Alexander v. Federal Bureau of Investigation

186 F.R.D. 102, 1998 U.S. Dist. LEXIS 22394
District Court, District of Columbia·Decided July 27, 1998·No. Nos. Civ. 96-2123 RCL, Civ. 97-1288 RCL·Published·Cited by 11 cases

Opinion

MEMORANDUM AND ORDER

LAMBERTH, District Judge.

This matter comes before the court on plaintiffs’ Motion to Compel Craig Livingstone to Produce Documents. Upon consideration of the submissions of the parties and the relevant law, plaintiffs’ Motion to Compel Craig Livingstone to Produce Documents is granted in part and denied in part.

I. Background

As stated in several opinions by this court, the underlying allegations in this case arise from what has become popularly known as “Filegate.” According to their complaint, plaintiffs allege that their privacy interests were violated when the Federal Bureau of Investigation (“FBI”) improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations.

During the course of the discovery phase of this case, plaintiffs served Craig Livingstone with a subpoena requiring the production of documents. Livingstone objected to the production of certain documents, thereby prompting plaintiffs to file the motion to compel presently before the court.

II. Analysis

On January 13, 1998, plaintiffs served a subpoena duces tecum on Livingstone seeking the production of numerous categories of documents in connection with this case. On January 23, 1998, counsel for Livingstone served objections to plaintiffs’ subpoena and subsequently produced documents and a privilege log on January 28,1998.

Plaintiffs contend that Livingstone’s document production is inadequate and assert that both the specific and general objections made by Livingstone are insufficient to permit him to withhold responsive documents. Specifically, plaintiffs argue that Livingstone’s reliance on Rule 6(e) of the Federal Rules of Criminal Procedure and the assertion of the attorney-client privilege with respect to certain documents are in error and can not be used to justify the withholding of documents by Livingstone.

In response, Livingstone states that “[t]he only responsive, nonprivileged documents within Mr. Livingstone’s possession, custody or control that were not produced in response to Plaintiffs’ Subpoena are copies of the transcripts of Mr. Livingstone’s depositions taken by the House Government Reform and Oversight Committee.” Opp. to Pls.’ Mot. to Compel at 4. Livingstone also states that his reliance on the assertion of [106]*106the attorney-client privilege and Rule 6(e) as stated in the privilege log as grounds for withholding certain documents is proper.1

A. The Production of Livingstone’s Deposition Transcripts

Livingstone contends that he produced all documents responsive to plaintiffs’ subpoena with the exception of copies of the transcripts of his depositions taken by the House Government Reform and Oversight Committee. Livingstone states that the transcripts are readily obtainable from public sources and therefore, he should not be put to the burden and expense of producing these transcripts. In light of the fact that plaintiffs fail to contest the considerations raised by Livingstone, the court determines that plaintiffs are capable of obtaining the deposition transcripts from public sources without difficulty and therefore, Livingstone shall not be compelled to produce these transcripts.

B. Privilege Log Submitted by Livingstone

In response to plaintiffs’ subpoena for documents, Livingstone submitted a privilege log to plaintiffs specifying that certain documents were being withheld pursuant to the attorney-client privilege and Rule 6(e) of the Federal Rules of Civil Procedure. Standing alone, the claims of privilege as set forth in the privilege log are clearly inadequate to permit this court to determine whether the documents were properly withheld or to sustain a claim of privilege. As one court stated, an assertion of privilege requires identification of “the authors, dates of preparation, and subject matter of the documents, as well as facts establishing each element of the privilege claim.” United States v. Western Elec. Co., Inc., 132 F.R.D. 1, 3 (D.D.C.1990). At the very minimum, Rule 45(d)(2) of the Federal Rules of Civil Procedure requires that the privilege log in which a claim of privilege is advanced contain information “sufficient to enable the demanding party to contest the claim.” Fed.R.Civ.P. 45(d)(2).

More specific considerations arise when a party specifies in a privilege log that a particular document is being withheld pursuant to the attorney-client privilege. In a previous case, this court considered and rejected a litigant’s claims that it could withhold documents simply by claiming a “blanket privilege.” Director of OTS v. Ernst & Young, 795 F.Supp. 7, 11-12 (D.D.C.1992). The defendant in that case argued that it could invoke the attorney-client privilege merely by furnishing the court with an affidavit swearing that the documents were prepared by or for the general counsel’s office. This court explicitly rejected this argument and instead adopted plaintiffs proposed requirements for the “privilege log” that required the defendant to identify each withheld document and:

state the basis upon which the privilege is claimed, ... state the subject matter, number of pages, author, date created, and the identity of all persons to whom the original or any copies of the document were shown or provided.

Id. at 11-12. Despite the additional burden imposed on the defendant in that case, this court concluded that such information was necessary to determine whether the documents were truly privileged.

In In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir.1992), the Court of Appeals for the Ninth Circuit discussed the type of information that a party seeking to invoke the attorney-client privilege must include in a privilege log. The Ninth Circuit determined that a privilege log must identify:

(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been fur[107]*107nished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.

Id. (quoting Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir.1989)). These requirements will ensure that a party seeking to insulate documents from disclosure has met the essential elements required for invoking the attorney-client privilege.2

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Alexander v. Federal Bureau of Investigation, 186 F.R.D. 102, 1998 U.S. Dist. LEXIS 22394 (D.D.C. 1998).

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