UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mark Anderson, Plaintiff
v. Case No. 19-cv-109-SM Opinion No. 2020 DNH 149 Trustees of Dartmouth College, Defendant
O R D E R
Mark Anderson, plaintiff, proceeding pro se, asserts a
variety of claims arising from Dartmouth College’s disciplinary
process, which resulted in his expulsion. In the course of
discovery, Anderson filed a motion to compel, challenging
Dartmouth’s withholding of hundreds of documents on grounds of
attorney-client privilege, and asking the court to conduct an in
camera review of those purportedly privileged documents. The
court granted that motion, and defendant subsequently submitted
the documents for the court’s review.
Having completed that review, the court has determined
that, in several instances, defendant’s invocation of the
attorney-client privilege exceeds its intended purpose. Given
the number of documents, nearly 800 individual documents,
totaling nearly 5,000 pages, an individualized discussion of
every document is neither practical nor necessary. A summary of
1 why defendant’s assertions of privilege are problematic with
respect to certain categories of documents will do.
Standard of Review
“The attorney-client privilege is well-established and its
rationale straightforward.” In re Keeper of Records (Grand Jury
Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir.
2003). “By safeguarding communications between client and
lawyer, the privilege encourages full and free discussion,
better enabling the client to conform his conduct to the
dictates of the law and to present legitimate claims and
defenses if litigation ensues.” Id. (citing Upjohn Co. v. U.S.,
449 U.S. 383, 389 (1981)). But, because the privilege “stands
as an obstacle of sorts to the search for truth,” it is
“narrowly construed,” protecting only “communications that are
[both] confidential” and “made for the purpose of seeking or
receiving legal advice.” Id. at 22 (citations omitted).
“In harmony with the need for narrow construction,”
precedent “makes manifest that the attorney-client privilege
attaches only:
(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
2 himself or by the legal adviser, (8) except the protection be waived.”
In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir.
2011) (quoting Cavallaro v. United States, 284 F.3d 236, 245
(1st Cir. 2002)) (further quotations omitted).
“While the privilege may be applied to communications
between corporate officers and in-house counsel, it does not
apply ‘when in-house counsel is engaged in nonlegal work.’”
Hebert v. Vantage Travel Serv., Inc., No. CV 17-10922-DJC, 2019
WL 2514729, at *1 (D. Mass. June 18, 2019) (quoting United
States v. Windsor Capital Corp., 524 F. Supp. 2d 74, 81 (D.
Mass. 2007)). Because “an in-house lawyer may wear several
other hats (e.g., business advisor, financial consultant) and
because the distinctions are often hard to draw, the invocation
of the attorney-client privilege may be questionable in many
instances.” City of Springfield v. Rexnord Corp., 196 F.R.D. 7,
9 (D. Mass. 2000) (citing Texaco Puerto Rico, Inc. v. Dep't of
Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995)). “The
defendant has the burden of establishing that the privilege
applies to the documents at issue.” Hebert, 2019 WL 2514729, at
*1.
3 Discussion
Dartmouth has grouped the withheld emails into four general
categories: (1) emails in which an attorney in the Office of the
General Counsel provided legal advice to another Dartmouth
employee outside the General Counsel’s office (“Group 1”); (2)
emails between an attorney in the General Counsel’s office and a
staff member of that office; (3) emails between two or more
employees, on which an attorney in the Office of the General
Counsel is copied (“Group 3”); and (4) emails where no attorney
is a recipient or author, but the email discusses legal advice
given by an attorney in the Office of the General Counsel
(“Group 4”). For ease of reference and discussion, the court
adopts defendant’s groupings.
Defendant’s Failure to Propose Redactions. As a
preliminary matter, defendant has not explained why the majority
of the documents withheld could not be produced to the plaintiff
with the privileged material redacted. In hundreds of the email
threads1 withheld, most of the emails are external (typically
between Anderson and Dartmouth employees). The applicable law
is straight-forward: “If the nonprivileged portions of a
communication are distinct and severable, and their disclosure
1 An email “thread” is a group of related email messages, or chain, which is comprised of all the succeeding replies and forwards starting with the original email. 4 would not effectively reveal the substance of the privileged
legal portions, the court must designate which portions of the
communication are protected and therefore may be excised or
redacted (blocked out) prior to disclosure.” Paul Rice,
Attorney–Client Privilege in the United States § 11:21 (2014).
See, e.g., Breon v. Coca-Cola Bottling Co. of New England, 232
F.R.D. 49, 55 (D. Conn. 2005) (“It is not proper to withhold an
entire document from discovery on grounds that a portion of it
may be privileged. Where a document purportedly contains some
privileged information, the unprivileged portions of the
document must be produced during discovery. The proper
procedure in such instances is to redact the allegedly
privileged communication, and produce the redacted document.”).
Defendant fails to provide any explanation as to why emails
were not produced to plaintiff in redacted form. Defendant has
not contended that redactions would be overly burdensome. Nor
has defendant argued that non-privileged versions of those
emails (the email thread prior to counsel involvement) have
already been produced to the plaintiff. Defendant ought to have
produced the withheld documents with privileged material
redacted, rather than withholding those email threads in their
entirety.
5 Group 2. Moving to discussion of the individual groups
identified by Dartmouth, two of the four groups are quickly
dispatched. First, with respect to Group 2, each of the 18
email threads contains at least one privileged email. In other
words, at least one email in each of the Group 2 email threads
contains communications made for purposes of rendering legal
advice, and otherwise qualifies for protection. However, as
discussed, some of the email threads within Group 2 must be
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mark Anderson, Plaintiff
v. Case No. 19-cv-109-SM Opinion No. 2020 DNH 149 Trustees of Dartmouth College, Defendant
O R D E R
Mark Anderson, plaintiff, proceeding pro se, asserts a
variety of claims arising from Dartmouth College’s disciplinary
process, which resulted in his expulsion. In the course of
discovery, Anderson filed a motion to compel, challenging
Dartmouth’s withholding of hundreds of documents on grounds of
attorney-client privilege, and asking the court to conduct an in
camera review of those purportedly privileged documents. The
court granted that motion, and defendant subsequently submitted
the documents for the court’s review.
Having completed that review, the court has determined
that, in several instances, defendant’s invocation of the
attorney-client privilege exceeds its intended purpose. Given
the number of documents, nearly 800 individual documents,
totaling nearly 5,000 pages, an individualized discussion of
every document is neither practical nor necessary. A summary of
1 why defendant’s assertions of privilege are problematic with
respect to certain categories of documents will do.
Standard of Review
“The attorney-client privilege is well-established and its
rationale straightforward.” In re Keeper of Records (Grand Jury
Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir.
2003). “By safeguarding communications between client and
lawyer, the privilege encourages full and free discussion,
better enabling the client to conform his conduct to the
dictates of the law and to present legitimate claims and
defenses if litigation ensues.” Id. (citing Upjohn Co. v. U.S.,
449 U.S. 383, 389 (1981)). But, because the privilege “stands
as an obstacle of sorts to the search for truth,” it is
“narrowly construed,” protecting only “communications that are
[both] confidential” and “made for the purpose of seeking or
receiving legal advice.” Id. at 22 (citations omitted).
“In harmony with the need for narrow construction,”
precedent “makes manifest that the attorney-client privilege
attaches only:
(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
2 himself or by the legal adviser, (8) except the protection be waived.”
In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir.
2011) (quoting Cavallaro v. United States, 284 F.3d 236, 245
(1st Cir. 2002)) (further quotations omitted).
“While the privilege may be applied to communications
between corporate officers and in-house counsel, it does not
apply ‘when in-house counsel is engaged in nonlegal work.’”
Hebert v. Vantage Travel Serv., Inc., No. CV 17-10922-DJC, 2019
WL 2514729, at *1 (D. Mass. June 18, 2019) (quoting United
States v. Windsor Capital Corp., 524 F. Supp. 2d 74, 81 (D.
Mass. 2007)). Because “an in-house lawyer may wear several
other hats (e.g., business advisor, financial consultant) and
because the distinctions are often hard to draw, the invocation
of the attorney-client privilege may be questionable in many
instances.” City of Springfield v. Rexnord Corp., 196 F.R.D. 7,
9 (D. Mass. 2000) (citing Texaco Puerto Rico, Inc. v. Dep't of
Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995)). “The
defendant has the burden of establishing that the privilege
applies to the documents at issue.” Hebert, 2019 WL 2514729, at
*1.
3 Discussion
Dartmouth has grouped the withheld emails into four general
categories: (1) emails in which an attorney in the Office of the
General Counsel provided legal advice to another Dartmouth
employee outside the General Counsel’s office (“Group 1”); (2)
emails between an attorney in the General Counsel’s office and a
staff member of that office; (3) emails between two or more
employees, on which an attorney in the Office of the General
Counsel is copied (“Group 3”); and (4) emails where no attorney
is a recipient or author, but the email discusses legal advice
given by an attorney in the Office of the General Counsel
(“Group 4”). For ease of reference and discussion, the court
adopts defendant’s groupings.
Defendant’s Failure to Propose Redactions. As a
preliminary matter, defendant has not explained why the majority
of the documents withheld could not be produced to the plaintiff
with the privileged material redacted. In hundreds of the email
threads1 withheld, most of the emails are external (typically
between Anderson and Dartmouth employees). The applicable law
is straight-forward: “If the nonprivileged portions of a
communication are distinct and severable, and their disclosure
1 An email “thread” is a group of related email messages, or chain, which is comprised of all the succeeding replies and forwards starting with the original email. 4 would not effectively reveal the substance of the privileged
legal portions, the court must designate which portions of the
communication are protected and therefore may be excised or
redacted (blocked out) prior to disclosure.” Paul Rice,
Attorney–Client Privilege in the United States § 11:21 (2014).
See, e.g., Breon v. Coca-Cola Bottling Co. of New England, 232
F.R.D. 49, 55 (D. Conn. 2005) (“It is not proper to withhold an
entire document from discovery on grounds that a portion of it
may be privileged. Where a document purportedly contains some
privileged information, the unprivileged portions of the
document must be produced during discovery. The proper
procedure in such instances is to redact the allegedly
privileged communication, and produce the redacted document.”).
Defendant fails to provide any explanation as to why emails
were not produced to plaintiff in redacted form. Defendant has
not contended that redactions would be overly burdensome. Nor
has defendant argued that non-privileged versions of those
emails (the email thread prior to counsel involvement) have
already been produced to the plaintiff. Defendant ought to have
produced the withheld documents with privileged material
redacted, rather than withholding those email threads in their
entirety.
5 Group 2. Moving to discussion of the individual groups
identified by Dartmouth, two of the four groups are quickly
dispatched. First, with respect to Group 2, each of the 18
email threads contains at least one privileged email. In other
words, at least one email in each of the Group 2 email threads
contains communications made for purposes of rendering legal
advice, and otherwise qualifies for protection. However, as
discussed, some of the email threads within Group 2 must be
produced redacted.
Group 4. Similarly, in Group 4, the majority of the 43
email threads contain at least one privileged email. There are
two exceptions. First, the document beginning with Bates stamp
“Dartmouth-Priv-000005” is an email exchange largely between
Dartmouth employees Kristi Clemens and Keiselim Alfredo Montas,
which discuses Anderson’s arrest and the charge against him. As
best the court can determine, neither Clemens nor Montas is an
attorney, and neither mentions any legal advice they have
received from counsel. The email discusses the relevant New
Hampshire statute, but that fact does not render the email
subject to an attorney-client privilege. And, while in-house
counsel, Kevin O’Leary, is copied on the email, neither Clemens
nor Montas requests legal advice, nor does O’Leary offer any.
6 The document beginning with Bates stamp “Dartmouth-Priv-
001888” contains no privileged communications from counsel, or
any discussion of legal advice from counsel. Most of the emails
in the thread are external, between Anderson and Dartmouth
employees. The two internal emails forward those external
emails to other Dartmouth employees without comment. Why
Dartmouth has taken the position that the email thread is
privileged is puzzling – perhaps because O’Leary was one of the
several other Dartmouth employees forwarded the external emails.
In any event, Dartmouth-Priv-001888 is not privileged.
Those two referenced exceptions aside, the remaining emails
in Group 4 contain protected attorney-client privileged
communications. Again, several of the email threads must be
redacted and produced.
Groups 1 and 3. Group 1, like Group 4, contains mostly
privileged emails, or, more accurately, email threads that
include at least one privileged email. Group 1, however, does
include emails that present an issue arising frequently in the
Group 3 emails.
In both Group 1 and Group 3, defendant withheld from
production several documents in which nearly every email in the
thread is an external one – most often between a Dartmouth
7 employee and the plaintiff – except for the final email, or the
final few emails. Generally, the external communications seem
to have been forwarded to several Dartmouth employees, including
in-house counsel O’Leary, with a note to the effect of “FYI, see
below,” or “I sent the following email” to the plaintiff.
Occasionally, the internal emails invite feedback or comment on
potential draft email responses to the plaintiff, or request
advice on proposed actions to be taken with regard to the
plaintiff. Those requests were not made specifically to
counsel, instead generally requested responses from all email
recipients.
Despite the fact that those emails do not facially
establish that legal advice was sought, Dartmouth takes the
position that they are privileged because in-house counsel was
expected to “review and respond to emails on which they were
copied.” Document No. 38, at p. 3. Dartmouth argues:
Dartmouth employees copied in-house counsel when they believed the communication contained information an attorney . . . needed to provide ongoing advice with respect to [plaintiff]. In-house counsel was expected to review and respond to emails on which they were copied in response to changing circumstances involving [plaintiff] that might affect advice previously given or require new or additional legal input. This was part of a practice established by the Office of General Counsel with respect to employees handling student conduct matters, so copying a member of the
8 Office occurred with the reasonable expectation that he or she would provide advice on the topic at hand.
Document No. 38, at p. 3.2 Of course, merely saying so does not
make the documents privileged: “For the attorney-client
privilege, [defendant] must demonstrate that [in-house counsel]
was acting as an attorney in relation to each of the documents
at issue. ‘Merely saying that he was so acting in a memorandum
of law is patently insufficient to meet the burden. Neither can
it be assumed.’” United States v. Windsor Capital Corp., 524 F.
Supp. 2d at 81 (quoting Borase v. M/A COM, Inc., 171 F.R.D. 10,
14 (D. Mass. 1997)).
The presence of counsel’s name on a communication does not
render that communication privileged. In other words, “the fact
that an attorney either is copied on or is one of multiple
recipients of an email does not on its own support a claim of
attorney-client privilege.”3 United States ex rel. Barke v.
2 Dartmouth fails to provide any sort of affidavit or declaration from an individual with personal knowledge of that practice, or any other evidence that might establish that practice. 3 Indeed, some courts have held that a company cannot claim the primary purpose of a communication was to solicit legal advice when that document requests a response from both lawyers and non-lawyers for simultaneous review. See, e.g., Medina v. Buther, No. 15-CV-1955 (LAP), 2018 WL 4383098, at *3 (S.D.N.Y. Aug. 22, 2018) (“Where . . . ‘non-legal’ personnel are asked to provide a response to a matter raised in a document, it cannot be said that the ‘primary’ purpose of the document is to seek legal advice. This is because the response by non-legal 9 Halliburton, Co., 74 F. Supp. 3d 183, 188-89 (D.D.C. 2014). The
law is clear that a “document must have been intended to be
confidential and made for the purpose of giving or obtaining
legal advice to be vested with the attorney-client privilege.”
City of Springfield, 196 F.R.D. at 9.
On that point, City of Springfield, id., is instructive.
In that case, defendants “formed an in-house team, in which [in-
house counsel] was involved,” to handle an investigation. Id.
at 9. The court noted that the fact that in-house counsel “may
have performed certain legal functions as part of that team does
not render privileged each communication made by or copied to
him, particularly if the communication could equally well have
been made to or by an individual without a law degree.” Id.
With respect to several of the documents defendants withheld as
privileged, the count found, “[t]here is little if anything in
personnel by definition cannot be ‘legal’ and thus the purpose of the request cannot be primarily legal in nature.”). See also In re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d 789, 805 (E.D. La. 2007) (“When, for example, Merck simultaneously sends communications to both lawyers and non-lawyers, it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.).
10 these documents that evidences an attorney presenting issues and
analyzing claims with an eye toward applicable law.” Id. at 10.
With that in mind, the documents beginning with the
following Bates stamps in Group 1 are not privileged, and must
be disclosed: Dartmouth-Priv-001963; Dartmouth-Priv-001965;
Dartmouth-Priv-001967; Dartmouth-Priv-002247; Dartmouth-Priv-
002377; Dartmouth-Priv-003508; Dartmouth-Priv-004050; and
Dartmouth-Priv-004051.
Group 3. The court further orders the documents with the
following Bates stamps be produced, as they are not privileged:
Dartmouth-Priv-000001; Dartmouth-Priv-000002; Dartmouth-Priv-
000008; Dartmouth-Priv-000009; Dartmouth-Priv-000533; Dartmouth-
Priv-000536; Dartmouth-Priv-000540; Dartmouth-Priv-000544;
Dartmouth-Priv-000548; Dartmouth-Priv-000552; Dartmouth-Priv-
000556; Dartmouth-Priv-000561; Dartmouth-Priv-000566; Dartmouth-
Priv-000571; Dartmouth-Priv-000576; Dartmouth-Priv-000581;
Dartmouth-Priv-000585; Dartmouth-Priv-000591; Dartmouth-Priv-
000597; Dartmouth-Priv-000603; Dartmouth-Priv-000609; Dartmouth-
Priv-000615; Dartmouth-Priv-000621; Dartmouth-Priv-000628;
Dartmouth-Priv-000635; Dartmouth-Priv-000636; Dartmouth-Priv-
000637; Dartmouth-Priv-000639; Dartmouth-Priv-000641; Dartmouth-
Priv-000643; Dartmouth-Priv-000646; Dartmouth-Priv-000649;
Dartmouth-Priv-000653; Dartmouth-Priv-000657; Dartmouth-Priv-
11 000676; Dartmouth-Priv-001558; Dartmouth-Priv-001560; Dartmouth-
Priv-001564; Dartmouth-Priv-001566; Dartmouth-Priv-001568;
Dartmouth-Priv-001570; Dartmouth-Priv-001784; Dartmouth-Priv-
001802; Dartmouth-Priv-001808; Dartmouth-Priv-001822; Dartmouth-
Priv-001832; Dartmouth-Priv-001834; Dartmouth-Priv-001844;
Dartmouth-Priv-001852; Dartmouth-Priv-001873; Dartmouth-Priv-
001961; Dartmouth-Priv-001983; Dartmouth-Priv-001985; Dartmouth-
Priv-002009; Dartmouth-Priv-002011; Dartmouth-Priv-002015;
Dartmouth-Priv-002017; Dartmouth-Priv-002055; Dartmouth-Priv-
002090; Dartmouth-Priv-002093; Dartmouth-Priv-002096; Dartmouth-
Priv-002127; Dartmouth-Priv-002163; Dartmouth-Priv-002168;
Dartmouth-Priv-002169; Dartmouth-Priv-002174; Dartmouth-Priv-
002176; Dartmouth-Priv-002178; Dartmouth-Priv-002186; Dartmouth-
Priv-002187; Dartmouth-Priv-002188; Dartmouth-Priv-002190;
Dartmouth-Priv-002381; Dartmouth-Priv-002393; Dartmouth-Priv-
002406; Dartmouth-Priv-002409; Dartmouth-Priv-002412; Dartmouth-
Priv-002422; Dartmouth-Priv-002424; Dartmouth-Priv-002426;
Dartmouth-Priv-002428; Dartmouth-Priv-002431; Dartmouth-Priv-
002445; Dartmouth-Priv-002461; Dartmouth-Priv-002462; Dartmouth-
Priv-002507; Dartmouth-Priv-002511; Dartmouth-Priv-002516;
Dartmouth-Priv-002519; Dartmouth-Priv-002523; Dartmouth-Priv-
002527; Dartmouth-Priv-002531; Dartmouth-Priv-002535; Dartmouth-
Priv-002539; Dartmouth-Priv-002543; Dartmouth-Priv-002545;
Dartmouth-Priv-002548; Dartmouth-Priv-002563; Dartmouth-Priv-
12 002667; Dartmouth-Priv-002669; Dartmouth-Priv-002670; Dartmouth-
Priv-002706; Dartmouth-Priv-002710; Dartmouth-Priv-002714;
Dartmouth-Priv-003513; Dartmouth-Priv-003634; Dartmouth-Priv-
003635; Dartmouth-Priv-003636; Dartmouth-Priv-003639; Dartmouth-
Priv-003641; Dartmouth-Priv-003646; Dartmouth Priv-004054;
Dartmouth- Priv-004312.
Conclusion
For the foregoing reasons, defendant is ordered to disclose
to plaintiff the documents depicted by Bates stamps listed
herein in their entirety. Defendant is further ordered to
review the documents not specifically addressed in this order,
and, where appropriate, to provide plaintiff with redacted
versions of those documents (i.e., all reasonably segregable
responsive, non-privileged portions of the documents), as well
as a revised privilege log describing the communications
withheld.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
August 25, 2020
cc: counsel of record