United States District Court, E.D. New York
MEMORANDUM AND ORDER
M. SCANLON, UNITED STATES MAGISTRATE JUDGE.
the Court is the Parties' discovery dispute relating to
certain documents Defendant City of New York (the
“City”) and Defendant New York City Department of
Housing Preservation and Development
(“HPD”) (collectively “Defendants”)
have deemed protected under the attorney-client privilege or
the deliberative process privilege (“Disputed
Documents”). See Joint Letter, ECF No. 44.
Defendants have submitted the Disputed Documents to the Court
for in camera review and determinations of
privilege. The Court issues the following rulings regarding
the Disputed Documents. The Court assumes for the purposes of
this Memorandum and Order that the Parties are familiar with
the facts and procedural history of the case.
assert the attorney-client privilege as its reason for
withholding some of the Disputed Documents. This “is
the oldest of the privileges for confidential communications
known to the common law. Its purpose is 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, 389-90 (1981) (internal
citations omitted). “The lawyer-client privilege rests
on the need for the advocate and counselor to know all that
relates to the client's reasons for seeking
representation if the professional mission is to be carried
out.” Trammel v. United States, 445 U.S. 40,
51 (1980); see Fisher v. United States, 425 U.S.
391, 403 (1976) (the purpose of the privilege is “to
encourage clients to make full disclosure to their
invoking the attorney-client privilege must demonstrate that
there was “(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 Cty. of
Erie, 473 F.3d 413, 418 (2d Cir. 2007); see United
States v. Adlman, 68 F.3d 1495, 1500 (2d Cir. 1995)
(“The party claiming the benefit of the attorney-client
privilege has the burden of establishing all the essential
privilege is narrowly defined by both scholars and the
courts. See Univ. of Pa. v. E.E.O.C., 493 U.S. 182,
189 (1990). The privilege is not “given broad,
unfettered latitude to every communication with a lawyer, but
is to be narrowly construed to meet this narrowest of
missions.” NXIVM Corp. v. O'Hara, 241
F.R.D. 109, 125-26 (N.D.N.Y. 2007) (citing Fisher v.
United States, 425 U.S. 391, 403 (1976) (“However,
since the privilege has the effect of withholding relevant
information from the factfinder, it applies only where
necessary to achieve its purpose.”)).
today's world, an attorney's acumen is sought at
every turn, even average attorneys mix legal advice with
business, economic, and political.” NXIVM
Corp., 241 F.R.D. At 125 (citations omitted).
“When an attorney is consulted in a capacity other than
as a lawyer, as (for example) a policy advisor, media expert,
business consultant, banker, referee or friend, that
consultation is not privileged.” In re County of
Erie, 473 F.3d at 421-22. The privilege is
“triggered only” by a request for legal advice,
not business advice. In re Grand Jury Subpoena Duces
Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir.
1984); see Elliott Assoc. L.P. v. Republic of Peru,
176 F.R.D. 93, 97 (S.D.N.Y. 1997) (finding that the
communication is not cloaked if the lawyer is hired for
business or personal advice); Fine v. Facet Aerospace
Prod. Co, 133 F.R.D. 439, 444 (S.D.N.Y.1990) (privilege
not extended to management advice). If the communication
between attorney and client “is not designed to meet
problems which can fairly be characterized as predominately
legal, the privilege does not apply.” Rattner v.
Netburn, No. 88 Civ. 2080 (GLG), 1989 WL 223059, at *6
(June 20, 1989), affd, No. 88 Civ. 2080 (GLG), 1989
WL 231310 (S.D.N.Y. Aug. 23, 1989); see In re County
Erie, 473 F.3d 413, 419-22 (2d Cir. 2007) (ruling that
the predominant purpose of the advice is to solicit or gain
legal advice); United States Postal Serv. v. Phelps Dodge
Refining Corp., 852 F.Supp. 156, 160 (E.D.N.Y. 1994).
Deliberative Process Privilege
also assert the deliberative process privilege, a subcategory
of the work product doctrine. See Tigue v. United States
Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002).
The deliberative process privilege shields from disclosure
“documents reflecting advisory opinions,
recommendations and deliberations compromising part of a
process by which governmental decisions and policies are
formulated.” Dep't of the Interior v. Klamath
Water Users Protective Ass'n, 532 U.S. 1, 8 (2001);
see, e.g., 5 U.S.C. § 552(b)(5)
(incorporating the deliberative process privilege through its
exemption from disclosure under the Freedom of Information
Act of “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other
than an agency in litigation with the agency”). In
other words, the privilege protects “recommendations,
draft documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the writer
rather than the policy of the agency.” Grand Cent.
P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir.
1999) (internal quotation marks & citations omitted).
Recognizing correctly that “officials will not
communicate candidly among themselves if each remark is a
potential item of discovery, ” the deliberative process
privilege helps “enhance the quality of agency
decisions by protecting open and frank discussion among those
who make them within the Government.” Klamath Water
Users Protective Ass'n, 532 U.S. at 8-9 (internal
quotation marks & citations omitted). It further serves
to prevent the premature disclosure of proposed policies, and
avoids “misleading the public by dissemination of
documents suggesting reasons and rationales for a course of
action which were not in fact the ultimate reasons for the
agency's action.” Coastal States Gas Corp. v.
Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
deliberative process privilege applies to intra-agency and
inter-agency communications. See, e.g.,
Tigue, 312 F.3d at 77; Allstate Ins. Co. v.
Serio, No. 97 Civ. 0023 (SS) (THK), 1998 WL 477961, at
*3 (S.D.N.Y. Aug. 13, 1998). “For a particular
inter-agency or intra-agency document to be protected by the
privilege, the agency must demonstrate that the document is
both “predecisional” and
“deliberative.”” Allocco Recycling,
Ltd. v. Doherty, 220 F.R.D. 407, 411-12 (S.D.N.Y. 2004);
see, e.g., Tigue, 312 F.3d at 76;
Grand Cent. P'ship, 166 F.3d at 482; Azon v.
Long Island R.R., No. 00 Civ. 6031 (HB), 2001 WL
1658219, at *1 (S.D.N.Y. Dec. 26, 2001).
document is “predecisional” when it is
“‘prepared in order to assist an agency
decisionmaker in arriving at his decision.'”
Hopkins v. United States Dep't of Hous. & Urban
Dev., 929 F.2d 81, 84 (2d Cir. 1991) (quoting
Renegotiation Bd. v. Grumman Aircraft Eng'g
Corp., 421 U.S. 168, 184 (1975)). This makes a
distinction between “predecisional” documents
prepared before a final agency decision, which are protected,
and “postdecisional memoranda setting forth the reasons
for an agency decision already made, ” which are not.
Grumman Aircraft Eng'g Corp., 421 U.S. at 184.
document is “deliberative” if it is
“actually . . . related to the process by which
policies are formulated.” Hopkins, 929 F.2d at
84 (ellipsis in original) (internal quotation marks and
citation omitted). Therefore, the privilege does not protect
“‘a document which is merely peripheral to actual
policy formation; the record must bear on the formulation or
exercise of policy-oriented judgment.'” Grand
Cent. P'ship, 166 F.3d at 482 (quoting Ethyl
Corp. v. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994)). In
making this determination, “courts look to whether the
document ‘(i) formed an essential link in a specified
consultative process, (ii) reflects the personal opinions of
the writer rather than the policy of the agency, and (iii) if
released, would inaccurately reflect or prematurely disclose
the views of the agency.'” Azon, 2001 WL
1658219, at *2 (quoting Nat'l Cong. for Puerto Rican
Rights v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y.
the privilege does not extend to “purely factual,
investigative matters.” EPA v. Mink, 410 U.S.
73, 89 (1973), superseded on other grounds by Pub.
L. No. 93-502, 88 Stat. 1561 (1974); accord Hopkins,
929 F.2d at 85; Local 3, Int'l Bhd. of Elec. Workers
v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988). It does not
protect “memoranda consisting only of compiled factual
material or purely factual material contained in deliberative
memoranda and severable from its context.”
Mink, 410 U.S. at 91. Factual materials tend not to
be privileged unless they are “inextricably intertwined
with policy-making processes.” Nat'l Wildlife
Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th
Cir. 1988). “Non-factual materials that express
opinions or recommendations, on the other hand, are clearly
protected.” Trentadue v. Integrity Comm., 501
F.3d 1215, 1226-29 (10th Cir. 2007); see,
e.g., NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 150 (1975) (“The cases . . . focus on
documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.”)
(citation & quotation omitted); Coastal States
Gas, 617 F.2d at 866 (“The exemption thus covers
recommendations, draft documents, proposals, suggestions, and
other subjective documents which reflect the personal
opinions of the writer rather than the policy of the
circumstances where factual portions of a document are
“severable without compromising the private remainder
of the document[ ], ” then the factual portions must be
disclosed, even though the deliberative material remains
protected. See Mink, 410 U.S. at 91; accord
Providence Journal Co. v. United States Dep't of the
Army, 981 F.2d 552, 559 (1st Cir. 1992).
argue that factual background information should be protected
because it outlines pros and cons which are necessarily
affect a person's decision-making process.
“However, information is not protected simply because
disclosure would reveal some minor or obvious detail of an
agency's decision making process, ”
Trentadue, 501 F.3d at 1228, and it ignores the
possibility that some of the factual material may have no
persuasive value or actual bearing on the decision-making
Court finds that none of the Disputed Documents contains
factual information should be protected under the
deliberative process privilege.