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Ramooe, Inc. v. City of New York

United States District Court, E.D. New York

November 2, 2017

RAMOOE, INC., Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.

          MEMORANDUM AND ORDER

          VERA M. SCANLON, UNITED STATES MAGISTRATE JUDGE.

         Before 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”)[1] (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.

         I. Attorney-Client Privilege

         Defendants 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 attorneys”).

         A party 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 elements.”).

         The 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.”)).

         “In 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).

         II. Deliberative Process Privilege

         Defendants 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).

         The 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).

         A 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.

         A 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. 2000)).

         Accordingly, 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 agency.”).

         If 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).

         Defendants 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 process.

         The Court finds that none of the Disputed Documents contains factual information should be protected under the deliberative process privilege.

         III. ...


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