.” Boehringer Ingelheim, 180 F. Supp. 3d at 16.
Moreover, “communications among non-attorneys can be entitled to protection if they concern
matters in which the parties intend to seek legal advice or reflect legal advice provided by an
attorney.” George Washington Univ., 2020 WL 3489478, at *11.
The EEOC takes issue with the proof that the University has presented in its briefing before
this Court, arguing that Defendant was required to—but did not—“submit a detailed privilege log,
record testimony[,] or an affidavit under oath” in order to establish its claim of privilege. ECF No.
64 at 30. The agency is correct that, generally, “the party asserting the attorney-client privilege . .
. must demonstrate ‘the applicability of the privilege by way of affidavits or other competent
evidence.’” Alexander v. FBI, 192 F.R.D. 42, 45 (D.D.C. 2000) (quoting Alexander v. FBI, 186
F.R.D. 102, 111 (D.D.C. 1998)). However, even in the absence of such evidence, the Court may
review the material in camera to determine the question of privilege. See, e.g., Alexander, 192
F.R.D. at 45–46 (noting that, after the court determined that the proponent of the privilege had
failed to establish it by competent evidence, the court reviewed the documents at issue in camera
to determine if they were privileged); see also, e.g., Schreiber v. Soc’y for Sav. Bancorp, Inc., 11
F.3d 217, 221 (D.C. Cir. 1993) (approving of in camera review where proponent of privilege had
failed to establish privilege by affidavit); Founding Church of Scientology of Washington, D.C.,
Inc. v. Dir., FBI, 104 F.R.D. 459, 463 (D.D.C. 1985) (asserting that a judge “can capably evaluate
the applicability of the privileges by the traditional approach to an in camera examination” and
20
that if “unresolved questions” remain, a judge “has the power to require a further declaration
or affidavit and more detailed elaboration of the grounds for the asserted privilege”).
Here, the Court’s in camera review establishes that the relevant standard is met for some,
but not all, of the emails from the July 2016 Email Chain and July–September 2016 Email Chain
over which the University claims privilege. The bulk of the emails in both chains are
communications among Associate General Counsel Baldwin and other University employees. No
non-University personnel are included in any of the communications. The July 2016 Email Chain
contains four emails. The University claims privilege over three of them. One of the emails is
clearly privileged, as it reflects legal advice communicated from Associate General Counsel
Baldwin to Ms. Williams, who had requested the legal advice on behalf of the University, and
other University employees. July 2016 Email Chain at EEOC0001111–EEOC0001112 (email
date-time stamped “Mon Jul 18, 2016 at 11:16 AM”). It is, therefore, an email whose purpose was
to provide legal advice to the individual charged with obtaining that advice. See Boehringer
Ingelheim, 180 F. Supp. 3d at 16. The other two emails in this chain over which the University
claims privilege are non-substantive emails attaching or requesting contracts, and, importantly,
resemble emails that the University has produced as non-privileged. 11 Compare id. at
EEOC0001110–EEOC0001111 (emails—subject to the University’s claim of privilege—date-
time stamped “Fri, Jul 15, 2016 at 1:55 PM” attaching contracts for review and “Fri, Jul 15, 2016
at 4:04 PM,” asking Ms. Williams to resend one of the contracts) with ECF No. 64-1 at 5 (email—
produced by the University as non-privileged—date-time stamped “Monday, June 06, 2016 12:37
11
The contracts themselves are not included within the July 2016 Email Chain.
21
PM” from Ms. Williams to “GW Contracts” attaching a contract for review). 12 Thus, the July
2016 Email Chain contains one privileged communication.
The July–September 2016 Email Chain contains 27 emails, of which the University claims
privilege over ten. Seven of those are privileged. One of them—from July 18, 2016, at 11:16
a.m.—is a duplicate of the email from that date and time found to be protected above. Compare
id. at EEOC0001075–EEOC0001076 (email date-time stamped “Monday, July 18, 2016 11:16
AM”) with July 2016 Email Chain at EEOC0001111–EEOC0001112 (email date-time stamped
“Mon Jul 18, 2016 at 11:16 AM”). Another email is from Associate General Counsel Baldwin
and relates the substance of a privileged conversation between her and Ms. Williams, during which
Associate General Counsel Baldwin expressed her legal opinion. Id. at EEOC0001077–
EEOC0001078 (email date-time stamped “Tue, Jul 26, 2016 at 1:27 PM”). Two emails between
Associate General Counsel Baldwin and Ms. Williams from the evening of August 31, 2016, are
privileged: one provides legal advice and asks Ms. Williams for further information in order to
provide legal advice; the response from Ms. Williams supplies the requested information. Id. at
EEOC0001079–EEOC0001080 (emails date-time stamped “Wed, Aug 31, 2016 at 5:25 PM” and
“Wed, Aug 31, 2016 at 5:33 PM”). Similarly, the first email in a two-email exchange between
Associate General Counsel Baldwin and Ms. Williams from September 1, 2016, requests
additional information in order to provide legal advice and the second email supplies it. Id. at
EEOC0001080–EEOC0001081 (emails date-time stamped “Thu, Sep 1, 2016 at 8:17 AM” and
“Thu, Sep 1, 2016 at 6:57 PM”). Last, a September 18, 2016 email from Ms. Williams to other
University personnel relates Associate General Counsel Baldwin’s legal opinion on a contract. Id.
12
In a document produced by the University, Associate General Counsel Baldwin asks Mr. Aresco to send contracts
to the GW Contracts email address for review by the Office of General Counsel. ECF No. 64-1 at 27 (email date-time
stamped Wed, Oct 19, 2016 at 1:04 PM).
22
at EEOC0001081 (email date-time stamped “Sun, Sep 18, 2016 at 8:22 PM”). Again, these emails
were intended to provide legal advice and opinions to non-attorney University employees seeking
that advice on behalf of their employer. See Boehringer Ingelheim, 180 F. Supp. 3d at 16.
The remaining three emails over which the University claims privilege merely state that
contracts are attached for review without revealing any legal advice. The first—from July 15,
2016, at 1:55 p.m.—is a duplicate of the email from that date and time found not to be privileged
above. Id. at EEOC0001076–EEOC0001077 (email date-time stamped “Friday, July 15, 2016
1:55 PM”). The other two are similarly non-substantive emails that are, again, similar to emails
merely stating that a contract is attached for review, which the University has produced as non-
privileged. Id. at EEOC0001077 (email date-time stamped Tue, Jul 26, 2016 at 11:24 AM),
EEOC0001078–EEOC0001079 (email date-time stamped “Tue, Aug 30, 2016 at 1:10 PM”).
In sum, the July 2016 Email Chain included one email and the July–September 2016 Email
Chain includes seven emails over which the University properly asserted privilege.
C. Waiver of Privilege
The EEOC next argues that, even if some or all of the July 2016 Email Chain and the July–
September 2016 Email Chain were once protected by the attorney-client privilege, the University
has waived that privilege. It relies on two theories of waiver, one derived from Rule 502 of the
Federal Rules of Evidence, and the other derived from case law holding that a party may not
withhold material on the basis of attorney-client privilege where it has relied on privileged material
or otherwise put privileged communications at issue in the litigation. Neither argument is
successful.
23
1. Rule 502
Rule 502(b) of the Federal Rules of Evidence provides:
When made in a federal proceeding or to a federal office or agency, the disclosure
[of material protected by attorney-client privilege or work product immunity] does
not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to
prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error,
including (if applicable) following Federal Rule of Civil Procedure
26(b)(5)(B).
Fed. R. Evid. 502(b). The EEOC contends that the University neither took reasonable steps to
prevent disclosure of its privileged information nor took reasonable steps to rectify the error. ECF
No. 64 at 35–38. Both arguments fail.
Rule 502 was instituted to “respond[ ] to the widespread complaint that litigation costs
necessary to protect against waiver of attorney-client privilege or work product ha[d] become
prohibitive due to the concern that any disclosure (however innocent or minimal) [would] operate
as a subject matter waiver of all protected communications or information.” Fed. R. Evid. 502,
advisory committee’s note (revised Nov. 28, 2007). It therefore codified a “middle ground”
between a rule that would find waiver “only if the disclosing party acted carelessly in disclosing
the communication or information and failed to request its return in a timely manner” and one that
held that “any inadvertent disclosure of a communication or information protected under the
attorney-client privilege or as work product constitute[d] a waiver without regard to the protections
taken to avoid such a disclosure.” Id. Rule 502(b)’s compromise focuses on whether “the holder
took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the
error.” Id. This situation fits uneasily within the confines of the rule because the University had
24
nothing to do with the initial production of the material at issue to the EEOC. That fact, alone,
weighs heavily against a finding of waiver. See, e.g., Kyko Global Inc. v. Prithvi Info. Sols. Ltd.,
No. C13-1034, 2014 WL 2694236, at *4 (W.D. Wash. June 13, 2014) (noting “the general sense
that parties should not be able to force waiver of attorney-client privilege through investigative
activities outside the discovery process”); Reinsdorf v. Skechers U.S.A., Inc., No. CV-10-7181,
2013 WL 12116415, at *4 (C.D. Cal. May 31, 2013) (noting that the plaintiff’s counsel’s receipt
of the defendants’ privileged material from a non-managerial employee of the defendant “cannot
be construed as waiver of the privilege by [the] [d]efendants” because the “power to waive the
corporate attorney-client privilege rests with the corporation’s management and is normally
exercised by its officers and directors” (quoting Commodity Futures Trading Comm’n v.
Weintraub, 471 U.S. 343, 348 (1985))).
In any event, as discussed above, the disclosure at issue here meets the first prong of the
rule by properly being characterized as, at most, “inadvertent.” See, e.g., Amobi, 262 F.R.D. at 53
(“I will [ ] use the word ‘inadvertent’ from Rule 502 to mean an unintended disclosure.”). But the
ill fit of Rule 502(b) to this situation becomes particularly evident in analysis of the rule’s second
prong. Requiring a party to take “reasonable precautions against disclosure of privileged
documents,” id., the second prong is concerned with the measures taken prior to disclosure. See,
e.g., Heriot v. Byrne, 257 F.R.D. 645, 661 (N.D. Ill. 2009) (“[I]f the procedures in place prior to
[disclosure of] the documents . . . were reasonable, then this requirement is satisfied.”). As a
general matter, there is no question that the University had a robust process for privilege review,
which, as described in the undersigned’s prior opinion in this case, involved two levels of
document-by-document privilege review. George Washington Univ., 2020 WL 3489478, at *3.
Indeed, the EEOC objected to that process as too robust. See id. However, as noted, the documents
25
at issue were not disclosed to the EEOC through the University’s document production—Ms.
Williams provided them to the agency without the University’s authorization. It is unclear, then,
how any precautions taken by the University, however robust, would have prevented that
disclosure.
Undaunted, the EEOC asserts that the University had reviewed Ms. Williams’ email
account “at least by November 2019” and should have “logged purportedly privileged emails it
found . . . , including the at-issue communications, and . . . given that information to [the] EEOC”
in order to prevent the EEOC from accessing privileged communications in any emails it had
received directly from Ms. Williams. ECF No. 64 at 35. The EEOC thus appears to contend that,
in order not to waive privilege, at some point prior to November 2019 when Ms. Williams provided
a subset of emails from her University account to the agency, the University was required to review
the entirety of that email account and create a privilege log for the benefit of the EEOC, presumably
merely because the EEOC had asked for those emails in a discovery request. But that ignores the
facts of this case. As the parties and the Court are well aware, the University objected to the
EEOC’s Request for Production No. 11—which sought “all emails sent from or received by any
email account maintained by [the University] for [Ms. Williams’] use” during the bulk of her
tenure in the Athletics Department—as overbroad and unduly burdensome. ECF No. 61-6 at 8.
In the undersigned’s prior opinion in this case, the Court agreed with the University and limited
the request to require production of “non-privileged emails from Ms. Williams’ email account that
include Mr. Nero or Mr. Aresco as a sender or recipient.” George Washington Univ., 2020 WL
3489478, at *18. Because none of the communications in either the July 16, 2016 Email Chain or
the July–September 2016 Email Chain includes Mr. Nero or Mr. Aresco as a sender or recipient,
those email chains are not responsive to the pertinent request as limited. Thus, there would have
26
been no reason for those documents to be prophylactically reviewed for privilege or included on a
privilege log. Indeed, as the D.C. Circuit has explained, where, as here, “a broad discovery request
includes an allegedly privileged document[ ] and [ ] there is an objection to the scope of the
request, the court should first decide whether the objection covers the document.” United States
v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003). Only if the Court overrules the objection
must the objecting party list the document on a privilege log. See id. (“In short, if a party’s pending
objections apply to allegedly privileged documents, the party need not log the document until the
court rules on its objections.” (quoting United States v. Philip Morris, 314 F.3d 612, 621 (D.C.
Cir. 2003), abrogated on other grounds by Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009).
Perhaps, though, the EEOC means that, when the University had notice that Ms. Williams
had provided some subset of her work emails to the EEOC, 13 the University was at that point
required to review the entirety of Ms. Williams’ email account and produce a privilege log so that
the EEOC would be forewarned of privileged communications that might be among those emails.
But at that point, the University was unaware of the contents of any of the emails that Ms. Williams
had provided to the EEOC; indeed, the EEOC refused even to represent that it had possession of
emails responsive to the University’s discovery requests or to produce any such emails until
ordered to do so by the Court on March 13, 2020. See, e.g., ECF No. 38 at 27–35; Mar. 12, 2020
Tr. at 114–119; March 13 Minute Order. The EEOC nevertheless suggests that such review was
necessary to avoid waiver because the University knew that “it was possible, if not likely, that
purportedly privileged information existed in [Ms. Williams’] University email.” ECF No. 64 at
13
The parties’ introductory briefing in January 2020 on the prior discovery dispute that was, eventually, referred to
the undersigned for resolution indicates that, by mid-November 2019, the University had some inkling that Ms.
Williams had provided a subset of her work emails to the EEOC. Email of Matthew Sappington dated Nov. 12, 2019,
attached as Exh. D to EEOC’s Jan. 29, 2020 Letter Brief (on file with Chambers). It appears that the EEOC confirmed
that Ms. Williams had provided it with access to some of her emails by the end of January 2020. EEOC’s Jan. 29,
2020 Letter Brief.
27
36. The Court is unaware of any legal authority—nor has the EEOC provided any—supporting
the proposition that the EEOC’s receipt of the University’s documents outside of the discovery
process required the University to engage in a burdensome review of Ms. Williams’ entire email
account or risk waiving privilege. Indeed, cases indicate the contrary. See, e.g., Kyko Global,
2014 WL 2694236, at *4 (noting “the general sense that parties should not be able to force waiver
of attorney-client privilege through investigative activities outside the discovery process”);
Reinsdorf, 2013 WL 12116415, at *4 (noting that the plaintiff’s counsel’s receipt of the
defendants’ privileged material from a non-managerial employee of the defendant “cannot be
construed as a waiver of the privilege by [the] [d]efendants”). Moreover, it was not unreasonable
for the University to trust that Ms. Williams would have avoided disclosing the privileged
documents of her employer (or that the EEOC would warn against her doing so), not least because
of the risk at which it would—and did—place counsel for the EEOC. So, to the extent that Rule
502(b)(2) can be twisted to apply to the situation at hand, the University has satisfied its
requirement to take reasonable precautions to prevent disclosure of privileged material.
The EEOC next asserts that the University “did not assert the privilege promptly” because,
although the EEOC produced the documents at issue on March 20, 2020, the University did not
alert the EEOC that it had discovered those documents until May 22, 2020—a lag of 63 days. ECF
No. 61 at 37; see also ECF No. 58-2 at 2. This appears to be an argument geared to the third
requirement of Rule 502(b), which asks whether the privilege-holder “promptly took reasonable
steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure
26(b)(5)(B).” This argument is no more successful than that addressed above.
First, and most fundamentally, the EEOC improperly measures the relevant time period.
To determine whether a delay in asserting privilege is unreasonable, courts look to the period
28
between when the privilege-holder had knowledge of the disclosure (rather than when the
disclosure was made) and when the privilege-holder acted to address that disclosure. See, e.g.,
Coburn Grp., LLC, 640 F. Supp. 2d at 1041 (N.D. Ill. 2009) (“The [Advisory] Committee’s
comment that Rule 502 does not require a post-production review supports th[e] view that the
relevant time under subpart (b)(3) is how long it took the producing party to act after it learned
that the privileged or protected document had been produced.”); accord Thermoset Corp. v. Bldg.
Materials Corp. of Am., No. 14-60268-CV, 2015 WL 1565310, at *9 (S.D. Fla. Apr. 8, 2015); see
also Heriot, 257 F.R.D. at 662. Here, there is no suggestion that the University sat for any length
of time on its knowledge that the July 2016 Email Chain and the July–September 2016 Email
Chain had been disclosed to the EEOC. Rather, the University has represented, both in open court
and in its briefing, that it requested the sequestration and destruction of those documents “promptly
upon discovering” their disclosure. 14 ECF No. 57 at 3; see also ECF No. 65 at 15.
To the extent that the EEOC’s position is founded on the notion that the University was
obliged to review its own documents as soon as they were produced back to it by the EEOC—a
proposition for which it cites no legal authority—it is mistaken. The Advisory Committee’s note
to Rule 502 suggests that such review is not necessary. The Advisory Committee explicitly states
14
The cases that the EEOC cites in support of its assertion that the University’s delay should weigh in favor of waiver
are thus inapposite. ECF No. 64 at 37–38. In SEC v. Cassano, the court faulted the producing party for waiting twelve
days between when it was put on notice by the opposing party that a specific putatively-privileged document had been
produced and the producing party’s determination that the document was, indeed, privileged. 189 F.R.D. 83, 84–85
(S.D.N.Y. 1999). Similarly, in LaSalle Bank National Association v. Merrill Lynch Mortgage Lending Co., the
producing party was put on notice that a privileged document had been produced when it was introduced as an exhibit
at a deposition of one of its employees but nevertheless waited for one month before requesting the return of the
document. 2007 WL 2324292, at *2–3 (S.D.N.Y. Aug. 13, 2007). The court found that the delay between when the
party was put on notice and its action to rectify the error supported a finding of waiver. Id. at *5. Here, although it is
not clear form the record before the Court when, precisely, the University discovered that the EEOC had possession
of its privileged material, the EEOC makes no allegation the University failed to act promptly after it learned that fact.
See id. (“[A]n inadvertent disclosure may be remedied where the privilege is immediately asserted upon discovery of
the disclosure[ ] and a ‘prompt request’ is made for return of the document(s) . . . .” (quoting Liz Claiborne, Inc. v.
Mlle. Knitwear, Inc., No. 96 Civ. 2064, 1996 WL 668862, at *5 (S.D.N.Y. Nov. 19, 1996))). Rather, as discussed
above, the agency focusses (inappropriately) on the time between when the EEOC produced the documents to the
University and when the University attempted to claw them back.
29
that a party need not engage in post-production review of documents that it has produced; instead
the privilege-holder must “follow up” only if there is an “obvious indication[ ] that a protected
communication of information has been produced inadvertently.” Fed. R. Evid. 502, advisory
committee’s note (revised Nov. 28, 2007). It is not clear why a different rule, requiring the
University immediately to review its own documents when produced by the EEOC, should apply
here. Thus, any such duty would be triggered only by “obvious indications” that privileged
material had been disclosed. Courts have found such “obvious indications” where, for example, a
party’s privileged document is introduced at a deposition taken by the opposing party, see, e.g.,
Orthopaedic Hosp. v. DJO Global, No. 3:19-cv-00970, 2020 WL 5363307, at *7–8 (S.D. Cal.
Sept. 8, 2020), where a party’s privileged document is attached as an exhibit to an opposing party’s
court filing, see, e.g., Smith v. Auto-Owners Ins. Co., No. 15-cv-1153, 2016 WL 11117291, at *6
(D.N.M. Oct. 5, 2016), or where an opposing party’s court filing obviously relies on a party’s
privileged material, see, e.g., Doe v. Bedford Cnty., No 6:19-cv-00043, 2020 WL 2832226, at *8–
9 (W.D. Va. May 29, 2020). The EEOC points to no similar occurrence that put the University on
notice that its privileged material had been disclosed to the EEOC by Ms. Williams. Rather, the
EEOC argues that the University knew that “it was possible, if not likely, that purportedly
privileged information existed in [Ms. Williams’] University email.” ECF No. 64 at 36. That is
insufficient, even more so because the University could not determine how “likely” it was that
“purportedly privileged information existed” in the subset of emails Ms. Williams had provided to
the EEOC when the agency kept the University in the dark as to which emails had been disclosed.
Moreover, as noted above, it was not unreasonable for the University to believe that Ms. Williams
and counsel for the EEOC would have guarded against accessing the University’s privileged
material.
30
Finally, even if the University were under some obligation to promptly review the EEOC’s
production for privileged material, the failure to do so here would be excused. As counsel for the
University represented to the Court in the hearing on this dispute, at the time EEOC made its
production, “the COVID crisis was breaking, the university had other things, obviously, that it was
focused on and had asked [counsel] to pause [their] efforts during [the] emergency” (ECF No. 57
at 3), although the University continued to comply with already-scheduled deadlines and to
respond to discovery issues raised by the EEOC (ECF No. 65 at 15 & n.7; ECF Nos. 61-20 through
61-24). That is hardly surprising. The pandemic caused the Mayor of the District of Columbia to
declare a state of emergency on March 11, 2020; a national emergency was declared on March 13,
2020. See, e.g., In re: Court Operations in Exigent Circumstances Created by the COVID-19
Pandemic, Standing Order 20-9 (BAH) (D.D.C. Mar. 16, 2020) (“Standing Order 20-9”). By
March 16, 2020, this Court had severely limited its operations—limitations that lasted until
September 14, 2020, when the Court entered the second of four phases in its Continuation of
Operations Plan for the COVID-19 Pandemic. See Standing Order 20-9; Notice as to Court
Operations: Transition to Phase 2 Beginning Sept. 14, 2020 (D.D.C. Sept. 11, 2020). Similar
measures were taken by businesses across the country, including law firms and universities. See,
e.g., Law Firm Updates: COVID-19’s Impact on the Business of Law, Thomson Reuters (July 20,
2020), https://www.legalexecutiveinstitute.com/law-firm-updates-covid-19; Important COVID-
19 Message from President LeBlanc, GW Coronavirus Response (Mar. 16, 2020),
https://coronavirus.gwu.edu/important-covid-19-message-president-leblanc. Under such exigent
circumstances, the delay between the EEOC’s production of the documents at issue on March 20,
2020, and the University’s discovery that the documents were privileged on or about May 22,
31
2020—assuming such delay is relevant which, as discussed above, it is not—was not unreasonable,
as it occurred during the height of the initial disruption caused by the pandemic.
To the extent that Rule 502(b) is applicable, the University has met all three of its
requirements; the Court therefore rejects the EEOC’s argument that the University waived
privilege by failing to take reasonable steps to prevent disclosure or by failing to promptly address
the disclosure under that rule.
2. Selective Disclosure and “At-Issue” Waiver
The EEOC also contends that the University waived privilege based on the “selective
disclosure” or “at issue” doctrines. A party can waive the protections of the attorney-client
privilege through implication by selectively disclosing privileged material “to obtain a tactical
advantage.” Bowles v. Nat’l Ass’n of Home Builders, 224 F.R.D. 246, 257 (D.D.C. 2004); see
also, e.g., Trs. of Elec. Workers Local 26 v. Tr. Fund Advisors, Inc., 266 F.R.D. 1, 10 (D.D.C.
2010). Attorney-client privilege can also be waived when a party places privileged material at
issue by “assert[ing] reliance on an attorney’s advice as an element of a claim or defense.” In re
Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Sedco Int’l S.A. v. Cory, 683 F.2d 1201,
2016 (8th Cir. 1982)); see also Trs. of Elec. Workers Local 26, 266 F.R.D. at 11. Here, the EEOC
contends that the University waived attorney-client privilege over these (and related) documents
by (1) relying on other communications between Ms. Williams or Mr. Aresco and the University’s
Office of General Counsel and (2) asserting in a document produced in this case that the pay
differential between Ms. Williams and her comparator, Mr. Aresco, was justified in part by the
fact that Mr. Aresco’s “typical” workday “involved substantively working on a variety of
employment, finance[,] and legal issues.” ECF No. 64 at 14, 33–35; ECF No. 61-4 at 14. Neither
argument succeeds.
32
The “selective disclosure” argument fails on the basis of a “fundamentally mistaken
premise” underlying the EEOC’s position. Trs. of Elec. Workers Local 26, 266 F.R.D. at 10. In
order for disclosure of certain material to effect a waiver of attorney-client privilege, the material
disclosed must itself be privileged. See id. at 11 (“Defendants’ notion that I should also consider
the disclosure of non-privileged information as a waiver by plaintiffs of privileged information
that deals with the same subject matter is flat out wrong.”); see also, e.g., Aiossa v. Bank of Am.,
N.A., No. CV 10-01275, 2011 WL 4026902, at *5 (E.D.N.Y. Sept. 12, 2011) (noting that disclosure
of non-privileged material cannot waive attorney-client privilege). Here, the EEOC has made no
argument that the documents the University has produced reflecting communications with its
Office of General Counsel are privileged; indeed, it has asserted that they are not. ECF No. 64 at
9 n.4. The Court agrees, as its review of the communications the EEOC has submitted (under seal)
to support its claim that the University waived privilege by selectively disclosing protected
documents finds that none is covered by attorney-client privilege. See, e.g., ECF No. 64-1 at 2–7,
13–20, 25, 27–30, 32, 36–40, 53–57.
The question then becomes whether the University has placed privileged material at issue
by “assert[ing] reliance on an attorney’s advice as an element of a claim or defense.” In re Cnty.
of Erie, 546 F.3d at 228. Courts have rejected the notion that merely pleading a claim or
affirmative defense to which privileged communication might be relevant puts protected
information at issue such that it is discoverable. See, e.g., Trs. of Elec. Workers Local 26, 266
F.R.D. at 13 (“A mere indication of a claim or defense certainly is insufficient to place legal advice
at issue.” (quoting In re Cnty. of Erie, 546 F.3d at 229)). Rather, “[t]he key to a finding of implied
waiver [in these circumstances] . . . is some showing by the party arguing for a waiver that the
opposing party relies on the privileged communication as a claim or defense or as an element of a
33
claim or defense.” In re Cnty. of Erie, 546 F.3d at 228. The EEOC’s showing falls far short of
that standard.
The EEOC’s argument hinges on the University’s production in this litigation of its
position statement filed as a response to Ms. Williams’ charge of discrimination in administrative
proceedings before the EEOC. ECF No. 64 at 33 (“Position Statement”). As noted, that document
asserts that Mr. Aresco’s higher pay was justified in part because he “substantively work[ed]
on . . . legal issues” as part of his job. ECF No. 61-3 at 14. According to the EEOC, the
circumstances of the University’s production of that document necessitate that it will rely on
protected attorney-client communications to establish its defense. Specifically, the agency states
that the University produced the Position Statement in response to the EEOC’s Request for
Production No. 1, which the agency characterizes as “seeking documents that the University relies
on to support its claims and defenses.” ECF No. 64 at 15; ECF No. 61-6 at 3 (Request for
Production No. 1); ECF No. 61-7 at 3 (identifying the Bates range associated with the Position
Statement as responsive to Request for Production No. 1). The University later identified the
Position Statement as responsive to the EEOC’s Requests for Production seeking documents
(1) describing Mr. Aresco’s job duties, (2) describing Ms. Williams’ job duties, (3) relating to Mr.
Aresco’s hiring, and (4) relating to Mr. Aresco’s pay. ECF No. 64 at 15; ECF No. 61-29.
The EEOC has not explained how the production of the Position Statement—a non-
privileged document of seventeen pages that includes a single sentence mentioning “legal
issues”—could work a broad waiver of protection over the University’s attorney-client
communications involving Mr. Aresco and/or Ms. Williams, on the one hand, and the Office of
General Counsel, on the other. Even the fact that the University identified the Position Statement
as responsive to Request for Production No. 1—a request that does not, by the way, ask for
34
documents upon which the University will rely, but, rather, for documents catalogued in the
University’s initial disclosures (ECF No. 61-6 at 3) as material that the University “may use to
support its claims or defenses,” Fed. R. Civ. P. 26(a)(1)(A)—is, at most, a “mere indication of
a . . . defense” that “certainly is insufficient to place legal advice at issue.” Trs. of Elec. Workers
Local 26, 266 F.R.D. at 13; see also, e.g., Gardner v. Major Auto. Cos., No. 11 Civ. 1664, 2014
WL 1330961, at *5, 7 (E.D.N.Y. Mar. 31, 2014) (finding that deposition testimony “refer[ing] to
the fact of [a defendant’s] consultations with [an attorney] and reliance upon [the attorney’s]
counsel” did not establish that the defendant was relying on privileged communications to establish
a defense). That is a far cry from a situation in which a party will necessarily depend on privileged
information, such as a “legal malpractice action[ ],” a “suit[ ] by an attorney against a former client
for legal fees,” or a case “where advice of counsel is raised as a defense.” Feld v. Fireman’s Fund
Ins. Co., 292 F.R.D. 129, 139 (D.D.C. 2015). Indeed, the University has expressly disclaimed any
intention at this time to rely on privileged material to support its defenses. 15 ECF No. 57 at 4, 35;
ECF No. 58 at 26; see Gardner, 2014 WL 1330961, at *5–7 (relying on the defendant’s
representation that it did not intend to rely on privileged communications to find that the defendant
had not waived privilege). And, as the University points out, to the extent that Ms. Williams’ or
Mr. Aresco’s work with the Office of General Counsel becomes relevant, it can be proved and
challenged through testimony and non-privileged material. ECF No. 65 at 11.
15
The University has reserved its right to change course on that issue and recognized that, if it does so, it will waive
privilege over all communications reflecting Mr. Aresco’s and Ms. Williams’ communications with the University’s
Office of General Counsel. ECF No. 58 at 26; see also ECF No. 57 at 35. Nevertheless, “at the moment of this
writing,” Gardner, 2014 WL 1330961, at *7, the University does not intend to use privileged attorney-client material
to support its case. The EEOC’s suggestion that the University in November 2019 agreed to produce privileged emails
reflecting Mr. Aresco’s substantive work on legal issues (ECF No. 64 at 34) has been entirely undermined by the
University’s submissions, which make clear that it never offered to produce privileged material to the agency (ECF
No. 65 at 12 n.4; ECF No. 65-1, ¶¶ 6–7 (affirming that the University proposed to “produce non-privileged emails
reflecting Aresco’s work with the University’s Office of General Counsel”).
35
In short, there is no basis to conclude that the University will “advance a . . . defense that
relies on [privileged] materials that the [EEOC] needs to effectively contest or impeach the
[defense],” Motorola Sols., Inc. v. Hytera Commc’ns Corp., No. 17 C 1973, 2018 WL 1804350,
at *7 (N.D. Ill. Apr. 17, 2018), and nothing to justify a finding that the University has waived
privilege over communications between Mr. Aresco and/or Ms. Williams and the University’s
Office of General Counsel.
D. Remedy
The University seeks an order requiring that
(1) the EEOC immediately return or destroy the University’s privileged documents
and certify in writing that it has done so; (2) the EEOC be prohibited from using or
referring to the privileged documents in this case; (3) the EEOC submit sworn
answers to the questions in the University’s May 22 letter (regarding (a) all persons
who reviewed the documents; (b) how long the EEOC was in possession of the
documents; and (c) why the EEOC did not bring the documents to the University’s
attention); (4) the EEOC pay all fees and costs that the University has incurred or
will incur in connection with briefing and arguing this dispute; and (5) such other
relief as the Court deems just and proper for violation of the Federal Rules, its
Protective Order, and applicable ethics standards.
ECF No. 58 at 26–27. While some of that relief is justified, some is overkill.
Certainly, the EEOC must return or destroy all copies of the July 2016 Email Chain and
the July–September Email Chain. Rule 26(b)(5)(B) requires that. The Court will also order the
EEOC to certify that it has done so. The EEOC will also be ordered not to use or disclose the
information at issue. On the other hand, it is not clear why the University needs “sworn answers
to the questions in the University’s May 22 letter (regarding (a) all persons who reviewed the
documents; (b) how long the EEOC was in possession of the documents; and (c) why the EEOC
did not bring the documents to the University’s attention).” ECF No. 58 at 26. Ms. Peterson has
asserted in open court that (1) the EEOC received the documents in November 2019 and (2) she
was the only person who reviewed the documents after the University made its claim of privilege.
36
ECF No. 57 at 15, 30. Given the resolution of this dispute, it is not clear how the third question—
why the EEOC did not alert the University about them—would make a material difference.
The more difficult question is whether sanctions—in the form of attorney’s fees or non-
monetary relief—are justified on the facts of this case. Even where, as here, a sanction is not
authorized by statute or rule, 16 courts retain inherent powers “to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases,” including “the ability to fashion an
appropriate sanction for conduct that abuses the judicial process.” Peterson v. PNC Bank, No.
6:18-cv-84, 2019 WL 3037805, at *3 (M.D. Fla. July 11, 2019) (internal citation omitted) (quoting
Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962)) (citing Chambers v. NASCO, Inc., 501 U.S.
32, 44–45 (1991)). Many courts have held that a violation of Rule 26(b)(5)(B) can be the basis for
sanctions. See, e.g., Peterson, 2019 WL 3037805, at *4 (awarding attorney’s fees for a violation
of Rule 26(b)(5)(B)); Regions Bank v. Chi. Title Ins. Co., No. 10-80043-Civ, 2011 WL 13225145,
at *2 (S.D. Fla. July 8, 2011) (“The rule’s clarity favors sanctions. It does not contemplate an
attorney deciding whether the claim is valid. Nor does it take effect only if the documents are
privileged.”), aff’d, 2011 WL 13225147 (S.D. Fla. Nov. 7, 2011); Marshall v. McGill, No. CV 10-
1436, 2011 WL 13118589, at *3 (D. Ariz. June 8, 2011) (“Defendants obviously disputed
16
Rule 26(b) does not mention sanctions and reliance on Rule 37(b), which explicitly authorized imposition of
sanctions in the context of discovery, is inappropriate unless a court order has been violated. See Fed. R. Civ. P. 26(b);
Fed. R. Civ. P. 37(b); see also Batchelor v. Geico Cas. Co., No. 6:11-CV-1071, 2015 WL 12839175, at *2 (M.D. Fla.
Mar. 31, 2015) (rejecting the argument that Rule 37 authorizes sanctions for a violation of Rule 26(b)(5)(B)).
Although a violation of the Protective Order entered in this case might support an award of sanctions under Rule 37(b),
see, e.g., Trenado v. Cooper Tire & Rubber Co., 274 F.R.D. 598, 600 (S.D. Tex. 2011) (stating, “The court agrees
with the many other courts that have concluded that attorney’s fees and costs, as well as other appropriate sanctions,
may be awarded under Rule 37(b)(2) for a violation of a protective order,” and collecting cases), aff’d sub nom. Smith
& Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 489 (5th Cir. 2012) (“There is thus significant authority
in support of the imposition of Rule 37(b) sanctions for violation of Rule 26(c) protective orders.”); accord Schiller
v. City of New York, No. 04 Civ. 7921, 2007 WL 1623108, at *3 (S.D.N.Y. June 5, 2007) (collecting cases); but see
Lipscher v. LRP Publ’ns, Inc., 266 F.3d 1305, 1323 (11th Cir. 2001) (holding that violation of a protective order
entered under Rule 26(c) will not support an award of sanctions under Rule 37(b)), as noted above, the Court has not
addressed the question of whether the EEOC violated the Protective Order in light of the University’s concession that
the Protective Order “was not intended to cover the situation at issue here.” ECF No. 65 at 19.
37
Plaintiff’s claim that the document was privileged but that issue was for the court, not Defendants,
to resolve. Given the clear violation of Rule 26(b)(5)(B) . . . a sanction is warranted. The court
will, therefore, order Defendants’ counsel to pay the attorney’s fees incurred by Plaintiff in
presenting this issue to the court . . . .”). Moreover, just as ethical rules can provide guidance to a
court in determining whether Rule 26(b)(5)(B) has been violated, they can also inform a court’s
decision as to whether to use its inherent power to sanction. See, e.g., Shepherd v. ABC, 62 F.3d
1469, 1483 (D.C. Cir. 1995)
The Supreme Court has warned, however, that a court’s inherent powers “must be
exercised with restraint and discretion.” Chambers, 501 U.S. at 44. Thus, “a finding of bad faith
is required for sanctions under the court’s inherent powers.” United States v. Wallace, 964 F.2d
1214, 1219 (D.C. Cir. 1992). More specifically, “the exercise of such inherent authority [to
sanction a litigant] is, under the law of this Circuit, reserved for those instances where a party
establishes by clear and convincing evidence that a party committed sanctionable misconduct that
is tantamount to bad faith.” Tadayon v. Greyhound Lines, Inc., No. 10-Civ-1326, 2012 WL
2048257, at *4 (D.D.C. June 6, 2012). Here, there is not sufficient evidence of bad faith to justify
an award of sanctions. To be sure, Ms. Peterson’s imprudent review of the documents at issue
after the University had informed her of its claim of privilege violated her obligations under the
Rule 26(b)(5)(B). However, in similar situations—where the party who has violated the rule has
not disseminated or made use of the privileged information—courts have been loath to impose
sanctions. See, e.g., Carnahan v. Alpha Epsilon Pi Fraternity, Inc., No. 2:17-CV-00086, 2018
WL 5825310, at *3 (W.D. Wash. Nov. 7, 2018) (declining to impose sanctions under Rule
26(b)(5)(B) where the plaintiff reviewed privileged material “but [ ] did not specifically make use
of it”); Arnstein & Lehr LLP v. Etkin & Co., No. 15-CV-62703, 2016 WL 11501337, at *4 (S.D.
38
Fla. Nov. 23, 2016) (declining to impose sanctions under Rule 26(b)(5)(B) where the party who
violated the rule “had not disclosed the substance of the privileged communication”); cf. Regions
Bank, 2011 WL 13225147, at *6 (declining to impose sanctions even where counsel “violated
Rule 26(b)(5)(B) multiple times by his refusal to return the documents[ ] and his repeated use and
disclosure of the documents”).
The Court therefore declines to impose sanctions against Ms. Peterson or the EEOC at this
time. The EEOC is warned, however, to assiduously comply with the letter and spirit of the Federal
Rules of Civil Procedure and its ethical responsibilities, as further breaches of its duties under Rule
26(b)(5)(B) may well result in sanctions.
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant’s “Motion for an Order Requiring the EEOC to Return or
Destroy the University’s Privileged Documents” (ECF No. 58) is GRANTED IN PART and
DENIED IN PART. It is further
ORDERED that, within three days of the date of this Memorandum Opinion and Order,
the EEOC shall return or destroy the all copies in its possession, custody, or control of the
documents identified as EEOC0001110–EEOC001112 and EEOC0001075–EEOC001086 and
certify in writing to Defendant that it has done so. It is further
ORDERED that, within three days of the EEOC’s certification that it has returned or
destroyed all copies of the documents at issue, Defendant shall produce to the EEOC redacted
copies of the documents identified as EEOC0001110–EEOC001112 and EEOC0001075–
EEOC001086, withholding only the portions of those documents identified as privileged herein.
It is further
39
ORDERED that the EEOC is prohibited from using, referring to, or disseminating the
privileged portions of the documents identified as EEOC0001110–EEOC001112 and
EEOC0001075–EEOC001086.
Digitally signed by
SO ORDERED. G. Michael Harvey
Date: 2020.11.05
Date: November 5, 2020 13:18:57 -05'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
40
United States Equal Employment Opportunity Commission v. George Washington University
Combined Opinion