JINKS-UMSTEAD v. ENGLAND

FACCIOLA, United States Magistrate Judge.

This case was referred to me by Judge Kessler for the resolution of discovery disputes. Currently pending before me is the issue of whether defendant must produce certain documents, claimed to be privileged and submitted for in camera review, to plaintiff. Also before me is Plaintiff's Motion to Require Defendant to File Privilege Log in Public Record and Memorandum of Points and Authorities in Support Thereof [#322]. For the reasons stated herein and in accordance with this Memorandum Order, defendant need not produce any of the documents listed in its privilege log but must file the privilege log within 5 days of the date of this Order. If plaintiff believes that she has new arguments to advance in light of the privilege log, plaintiff will then have 10 days to submit any additional arguments regarding the privilege log and the documents described therein, and defendant will have 10 days to respond.

In 1991, Lavonne Jinks-Umstead ("Jinks-Umstead" or "plaintiff") began working for the Department of the Navy ("Navy" or "defendant"). In February 1997, she was assigned to work at Carderock as a Head Contracting Officer. At some point after her assignment to Carderock, the Navy decided to reduce the number of staff at that office. Defendant also removed plaintiff's supervisory status. Plaintiff claims that these restructuring decisions were discriminatory and retaliatory, in violation of Title VII of the Civil Rights Act. Defendant, however, maintains that the decisions were based on legitimate business reasons.

Many discovery issues have arisen in this matter. Currently ripe and ready for resolution is the issue of whether certain documents, submitted by defendant for in camera review, are protected from disclosure by the work-product and attorney-client privileges.

A. The Work-Product Privilege

The work-product privilege exists because "it is essential [to our adversarial system] that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). A lawyer's work product is reflected in "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways. . . . Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own." Id. at 511.

Because of these important interests, Federal Rule of Civil Procedure 26(b)(3) provides that materials prepared in anticipation of litigation or for trial by an attorney or a party are protected from disclosure, and they may be subject to discovery only upon a showing of substantial need and undue hardship. Fed.R.Civ.P. 26(b)(3). Moreover, even if the work-product privilege yields to a showing of need, the court must still protect the "mental impressions, conclusions, opinions, or legal theories of an attorney." Id. See also Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 619 (D.C. Cir. 1997). These materials, known as opinion work product, "are entitled to special protection and require a stronger showing of necessity to justify release . . . although the precise contours of this showing have not been resolved." Byers v. Burleson, 100 F.R.D. 436, 439 (D.D.C. 1983) (citing Fed.R.Civ.P. 26(b)(3) and Upjohn Co. v. United States, 449 U.S. 383, 400-01 (1981)). See also In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988).

In reviewing documents claimed to be protected by the work-product privilege, the court must determine "whether, in light of the nature of the document or the factual situation in a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."Equal Employment Opportunity Comm'n v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C. Cir. 1999) (emphasis added). See also Nesse v. Pittman, 202 F.R.D. 344, 349 (quoting In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)). As I have previously noted, "the concept of `in anticipation of litigation' contains two related, but nevertheless distinct, concepts. One is temporal. The other is motivational." Athridge v. Aetna Cas. Sur. Co., 184 F.R.D. 181, 189 (D.D.C. 1998) (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 314).

In this Circuit, "the attorney-client privilege is narrowly circumscribed to shield from disclosure only those communications from a client to an attorney made in confidence and for the purpose of securing legal advice." Athridge v. Aetna Cas. Sur. Co., 184 F.R.D. 200, 204 (D.D.C. 1998). See also Tax Analysts, 117 F.3d at 618; In re Sealed Case, 737 F.2d 94, 98 (D.C. Cir. 1984). The privilege extends to "communications from attorneys to their clients if the communications `rest on confidential information obtained from the client'" and therefore tends to disclose it.Tax Analysts, 117 F.3d at 618 (quoting In re Sealed Case, 737 F.2d at 99 and citing Mead Data Central, Inc. v. United States Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977)).

I have summarized my rulings in the following charts. The first chart indicates the abbreviations I have utilized when determining whether each document is protected by the privilege or privileges defendant has asserted. The second chart contains my determinations as to each document produced for in camera review. Abbreviated Notation Explanation Not for Trial Based on information provided by defendant, the document cannot fairly be said to have been prepared or obtained because of the prospect of litigation or for trial. Defendant's claim of work-product privilege is denied. Opinion Work Product Document can fairly be said to have been prepared for trial or in anticipation of litigation, and it reflects counsel's mental impressions. Defendant's claim of work-product privilege is sustained. Ordinary Work Product/No Document can fairly be said to have been prepared for trial or in Substantial Need anticipation of litigation, but it does not reflect counsel's mental impressions. It is clear from the document that plaintiff cannot make a showing of substantial need because the document conveys trivial information. Defendant's claim of work-product privilege is sustained. Not Confidential Document does not disclose information that the client intended to be confidential. Defendant's claim of attorney-client privilege is denied. Does Not Seek Legal There is no indication that the document reflects communications made by Advice the client for the purpose of seeking legal advice. Defendant's claim of attorney-client privilege is denied. Confidential and Seeks Document reflects communications that the client intended to be Legal Advice confidential and that were made for the purposes of seeking legal advice. The attorney-client privilege is sustained. Bates Nos./Document Claim Ruling Reason for Ruling Description 0000000001-0000000002 WP Sustained Opinion Work Product Notes from conversation AC Denied Not Confidential with David Ball (AUSA) 0000000003-0000000004 WP Sustained Opinion Work Product Draft of Holleran declaration (eventually filed with a pleading in this case) 0000000005 WP Sustained Ordinary Work Product/No Substantial Need Email from Patricia Chalfant AC Denied Not Confidential (agency counsel) to William Vindal (Information Systems Director) re: email records 0000000006-0000000023 WP Sustained Ordinary Work Product/No Substantial Need Legal memoranda from AC Denied Not Confidential Patricia Chalfant (agency counsel) to various Navy employees and potential witnesses re: Jinks-Unstead case 0000000024 WP Sustained Opinion Work Product AUSA Ball's notes from AC Denied Does Not Seek Legal Advice conversation with potential witness 0000000025-0000000045; WP Sustained Opinion Work Product 0000000135-0000000143 Draft Responses and Objections to Plaintiff's First Request for Admissions (prepared by AUSA Ball) 0000000046-0000000066 WP Sustained Opinion Work Product Draft Responses and Objections to Plaintiff's First Request for Production of Documents (prepared by AUSA Ball) 0000000067 WP Sustained Ordinary Work Product/No Substantial Need Memo from Vindal to Chalfant re: Response to Interrogatory 6 0000000068-0000000074 WP Sustained Opinion Work Product AUSA Ball's marked-up copy of Plaintiff's First Interrogatories 0000000075-0000000078; WP Sustained Ordinary Work Product/No Substantial Need 0000000112; AC Denied Not Confidential 0000000255-0000000256 Does Not Seek Legal Advice Fax transmittal sheets from AUSA Ball to David Caron, Esq. and Chalfant (some of which contain Ball's handwritten notes) 0000000079-0000000098 WP Sustained Opinion Work Product AUSA Ball's marked-up copy of Plaintiff's Second Request for Production of Documents 0000000099-0000000111 WP Sustained Opinion Work Product Counsel's notes regarding discovery questions 0000000113-0000000134 WP Sustained Opinion Work Product Draft Responses and Objections to Plaintiff's Second Request for Production of Documents (with handwritten edits by AUSA Ball) 0000000144-0000000148 WP Sustained Opinion Work Product Draft Defendant's First Requests for Admission 0000000149-0000000162; WP Sustained Opinion Work Product 0000000187-0000000200 Draft Defendant's Responses and Objections to Plaintiff's First Interrogatories 0000000163-0000000186; WP Sustained Opinion Work Product 0000000201-0000000224; 0000000225-0000000248 Draft Defendant's Responses and Objections to Plaintiff's Second Request for Production of Documents 0000000249-0000000254 WP Sustained Opinion Work Product AUSA Ball's marked-up copy of Plaintiff's Rule 30(b)(6) Notice of Deposition of Defendant Richard Danzig 0000000257-0000000265 WP Sustained Opinion Work Product Handwritten notes about the case (prepared for trial) 0000000266-0000000454 WP Sustained Opinion Work Product AUSA Ball's notes AC as to work regarding trial preparation, product including witness preparation and examination, and notes regarding motions in limine, motions to compel, and court rulings (notes also evaluate plaintiff's case and defendant's defenses, and some notes were taken at trial) 0000000501-0000000511 WP Sustained Opinion Work Product AUSA Ball's table of plaintiff's claims, defendant's responses, and proof 0000000512-0000000519; WP Sustained as Opinion Work Product 0000000520-0000000526; AC to work 0000000527-0000000541; (for product 0000000550-0000000561 50-61) Notes for and draft of closing argument 0000000542-0000000549 WP Sustained as Opinion Work Product Notes for closing, (including AC to work notes of examination of product witnesses, cross of witnesses) 0000000562-0000000563 WP Sustained Ordinary Work Product/No Substantial Need Emails between Chad Miller AC Denied Does Not Seek Legal Advice and Cynthia Guill re: request for production 0000000564-0000000574 WP Sustained Opinion Work Product AUSA Ball's notes from depositions of Navy agency counsel 0000000575-0000000582; WP Sustained Opinion Work Product 0000000611-0000000617; 0000000618-0000000624; 0000000625-0000000639; 0000000640-0000000643; 0000000649-0000000653 Drafts of defendant's pleadings 0000000583-0000000596; WP Sustained Opinion Work Product 0000000597-0000000610 AUSA Ball's marked-up copies of plaintiff's pleadings 0000000644 WP Sustained Ordinary Work Product/No Substantial Need Email from AUSA Uldric Fiore to Weinstein re: supplemental response to Interrogatory #4 0000000645-0000000648 WP Sustained Opinion Work Product Draft Defendant's Supplemental Response to Interrogatory #4 0000000654 WP Sustained Ordinary Work Product/No Substantial Need Email from Chalfant to Guill AC Sustained in One sentence is confidential and seeks legal re: Chalfant deposition part advice IV. CONCLUSION

For the reasons stated herein, it is, hereby, ORDERED that defendant need not produce any of the documents submitted for in camera review. However, until plaintiff filed her motion to require the Navy to file its privilege log on the public record, the court was unaware that plaintiff had not received a copy of the privilege log. Defendant has since notified the court that it does not object to providing the privilege log to plaintiff.

Accordingly, it is, hereby ORDERED that Plaintiff's Motion to Require Defendant to File Privilege Log in Public Record and Memorandum of Points and Authorities in Support Thereof [#322] is GRANTED. Defendant shall file the privilege log it submitted to the court within 5 days of the date of this Order. If plaintiff believes that she has new arguments to advance in light of the privilege log, plaintiff will then have 10 days to submit any additional arguments regarding the privilege log and the documents described therein, and defendant will have 10 days to respond.