A.N.S.W.E.R. Coalition v. Jewell

292 F.R.D. 44, 2013 WL 2100515, 2013 U.S. Dist. LEXIS 69885
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 16, 2013
DocketCivil Action No. 05-0071(PLF)
StatusPublished
Cited by5 cases

This text of 292 F.R.D. 44 (A.N.S.W.E.R. Coalition v. Jewell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.N.S.W.E.R. Coalition v. Jewell, 292 F.R.D. 44, 2013 WL 2100515, 2013 U.S. Dist. LEXIS 69885 (D.C. Cir. 2013).

Opinion

OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This matter is befox-e the Court on plaintiffs objections to Magistrate Judge Alan Kay’s decisions regai’ding the nondisclosure by the United States Seci’et Sexvice of cex-tain documents during discovery. Plaintiff contends that the Coui’t should set aside certain poi’tions of Judge Kay’s Febi’uary 3, 2012 Memorandum Order and his September 27, 2012 Memorandum Oi’der as eleai’ly ei’ro-neous and contrai’y to law. See Fed.R.Civ.P. 72(a). After cai’eful consideration of the parties’ memoranda, Judge Kay’s decisions, this Coui’t’s own in camera review of the disputed documents, and the relevant legal authoi’ities, the Court concludes that Judge Kay’s pi’ivilege and i’elevance nxlings are cox-rect, although the Coui’t disagi’ees with one aspect of Judge Kay’s reasoning. The Court thei’e-foi’e will ovei’i’ule in pai’t and sustain in pai’t plaintiffs objections.2

I. BACKGROUND

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition (“ANSWER”) filed this lawsuit in Januai’y 2005 to challenge certain governmental policies that have restricted ANSWER’S ability to engage in expressive activity dui’ing the Presidential Inaugural Pax-ades in Washington, D.C. One of these policies—and the only policy relevant to the matter now before the Coui’t—is the Secret Service’s prohibition on sign sup-poi’ts along the Inaugural Parade Route.

This Court gi’anted ANSWER’S i’equest for Rule 56(f) diseovei’y (now Rule 56(d)) for the production of all documents i’elating to the pi’ohibition of sign supports by the Secx-et Service. See Order, Dkt. No. 56 (Nov. 13, 2007); Memorandum Opinion and Order, Dkt. No. 75 (Nov. 14, 2008). Dui’ing the discovei’y that followed, ANSWER ehal-[47]*47lenged the government’s withholding of certain documents as privileged, and the Court agreed to review the disputed documents in camera. See Memorandum Opinion and Order, Dkt. No. 104 at 3 (Apr. 23, 2010). On August 3, 2010, the Court referred the matter to Magistrate Judge A an Kay to conduct the in camera review. See Referral Order, Dkt. No. 117 (Aug. 3, 2010). Judge Kay issued his privilege rulings for most of the documents on the Secret Service’s 27-page privilege log on February 3, 2012, and directed counsel for the Secret Service to provide him with certain other missing documents. See Feb. 3 Mem. Order. Judge Kay addressed the remaining documents in a decision dated September 27, 2012. See Sept. 27 Mem. Order.

ANSWER timely filed objections “in general and categorically” to Judge Kay’s orders on the ground that Judge Kay failed to state his reasoning with respect to each document. See PL’s 1st Obj. at 2; PL’s 2nd Obj. at 1. ANSWER does not ask this Court, however, to review de novo every document withheld by the Secret Service. Rather, ANSWER has identified certain privilege and relevance determinations within each of Judge Kay’s orders to which it specifically objects.

First, ANSWER asserts that Judge Kay erred in approving the withholding of the following documents, in whole or in part, on the basis of attorney-client privilege: Bates Nos. 000185, 000186, 000191, 000316, 000537, 000562, 000563, 000566, and 000588. See PL’s 1st Obj. at 2 n. 2, 17-19. Second, ANSWER maintains that Judge Kay erred in deeming the following documents protected, in whole or in part, as attorney work product: Bates Nos. 000174, 000175-80, 000183, and 000326. Id. at 2 n. 2, 21-26. Third, ANSWER challenges Judge Kay’s ruling that the law enforcement privilege protects the following documents from compelled disclosure: 000668, 000682, 000726, 000734-35, 000740, 000750, 000795-97. PL’s 2nd Obj. at 1-2. Fourth, ANSWER asserts that Judge Kay erred in ruling that the document marked “Withheld 74-84” was properly withheld as nonresponsive. Id. ANSWER requests that the Court conduct an in camera review of these four categories of withheld documents and order their production.

In addition, ANSWER asks the Court to order that all remaining withheld documents be reviewed and produced in accordance with the principles articulated in any opinion issued in response to these objections. PL’s 1st Obj. at 2.

II. DISCUSSION

A. Standard of Review

When a party objects to a magistrate judge’s determination with respect to a nondispositive matter, such as the privilege and relevance determinations made in this case, the Court must modify or set aside all or part of the magistrate judge’s order if it is “eleai’ly erroneous” or “contrary to law.” Fed.R.Civ.P. 72(a); see also Loe. Civ. R. 72.2(e). This standard is met when, “although there is evidence to support [a determination], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Federal Savs. & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507, 508 (D.D.C.1990) (internal quotation omitted); see also Beale v. Dist. of Columbia, 545 F.Supp.2d 8, 13 (D.D.C.2008).

B. Documents Withheld Pursuant to the Attorney-Client Privilege

“The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services.” Blumenthal v. Drudge, 186 F.R.D. 236, 241 (D.D.C.1999) (quoting In re Lindsey, 158 F.3d 1263, 1267 (D.C.Cir.1998)); see also Feb. 3 Mem. Order at 2-3. The D.C. Circuit construes the privilege narrowly to apply when a communication “relates to a fact of which the attorney was informed ... by his client ... for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 F.3d 1299, 1304 (D.C.Cir. 2007) (alteration in original) (quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C.Cir. 1984)). The privilege also protects a commu[48]*48nication made by an attorney to a client if the communication is “based, in part at least, upon a confidential communication to the lawyer from the client.” United States v. Naegele, 468 F.Supp.2d 165, 169 (D.D.C.2007) (quoting In re Sealed Case, 737 F.2d at 99) (emphasis in original) (internal brackets omitted).

Although all of the documents withheld by the Secret Service pursuant to this privilege involve a communication to or from an attorney, ANSWER contends that the government has failed to show that the communications reflect an attorney-client relationship, or that they relate to the provision of legal services or advice. See Pl.’s 1st Obj. at 8, 10-19; Pl.’s 1st Reply at 3-5.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gonzalez Ramos v. Adr Vantage, Inc.
District of Columbia, 2020
Mannina v. District of Columbia
District of Columbia, 2019
BuzzFeed, Inc. v. U.S. Dep't of Justice
318 F. Supp. 3d 347 (D.C. Circuit, 2018)
Kusuma Nio v. U.S. Dep't of Homeland Sec.
314 F. Supp. 3d 238 (D.C. Circuit, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
292 F.R.D. 44, 2013 WL 2100515, 2013 U.S. Dist. LEXIS 69885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/answer-coalition-v-jewell-cadc-2013.