The opinion of the court was delivered by: Marilyn D. GO United States Magistrate Judge
Plaintiffs are a class of disabled children who bring this action against defendants the New York City Board of Education, the New York City Department of Education ("DOE"), and Joel Klein, the Chancellor of the New York City School District, alleging violations of 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution, the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, et seq. Plaintiffs claim that under defendants' policies governing suspensions, plaintiffs and other disabled students are illegally excluded from school without notice of their right to a hearing and do not receive a free and appropriate public education.
Plaintiffs move to compel defendants to produce documents withheld under a claim that they are protected from disclosure by the attorney-client privilege and the attorney work-product doctrine or to submit the withheld documents for in camera review.
The documents in dispute concern two types of documents that the DOE claims were created in the course of consultation with counsel.
Questionnaires and Responses
In or about February 2006, attorneys in DOE's Office of Legal Services ("OLS") decided to obtain information concerning the operation of DOE's suspension sites in order to evaluate DOE's legal position in this action and to provide legal advice to the Chancellor and Michele Cahill, Senior Counselor of the Office of Youth Development and School-Community Services. See Declaration of Theresa Crotty dated March 15, 2007 ("Crotty Decl.") (ct. doc. 158) at ¶ 4. To obtain the information, OLS attorneys, in conjunction with attorneys at the Office of the Corporation Counsel, developed a questionnaire to be completed by DOE's Regional Directors of Student Placement, Youth and Family Support Services ("SPYFSS"). Id. at ¶ 5. On February 28, 2006, DOE General Counsel Michael Best sent a memorandum to the Regional Directors of SPYFSS advising that it was circulating the questionairre as part of DOE's defense in this litigation, that recipients were to treat the questionnaire as confidential and that any questions should be directed to Theresa Crotty, an OLS attorney. Id. at ¶¶ 6, 8-10. Ms. Crotty subsequently received a number of e-mails and letters from DOE employees transmitting completed questionnaires, containing questions from suspension sites to Regional personnel concerning the questionnaire, and reflecting a conversation between Ms. Crotty and a DOE employee about the questionnaire. See id. at ¶ 12; Declaration of Shawn V. Morehead dated March 5, 2007 ("Morehead Decl.") (ct. doc. 156-3), Exh. B (Letter to Shawn Morehead and Sharon Katz from Jane R. Goldberg dated February 6, 2007).*fn1 The OLS used the completed questionnaires "to inform [its] view of the DOE's legal position in this case and to provide legal advice to the Chancellor and Senior Counselor Michelle [sic] Cahill concerning the Superintendent suspension process." Crotty Decl. at ¶ 13.
Shane Mulhern, Executive Director of the DOE's Office of Youth Development and School-Community Services ("OYDSCS"), was later provided with a copy of the completed questionnaires at his request. See Declaration of Shane Santo Mulhern dated March 15, 2007 ("Mulhern Decl.") (ct. doc. 157) at ¶¶ 15-16. Mr. Mulhern believed that the information compiled by OLS would inform his department's decisions concerning policy, budget and planning decisions for Superintendent suspensions. Id. at ¶ 16. OYDSCS organized the information contained in the completed questionnaires into a document entitled "Suspension Scoring Sheet" and a bar chart. Id. at ¶¶ 17-19. A single set of these documents and a set of the completed questionnaires were maintained at OYDSCS's offices. Id. at ¶ 21.
At a conference held on March 29, 2007, I ordered defendants to submit a sample of the completed questionnaires for in camera review. See minute entry for conference held on 3/29/07. Tracking Suggestions
Mr. Mulhern initiated the Superintendent Suspension Process Improvement Project (the "Project") to review the suspension process generally and "to develop a data tracking program to monitor student progress through the suspension process." Mulhern Decl. at ¶¶ 4-5. In conjunction with the Project, a document entitled "Corporation Counsel - Suggestions for additional items to track" ("Tracking Suggestions") was prepared by Jocelyn Gibian, Director of the Office of Process Improvement, that discusses the New York City Law Department's recommendations "concerning additional items to consider including in the DOE's data tracking project" and a February 16, 2006 meeting between Ms. Crotty, Ms. Gibian and Aimee Dorosin, from DOE's Office of Special Education Initiatives. Id. at ¶ 9. This document was maintained in a dedicated folder on the DOE computer system and was accessible only to participants of the Project, who were drawn from various DOE departments. Id. at ¶¶ 6-8.
"A party invoking the attorney-client privilege must show (1) a communication between 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." In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007); United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996); see Fisher v. United States, 425 U.S. 391, 403 (1976). To be sure, the "privilege protects confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance."*fn2 In re County of Erie, 473 F.3d at 418. In order to merit protection, the "predominant purpose" of the communication must be to render or solicit legal advice as opposed to business or policy advice. See id. at 420. The burden of establishing the applicability of the privilege and all of its elements rests with the party claiming protection. See In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000); Constr. Prods., 73 F.3d at 473-74.
Federal Rule of Civil Procedure 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. Fed. R. Civ. P. 26(b)(3); see Hickman v. Taylor, 329 U.S. 495, 511 (1947); Constr. Prods., 73 F.3d at 473. 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. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). Thus, documents prepared in the ordinary course of business or that "would have been created in essentially similar form irrespective of the litigation" are not protected by the work-product doctrine. Id. The party asserting work-product protection bears the burden of establishing its applicability. See Constr. Prods., 73 F.3d at 473. If a party seeks disclosure of protected ...