The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
Disabled plaintiffs (collectively, "Alleyne") allege that the New York State Education Department and its officials (collectively, "Education Department") have violated their statutory rights under the Individuals with Disability Education and Rehabilitation Acts, and violated their federal and state constitutional rights to due process and equal protection. See Fifth Amended Complaint, dkt. no. 126.; see also 20 U.S.C. § 1400(d)(1)(A) (Individuals with Disability Education Act ("IDEA")) and 29 U.S.C. § 701 et. seq. (Rehabilitation Act). Central to the litigation is whether the Education Department's newly enacted aversive regulations violate Alleyne's rights, and the extent to which federal courts are authorized to intercede in the dispute.*fn1
During discovery, the Education Department withheld documents on the basis of four privileges: attorney-client; work-product; deliberative process; and executive. See 11/29/07 Minute Entry; Revised Privilege Log, dkt. no. 163; Supplemental Privilege Log, dkt. no. 164. The court construed the parties' dispute as an application by the defendants for a protective order, see FED. R. CIV. P. 26(c)(1), and ordered submission of the documents for in camera review.
For the reasons that follow, the court concludes that the defendants have failed to satisfy their burden of establishing each element of each privilege asserted. As to all documents withheld exclusively on the basis of the deliberative process and executive privileges, the court orders immediate disclosure. As to documents withheld on the basis of the attorney-client or work-product privileges, the court stays the issuance of a disclosure order pending receipt of further evidentiary submissions. Those submissions must provide sufficient detail for the court to evaluate each element of each privilege as to each document. As to assertions of work-product privilege, the submissions must provide a basis to assess whether the documents constitute core work-product.
A. Governing Law and Burden of Proof
Federal privilege law controls when a complaint asserts both federal and state claims. See Ehrich v. Binghamton City Sch. Dist., 210 F.R.D. 17, 21 (N.D.N.Y. 2002) (citations omitted).
The burden of establishing each privilege element rests with the party invoking the privilege. See, e.g., In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (citations omitted) (attorney-client).
B. Privilege Log and Foundational Requirements
The federal rules create a process for resolving discovery disputes involving privilege. See FED. R. CIV. P. 26(b)(5). Consistent with the burden of proof, the party asserting privilege must expressly state the basis for its claim and describe the non-disclosed documents, communications or things in a manner that will allow its adversaries to assess the claim. See FED. R. CIV. P. 26(b)(5)(A)(i-ii). The rules provide for alternative dispute resolution procedures, including: (1) an initial discovery order incorporating the parties' consent to a reasonable procedure for disseminating information and preserving claims for litigation, see FED. R. CIV. P. §§ 16, 26(f)(3)(d); (2) a motion for a protective order by the resisting party following a good faith effort to resolve the dispute without court intervention, see FED. R. CIV. P. 26(c)(1); and (3) a motion for a compulsion order by the requesting party following a good faith effort to resolve the dispute without court intervention, see FED. R. CIV. P. 37(a)(1-2).
Ultimately, the court may have to review sealed documents in camera in order to resolve disputes. See, e.g., FED. R. CIV. P. 26(b)(5)(B); see also In re John Doe Corp., 675 F.2d 482, 489-90 (2d Cir. 1982); In re United States, 565 F.2d 19, 23 (2d Cir. 1977) (courts have inherent authority to conduct in camera proceedings to determine privilege issues).
When conducting an in camera review, the court's task is nearly impossible absent a detailed privilege log and, if necessary, evidentiary submissions that fill in factual gaps. See United States v. Constr. Prod. Research, 73 F.3d 464, 473 (2d Cir. 1996). Whether through the log itself, or the log accompanied by evidentiary devices such as affidavits or depositions, the entire submission must be specific enough to permit the court to identify: (1) the document under consideration; (2) the maker; (3) the intended recipient; (4) each individual who received a copy; (5) the date of the document; (6) the purpose for which it was prepared; (7) the nature of the asserted privilege; and (8) sufficient facts to test the assertion of privilege. The failure to provide sufficient detail to test each legal element of an asserted privilege may result in rejection of the assertion. See id. at 473; see also Children First Found., Inc. v. Martinez, 1:04-CV-0927, 2007 WL 4344915, *4 (N.D.N.Y. Dec. 19, 2007) ...