G. MICHAEL HARVEY, Magistrate Judge.
Plaintiff Jerry Jones is an employee of the United States Department of Housing and Urban Development ("HUD") and was formerly the Director of Alternative Dispute Resolution ("ADR") in the Office of Departmental Equal Employment Opportunity ("ODEEO") at HUD. He brings this action under Title VII of the Civil Rights Act of 1964, as amended, claiming that HUD discriminated against him on the basis of his race (African-American), his gender, or the combination of his race and gender, by imposing a five-day suspension and reassigning him to a position outside his career field in 2012. [Dkt. 38 at 1; Dkt. 53 at 4].
On August 17, 2017, the undersigned was referred Plaintiff's pending Motion to Compel for resolution pursuant to Local Civil Rule 72.2(a).
The Court held a hearing on October 23, 2017, to address the parties' arguments. [Dkt. 72]. After a thorough review of record, including an in camera review of all of the withheld documents, the Court will grant in part and deny in part Plaintiff's Motion to Compel. [Dkt. 53].
According to the Complaint, Plaintiff began his service as the Director of HUD's ADR program in February 2005. [Dkt. 1, ¶ 18]. On June 10 or 11, 2010, a HUD employee ("D.B.") informed Michelle Cottom, then the deputy director of the ODEEO at HUD, that Plaintiff had sexually assaulted her in July 2009, prior to the time that D.B. joined HUD. Id. ¶¶ 39, 42. Plaintiff denies that allegation. Id. ¶ 42.
On June 16, 2010, Ms. Cottom placed Plaintiff on paid administrative leave prior to giving him notice of the charges against him. Id. ¶ 50. He was immediately escorted out of the HUD facility. Id. He was initially placed on paid administrative leave for a period of two weeks, and at that time, Ms. Cottom and/or other senior management officials asked HUD's Office of Inspector General ("OIG") to investigate him. Id. ¶ 51. While the investigation was ongoing, the agency renewed Plaintiff's paid administrative leave periodically through January 24, 2012, for a period of twenty months total. Id. ¶¶ 51-52.
In a written notice dated January 6, 2011, Ms. Cottom proposed to terminate Plaintiff's employment with HUD. Id. ¶ 55. The notice charged Plaintiff with several instances of misconduct but did not include the allegation of sexual assault. Id. ¶¶ 55-56. It did include claims that Plaintiff had harassed or acted inappropriately towards four other women and that he lacked candor by denying those allegations to OIG. Id. ¶¶ 63, 68. HUD also engaged in disciplinary proceedings against D.B., proposing her termination and ultimate removal in 2011. [Dkt. 73-2].
At a meeting on March 29, 2011, Plaintiff replied to HUD's charges orally for the first time. [Dkt. 1, ¶ 67]. The meeting was attended by Daniel Lurie, the Deciding Official
HUD issued Ms. Hoban-Moore's decision on the Notice of Proposed Removal on January 24, 2012. Id. ¶ 82. It rejected Plaintiff's removal from the agency and instead suspended him for five days. Id. Ms. Hoban-Moore dismissed five of the seven charges against Plaintiff and sustained two of the charges. Id. ¶¶ 83-84. She also reassigned Plaintiff from his former position as Director of the ODEEO ADR program into a non-supervisory position in a separate HUD division. Id. ¶ 86. Plaintiff alleges that the reassignment into a position outside of his career field with fewer and less important responsibilities and fewer opportunities for advancement was a result of race and/or gender discrimination. Id. ¶ 89; [Dkt. 53 at 4].
Following this Court's decision on Defendant's motion for judgment on the pleadings, the only claims remaining are those challenging as discriminatory Plaintiff's five-day suspension and subsequent reassignment. [Dkt. 21 at 26; Dkt. 38 at 1]. Discovery on those claims began in October 2016 and closed on July 20, 2017. [Dkt. 42]; Minute Order dated July 12, 2017. On July 11, 2017, Plaintiff filed the instant motion seeking to compel HUD's production of a more detailed privilege log and copies of all items identified in the log. [Dkt. 53]. The primary focus of Plaintiff's motion is its request for the production of drafts of the documents proposing his removal from HUD, as well as documents proposing removal or other adverse action as to three other HUD employees, D.B., D.T., and S.C. Id. at 15. In response to Plaintiff's motion to compel, HUD revised its initial privilege log twice and requested in camera review of the materials it continues to withhold as protected under either the work-product doctrine or the attorney-client privilege. [Dkt. 62 at 4; Dkt. 62-1; Dkt. 73-1]. The Court held a hearing on October 23, 2017, to address the parties' arguments on the motion. Thereafter, it ordered all the material identified in Defendant's revised privilege log be submitted for in camera review.
The work-product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3), which provides, in relevant part:
Fed. R. Civ. P. 26(b)(3)(A)-(B). The Supreme Court has observed that the work-product doctrine is "an intensely practical one, grounded in the realities of litigation in our adversary system." United States v. Nobles, 422 U.S. 225, 238 (1975).
Importantly, under Rule 26, the party asserting work-product protection must first show that the document in question was prepared "in anticipation of litigation." Fed. R. Civ. P. 26(b)(3)(A). In this Circuit, we apply the "because of" test, which asks "`whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" F.T.C. v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). "Where a document would have been created `in substantially similar form' regardless of the litigation, work product protection is not available." Id. (quoting Deloitte, 610 F.3d at 138). "For a document to meet this standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). "While litigation need not be imminent or certain," it must be "`fairly foreseeable at the time' the materials were prepared." Hertzberg v. Veneman, 273 F.Supp.2d 67, 75 (D.D.C. 2003) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)).
The attorney-client privilege is the oldest of the common law privileges. It exists to encourage "full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). It protects confidential communications between clients and their attorneys made for the purpose of securing or providing legal advice or services. See Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). The privilege applies only if:
In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984) (quoting United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358-59 (D. Mass. 1950)).
The fact that an attorney is counsel for a government agency does not dilute the attorney-client privilege. Where the requirements for it are met, this Court has held—and, indeed, Plaintiff concedes [Dkt. 72 at 11]—legal communications between government agency counsel and his or her government client are entitled to the protection of the attorney-client privilege (and work-product doctrine). General Elec. Co. v. Johnson, No. Civ. A 00-2855 (JDB), 2006 WL 2616187, at *14 (D.D.C. Sept. 12, 2006) (the "contention that government lawyers are categorically less entitled than private lawyers to invoke the attorney-client privilege as a basis for withholding information is without merit"); see also In re Sealed Case, 737 F.2d at 99 ("The lawyer whose testimony the government seeks in this case served as in-house attorney. That status alone does not dilute the privilege."). "In the government context, the holder of the privilege, or the `client,' is the agency or department." Gangi v. U.S. Postal Serv., 97 M.S.P.R. 165, 176 (M.S.P.B. 2004); see also Coastal States, 617 F.2d at 863 (an agency can be a "client" and agency lawyers can function as "attorneys" for purpose of the privilege). As such, the agency is "dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors." Cuban v. S.E.C., 744 F.Supp.2d 60, 78 (D.D.C. 2010), on reconsideration in part, 795 F.Supp.2d 43 (D.D.C. 2011).
Like many lawyers in the private sector who serve in multiple capacities, agency lawyers' communications are protected so long as they "relate to some legal strategy, or to the meaning, requirements, allowances, or prohibitions of the law." General Elec. Co., 2006 WL 2616187, at *15. To determine whether a communication was made for a legal as opposed to a business purpose, courts in this Circuit apply the "primary purpose test." This test asks whether "one of the significant purposes" of the communication was to obtain or give legal advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757-60 (D.C. Cir. 2014). In further defining the contours of this test in Kellogg, our Court of Appeals rejected a strict "but for" analysis under which a communication would not be deemed privileged if there was any purpose behind it other than seeking or providing legal advice. Id. at 759. As the D.C. Circuit instructed in Kellogg:
Id. Rather, the primary purpose test in this Circuit asks the question, "[w]as obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?" Id. at 760. As the Kellogg Court explained, this test:
Id. at 759.
Nevertheless, this Court and the D.C. Circuit have consistently emphasized that "attorney-client privilege must be `strictly confined within the narrowest possible limits consistent with the logic of its principle.'" In re Lindsey, 158 F.3d 1263, 1272 (D.C. Cir. 1998) (quoting In re Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982)). This privilege "carries costs," including the withholding of potentially critical evidence from the factfinder. Kellogg, 756 F.3d at 764. Courts tolerate the privilege only to the extent necessary "to encourage `full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (quoting Upjohn, 449 U.S. at 389); W. Trails, Inc. v. Camp Coast to Coast, Inc., 139 F.R.D. 4, 8 (D.D.C. 1991) ("The privilege is an exception . . . to the fundamental principle that discovery should be liberal and broad in furtherance of the search for truth.").
Plaintiff claims the privilege log is insufficient under the Federal Rules to allow him to assess the applicability of attorney-client privilege or work-product protection. [Dkt. 53 at 11; Dkt. 72 at 38]. Federal Rule of Civil Procedure 26(b)(5)(A)(ii) requires that when a party withholds otherwise discoverable information, the party must "describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." F.R.C.P. 26(b)(5)(A)(ii). As that rule recognizes, creating a privilege log is not a simple task. Proponents of the privilege must give enough information so that the party seeking production of the materials in question can assess the proper applicability of the privilege, but not say so much in the log that the privileged material is disclosed and protection potentially waived. In this Court, privilege logs generally should "state the basis upon which the privilege is claimed, state the subject matter, number of pages, author, date created, and the identity of all persons to whom the original or any copies of the document were shown or provided." Loftin v. Bande, 258 F.R.D. 31, 33 (D.D.C. 2009) (quoting Dir. of Office of Thrift Supervision v. Ernst & Young, 795 F.Supp. 7, 11-12 (D.D.C. 1992)).
Measured by these standards, the government's original privilege log, filed on May 25, 2017, was insufficient. [Dkt. 53-3]. For each of its 177 entries, it identified only the author and recipients of the document in question, and provided only very general descriptions of the basis for the privilege asserted such as "[p]roviding guidance on Jones case," "[p]rovides guidance re case," or "[d]iscussion between HUD counsel re case." Id. at 2-3. These descriptions are too brief to adequately "inform the requestor of the character of the information being withheld from him or her." Alexander v. F.B.I., 198 F.R.D. 306, 312 (D.D.C. 2000).
The government submitted a revised privilege log on July 25, 2017, together with its response to Plaintiff's motion to compel (the "revised log"). [Dkt. 62-1]. The revised log dropped claims of privilege as to approximately 50 items listed on the original privilege log, but added claims of work-product protection to approximately 95 items where the government had previously asserted only attorney-client privilege. [Dkt. 53-3; Dkt. 62-1]. Adding to the information contained in its initial log, the revised log provided for each item the subject header of the communications or emails being withheld and a more detailed description of the basis of the privilege asserted, e.g., "[e]mail from agency employee to counsel seeking legal advice re conditions of administrative leave for Jones," "[e]mail from counsel providing legal advice re responding to Plaintiff's counsel's request to extend administrative leave," or "[d]raft of notice of proposed removal for Jones prepared at direction of counsel and in reasonable anticipation of litigation." [Dkt. 62-1 at 3-5].
Plaintiff nevertheless maintained at the October 23, 2017, hearing that certain entries in the revised log remained insufficient, specifically items 37, 51-55, 58, 61-62, 65-68, 98-100, 119-122, and 127. [Dkt. 72 at 44-47, 102]. These included drafts of Notices of Proposed Removal, as well as drafts of the Decisions on Removal that were prepared by, and circulated among, non-attorney HUD-ELR employees involved in the decision-making process. Id. At the direction of the Court, Defendant filed a second revised privilege log on November 30, 2017 (the "second revised log") providing more detailed descriptions of the items on the revised log that Plaintiff challenged at the October 23, 2017 hearing. [Dkt. 72 at 102; Dkt. 73-1]. For example, item 37, which Defendant described in the revised log as a "[d]raft of notice of proposed removal for Jones prepared at direction of counsel and in reasonable anticipation of litigation," [Dkt. 62-1 at 5], is described in the second revised log as a "[d]raft of notice of proposed removal for Jones prepared at direction of counsel and in reasonable anticipation of litigation. The draft was also sent to [HUD's Office of General Counsel or "HUD-OGC"] the same day (tab 29) for legal review (See Harrison affidavit)." [Dkt. 73-1 at 6; Dkt. 73-5, ¶ 5]. Similarly, item 98 was previously described in the revised log as a "[d]raft of decision on proposal to remove Jones prepared at direction of counsel and in reasonable anticipation of litigation," [Dkt. 62-1 at 14], but is now described as "[d]raft of decision on proposal to remove Jones prepared at direction of counsel and in reasonable anticipation of litigation. Email states that Bratten forwarded the attached draft to HUD-OGC for legal sufficiency review. (See Bratten affidavit.)." [Dkt. 73-1 at 16; Dkt. 73-2, ¶ 14]. In both cases, the declarations submitted with Defendant's second revised log, referenced in these entries, provide further explanation and context for the assertions of privilege for the items challenged, including the Human Resources ("HR") Specialists' and HUD-OGC counsel's understanding of the process of legal sufficiency review of those documents.
The Court has reviewed each of the challenged entries on the second revised log, as well as Defendant's supplemental declarations, and together finds them sufficient under Rule 26(b)(5)(A)(ii). While it admonishes the government for not including in its original log the level of detail found in its second revised log and supplemental declarations, the Court finds that the deficiencies have now been cured. The descriptions in the second revised log and supplemental declarations are more than sufficient to "inform the requestor of the character of the information being withheld from him or her," Alexander, 198 F.R.D. at 312, and to permit the requestor a fair opportunity to formulate legal arguments for why the information should be disclosed—which Plaintiff has certainly had here.
Defendant invokes work-product protection for 120 documents listed on the second revised privilege log. [Dkt. 73-1]. Defendant claims only work-product protection for two of these documents—items 5 and 76 on the log. For all other documents on the log, Defendant asserts both work-product protection and attorney-client privilege.
Plaintiff contends that none of Defendant's claims of work-product protection are valid because the documents at issue were not prepared in anticipation of litigation. [Dkt. 74 at 7]. To make that showing, the D.C. Circuit instructed in Boehringer that the party asserting work-product protection must demonstrate that in light of the "nature of the document" at issue and "the factual situation of a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." 778 F.3d at 149 (emphasis added). Plaintiff asserts that many, if not all, of the documents at issue fail to satisfy this "because of" test because they would have been created regardless of the threat of impending litigation given that HUD's policies required that the documents related to Plaintiff's proposed adverse action be reviewed by agency counsel for legal sufficiency. Specifically, Plaintiff asserts that "the HUD Adverse Action Handbook required HR to forward the draft disciplinary action for Dr. Jones to HUD-OGC because he was at the GS-14 grade level." [Dkt. 74 at 8]. Accordingly, Plaintiff argues, since the documents "would have been created `in substantially similar form' regardless of the litigation, work production protection is not available." Boehringer, 778 F.3d at 149 (quoting Deloitte, 610 F.3d at 138).
That issue appears to be more complex than Plaintiff admits. Here, the Associate General Counsel for the Office of Ethics and Personnel Law in HUD-OGC has averred that the agency's Adverse Action Handbook requires legal sufficiency review for only some of the types of administrative actions at issue—namely, proposals to take adverse action, but not final decisions of proposed adverse action. [Dkt. 73-3, ¶ 3]. The Court need not resolve that factual issue, however, because Defendant's work-product claims fail for a more fundamental reason: the agency has not shown that any of the attorneys involved in the creation of the documents at issue believed at the time that litigation was a real possibility. In this Circuit, "[f]or a document to meet [the anticipation of litigation] standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." In re Sealed Case, 146 F.3d at 884 (emphasis added); accord Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice Exec. Office for United States Attorneys, 844 F.3d 246, 251 (D.C. Cir. 2016). It is the proponent's burden to make that showing. See Alexander, 192 F.R.D. at 46 ("[T]he burden of showing that the materials were prepared in anticipation of litigation is on the party asserting the privilege." (quoting Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 41 (S.D.N.Y. 1984))); United States v. KPMG LLP, 237 F.Supp.2d 35, 41 (D.D.C. 2002) (same); see also In re Veiga, 746 F.Supp.2d 27, 34 (D.D.C. 2010) ("Where the proponent fails to adduce sufficient facts to permit the court to conclude with reasonable certainty that the privilege applies, its burden is not met."). Here, the agency has failed to do so.
Indeed, Defendant's initial response to the motion to compel provided no declarations from the attorneys who actually created the documents at issue, leaving the Court with an insufficient basis on which to evaluate Defendant's bald assertion that the documents were created in anticipation of litigation. Cf. In re Sealed Case, 146 F.3d at 885-86 (counsel submitted uncontested affidavits demonstrating the factual basis for their belief that the documents in question were prepared in anticipation of litigation). Nevertheless, as has been permitted in this district, the Court provided the government with a chance to cure this deficiency. See, e.g., English v. Washington Metro. Area Transit Auth., 323 F.R.D. 1, 15 (D.D.C. 2017) (providing "a second opportunity to establish the applicability of the work product protection"); In re Veiga, 746 F. Supp. 2d at 40 n.15 (giving respondent multiple opportunities "to establish, with reasonable certainty, that the privileges against disclosure have been appropriately invoked"). However, despite the Court's instruction that Defendant submit declarations from the attorneys involved in the adverse actions at issue, it supplemented the record with only one. [Dkt. 72 at 71-72; Dkt. 73-3 (Decl. of Peter Constantine)]. And it makes no representation regarding the declarant's, or any other agency attorney's, subjective beliefs in the likelihood of litigation when the documents at issue were created. [Dkt. 73-3 (Decl. of Peter Constantine)]. If anything, Defendant's supplemental filings establish that the agency sought legal counsel from HUD-OGC not because litigation was reasonably anticipated, but as part of a "not unusual" HUD-ELR practice to ensure, in the words of one declarant, "that [HUD-ELR was] on the right track from a legal perspective." [Dkt. 73-2, ¶¶ 7, 14].
Accordingly, the Court finds that Defendant has failed to meet its burden with respect to establishing the work-product protection for any of the documents on the second revised privilege with the exception of six which were indisputably created by counsel during the pendency of actual litigation. Specifically, work-product protection is properly invoked as to item 105 on the second revised log, which is Defendant's draft response to discovery served in D.B.'s MSPB case, and to items 111-114, and 116, which are Defendant's responses to discovery served in an EEO administrative case. See McPeek v. Ashcroft, 202 F.R.D. 332, 339 (D.D.C. 2001) (finding that "a lawyer's work responding to a specific claim of [discrimination] filed with an agency EEO office" is created "in anticipation of litigation"); Willingham v. Ashcroft, 228 F.R.D. 1, 5 (D.D.C. 2005) (protecting documents created by counsel during EEO administrative proceedings).
While not upholding work-product protection for the remaining documents may be strong medicine, the government has had multiple chances to make the necessary showing. Even after being directed by the Court to do so, it did not. Defendant will not be permitted another opportunity to meet its burden. Cf. English, 323 F.R.D. at 15-16 (requiring production of all documents over which work-product protection was claimed where proponent did not present facts supporting application of the privilege but relied on "conclusory statements, generalized assertions, and unsworn affidavits of its counsel" (quoting United States v. ISS Marine Servs., Inc., 905 F.Supp.2d 121, 127 (D.D.C. 2012))); In re Veiga, 746 F. Supp. 2d at 40 n.15 (noting that proponent of work-product doctrine failed to carry burden of establishing protection despite being afforded multiple opportunities to do so); Zelaya v. UNICCO Serv. Co., 682 F.Supp.2d 28, 38 (D.D.C. 2010) (proponents' failure to provide sufficient information to sustain their burden of proof compelled disclosure of documents listed on privilege log).
Accordingly, the Court will order the production of the two documents on the second revised privilege log for which only the work-product protection is invoked as a basis for the withholding—items 5 and 76.
Unlike the work-product doctrine, the attorney-client privilege is not limited to material created in anticipation of litigation. Rather, the privilege encompasses "all situations in which an attorney's counsel is sought on a legal matter." Coastal States, 617 F.2d at 862. It applies not only to communications between lawyers and clients "when lawyers represent their clients in litigation," but also to such communications "when the lawyers act in a counseling and planning role." Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 607 (D. Nev. 2005). Thus, Defendant's failure to establish that the documents at issue were created in anticipation of litigation does not preclude the invocation of the attorney-client privilege to protect them from disclosure. On that point, at least, the parties agree.
Some areas of their disagreement, however, merit further discussion before addressing Defendant's specific claims of privilege. First, Plaintiff contends that the "organic facts" or "percipient facts"—terms he does not define—contained in documents that are otherwise attorney-client privileged must be "segregate[d] out" from the otherwise privileged material in the documents and produced. [Dkt. 53 at 18; Dkt. 65 at 13; Dkt. 72 at 9, 18-19]. Plaintiff is incorrect. While it is often said that the privilege protects "only attorney-client communications themselves, not the underlying facts," Fed. Trade Comm'n v. Boehringer Ingelheim Pharm., 180 F.Supp.3d 1, 16 (D.D.C. 2016) (citing Upjohn, 449 U.S. at 395-96), the concept is more nuanced than the way that phrase is sometimes interpreted. In fact, "the attorney-client privilege protects not only legal advice, but the confidentially conveyed facts upon which that advice is based." Pub. Emps. for Envtl. Responsibility v. U.S. Envtl. Prot. Agency, 211 F.Supp.3d 227, 233 (D.D.C. 2016). "Indeed, `[f]actual information provided by the client to the attorney is the essence of the privilege.'" Id. (alteration in original) (quoting Vento v. I.R.S., 714 F.Supp.2d 137, 151 (D.D.C. 2010). Thus, Plaintiff's repeated assertion that none of the facts in the documents he seeks came from an agency attorney misses the mark. [Dkt. 72 at 13; Dkt. 71-6 at 11]. What is protected by the privilege—indeed, what is the "essence of the privilege"—are the facts provided by the client to the attorney when he or she is seeking confidential legal advice.
To be sure, mere disclosure of facts from a client to his attorney does not make those facts "secret" or privileged going forward. But if facts are disclosed as part of a confidential attorney-client communication, then while those facts can be discovered independently, they may not be discovered through the communications that were made to the attorney. See, e.g., Pub. Emps. for Envtl. Responsibility, 211 F. Supp. 3d at 233; Willnerd v. Sybase, Inc., No. 1:09-CV-500-BLW, 2010 WL 5391270, at *3 (D. Idaho Dec. 22, 2010) ("Even if the privilege does not attach to the underlying fact, communications of that fact are privileged."). The best articulation of this fundamental (though sometimes misunderstood) distinction is found in Upjohn:
449 U.S. at 395-96 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (E.D. Pa 1962)).
Here, the government has asserted no "blanket privilege" over the facts. Defendant has provided Plaintiff the final adverse actions at issue, along with the full Report of Investigation from HUD's OIG of Plaintiff's conduct. [Dkt. 62 at 17]. Further, Plaintiff was free to question the agency employees whose communications are at issue concerning their understanding of the facts.
Second, Plaintiff also misconstrues a line from Fisher v. United States, 425 U.S. 391 (1976), wherein the Supreme Court stated that the attorney-client privilege "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Id. at 403. That sentence expresses the uncontroversial principles that the privilege's purpose is "to encourage clients to make full disclosure to their attorneys," id. at 403, and that not all communications between an attorney and client are protected, but only those seeking legal advice. See, e.g., Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992); In re Grand Jury Subpoenas, 803 F.2d 493, 496 (9th Cir. 1986), opinion corrected, 817 F.2d 64 (9th Cir. 1987); see also Ideal Elec. Co., 230 F.R.D. at 607. That is, the cited line from Fisher merely recognizes that the privilege encourages frank and free communication that might not otherwise have been made and thus allows clients to receive reliable legal advice so they can conform their conduct to legal requirements. See, e.g., New York Times Co. v. U.S. Dep't of Justice, ___ F. Supp. 3d ___, ___, 2017 WL 4772406, at *4 (D.D.C. 2017) ("Without a guarantee of confidentiality, executive branch agencies, like all legal clients, would hesitate to share private details about planned agency actions with [counsel] when seeking legal advice. And without such confidentiality, executive branch agencies might choose to forgo seeking legal advice altogether and thereby risk public disclosure of private, confidential details about their activities. This would undermine the public interests that buttress the attorney-client privilege, since executive agencies seeking out legal advice concerning their planned activities helps ensure their actions conform to the law and the Constitution." (internal citations omitted)).
Plaintiff contends that the line from Fisher stands for the proposition that "[f]acts that would have been disclosed regardless of whether an attorney was consulted are not privileged." [Dkt. 53 at 12]. Specifically in this case, he argues that the privilege should not apply to any facts related to his proposed removal because there is some evidence that the HR Specialist responsible for drafting the proposed adverse action would have communicated with the agency's OIG, Office of the Chief Human Capital Officer ("OCHCO") staff, and the Deputy Secretary "to exchange [those] facts" regardless of whether HUD-OGC was involved in that process. [Dkt. 71-6 at 11-12; Dkt. 53 at 4-5; Dkt. 65 at 4; Dkt. 72 at 13 ("Whether or not the General Counsel's Office was going to be involved, the program officials would be communicating with the HR Specialists going back and forth on what the facts were.")].
Plaintiff's point is not entirely clear. [Dkt. 72 at 11-16]. He may mean to suggest that the attorney-client privilege has no application here because "the facts" concerning Plaintiff's alleged improper conduct would have been communicated between agency representatives "regardless of the involvement of HUD attorneys" given that there was an ongoing agency disciplinary process which inevitably would have required communications concerning those facts. [Dkt. 65 at 4, 12; Dkt. 53 at 6-7, 11-15]. This is incorrect. Proper application of the attorney-client privilege does not require a court to consider such imaginary scenarios. In this case, as part of the disciplinary process on which Plaintiff's argument relies, agency representatives did in fact seek legal counsel multiple times concerning the proposed adverse actions at issue. [Dkt. 73-2; Dkt. 73-5]. It is these communications that must be evaluated to determine if the privilege is applicable, not the possibilities Plaintiff imagines.
Similarly unavailing is his contention that the operative text from Fisher would preclude the privilege's application here because of "the fact that the OGC review process was a routine and mandatory part of all removals and disciplinary actions against high-level employees at HUD." [Dkt. 65 at 12]. Fisher imposes no such prohibition. Again, it merely restates the black letter principle that it is only attorney-client communications concerning disclosures necessary to obtain legal advice that are protected by the privilege; it says nothing about, much less prohibits, routine or even mandatory legal reviews done pursuant to an agency's employee discipline policy.
Indeed, Plaintiff's reading of Fisher flies in the face of the D.C. Circuit's holding in Kellogg. There, the Court of Appeals further clarified the "primary purpose test" used to determine whether an attorney-client communication was made for a legal as opposed to a business purpose. 756 F.3d at 757-60. Importantly, the issue in Kellogg arose in the context of a corporate organization's internal investigation that was "conducted in order to comply with regulatory requirements and corporate policy and not just to obtain or provide legal advice." Id. at 760. The district court held, much like Plaintiff proposes here, that the attorney-client privilege did not apply because the proponent of the privilege had not shown that "the communication would not have been made `but for' the fact that legal advice was sought." Id. at 759 (quoting United States ex rel. Barko v. Halliburton, Co., 4 F.Supp.3d 162, 166 (D.D.C. 2014). Instead, the district court concluded that the internal investigation was "undertaken pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice." Id. (quoting United States ex rel. Barko v. Halliburton Co., 37 F.Supp.3d 1, 5 (D.D.C. 2014). The Court of Appeals rejected a strict "but for" analysis under which a communication would not be deemed privileged if there was any purpose behind it other than seeking or providing legal advice. Id. at 759. According to the D.C. Circuit, "[i]f one of the significant purposes of the internal investigation [is] to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy." Id. at 760.
So too here. The fact that the legal reviews performed in this case were made pursuant to employee disciplinary procedures that may have been required by HUD's Adverse Action Handbook, is not dispositive of the privilege's application. As long as one of the significant purposes of the communications at issue was the provision of legal advice or guidance, the agency will get the benefit of the privilege even with respect to its personnel decisions made consistent with an agency employee discipline policy. See, e.g., Gangi, 97 M.S.P.R. at 176-78 (agency request for agency counsel's "legal opinion about the sufficiency of the draft proposal notice" was privileged, and was "not [a] request[] [for the agency counsel's] business opinion about whether the appellant's reduction in grade was advisable"); see also United States ex rel. Fago v. M & T Mortgage. Corp., 238 F.R.D. 3, 11 (D.D.C. 2006), abrogated on other grounds by Schmidt v. Solis, 272 F.R.D. 1 (D.D.C. 2010) ("Although personnel decisions may generally be business decisions, that does not mean that M&T could not have sought and obtained legal advice about such decisions."); Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000), amended (Apr. 4, 2000) (counsel's advice about employee's job placement and "the City's obligations under the [Americans with Disabilities Act]. . . . is exactly the kind of legal advice the privilege was meant to protect").
Having cleared the decks of these preliminary issues, the Court next evaluates Defendant's invocation of attorney-client privilege with respect to each item listed in the second revised privilege log. The Court will address first the drafts of the various adverse personnel actions at issue, which is the primary focus of Plaintiff's motion. [Dkt. 53 at 15]. Then it will analyze Defendant's invocation of the attorney-client privilege with respect to other documents—mostly emails and email attachments—that do not include drafts of the adverse personnel actions at issue.
The primary focus of Plaintiff's motion is HUD's assertion of privilege over drafts of proposed adverse personnel actions concerning four employees, Plaintiff, D.B., D.T., and S.C. [Dkt. 72 at 102]. These draft documents are items 35-43, 51-58, 61-62, 65-70, 89-90, 98-100, 102-04, 115, 118, 119-122, and 127, on the second revised privilege log.
By way of background, for each adverse action at issue, HUD-ELR issued two final documents: (1) the Notice of propose adverse action, which informs the employee of the agency's intent to bring an adverse action against them as well as his or her proposed charges on which the adverse action is based, and (2) the Decision on proposed adverse action, which is the agency's final decision with respect to the action. For each adverse action there was a Proposing Official, who proposed the action, and a Deciding Official, who made the final decision. The Proposing Official for Plaintiff's adverse action was Michelle Cottom, Plaintiff's supervisor, and the final Deciding Official for Plaintiff was Patricia Hoban-Moore.
The agency's consideration of possible adverse personnel actions against Plaintiff and D.B. lasted approximately fourteen months between November 2010 and January 2012. [Dkt. 73-5, ¶ 4; Dkt. 73-1, Item 103]. During this time, there were two HUD-ELR HR Specialists who drafted the initial adverse action notices and decisions at issue; first, Margaret Harrison [Dkt. 73-5], and then upon her retirement, Michaela Bratten. [Dkt. 73-2, ¶ 3]. Barbara Eggleston was the HR Specialist for D.T.'s adverse action, and Anita Crews was the HR Specialist for S.C. [Dkt. 73-1, Items 115, 118]. Ms. Harrison, Ms. Bratten, Ms. Crews, and Ms. Eggleston's supervisors in HUD-ELR at various points during this period were Mark Zaltman, ELR Branch Chief; Holly Salamido, ELR Deputy Director; George Corsoro, ELR Director; James Reynolds, ELR Deputy Director and later Director; and Ruth Cook, ELR Deputy Director. [Dkt. 73-4]. The HUD-OGC attorneys who were consulted with respect to these adverse actions were Peter Constantine, Marsha Browne, Javes Myung, Cheryl Taylor, and Maxine Sharpe Wheatley. Id.
The government represents that it has produced in discovery all of the final adverse action notices and decisions at issue. It invokes the attorney-client privilege, however, with respect to drafts of these documents. For purposes of analysis, these documents are best divided into four categories: (1) communications between agency representatives and HUD-OGC attorneys requesting and/or receiving legal advice concerning the drafts of the adverse personnel actions at issue; (2) copies of drafts that Defendant claims were submitted to HUD-OGC for legal sufficiency review; (3) non-lawyer communications concerning the drafts made prior to any request for legal sufficiency review by HUD-OGC; and (4) non-lawyer communications concerning the drafts made after the provision of legal advice by HUD-OGC.
The most straightforward category of documents for purposes of privilege analysis are the communications from the HR Specialists to HUD-OGC attorneys seeking legal advice concerning the sufficiency of the draft adverse actions (which were attached to those communications), and HUD-OGC's responses thereto providing the legal advice requested. Items 39, 40, 42, 56, 69, 90 115, 122, and 127 fall into the former category; items 41, 43, 57, 70, 102-04, and 118 fall into the latter. [Dkt. 73-1]. Each of the legal sufficiency review memoranda, with one exception,
Confidential communications from agency representatives to agency counsel requesting legal sufficiency review of draft proposed adverse personnel actions, and agency counsel's responses thereto providing that advice or making further inquiries necessary to the provision of it, are plainly protected by the attorney-client privilege. See Pub. Employees for Envtl. Responsibility, 211 F. Supp. 3d at 230 ("The attorney-client privilege protects confidential communications from client to attorney, and from attorney to client."); Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 WL 1714914, at *5 (W.D.N.Y. May 15, 2012) (noting that an email from the client, a human resources director, to her outside counsel seeking legal advice is protected by attorney-client privilege). Here, the advice requested and provided was plainly legal in nature and not for a business purpose. According to the HUD-OGC counsel primarily responsible for reviewing the draft adverse personnel actions at issue, "legal sufficiency review" in this context consists of "an analysis of the charged misconduct based on the record to determine (1) if the legal elements are met, which includes a review of applicable law; (2) if the charge is appropriate; and (3) whether the penalty is reasonable under the Douglas factors
As an alternate basis for the withholding of all but two of these drafts, a side-by-side comparison of the preliminary drafts included in items 39, 40-43, 56-57, 69-70, 102-04, 118, 122, and 127 with the final versions of the adverse personnel actions at issue—all of which the government represents were produced in discovery—would likely reveal the legal advice of HUD's counsel.
Moreover, having reviewed each document, the Court finds that the agency's communications with counsel were not made for the purposes of committing a crime or a tort, and that Defendant has not waived the privilege as to these communications. The Court also finds that these agency communications with counsel were made and maintained in confidence, as each email, with two exceptions, reflects communications directly between HUD-OGC and the HUD employees who had specific authority for drafting the adverse personnel actions at issue, including the HR Specialist and her supervisors.
Two documents—items 122 and 127—require some further discussion. Item 122 is a December 15, 2010 email between two non-attorneys, HR Specialist Harrison and one of her supervisors, Mark Zaltman, who was the ELR Branch Chief. [Dkt. 73-1, Item 122]. In the email, Ms. Harrison forwarded to Mr. Zaltman a December 11, 2010 email that another supervisor had sent to HUD-OGC requesting legal advice concerning a draft of Plaintiff's Notice of Proposal to Remove, i.e., item 42. Id. Similarly, item 127 is a February 24, 2011 email from HR Specialist Harrison to Jerry Holloway, the Proposing Official for D.B's adverse personnel action. [Dkt. 73-1, Item 127]. The email attaches a draft of D.B.'s Notice of Proposed Removal which two days earlier, Ms. Harrison had submitted to HUD-OGC for legal sufficiency review, i.e., item 56. Id., Item 56. The question then arises whether the HR Specialist's forwarding to her supervisor and the Proposing Official drafts previously submitted to HUD-OGC for legal sufficiency review vitiated the privilege with respect to those drafts.
It did not. In this Circuit, circulation of an otherwise privileged communication between corporate employees will not waive the privilege provided the "the documents were distributed on a `need to know' basis or to employees that were `authorized to speak or act' for the company."
Id. at 148. This same principle is applicable to the circulation of privileged material within government agencies. See Alexander, 186 F.R.D. at 162; see also Mead Data Cent. v. U.S. Dep't of Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977). Here, the government has met this burden with respect to items 122 and 127 as both reflect limited dissemination of the privileged drafts only to the HR Specialist's supervisor or to the Proposing Official responsible issuing the proposed adverse personnel action at issue. See Pub. Employees for Envtl. Responsibility, 211 F. Supp. 3d at 233 n.3 (dissemination of confidential information within employee's "chain of command" does not waive the privilege). Accordingly, the Court finds that the privilege was not waived as to either document.
Accordingly, Defendant's invocation of attorney-client privilege is upheld as to items 39, 40-43, 56-57, 69-70, 90, 102-04, 115, 118, 122, and 127.
The next category consists of drafts of the adverse personnel actions at issue that Defendant contends were sent to HUD-OGC for legal sufficiency review, although there are no transmittal memoranda to HUD-OGC clearly indicating that transmission. Items 58, 61, 62, 89, 98-100, and 119 fall into this category. The Court finds that items 58, 61, 98-100, and 119 are protected by the privilege but that items 62 and 89 are not.
Again, "a draft is protected under the attorney-client privilege if the draft itself contains protected confidential communications from the client or the attorney." Loftin, 258 F.R.D. at 35; see also Se. Pa. Transit Auth., 254 F.R.D. at 258 (E.D. PA 2008). Consistent with that principle, Defendant argues that each of the "stand alone" drafts in this category are duplicates of the "information" that agency representatives communicated confidentially to HUD-OGC for purposes of legal review, and that comparison of the drafts to the final versions of the adverse actions—produced to Plaintiff in discovery—would effectively disclose the legal advice provided by HUD-OGC with respect to the drafts. The Court finds the legal principles on which Defendant's argument is based are sound. See Sec. & Exch. Comm'n v. Texas Int'l Airlines, Inc., 29 Fed. R. Serv. 2d 408, 408, 1979 WL 184774, at *1 (D.D.C. 1979) ("[W]hen a client sends a draft to an attorney for review, his intention is to make public only such information as appears appropriate for publication in the context of and according to the lawyer's advice."); Loftin, 258 F.R.D. at 35 ("[A] draft is protected under the attorney-client privilege if the draft itself contains protected confidential communications from the client or the attorney."). The question is whether the government has in fact proven that the drafts at issue are the same as the versions sent to HUD-OGC for legal sufficiency review and whether their later dissemination outside of HUD-OGC undermined the confidentiality required for invocation of the privilege. See Brinton v. Dep't of State, 636 F.2d 600, 603 (D.C. Cir. 1980), cert denied, 452 U.S. 905 (1981).
Turning to the documents, items 98-100 are drafts of Plaintiff's Decision on Proposal to Remove and are identical to one another. [Dkt. 73-1, Items 98-100]. HR Specialist Bratten avers that these documents are copies of the version of the draft that she sent to HUD-OGC for legal sufficiency review on December 23, 2011. [Dkt. 73-2, ¶ 14]. She is able to so identify item 100 because it reflects her handwriting in the top corner which states "at OGC 12/23/11." Id. She also avers that she sent an identical copy of the draft to her supervisor (item 98) and to the Deciding Official (item 99) on that same date. Id. In fact, Ms. Bratten's emails to her supervisor and the Deciding Official state that she had sent the attached drafts (items 98 and 99) to HUD-OGC for legal sufficiency review. [Dkt. 73-1, Items 98, 99]. The Court finds this contemporaneous evidence sufficient to prove that items 98-100 are copies of the version of Plaintiff's Decision on Proposal to Remove that was sent to HUD-OGC for legal review.
Similarly, item 61 is a draft of the Notice of Proposed Removal for D.B. [Dkt. 73-1, Item 61]. Plaintiff asserts that it is the same draft submitted to HUD-OGC for legal review by Ms. Bratten on March 17, 2011, i.e., item 59 discussed above. The government has not submitted the draft that is referenced in Ms. Bratten's March 17, 2011 transmittal email, so no comparison between that draft and item 61 can be made. Read in context, Ms. Bratten's email is referring to an attached draft of D.B.'s Notice of Proposed Removal. In the email, Ms. Bratten asks the HUD-OGC counsel to whom the email is sent to "please take a look at the attached document— specifically the highlighted areas." [Dkt. 73-1, Item 59]. The "highlighted" section of the draft is then described in the email. Id. Item 61 is in fact a highlighted draft of D.B.'s Notice of Proposed Removal, and the highlights in the draft correspond to the description in the email. [Dkt. 73-1, Item 61]. Accordingly, the Court is satisfied that the item 61 is a copy of the draft of the Notice of Proposed Removal that was attached to item 59 and sent to HUD-OGC for legal review.
Establishing that items 58 and 119 are the same draft versions as those sent to HUD-OGC for legal review is more straightforward. Item 58 is a copy of a draft of D.B.'s Notice of Proposal to Remove. [Dkt. 73-1, Items 58]. Upon in camera review, item 58 is in fact identical to the draft sent to HUD-OGC on February 22, 2011 for which the government has provided the transmittal communication to HUD-OGC—i.e., item 56 discussed in the category above. [Dkt. 73-1, Items 56, 58]. Similarly, item 119 contains multiple draft versions of Plaintiff's Notice of Proposal to Remove which are identical to the drafts sent to HUD-OGC for legal sufficiency review on November 8 and November 9, 2010 for which the government has provided the transmittal communications to HUD-OGC, i.e., items 39 and 40 discussed above. [Dkt. 73-1, Items 39, 40, 119].
The Court also finds that all these documents were maintained in confidence as required to sustain the privilege. Here, both Ms. Bratten and Ms. Harrison have averred to the confidential treatment generally accorded such documents within HUD, which this Court has no reason to doubt with respect to items 58, 61, 98-100, or 119. [Dkt. 73-2, ¶ 15; Dkt. 73-5, ¶¶ 4-7]. It appears that item 61 was only sent to HUD-OGC. [Dkt. 73-1, Items 59, 61]. Review of the emails associated with items 98-100 shows that other than HUD-OGC the drafts were circulated only to the Deciding Official and Ms. Bratten's supervisor, individuals with specific authority with respect to the adverse personnel action at issue. [Dkt. 73-1, Items 98-100]. Similarly, the copies of the drafts included in item 119 were circulated only to Ms. Harrison, her supervisor, and the Proposing Official. [Dkt. 73-1, Item 119].
As for the copy of the draft identified as item 58, Ms. Bratten claims it as her own; it does not appear to have been circulated at all. [Dkt. 73-2, ¶ 5]. It exists because Ms. Bratten reviewed it to "familiarize [herself] with the issues in the case" when she took over as the HR Specialist responsible for D.B.'s personnel action in early March 2011 after the prior HR Specialist—Ms. Harrison—retired. [Dkt. 73-2, ¶¶ 3, 6]. Ms. Bratten is able to identify the draft as that document from a handwritten note that she placed on it "reflect[ing] information that [she] received from Mr. Holloway [the Proposing Official for D.B.'s adverse action] on March 16, 2011." [Dkt. 73-2, ¶ 6]. Accordingly, the Court finds that items 58, 61, 98-100, and 119 were maintained in confidence by the agency as required to sustain the privilege.
Having found that items 58, 61, 98-100, and 119 are copies of drafts that were communicated to HUD-OGC for purposes of obtaining legal advice, and that they were otherwise maintained in confidence by the agency, the Court consequently finds that each of these items is protected by the attorney-client privilege. Alternatively, the Court also finds, upon in camera review, that a comparison of the drafts that constitute items 58, 61, 98-100, and 119 with the final versions of the adverse personnel actions issued to the subject employee, would reveal changes made to the drafts based on the legal advice of HUD's counsel, thereby revealing that privileged advice. Thus, these documents are properly withheld under the attorney-client privilege for this reason as well. See Loftin, 258 F.R.D. at 35 ("[A] draft is protected under the attorney-client privilege if the draft itself contains protected confidential communications from the client or the attorney.").
Less successful is Defendant's showing with respect to items 62 and 89. Item 89 is a "stand alone" draft of D.T.'s Notice of Proposed Reduction in Grade without any transmittal memorandum, whether to HUD-OGC or anyone else. [Dkt. 73-1, Item 89]. None of Defendant's supplemental declarations address it (or, for that matter, any of the documents related to D.T.'s adverse personnel action). Defendant baldly asserts in the second revised privilege log that item 89 is a "[d]raft . . . subsequently conveyed to counsel . . . for legal advice." Id. As support for this statement Defendant cites to item 90 which is in fact the request for legal sufficiency review of D.T.'s Notice of Proposed Reduction in Grade sent to HUD-OGC on December 16, 2011. Id., Item 90. But item 89 is not the same draft as item 90. Defendant also relies on a handwritten note at the top of item 89 that reads "to OGC 12/ /11." Id., Item 89. Defendant does not indicate what the notation means or even who wrote it. The Court finds that this notation is too ambiguous to support a claim of privilege as to the document on which it was written. Accordingly, item 89 shall be produced to Plaintiff unredacted.
Defendant's showing with respect to 62 also fails. Item 62 is a "stand alone" draft of D.B's Notice Proposed Removal. [Dkt. 73-1, Item 62]. Defendant fails to show that it was submitted to HUD-OGC for purposes of legal review. Rather, Defendant contends in the second revised privilege log that item 62 is a draft that reflects edits directed by HUD-OGC counsel in a March 18, 2011 email, i.e., item 60. [Dkt. 73-1, Item 62]. But, as the Court finds below, those edits are merely typographical and do not reflect the provision of legal advice. Indeed, the HUD-OGC counsel who suggests the edits states in the March 18 email that her "comments do not affect the legal sufficiency of the proposal." Further, following in camera review, the Court can discern no substantive difference between item 62 and the final version of D.B's proposed removal—and certainly no changes that reflect the provision of legal advice. Indeed, perhaps the most significant difference between the final version of the notice of proposed removal and item 62 is the inclusion of a missing quotation mark. Accordingly, item 62 shall be produced to Plaintiff unredacted.
The next category concerns communications between non-lawyer agency representatives relating to the draft adverse personnel actions but made prior to requests for legal sufficiency review of the drafts by HUD-OGC. Items 35-38, 51-55, and 65-68 fall into this category.
Plaintiff challenges the invocation of the privilege for these drafts because they were sent among non-lawyer agency representatives. But the attorney-client privilege is more nuanced than Plaintiff suggests. It is well established that a "document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds." Boehringer, 180 F. Supp. 3d at 34 (D.D.C. 2016) (quoting Santrade, Ltd. v. General Electric Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993)); MGA Entm't, Inc. v. Nat'l Prod. Ltd., No. CV 10-07083 JAK SSX, 2012 WL 3150532, at *4 (C.D. Cal. Aug. 2, 2012). While "lack of any lawyer involvement in any particular communication [is] a factor tending to weigh against [a party] in showing the privileged nature of that communication," it "is not fatal to a claim of privilege." United States v. Davita, Inc., 301 F.R.D. 676, 681-82 (N.D. Ga. 2014), on reconsideration in part, No. 1:07-CV-2509-CAP-JSA, 2014 WL 11531065 (N.D. Ga. May 21, 2014).
In this vein, courts have held "that communications among non-lawyer corporate personnel are protected if the dominant intent is to prepare the information in order to get legal advice from the lawyer." In re New York Renu with Moistureloc Prod. Liab. Litig., No. CA 2:06-MN-77777-DCN, 2008 WL 2338552, at *10 (D.S.C. May 8, 2008); see also e.g., United States v. ChevronTexaco Corp., 241 F.Supp.2d 1065, 1077 (N.D. Cal. 2002) (holding "internal communications that reflect matters about which the client intends to seek legal advice are protected"); Havel v. Dentsu McGarry Bowen UK, Ltd., No. CIV.A. H-13-1291, 2015 WL 409837, at *3 (S.D. Tex. Jan. 29, 2015) (the "dominant intent" of three attorney-client privileged emails was "to prepare the information in order to get legal advice from the lawyer"); Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., No. 2:07-CV-1190, 2010 WL 5014483, at *2 (S.D. Ohio Dec. 3, 2010) ("the key question" in such cases is whether the "dominant intent is to prepare the information in order to get legal advice from the lawyer"); AT&T Corp. v. Microsoft Corp., No. 02-0164, 2003 WL 21212614, at *3 (N.D. Cal. Apr. 18, 2003) ("Communications containing information compiled by corporate employees for the purpose of seeking legal advice and later communicated to counsel are protected by attorney-client privilege."). The rationale for protecting this type of non-lawyer communications is straightforward:
ChevronTexaco Corp., 241 F. Supp. 2d at 1077.
In Havel, for example, the district court upheld the privilege with respect to three e-mails communicated between non-attorneys that expressly mentioned seeking legal counsel, noting that the "dominant intent" of the communications was to obtain legal advice. 2015 WL 409837, at *3. Similarly, in AT&T Corp. the court upheld the attorney-client privilege as to emails among corporate employees containing analysis and discussion of AT&T's patents, matters upon which the employees intended to, and did in fact, seek legal advice. 2003 WL 21212614, at *1, *3. Because the emails contained "[c]ommunications between non-lawyer employees about matters which the parties intend to seek legal advice" and "were never produced to anyone outside of [the company], except for outside counsel," the court held they were protected by the attorney-client privilege.
This principle is consistent with this District's treatment of drafts with respect to privilege. In Sec. & Exch. Comm'n v. Texas Int'l Airlines, Inc., this Court held that "when a client sends a draft to an attorney for review, his intention is to make public only such information as appears appropriate for publication in the context of and according to the lawyer's advice." 29 Fed. R. Serv. 2d at 408, 1979 WL 184774, at *1; see also Alexander, 198 F.R.D. at 312 ("Drafts of documents that are prepared with the assistance of counsel for release to a third party are protected under attorney-client privilege.").
The same reasoning and principles should apply in the context of a government agency. "Agencies, like corporations, can act only through their agents or representatives," Gangi, 97 M.S.P.R. at 177, and those agency representatives should receive protection under the privilege commensurate to that allowed their private counterparts. If an agency "is dealing with its attorneys as would any private party seeking advice to protect personal interests, [then it] needs the same assurance of confidentiality so [that] it will not be deterred from full and frank communications with its counselors.'" General Elec. Co., 2006 WL 2616187, at *15 (alterations in original) (quoting In re Lindsey, 158 F.3d at 1269).
Applying these principles here, the Court finds that the communications between non-lawyer agency representatives exchanging the draft adverse personnel actions at issue are protected by the attorney-client privilege. The record reveals that the agency representatives involved with these communications intended that the drafts would be submitted to HUD-OGC for legal sufficiency review prior to transmitting the notices or decisions to the subject employee. Indeed, HUD's Adverse Action Handbook required that a notice of proposed removal from federal service be reviewed for legal sufficiency by HUD-OGC prior to issuing the notice to the subject employee. [Dkt. 73-3, ¶ 3]. HUD-ELR adhered to that requirement with respect to both D.B.'s and Plaintiff's notices.
Items 51-55, for example, are emails sent among non-lawyer HUD employees attaching drafts of D.B.'s Notice of Proposed Removal. The HR Specialist, Ms. Harrison, expressly stated in the emails attaching the drafts that she would submit the final draft for legal sufficiency review after she had incorporated any changes from her supervisors and the Proposing Official, who were sent the emails. Specifically, Ms. Harrison emailed her initial draft of the proposed removal to her HUD-ELR supervisors for review and comment on February 7, 2011. [Dkt. 73-1, Item 51]. In the unredacted email accompanying this draft, Ms. Harrison noted that her next step was to send it to the Proposing Official for review and then to HUD-OGC for legal sufficiency review. Id. On February 9, 2011, she sent the draft to the Proposing Official for review, noting again that she intended to send it to HUD-OGC for legal sufficiency review. Id., Item 52. The Proposing Official approved the draft on February 14, and Ms. Harrison again asked her HUD-ELR supervisors if she could send the draft to HUD-OGC for legal sufficiency review. Id., Item 53. Then, based on revisions requested from the HUD-ELR Director—which are outlined in the unredacted email— Ms. Harrison made further changes to the draft and submitted it on February 15 to her supervisors for approval to send to HUD-OGC. Id., Item 54. On February 22, she sent her supervisors another email requesting their approval to send the draft to HUD-OGC. Id., Item 55. She sent an identical draft of D.B.'s Notice of Proposed Removal to HUD-OGC later that day. Id., Item 56.
Similarly, items 35-38 are emails among non-lawyer HUD employees that attach drafts of Plaintiff's Notice of Proposed Removal. Id., Items 35-38. The emails again clearly articulate the intent of the agency to submit the draft to HUD-OGC prior to issuing it to Plaintiff. In a November 2, 2010 email for instance, Ms. Harrison stated that once "management" had decided on the penalty and the specifications to include in the notice, that she would "forward the draft to OGC for legal sufficiency review (consistent with the Handbook 752.2, since this is an employee GS-14 or above)." Id., Item 35. Six days later, on November 8, Ms. Harrison sent a revised draft of the notice to her supervisors, along with an email which again stated that she had received the "OK to send the draft removal proposal notice to OGC for legal sufficiency, which I'll do shortly," and that she would give it to the Proposing Official "at the same time, per [the Proposing Official's] wishes not to hold anything up." Id., Item 36. Three hours later she forward the draft to the Proposing Official, id., Item 37, on the same day that she submitted the draft to HUD-OGC for legal sufficiency review, id., Item 39. The Proposing Official then further revised the draft on November 8, id., Item 38, and one day later sent that revised version to HUD-OGC for legal review as well, id., Item 40.
Items 65-68 concern drafts of D.B.'s Decision on Proposal to Remove. Although not required by the HUD Adverse Action Handbook, HR Specialist, Ms. Bratten, avers in her declaration that it was her intent to seek legal sufficiency review of the draft prior to its dissemination to D.B. "to ensure [the agency] was on the right track from a legal perspective." [Dkt. 73-2, ¶ 7]. And, indeed, her contemporaneous September 29, 2011 email to the Deciding Official stated that she would be sending that attached draft to HUD-OGC for legal sufficiency review, following any changes made by the Deciding Official. Id., Item 68. Thereafter, Ms. Bratten incorporated edits and comments that she received from both the Deciding Official, and another experienced HR Specialist in HUD-ELR, and sent the revised version of the draft to HUD-OGC for legal sufficiency review on October 7, 2011. [Dkt. 73-2, ¶ 8; Dkt. 73-1, Items 66-67, 69]. After receiving legal guidance from HUD-OGC, Dkt. 73-1, Item 70, Ms. Bratten continued to revise the draft based on that advice, id., Item 65, and then sought further legal advice from HUD-OGC concerning the revised draft, id., Item 72. [Dkt. 73-2, ¶ 11].
Based on this record, the Court finds that items 35-38, 51-55, and 65-68 were drafted by agency representatives with the express intent that any draft would be sent to HUD-OGC for legal sufficiency review prior to being issued to the subject employee. The Court further finds that the drafts were maintained in confidence during the drafting process and that, in each case, a revised version of the draft was in fact submitted to HUD-OGC for legal sufficiency review. These drafts are therefore protected under the attorney-client privilege pursuant to the principles discussed above.
Alternatively, the Court also finds, upon in camera review, that a comparison of the drafts that constitute items 35-38, 51-55, and 65-68 with the final versions of the respective adverse personnel actions issued to the subject employee, would reveal changes made to drafts based on the advice of HUD's counsel, thereby revealing that privileged legal advice. These documents are thus properly withheld under the attorney-client privilege for this reason, as well. See Loftin, 258 F.R.D. at 35.
Further, the Court finds that the agency's communications with respect to items 35-38, 51-55, and 65-68 were made and maintained in confidence among agency representatives who had responsibility for the adverse personnel actions at issue, including the HR Specialists, their supervisors and/or experienced colleagues in HUD-ELR, and the Proposing and Deciding Officials. Id., Items 35-38, 51-55, 65-68; [Dkt. 73-3, ¶ 8 ("Given the sensitive nature of the personnel subjects at issue, it was the established practice of all involved with these client-OGC communications to limit discussion of these matters and circulation of related documentation and attorney work product to those who had a need to know."); Dkt. 73-2, ¶¶ 4, 6, 8-9, 11, 15; Dkt. 73-5, ¶¶ 4-9]. Indeed, the D.C. Circuit has permitted much wider circulation of otherwise privileged material than what occurred here. See GlaxoSmithKline, 294 F.3d at 148 (extending privilege to communications the client shared with its public relations and government affairs consultants).
Finally, the Court finds that the communications were not made for the purposes of committing a crime or a tort, and that Defendant has not waived the privilege as to them. Accordingly, the Court finds that attorney-client privilege applies to items 35-38, 51-55, and 65-68 on the second revised privilege log.
The next category is the converse of the prior one. It concerns communications between non-lawyer HUD employees made after HUD-OGC communicated its legal advice to the agency regarding the draft adverse personnel actions at issue. Items 120 and 121 are emails that fall into this category. Each attaches a draft that was revised by a HUD employee following the receipt of HUD-OGC's legal advice.
Like the documents in the prior category, Plaintiff challenges the invocation of the privilege for these drafts because the emails to which they were attached were exchanged among non-lawyers. But, again, a "document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds." Boehringer, 180 F. Supp. 3d at 34 (quoting Santrade, Ltd., 150 F.R.D. at 545). One example, discussed above, concerns non-lawyer client communications made in confidence and with the intent to seek legal advice. Another focuses on communications among non-lawyer client representatives following the receipt of legal advice. It permits "documents subject to the privilege [to] be transmitted between non-attorneys . . . so that the corporation may be properly informed of legal advice and act appropriately." SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005) (alteration in original) (quoting Santrade, Ltd., 150 F.R.D. at 545); see also Evans v. Atwood, 177 F.R.D. 1, 6 (D.D.C. 1997) ("[C]irculating truly confidential information among concerned officials does not defeat the privilege since all the recipients shared the attorney-client privilege with each other."); Nesse v. Pittman, 206 F.R.D. 325, 329 (D.D.C. 2002) (attaching privilege to non-attorney's notes summarizing information learned from attorney).
That was the case here with respect to items 120 and 121. Both are emails sent on December 1, 2010, one ten minutes after the other, by HR Specialist Harrison to her supervisor, Mark Zaltman. [Dkt. 73-1, Items 120, 121]. The emails attach a draft of a proposed disciplinary action against Plaintiff. The transmittal email—produced in discovery—states that Ms. Harrison had revised the attached draft to reflect legal guidance received from HUD-OGC on a prior draft, and indicated that she would shortly be sending Mr. Zaltman the legal sufficiency memorandum if he had not already received it. Id. Read in context, it is plain that Ms. Harrison was providing the revised draft to her supervisor to inform him of the legal advice that had been received from HUD-OGC and to seek his input on the revised draft. Id. These documents are thus fairly characterized as communications made with the intent to keep a responsible agency representative informed of legal advice so that he and the agency could benefit from the guidance and act appropriately. Further, the attached revised draft includes Ms. Harrison's written comments which expressly reflect the legal guidance received from HUD-OGC on an earlier draft. Id. The revised draft falls within the attorney-client privilege for this reason as well. See Loftin, 258 F.R.D. at 35 ("[A] draft is protected under the attorney-client privilege if the draft itself contains protected confidential communications from the client or the attorney.").
Further, the Court finds that the agency's communications with respect to items 120 and 121 were made and maintained in confidence as they were only between Ms. Harrison and her supervisor. [Dkt. 73-1, Items 120, 121]. Finally, the Court finds that the communications were not made for the purposes of committing a crime or a tort, and that Defendant has not waived the privilege as to them. Accordingly, the Court finds that attorney-client privilege applies to items 120 and 121 on the second revised privilege log.
Apart from the draft adverse action notices and decisions, Defendant invokes the attorney-client privilege with respect to eighty-five additional items, all of which are either emails or email attachments that Defendant has withheld in full or in part. [Dkt. 73-1]. Although they are not the focus of his motion, Plaintiff nominally challenges Defendant's assertions of privilege to these documents as well. Accordingly, the Court reviewed each of these items in camera.
Following that review, the Court finds that the withheld documents (or redactions to documents) are protected from disclosure under the attorney-client privilege, with the exception of items 5-8, 10-12, 20, 23, 25, 28-30, 32-33, 59-60, 63, 74, 78-80, 106-110 as further described in the chart below.
The Court's specific findings with respect to each of these documents are listed in the chart below.
For the reasons stated herein, the Court will
