Federal Energy Regulatory Commission v. J.P. Morgan Ventures Energy Corp.

914 F. Supp. 2d 5, 2012 WL 5974177, 2012 U.S. Dist. LEXIS 174815
CourtDistrict Court, District of Columbia
DecidedNovember 29, 2012
DocketMiscellaneous No. 12-352 DAR
StatusPublished
Cited by1 cases

This text of 914 F. Supp. 2d 5 (Federal Energy Regulatory Commission v. J.P. Morgan Ventures Energy Corp.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Energy Regulatory Commission v. J.P. Morgan Ventures Energy Corp., 914 F. Supp. 2d 5, 2012 WL 5974177, 2012 U.S. Dist. LEXIS 174815 (D.D.C. 2012).

Opinion

MEMORANDUM ORDER

DEBORAH A. ROBINSON, United States Magistrate Judge.

Petitioner in this subpoena enforcement action challenges Respondent’s claim of attorney-client privilege with respect to 25 emails produced by Respondent in redacted form. See Petition by Federal Energy Regulatory Commission for an Order to Show Cause Why This Court Should Not Enforce Subpoenas for Production of Documents (Document No. 1). The court (Kollar-Kotelley, J.) ordered Respondent to show cause by a date certain why it should not be required to produce the emails in unredacted form, or to submit them for in camera review. Order to Show Cause (Document No. 2) at 1-2. Thereafter, this action was referred for all purposes, with the consent of the parties, to the undersigned United States Magistrate Judge. Referral to Magistrate Judge (Document No. 6); see also Order Referring Case to Magistrate Judge for All Purposes (Document No. 5).

Respondent filed an opposition to the petition, and, in addition, submitted the emails which are the subject of the petition to the chambers of the undersigned for in camera review. See Memorandum in Opposition to Petition of the Federal Energy Regulatory Commission Seeking an Order Compelling the Production of Privileged Documents by J.P. Morgan Ventures Energy Corporation (“Opposition”) (Document No. 11). Petitioner timely filed a reply. See Reply of Federal Energy Regulatory Commission in Support of Petition for Order to Show Cause (“Reply”) (Document No. 14).

On August 30, 2012, counsel for the parties appeared before the undersigned for a status conference and oral argument with respect to the scope of the privilege claimed by Respondent. Transcript of Proceedings (Document No. 18); 08/30/2012 Minute Entry; see also Joint Status Report Concerning Meet-and-Confer Process (Document No. 17).

The undersigned now has completed the in camera review of the redacted portions of the 25 e-mails at issue in this action. Upon consideration of the in camera submission in the context of the applicable authorities and the arguments of counsel, the undersigned finds that Respondent has demonstrated that the redactions are indeed shielded by the attorney-client privilege. Accordingly, Petitioner’s request to compel production of the documents will be denied.

APPLICABLE STANDARDS

In the most recent articulation of the standards governing enforcement of an administrative subpoena, another judge of this court observed that

[a] court’s role in a proceeding to enforce an administrative subpoena is a strictly limited one. An administrative subpoena must be enforced if the information sought is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.

United States v. ISS Marine Servs., Inc., No. 12-481, 905 F.Supp.2d 121, 126-27, 2012 WL 5873682, at *3 (D.D.C. Nov. 21, 2012) (citations and internal quotations omitted); see also FTC v. Boehringer Ingelheim, Pharm., Inc., 898 F.Supp.2d 171, 174, 2012 WL 4888473, at *2 (D.D.C.2012) (citing Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1517 (D.C.Cir.1993) for the proposition that “[t]he burden of proving undue hardship ‘is not easily met where ... the agency inquiry is pursuant to a lawful purpose and the requested documents are relevant to that purpose.’ ”).

[8]*8In this Circuit, “a subpoena issued pursuant to federal law is governed by the federal law of privilege.” ISS Marine Servs., 905 F.Supp.2d at 127, 2012 WL 5873682, at *3 (citation omitted). The privilege at issue in the instant action — the attorney-client privilege — “ ‘is the oldest of the privileges for confidential communications known to the common law.’ ” Id. at 127, at *4 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). It is settled that the attorney-client privilege “ ‘protects the confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice.’ ” Id. (quoting In re Lindsey, 158 F.3d 1263, 1267 (D.C.Cir. 1998)). “To be privileged, a communication must be ‘for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.’ ” Id. at 128, at *5 (citation omitted). Put another way, the party invoking the privilege must establish that

(1) the holder of the privilege is, or sought to be, a client; (2) the person to whom the communication is made is a member of the bar or his subordinate and, in connection with the communication at issue, is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the privilege has been claimed by the client.

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F.Supp.2d 142, 153— 154 (D.D.C.2012) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C.Cir.1984)). In addition, a “fundamental prerequisite to the assertion of the privilege” is “confidentiality both at the time of the communication and maintained since.” Id. (citation and internal quotations omitted); cf. Amobi v. Dist. of Columbia Dep’t of Corr., 262 F.R.D. 45, 51 (D.D.C.2009) (citation omitted) (noting that in the construction of the privilege adopted by the District of Columbia Circuit, “[t]he communication from an attorney is only protected if it is based on confidential information provided by the client[ ]”; “[t]hus, “when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.’ ”).

“ ‘[C]omplications in the application of the privilege arise when the client is a corporation’ ”; however,

the Supreme Court has held that, in the corporate context, the privilege applies as long as “[t]he communications at issue were made by [company] employees to counsel for [the company] acting as such, at the direction of corporate superiors in order to secure legal advice from counsel.”

ISS Marine Servs., 905 F.Supp.2d at 127-28, 2012 WL 5873682, at *4 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 394, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). Moreover,

[t]he Supreme Court has also clearly recognized that “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”

Id. (quoting Upjohn, 449 U.S. at 390, 101 S.Ct. 677).

Privileges, including the attorney-client privilege, which operate to preclude forced disclosures, “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
914 F. Supp. 2d 5, 2012 WL 5974177, 2012 U.S. Dist. LEXIS 174815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-energy-regulatory-commission-v-jp-morgan-ventures-energy-corp-dcd-2012.