The opinion of the court was delivered by: John T. Curtin United States District Judge
In accordance with the January 3, 2007, decision of the United States Court of Appeals for the Second Circuit, see In re County of Erie, 473 F.3d 413 (2d Cir. 2007), this court directed briefing and argument to determine whether a waiver of the attorney-client privilege had occurred with respect to e-mail communications between an Assistant Erie County Attorney and employees of the Erie County Sheriff's Department. Oral argument was heard on May 14, 2007. The following is the court's ruling on this issue.
This action was commenced in July 2004 by plaintiffs Adam Pritchard, Edward Robinson, and Julenne Tucker seeking relief pursuant to 42 U.S.C. § 1983, individually and on behalf of a class of others similarly situated. Plaintiffs allege that since at least 2001, the Sheriff's Department had implemented a policy to subject every detainee who entered the Erie County Holding Center ("ECHC") or the Erie County Correctional Facility ("ECCF") to an invasive strip search without regard to individualized suspicion or the severity of the offense alleged, in violation of the Fourth Amendment. Named as defendants are the County of Erie; Patrick Gallivan, former Erie County Sheriff; Timothy Howard, former Undersheriff (now Sheriff); Donald Livingston, Superintendent of the ECCF; Robert Huggins, former Deputy Superintendent; and H. McCarthy Gipson, former Superintendent of the ECHC.
The County, along with individual defendants Gallivan, Howard, Livingston, and Huggins (referred to herein as the "County Defendants") filed an answer, asserting generally that "no 'policy' of conducting a 'strip search' of each individual upon entry of its facilities, regardless of particular circumstances, exists or has been followed during any time period alleged in the Complaint" (Item 3, ¶ 6). The County Defendants also asserted several defenses, including the affirmative defense of qualified immunity (id. at ¶ 22). Defendant Gipson filed a separate answer, asserting an identical denial of the existence of a policy to conduct strip searches without regard to individualized suspicion or the offense alleged (see Item 4, ¶ 7) and an identical qualified immunity defense (id. at ¶ 39).
In response to plaintiffs' discovery demands, the County submitted a privilege log identifying many (approximately 70) e-mail communications between the County Attorney's office (primarily involving former Assistant County Attorney Kristin Baudo Machelor) and Sheriff's Department officials as to which the County claimed protection from disclosure by the attorney-client privilege and the attorney work product doctrine (see Item 25, Exs. M, N). When plaintiffs moved to compel production of the documents listed in the privilege log (see id., Attachment 1), the County submitted the disputed documents to Magistrate Judge Hugh B. Scott, to whom the matter had been referred for supervision of pretrial matters, for in camera inspection.
Upon review of the documents, Judge Scott issued an order dated January 4, 2006, in which he sustained the claim of privilege with respect to many of the items listed in the log as seeking or providing legal advice, or as attorney work product (see Item 78). However, Judge Scott ordered production of ten of the withheld e-mails (or "e-mail chains"), finding that the matters discussed in those communications went beyond the rendering of legal advice "into the realm of policy making and administration" and, as a result, the attorney-client privilege did not apply (id. at p. 4).
After considering the County's objections to this order, this court independently reviewed the disputed e-mails in camera and, applying the highly deferential standard of review provided in Fed. R. Civ. P. 72(a) and 28 U.S.C. § 636(b)(1)(A), found "no clear error of fact, misapplication of the law, or abuse of discretion that would warrant setting aside or modifying the magistrate judge's January 4, 2006 order in any way" (Item 106, p. 4). The court directed counsel to make arrangements for production of the disputed documents in accordance with Judge Scott's ruling.
Defendants then sought mandamus review by the Second Circuit, and in the meantime moved to stay the application of the order directing production of the disputed e-mails pending appellate court review. Both this court and a motions panel of the Second Circuit denied defendants' request for a stay pending appeal, resulting in the release of the ten disputed e-mail communications to the plaintiffs.
The Second Circuit subsequently took up the mandamus petition and granted the writ, finding that the petition raised the following issue of first impression: "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." In re County of Erie, 473 F.3d at 417. The circuit court answered this question in the affirmative, disagreeing with the magistrate judge's conclusion that the information discussed in the disputed e-mails went beyond legal analysis into the policymaking realm. The circuit court determined instead that the e-mails, "which (variously) reviewed the law concerning strip searches of detainees, assessed the County's current search policy, recommended alternative policies, and monitored the implementation of these policy changes," id. at 416, were sent "for the predominant purpose of soliciting or rendering legal advice." Id. at 422.
They convey to the public officials responsible for formulating, implementing and monitoring Erie County's corrections policies, a lawyer's assessment of Fourth Amendment requirements, and provide guidance in crafting and implementing alternative policies for compliance. This advice--particularly when viewed in the context in which it was solicited and rendered--does not constitute "general policy or political advice" unprotected by the privilege.
Id. at 422-23. Accordingly, the circuit court vacated this court's order affirming Judge Scott's ruling, and remanded the matter "to determine whether the distribution of some of the disputed e-mail communications to others within the Erie County Sheriff's Department constituted a waiver of the attorney-client privilege." Id. at 423 (citing In re Horowitz, 482 F.2d 72, 81-82 (2d Cir. 1973); United States v. DeFonte, 441 F.3d 92, 94-95 (2d Cir. 2006) (per curiam). The circuit court also directed this court to enter an interim order protecting the confidentiality of the disputed e-mails pending determination of the waiver issue.
On January 8, 2007, a telephone status conference was held with the court, during which counsel were directed to simultaneously submit memoranda of law outlining their preliminary positions on the waiver issue. That same day, in accordance with the Second Circuit's directive on remand, this court issued a written order aimed at protecting the confidentiality of the disputed communications pending determination of the waiver issue. The court also rescinded the referral of pretrial matters to Judge Scott (see Item 162).
Shortly after receiving the parties' simultaneous submissions on waiver, the court received a letter from plaintiff's counsel requesting leave to file a motion to compel the County to produce additional e-mail messages which have been identified during deposition testimony but have not been disclosed or listed in any privilege log. In an order dated February 22, 2007 (Item 183), the court denied this request without prejudice to renew pending resolution of the waiver issue. The court also directed supplemental briefing on this issue and scheduled oral argument.*fn1
Upon consideration of the matters addressed by the parties in their written and oral submissions, and for the reasons discussed below, the court finds that defendants have adequately demonstrated that they have protected the confidentiality of the ten disputed e-mail communications at issue by limiting their distribution to Sheriff's Department employees who had a need to know the information contained therein, and ...