UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO
Francisco J. Reyes Caparrós
v. Civil No. 3:15-cv-2229-JL Opinion No. 2017 DNH 122 Loretta Lynch, Attorney General of the United States
MEMORANDUM ORDER
A discovery dispute in this employment action turns on the
extent to which the attorney-client and deliberative process
privileges apply to communications between and among
governmental agencies. The plaintiff, Francisco Reyes Caparrós,
asserts claims of discrimination and retaliation under Title VII
of the Civil Rights Act, see 42 U.S.C. § 2000e-16, contending
that he was constructively discharged from his job as an
intelligence specialist for the United States Attorney’s Office
for the District of Puerto Rico. Reyes now moves to compel
production of some 56 documents1 that the defendant has withheld
as protected by some combination of the attorney-client
privilege, the deliberative process privilege, and the work-
product doctrine. After reviewing the parties’ submissions, and
reviewing the documents themselves in camera, the court grants
1 Down from much larger number of documents originally withheld. that motion in part and denies it in part. Specifically, the
court orders the defendant to produce the documents listed at
the following privilege log entries: 4-8 (waiver), 13-17, 21,
27-28, 38-40, 74, 84, 95, 97-99, 104-114. The court denies
plaintiff’s motion as to the remaining documents, which the
court concludes are protected by the attorney-client privilege,
the work-product doctrine, and/or the deliberative process
privilege, as discussed in more detail below.
Background
Reyes served as an intelligence specialist at the United
States Attorney’s Office for the District of Puerto Rico from
2009 until he resigned on February 3, 2015. He characterizes
his resignation as a constructive discharge from a work
environment rendered hostile by retaliation for, among other
things, actions he took in 2012 and 2013 and two Equal
Employment Opportunities (“EEO”) complaints that he filed in
2013 and 2014.
Reyes seeks production of documents pertaining to a course
of alleged retaliation beginning in the summer of 2013, when he
received an invitation for an all-expense-paid trip to Russia to
attend a conference sponsored by an organization led by a known
Russian spy. A presentation on socialism was also found on
2 Reyes’s computer.2 This led the Department of Justice’s Office
of the Inspector General to investigate Reyes. In connection
with this investigation, FBI agents interviewed Reyes and, while
Reyes was on furlough in October 2013, searched his office.
During and as a result of the investigation, Reyes’s job duties
were changed.
In November 2013, Reyes filed a formal EEO complaint
alleging retaliation by his superiors, including, among other
things, the OIG investigation, his interrogation by the FBI, and
the placement of the socialism presentation on his computer. He
amended his EEO complaint in early 2014 after the Acting U.S.
Attorney proposed that Reyes be suspended for one day for
negligent performance of his duties related to gathering
statistical information about firearm-related crime in Puerto
Rico. He amended it several additional times after receiving a
negative employment evaluation and other reprimands and the
relocation of his office to the Social Security Office.
Reyes filed a second EEO complaint in November 2014, after
his supervisor required him to submit a medical certificate for
several days that he took off in October to attend doctors’
appointments. In January 2015, his superiors declined to return
2 It was later determined that someone other than Reyes placed the presentation on his computer.
3 his office to its earlier location or to return him to his
earlier job duties in light of the OIG investigation and pending
personnel action. Concluding that retaliation and ostracism by
his superiors and coworkers would only continue, Reyes resigned
on February 3, 2015. He filed this action on September 2, 2015.
Reyes first challenged the defendant’s privilege
designations toward the close of discovery. By agreement of the
parties, the court engaged its informal discovery dispute
resolution process outlined in the court’s order of September 8,
2016, and held a telephone conference to discuss this and other
disputes on March 8, 2017. During this conference, the
defendant agreed to provide Reyes with a privilege log that
indicated which senders and recipients of withheld or redacted
emails acted as attorneys and which acted as clients for
purposes of asserting the attorney-client privilege. Reyes
moved the court to review the challenged documents in camera,
also pursuant to the parties’ agreement and the court’s order
following the conference, and the defendant subsequently
submitted the documents for such a review while objecting to
their production.
Analysis
“Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
4 proportional to the needs of the case . . . .” Fed. R. Civ.
P. 26(b)(1). The parties here do not dispute the relevance or
discoverability (in the larger Rule 26 sense) of the documents
that Reyes seeks produced. The defendant contends, instead,
that each of the documents is protected from disclosure by one
or more of the attorney-client privilege, the deliberative
process privilege, and the work-product doctrine.
The defendant’s claims of privilege implicate the relative
functions of several offices within the Department of Justice:
Reyes was employed by the United States Attorney’s Office
(“USAO”) for the District of Puerto Rico.
During the events described above, his superiors in that
office occasionally sought advice or assistance from the
Department of Justice’s Executive Office for United States
Attorneys (“EOUSA”), which provides executive and
administrative support for all United States Attorney’s
Offices.
They also sought advice from the General Counsel’s Office
(“GCO”) within the Executive Office, which provides legal
advice and litigation support on a range of legal issues,
including employment law, to all U.S. Attorney’s Offices
and the Executive Office.
During the course of these events, attorneys within the
General Counsel’s Office sought assistance from another
5 section of the Executive Office, the Security and Emergency
Management Staff (“SEMS”), which handles security issues
for U.S. Attorney’s Offices, including IT security,
building security, and granting, suspending, revoking, and
withdrawing security clearances.
Finally, during the relevant period, Reyes was subject to
an investigation by the Office of the Inspector General
(“OIG”), an office within the Department of Justice that
investigates alleged violations of criminal and civil laws
by Department of Justice employees.
Most of the privilege designations that Reyes challenges
concern communications between his superiors at the USAO, on the
one hand, and counsel at the GCO, on the other (log nos. 1-5, 7-
12, 19-20, 27-29, 38-40, 43-45, 48-49, 60, 66-67, 73, 104-105,
108, 115-116); among employees of the USAO (log nos. 6, 26,
114); between the GCO and employees of the EOUSA (log nos. 13-
15, 21, 74, 84, 95, 97-99, 106-107, 109-113); and among all
three of the GCO, EOUSA, and USAO (log nos. 16-18).
The defendant asserts the attorney-client privilege over
all 56 challenged documents, the deliberative process privilege
over 30 of them, and the protection of the work-product doctrine
over 24. Before turning to specific documents, the court
addresses the parties’ broader arguments, which will resolve
disputes as to most of these documents.
6 A. Attorney-client privilege
The defendant asserts that all of the challenged documents
are protected from disclosure by the attorney-client privilege.
The “essential elements of the privilege,” as endorsed by the
First Circuit Court of Appeals, are:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002)
(quoting 8 J.H. Wigmore, Evidence § 2292, at 554 (McNaughton
rev. 1961)). The purpose of the privilege 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 (1981). “The privilege protects ‘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.’” Texaco Puerto Rico,
Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 883 (1st Cir.
1995) (quoting Upjohn, 449 U.S. at 390)). “That protection
ceases, or is often said to be ‘waived,’ when otherwise
privileged communications are disclosed to a third party. The
rationale is that such disclosure ‘destroys the confidentiality
7 upon which the privilege is premised.’” Lluberes v. Uncommon
Prods., LLC, 663 F.3d 6, 24 (1st Cir. 2011) (internal citations
omitted). The defendant, as “[t]he party invoking the
privilege[,] must show both that it applies and that it has not
been waived.” Id.
Having reviewed the parties’ filings, as well as the
documents in question in camera, the court concludes that the
following documents are protected by the attorney-client
privilege: log nos. 1-12, 18-20, 26, 29, 43-45, 48-49, 60, 66-
67, 73, 115-116. These documents reflect communications between
clients (employees of the USAO) and their attorneys (attorneys
from the GCO) for the purpose of obtaining or providing legal
advice.
As discussed more fully below, however, that protection has
been waived as to the documents described at log nos. 4-8, and
it never attached to the documents described at log nos. 13-17,
21, 27-28, 38-40, 74, 84, 95, 97-99, 104-114.
1. General Counsel’s Office as “attorney”
The plaintiff argues, categorically, that the GCO cannot
serve as an “attorney” for purposes of the attorney-client
privilege because the “legal duty” of the EOUSA, of which it is
a part, “is, generally, the ‘executive assistance and
supervision to the offices of the U.S. Attorneys.’ That is, the
8 GCO does not have the authority to act as a lawyer in connection
with a lawsuit.”3
This position runs contrary to the Supreme Court’s
determination that “the Government may invoke the attorney-
client privilege in civil litigation to protect confidential
communications between Government officials and Government
attorneys.” United States v. Jicarilla Apache Nation, 564 U.S.
162, 170 (2011). In that context, “the ‘client’ may be the
agency and the attorney may be an agency lawyer.” Tax Analysts
v. I.R.S., 117 F.3d 607, 618 (D.C. Cir. 1997). Regardless of
the context, however, the privilege “attaches only when the
attorney acts in that capacity.” Texaco, 60 F.3d at 884.
Attorneys from the GCO may act as lawyers when advising the
Department of Justice and USAOs with respect to administrative
proceedings, for example. In this context, the “client” is the
agency -- that is, the USAO -- and the “attorney” is the agency
lawyer. See Tax Analysts, 117 F.3d at 618. The privilege thus
attaches to the GCO’s communications with its USAO clients, as
long as the other requirements, such as confidentiality, the
attorney acting in that capacity, and the pursuit of legal
advice, are met. As to the documents described above, they are.
3 Mot. for In Camera Review (doc. no. 43) at 4-5 (quoting 28 C.F.R. § 0.22).
9 2. Waiver through disclosure to the Office of the Inspector General
Reyes argues that any claims of privilege over several of
the documents (specifically, those described at log nos. 4-12,
29, and 38-40) were waived when the USAO disclosed those
documents to the OIG, a third party, and the OIG considered and
included them in its report on its investigation into Reyes’
conduct.4 Citing the Bates numbers of the OIG’s report as
produced, the defendant responds that only four of those
documents (log nos. 4-5 and 7-8) were included in that report.5
The defendant bears the burden of demonstrating that this
disclosure did not waive the privilege. Lluberes, 663 F.3d at
24. The defendant argues that “sending copies to the OIG, at
the OIG’s request, did not constitute a waiver of the attorney-
client privilege because OIG, which is part of DOJ, is not a
true ‘third party’ vis-à-vis EOUSA-USAO communications.”6 The
4 Mot. for In Camera Review (doc. no. 43) at 9, 11. Document 6 amounts to a communication among clients discussing the GCO’s legal advice. Reyes does not argue that it lacks protection as such, but challenges it only on the general grounds discussed above. 5 Opposition (doc. no. 44-1) at 12, 16; Defendant’s Reply Brief (doc. no. 53-1) at 2-3, 12. The court presumes this means that no other challenged documents were shared with the OIG, though the defendant has not affirmatively represented as much. If additional documents have been disclosed to the OIG, the privilege is likely waived as to those documents, and the court expects the defendant will notify it for an appropriate ruling. 6 Opposition (doc. no. 44-1) at 12.
10 defendant offers no support for the proposition that the
privilege, as it may exist between attorneys at the GCO and
their clients at the USAO, extends to all offices within the DOJ
regardless of their function with respect to the communications
at hand. To the contrary, the cases the defendant cites support
a finding of waiver where, as here, there is no evidence that
the OIG and the USAO held a common legal interest in the
communications or that they were disclosed to the OIG for
assistance in providing legal advice to the USAO. See In re
Keeper of Records (Grand Jury Subp. Addressed to XYZ Corp.), 348
F.3d 16, 23-24 (1st Cir. 2003) (no privilege, and thus no
waiver, in communications to which third-parties are privy);
Cavallaro, 284 F.3d at 250 (common interest doctrine does not
prevent waiver where third party, lacking a common legal
interest with respect to the communications, is made privy to
them). Accordingly, the defendant waived any attorney-client
privilege that attached to the documents described at log
nos. 4-5 and 7-8 through their disclosure to the OIG.
Invoking Federal Rule of Evidence 502(a), Reyes argues
that, through waiving the privilege as to some documents, the
defendant has waived the privilege as to all documents
11 concerning the same subject matter.7 That rule provides that a
disclosure of protected materials “to a federal office or
agency” results in a waiver that “extends to an undisclosed
communication or information . . . only if: (1) the waiver is
intentional; (2) the disclosed and undisclosed communications or
information concern the same subject matter; and (3) they ought
in fairness to be considered together.” Fed. R. Evid. 502(a).
The Advisory Committee Notes to that Rule explain that “a
subject matter waiver (of either privilege or work product) is
reserved for those unusual situations in which fairness requires
a further disclosure of related, protected information, in order
to prevent a selective and misleading presentation of evidence
to the disadvantage of the adversary.” Fed. R. Evid. 502
Advisory Comm. Notes, 2011 Amendment.
The defendant argues that it did not intentionally waive
the privilege because the law authorized OIG to access those
communications, see 5 U.S.C. App. 3 § 6(a)(1)(A), and, further,
the defendant intended that the communications remain
confidential despite their disclosure to the OIG.8 The defendant
offers no support for the former proposition and, as to the
7 Mot. for In Camera Review (doc. no. 43) at 7; Plaintiff's Second Brief (doc. no. 51) at 7. 8 Opposition (doc. no. 44-1) at 11-12, 15; Defendant’s Reply Brief (doc. no. 53-1) at 3-4.
12 latter, cites a decision addressing only whether the privilege
exists, not whether it was waived. See Kevlik v. Goldstein, 724
F.2d 844, 849 (1st Cir. 1984).
Here, there is no indication that disclosure of these
emails to OIG in the context of its investigation and report was
in any way inadvertent. The waived communications concern the
decision to refer the allegations concerning Reyes’s
communication with Russian entities to the OIG for
investigation.9 The only other communication relating to that
particular subject matter is that described at log no. 6. The
court concludes, accordingly, that the defendant has waived
privilege as to that communication as well.
3. Communications with SEMS
Reyes challenges the attorney-client privilege designation
as to several communications between employees of the GCO and
SEMS concerning Reyes’s security clearance and its search of
Reyes’s computer, electronic devices, and office (log nos. 13-
15, 21, 74, 84, 95, 97-99, 106-107, 109-113). The defendant
describes these as “[c]onfidential communications between GCO
and EOUSA Security staff regarding,” among other things, “EOUSA
searching Mr. Reyes’s USAO computers and handheld devices,”
9 Priv. Log (doc. no. 43-1) at 3; Opposition (doc. no. 44-1) at 10-11.
13 “Mr. Reyes’s security clearance,” and “FBI’s position on giving
Mr. Reyes access to FBI’s offices.”10 No USAO employees sent or
received these emails. Despite characterizing the SEMS
employees as “clients” on the privilege log,11 the defendant
abandons that position and argues instead that the privilege
protects the GCO attorneys’ communications with them because the
GCO would advise its clients based on the information provided
by SEMS.12
This argument fails on two grounds. First, the attorney-
client privilege protects communications between the attorney
and the client. Cavallaro, 284 F.3d at 245. Here, the USAO did
not participate in these communications -- as such, they are not
properly “attorney-client” communications. The defendant
initially identified the EOUSA as its client for purposes of
these communications, but has offered neither argument nor
authority supporting that position and, in any event, appears to
have abandoned it.
10 See Priv. Log (doc. no. 43-1) at 5, 7, 14-15, 17-19. 11 Id. 12Opposition (doc. no. 44-1) at 12 (SEMS agents were “GCO’s agents and/or consultants,” despite characterization as “clients” on privilege log); 21 (the SEMS employees were “EOUSA agent[s] who [were] assisting [the GCO attorney] for purposes of giving legal advice to her client.”).
14 Nor has the defendant offered any authority for the
proposition that an attorney’s communications with a third party
are protected by the attorney-client privilege when made for the
purposes of obtaining information for her client.13 As discussed
supra Part II.A.2, the privilege generally does not protect
communications with or disclosed to a third party. The
defendant relies on the “exception to this general rule [that]
exists for third parties employed to assist a lawyer in
rendering legal advice.”14 Cavallaro, 284 F.3d at 247. Thus,
for example, an accountant’s presence “while the client is
relating a complicated tax story to the lawyer” does not destroy
the privilege as long as “the accountant is necessary, or at
least highly useful, for the effective consultation between the
client and the lawyer which the privilege is designed to
permit.” Id. (quoting United States v. Kovel, 296 F.2d 918, 922
(2d Cir. 1961)).
That is not the case here, however. SEMS was not acting as
an agent of either the attorney or the client whose presence was
“necessary, or at least highly useful,” for effective
consultation between the GCO and the USAO. To the contrary, as
the defendant acknowledges and as the documents -- as reviewed
13 Opposition (doc. no. 44-1) at 12, 14, 21-23. 14 See id.
15 ex parte by the court -- make clear, SEMS, an independent
decision-maker, was tasked with investigating Reyes and deciding
whether to revoke his security clearance,15 separate and apart
from the GCO’s provision and communication of legal advice to
the USAO. The attorney-client privilege, accordingly, does not
protect the withheld communications between the GCO and SEMS.
The privilege likewise does not protect communications
between GCO attorneys and their clients at the USAO insofar as
the GCO acted only to update its client as to the status of
SEMS’s decision about Reyes’s security clearance (log nos. 104-
105, 108). Those communications, as reviewed by the court, do
not implicate the provision of legal advice, as the privilege
requires, but merely convey an independent decision of a
separate office within the Department of Justice.
Communications between the USAO and SEMS (log nos. 16-17),
despite the inclusion of GCO on the email chain, lack privileged
status for much the same reason. The defendant describes these
as communications “to schedule a confidential conference call to
discuss Mr. Reyes’ security clearance and the OIG
investigation.”16 As discussed above, SEMS was not acting as an
15Defendant’s Reply Brief (doc. no. 53-1) at 17 (SEMS was “the decisionmaker on the issue of Plaintiff’s security clearance.”). 16 Priv. Log (doc. no. 43-1) at 6.
16 agent of the GCO in these communications or with respect to its
decision whether to revoke Reyes’s security clearance. As such,
and as with the communications between the GCO and SEMS, the
privilege does not attach to these communications.
4. Other documents
The defendant also asserts attorney-client privilege
protection over the documents described at log nos. 27-28, 38-
40, and 114. The first five of these documents (log nos. 27-28
and 38-40) reflect communications between the GCO (attorney) and
the USAO (client) that do not appear to be made for the purpose
of obtaining legal advice. Rather, they appear to be
communications between the USAO and the GCO in the latter’s
capacity as an EOUSA decision-maker rather than its capacity as
a legal advisor. For example, the documents described at log
nos. 27-28 reflect the USAO seeking, and the GCO providing, a
determination as to whether Reyes should be permitted to
moonlight as a private attorney. Similarly, those described at
log nos. 38-40 reflect a discussion between the GCO and USAO
concerning whether the fact that Reyes possessed a CD containing
other employees’ tax returns should be referred to the OIG for
investigation and, if so, which entity should handle that
referral.
17 The document described at log no. 114 reflects
communications among only USAO employees regarding whether to
seek advice from the GCO -- not discussing advice from GCO.
Insofar as no GCO attorney participated in that communication,
it is not protected by the attorney-client privilege. Indeed,
the defendant has produced other documents of a similar nature.17
B. Work product doctrine
The defendant asserts the protection of the work product
doctrine over a variety of emails sent after the USAO was on
notice of Reyes’s intent to file, or after Reyes had already
filed, an administrative complaint under Title VII (log nos. 21,
38-40, 74, 84, 95, 97-99, 104-114).18 The defendant contends
that they were thus prepared in anticipation of litigation.
“[A] party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by
or for another party or its representative . . . .” Fed. R.
Civ. P. 26(b)(3)(A). Under the standard set by the First
Circuit Court of Appeals, the work product doctrine protects
17 See, e.g., Bates no. 3718-19. 18See Opposition (doc. no. 44-1) at 14-16, 18, 21-22. The defendant also asserts work-product protection over the documents described at log nos. 26, 43-45, 48-49, 60, 66-67, 73, and 115-116. Priv. Log (doc. no. 43-1) at 11, 13-14, 20. The court concluded, supra Part II.A, that these communications are protected by the attorney-client privilege, and so does not address the work-product claim.
18 documents that are “prepared for any litigation or trial as long
as they were prepared by or for a party to the subsequent
litigation.” United States v. Textron Inc. & Subsidiaries, 577
F.3d 21, 29 (1st Cir. 2009) (en banc) (quoting Federal Trade
Commission v. Grolier Inc., 462 U.S. 19, 25 (1983)). Under that
rule’s converse, “work product protection does not extend to
‘documents that are prepared in the ordinary course of business
or that would have been created in essentially similar form
irrespective of the litigation.’” Id. at 30 (quoting Maine v.
U.S. Dep't of Interior, 298 F.3d 60, 70 (1st Cir. 2002)).
As discussed supra Parts A.3-4, the attorney-client
privilege does not attach to the documents described at log
nos. 21, 38-40, 74, 84, 95, 97-99, and 104-114, which concern
the OIG investigation, the FBI investigation, and SEMS’s
decision on whether to revoke Reyes’s security clearance. The
court therefore considers whether, as the defendant contends,
the work-product doctrine protects them from disclosure.
The defendant asserts the work-product protection over
these documents on the sole ground that Reyes was about to file,
or had in fact filed, one or both of his EEO complaints at the
time of those communications. That is, though asserting the
documents were prepared in anticipation of litigation, the
defendant does not explain how that administrative proceeding,
19 or threat thereof, caused the documents to be generated.19 And
it is not apparent to the court, which has reviewed the
documents themselves in camera, how the communications
concerning the OIG investigation or Reyes’s security clearance
were prepared for, or even because of, those proceedings.
The mere fact that the GCO or USAO anticipated an
administrative complaint from Reyes, or that Reyes had filed
such complaints, does not automatically protect communications
that would have been created regardless of Reyes’s
administrative actions -- as it appears that the majority of
these documents would have been. This applies particularly to
the GCO’s communications with SEMS,20 which, as discussed supra
Part II.A.3, was acting as a separate and distinct decisionmaker
-- not the GCO’s agent -- when rendering its decision on Reyes’s
security clearance. Accordingly, the defendant has not carried
the burden of explaining how these documents were “prepared for
any litigation or trial,” as required by Textron, 577 F.3d at
29.
19See Opposition (doc. no. 44-1) at 14-16, 18, 21-22. The defendant also relies on the declarations of Attorneys Jay Macklin and Sobia Haque in support of this position. They offer only the same rote justifications, however. See Macklin Decl. ¶ 18(g)-(h); Haque Decl. ¶ 12(a), (c), (g). 20 Log nos. 21, 74, 84, 95, 97-99, 106-107, and 109-113.
20 C. Deliberative process privilege
The defendant invokes the deliberative process privilege in
withholding the documents described at log nos. 4-8, 13-18, 29,
38-40, 66-67, 74, 84, 95, and 104-113. “The deliberative
process privilege shields from public disclosure confidential
inter-agency memoranda on matters of law or policy. The
privilege rests on a policy of affording reasonable security to
the decisionmaking process within a government agency.” Texaco,
60 F.3d at 884 (internal quotations and citations omitted). “It
facilitates government decision making by: (1) assuring
subordinates will feel free to provide uninhibited opinions,
(2) protecting against premature disclosure of proposed
government policies, and (3) preventing confusion among the
public that may result from releasing various rationales for
agency action.” New Hampshire Right to Life v. U.S. Dep't of
Health & Human Servs., 778 F.3d 43, 52 (1st Cir.), cert. denied,
136 S. Ct. 383 (2015) (quoting Providence Journal Co. v. United
States Dep't of Army, 981 F.2d 552, 557 (1st Cir. 1992)).
This privilege “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.” Sensor Sys. Support, Inc. v. F.A.A., 851
F. Supp. 2d 321, 328 (D.N.H. 2012) (Barbadoro, J.) (quoting
Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866
21 (D.C. Cir. 1980)). It applies not only to “the development of
generally applicable policy,” but also, as relevant here, “to
protect materials that concern individualized decisionmaking . .
. .” Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir.
1998); see also Providence Journal, 981 F.2d at 557-59
(recommendations for disciplinary action against Army officers
protected).
To qualify for its protections, “a document must be (1)
predecisional, that is, ‘antecedent to the adoption of agency
policy,’ and (2) deliberative, that is, actually ‘related to the
process by which policies are formulated.’” Texaco, 60 F.3d at
884 (quoting National Wildlife Fed'n v. United States Forest
Serv., 861 F.2d 1114, 1116 (9th Cir. 1988)).
A document is “predecisional” if the agency can (1) “pinpoint the specific agency decision to which the document correlates;” (2) “establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision;” and (3) “verify that the document precedes, in temporal sequence, the decision to which it relates.” A document is “deliberative” if it: (1) “formed an essential link in a specified consultative process;” (2) “reflects the personal opinions of the writer rather than the policy of the agency;” and (3) “if released, would inaccurately reflect or prematurely disclose the views of the agency.”
Sensor Sys. Support, 851 F. Supp. 2d at 328 (quoting Providence
Journal, 981 F.2d at 557, 559).
22 This privilege is not absolute, but rather is “a
discretionary one.” Texaco, 60 F.3d at 885. In deciding how to
exercise that discretion, the court considers “the interests of
the litigants, society’s interest in the accuracy and integrity
of factfinding, and the public’s interest in honest, effective
government.” Id. Courts routinely deny the privilege “where
the documents sought may shed light on alleged government
malfeasance . . . .” Id. (quoting Franklin Nat'l Bank Sec.
Litig., 478 F. Supp. 577, 582 (E.D.N.Y. 1979)).
In that vein, several courts have concluded that, “where
the decision-making process itself is the subject of the
litigation, it is inappropriate to allow the deliberative
process privilege to preclude discovery of relevant
information.” Velazquez v. City of Chicopee, 226 F.R.D. 31, 34
(D. Mass. 2004) (internal citations and quotations omitted); see
also Grossman v. Schwarz, 125 F.R.D. 376, 384 (S.D.N.Y. 1989)
(deliberation leading to administrative decision which plaintiff
alleged amounted to retaliation not protected). Thus, “[i]f the
plaintiff’s cause of action is directed at the government’s
intent,” as it is in, for example, an action under Title VII,
“it makes no sense to permit the government to use the privilege
as a shield.” In re Subpoena Duces Tecum Served on Office of
Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir.), on
reh'g in part, 156 F.3d 1279 (D.C. Cir. 1998).
23 As an initial matter, as the plaintiff observes, the
defendant’s claims of attorney-client privilege and deliberative
process privilege over the same communications appear
inconsistent. A communication may be for the purpose of
obtaining legal advice, as the former privilege requires, or it
may constitute part of the policy-making process, as the latter
does, but it is difficult to conceive of a communication that
falls into both categories. See In re Lindsey, 158 F.3d 1263,
1270 (D.C. Cir. 1998) (“advice on political, strategic, or
policy issues . . . would not be shielded from disclosure by the
attorney-client privilege”). Regardless, to the extent that the
court concludes, as it has supra Part II.A, that several of
these documents are protected by the attorney-client privilege,21
and thus need not be produced on those grounds, it need not
address them under the deliberative process privilege.
The plaintiff then levels two challenges against the
defendant’s assertion of the deliberative process privilege:
first, that the defendant had a “[c]omplete failure to comply
with the required [deliberative process] protection showing” as
21Specifically, those described at log nos. 4-8, 18, 29, and 66- 67. Insofar as the court concludes that privilege was waived as to the documents described at log nos. 4-8, the court does address those below.
24 to all of these allegedly-privileged documents22 and, second,
that some of those documents reflect “the subject matter of this
litigation”23 and thus forego protection.
As to the first charge, the defendant bolsters the
deliberative process privilege showing while objecting to the
plaintiff’s motion by identifying, as to each document: (1) the
decision to which it relates; (2) that the communication
predated the decision; and (3) that each communication was
deliberative. The court is underwhelmed by the defendant’s
showings as to the deliberative process privilege and is
skeptical that many of the communications are, in fact,
“deliberative” under the standard set forth in Providence
Journal, 981 F.2d at 559. Indeed, despite the defendant’s
categorical and unsupported argument, several of them clearly
22See Mot. for In Camera Review (doc. no. 43) at 9-13. The plaintiff does not explicitly challenge log nos. 106-107 on these grounds, likely because the defendant neglected to indicate deliberative process protection as grounds for withholding on the privilege log. See Priv. Log (doc no. 43-1) at 18; Defendant’s Reply Brief (doc. no. 53-1) at 22 n.7 (omission of “DP” from basis for withholding column inadvertent). Insofar as the defendant did note that these documents were “[p]re-decisional and deliberative,” id., the court treats them as withheld on those grounds and, further, presumes the plaintiff lodges the same objections. 23Mot. for In Camera Review (doc. no. 43) at 10-13. Plaintiff challenges all of the documents withheld under the deliberative process privilege on these grounds except log nos. 4-8. See id. at 9; Plaintiff's Second Brief (doc. no. 51) at 12-13.
25 are not. These include communications about the status, rather
than the content, of the OIG’s investigation of Reyes24 and
SEMS’s decision on Reyes’s security clearance,25 as well as
communications that contain no opinion at all.26 These
communications thus do not appear to “form[] an essential link”
in the deliberative process or “reflect[] the personal opinions
of the writer.” Providence Journal, 981 F.2d at 559. Nor, if
released, do they appear likely to “inaccurately reflect or
prematurely disclose the views of the agency.” Id.
Accordingly, the documents described at log nos. 4, 7-8, 74, 84,
95, and 104-113 are not protected by the deliberative process
privilege.
As to the documents that may, at least arguably, be
deliberative,27 the plaintiff is correct that they touch on some
of the decisions that Reyes alleges amount to retaliation and
thus are related to the subject of this litigation.
Specifically, Reyes has raised a claim of constructive discharge
based on retaliation. He alleges that his superiors at the USAO
“encouraged an OIG investigation into his conduct” concerning
24 Log nos. 74, 84, 95. 25 Log nos. 104-113. 26 Log nos. 4, 7-8. 27 Log nos. 5-6, 13-17, 38-40.
26 the invitation to a conference in Russia and the presentation
found on his computer” in retaliation for various actions he
undertook.28 He makes similar allegations about his questioning
by the FBI and their restriction of his office.29 The
communications described by log nos. 5-6, 13-17, and 38-40
relate to the reasons for and findings of the OIG investigation.
As such, they shed light on the defendant’s intent, an issue
squarely implicated by the plaintiff’s retaliation claim.
Accordingly, the deliberative process privilege does not shield
them.
Conclusion30
Plaintiff's motion31 is GRANTED-IN-PART and DENIED-IN-PART
as follows:
The documents described at log nos. 1-12, 18-20, 26,
29, 43-45, 48-49, 60, 66-67, 73, 115-116 are protected
28 Compl. (doc. no. 1) ¶ 10.5. 29 Id. ¶¶ 10.10, 10.13-10.16. 30The plaintiff also moved to compel the defendant’s responses to interrogatories and production of documents in response to discovery requests served shortly before the close of discovery. Mot. for In Camera Review (doc. no. 43) at 14. The defendant’s agreement to respond to those requests, see Opposition (doc. no. 44-1) at 1 n.2, moots that request. 31 Doc. no. 43.
27 from disclosure by at least the attorney-client
The documents described at log nos. 4-8, 13-17, 21, 27-
28, 38-40, 74, 84, 95, 97-99, 104-114 are not protected
and must be produced to plaintiff on or before June 19,
2017.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: June 15, 2017
cc: Bamily Lopez-Ortiz, Esq. Christine J. Wichers, Esq.