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Raba v. Suozzi

January 11, 2007


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge



The underlying facts of this First Amendment retaliation action are fully contained in my November 17, 2006 Report and Recommendation [DE 75], familiarity with which is assumed for purposes of this motion. On November 9, 2006, Plaintiffs moved by letter motion for an in camera review by the Court of 16 documents identified in Defendants' privilege log to determine whether these documents were properly withheld from Defendants' document production [DE 61]. Counsel for the Defendants filed their response on November 15, 2006 [DE 69] and supplemental briefing on this issue was subsequently filed by both parties [DE 82, 87, 107].

After carefully reviewing the 16 documents at issue, I find that although many of the documents fall within the traditional litigation privileges, not all of the information contained in theses documents is privileged. In light of the necessity for a ruling on this issue before the next scheduled deposition on January 12, 2007, I am setting forth below my individual ruling on each of these documents. Those documents which are entirely comprised of privileged information will remain confidential and shall not be disclosed to Plaintiffs.


The Federal Rules mandate the production of a privilege log when a party withholds information that is otherwise discoverable. Fed. R. Civ. P. 26(b)(5). The log must assert the privilege "expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Id. Fed. R. Civ. P. 26(b)(3) embodies the federal work product doctrine which provides qualified protection to "documents and tangible things ... prepared in anticipation of litigation or for trial" from discovery. United States v. New York Metropolitan Transportation Authority, No. 04-CV-4237, 2006 WL 3833120, at *1 (E.D.N.Y. 2006). Documents prepared in anticipation of litigation are those that, in light of the nature of the document and the factual situation in the particular case ... can fairly be said to have been prepared or obtained because of the prospect of litigation." United States v. Aldman, 134 F.3d 1194, 1202 (2d Cir. 1998).

The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance. United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996). The rationale underlying the privilege is to encourage attorneys and their clients to communicate fully and frankly to promote "broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). A party invoking the attorney-client privilege must show "(1) a communication between a client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice." Constr. Prod. Research, Inc., 73 F.3d at 473. The burden of establishing the applicability of the attorney-client privilege and the attorney work product doctrine lies with the party invoking it. In re County of Erie, No. 06-2459, 2007 WL 12024, at *3 (2d Cir. Jan. 3, 2007); In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000); United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 119 F.3d 210, 214 (2d Cir. 1997); Constr. Prod. Research, Inc., 73 F.3d at 473.


On January 3, 2007, in the midst of my in camera review of the 16 logged documents at issue here, the Second Circuit issued its opinion, In re County of Erie, No. 06-2459, 2007 WL 12024, at *5 n.8 (2d Cir. Jan. 3, 2007), which contains relevant guidance on some of the privilege issues raised in this motion. In Erie, the Second Circuit addressed for the first time whether "the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light." Id. at *2.

As the court observed

[t]he issue of first impression here concerns policy advice rendered by a government lawyer and the distinction between (on the one hand) attorney-client privileged recommendations designed to achieve compliance with the law or reduce legal risk, and (on the other) recommendations made for other reasons, which advice may not be privileged.

In re County of Erie, 2007 WL 12024, at *2.

The factual circumstances giving rise to the privilege issues asserted in Erie are distinguishable from those in the instant case. In Erie, Plaintiffs commenced a suit under 42 U.S.C. § 1983 alleging that, pursuant to a written policy of the Erie County Sheriff's Office which was promulgated by County officials, every detainee who entered the County's holding center or correctional facility was "subject to an invasive strip search, without regard to individualized suspicion or the offense alleged," in violation of the Fourth Amendment. Id. at *1. During discovery, the County withheld certain documents pursuant to an assertion of attorney-client privilege and produced a privilege log. Id. When Plaintiffs moved to compel the logged documents, most of which were e-mails, the magistrate judge reviewed the documents in camera, after which he ordered production of ten e-mails, finding that "no legal advice is rendered apart from policy recommendations." Id. When the district judge overruled the County's objections, the County filed a petition for a writ of mandamus to the Second Circuit. Id.

Ultimately, the Second Circuit determined in Erie that the "predominant purpose" rule was the correct one to analyze and determine the scope of the attorney-client privilege in this context. Id. at *5 n.7 (citing In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998)); In re Grand Jury Subpoena, 204 F.3d 516, 520 n.1 (4th Cir. 2000). The Court went on to note that the predominant purpose of a communication cannot be ascertained by quantification or classification of one passage or another; it should be assessed dynamically and in light of the advice being sought or rendered, as well ...

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