Republican Party v. Martin

136 F.R.D. 421, 1991 WL 56425

• Court: District Court, E.D. North Carolina
• Decided: January 20, 1991
• Docket: No. 88-263-CIV-5-F
• Status: Published

Opinion

ORDER

JAMES C. FOX, Chief Judge.

NATURE OF THE CASE

Plaintiffs in this action challenge the constitutionality of North Carolina’s system of electing Superior Court judges. James G. Martin, Governor of North Carolina (“Governor Martin”), is a defendant in his official capacity. On March 14, 1990, the North Carolina Association of Black Lawyers (“NCABL”), defendant-intervenor in this case, applied to the court for a subpoena duces tecum commanding Governor Martin’s appearance at a deposition and requiring the Governor to produce:

(a) All documents related to the General Assembly’s enactment, or failure to enact, any legislation or proposed legislation to modify the method of electing Superior Court Judges in North Carolina[; and]

(b) All documents which relate to plaintiffs’ contention that the current method of electing Superior Court Judges in North Carolina discriminates against the Republican Party and Republican voters.

Governor Martin moved to quash the subpoena duces tecum and for a protective order that his deposition not be had, on the grounds that the subpoena commanded production of documents protected by executive privilege, by the work product doctrine, and by the attorney-client privilege, and because of the unnecessary intrusion on the office of Governor to respond. By order dated November 7, 1990, (the “Order”) this court ordered that the deposition be held subject to specified limitations, and that Governor Martin supplement his Motion to Quash by: (a) marking all the documents subpoenaed by the NCABL for identification and delivering the same, under seal, to the Clerk of Court for an in camera review by the court; (b) submitting an inventory of all documents by identification number; and (c) submitting a brief disclosing as to each document the applicable privilege(s) and the rationale for the privilege(s).

Governor Martin has submitted a Memorandum in Response to the Order (“Response Memorandum”) supplementing his Motion to Quash, and said motion is now ripe for ruling.

DISCUSSION

Attached to Governor Martin’s Response Memorandum as Exhibit A is a 32 page list of all 369 (by the court’s count) subpoenaed documents. Said Exhibit contains, as to each document, a brief indication of the privilege asserted and the reason therefor, the document’s “Bates” number, and a brief description of the contents of the document. The index to Exhibit A classifies each document as either “W” (“waiver of privilege”), “ACP” (“attorney client privilege”), “WP” (“work product”), “R” (“not relevant”), “NP” (“no privilege asserted”), and “Public record.” In addition, the classifications of certain documents are followed by a “?” (“asserted privilege is based [o]n the limited information currently available”). No reference is made to executive privilege, because Governor Martin has now elected to waive the same. See Response Memorandum at 4.

The court has carefully reviewed each document identified in Exhibit A individually, and finds Governor Martin’s description of, and numbering of, each document to be essentially fair and accurate and has attached a copy of Appendix A to the instant order in order to use the same as a reference.¹ , ² However, for the reasons expressed infra, the court believes that several of the documents for which a privilege is claimed are in fact not privileged, and the court thus declines to adopt the classifications asserted in Exhibit A, except as specifically noted.

The court will first briefly summarize the applicable law as to evidentiary relevance, the attorney-client privilege, and the work product doctrine1 *³, before ruling on Governor Martin’s Motion to Quash as to each document.

1. Documents for Which no Protection is Claimed

There are 177 documents for which Governor Martin has either not claimed a privilege, or for which he has waived any privilege. The court hereby ORDERS Governor Martin to comply with the NCABL’s subpoena duces tecum as to the three documents listed only⁴ as “NP,” the 151 documents listed only as “W,” and the 23 documents listed only as “Public record,” within ten (10) days of the date of this order.

2. Relevance

There are 48 documents which Governor Martin claims are not discoverable for the sole reason (see fn. 4) that they are not “relevant” to the subject matter of the instant action. Rule ■ 26(b)(1), Fed.R.Civ.P., provides, in pertinent part, that “[pjarties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending ac-tion____” (Emphasis added.) This court has previously commented on this “relevancy” requirement as follows:

Rules 26 through 37 of the Federal Rules have been interpreted liberally to allow maximum discovery. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It is clear that what is relevant in discovery is far different from what is relevant at trial, in that the concept at the discovery state is much broader. See C. Wright, Law of Federal Courts 403 (1976). Discovery is designed to define and clarify the issues. If requested materials are reasonably calculated to lead to discovery of admissible evidence, the discovery request is relevant. F.R.Civ.P. 26(b)(1); Weddington v. Consolidated Rail Corp., 101 F.R.D. 71, 73 (N.D.Ind.1984)[;] Alliance to End Repression v. Rockford, 75 F.R.D. 441, 444 (N.D.Ill.1977). Therefore, discovery requests should be complied with if there is a reasonable possibility that the information sought may be relevant to the subject matter of the action. Sherman Park Community Association v. Wauwatosa Realty, 486 F.Supp. 838, 845 (E.D.Wis.1980).

Spell v. McDaniel, 591 F.Supp. 1090, 1114 (E.D.N.C.1984).

But, while “the requirement of relevancy should be construed liberally and with common sense, rather than in terms of narrow legalisms[,] [n]o one would suggest that discovery should be allowed of information that has no conceivable bearing on the case.” C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2008, at 45-46 (1970) (footnotes omitted) (hereinafter “Wright & Miller”).

The vast majority of these documents are the reverse sides of newspaper clippings commenting on North Carolina’s system of electing Superior Court judges. After reviewing the content of these reverse sides, the court finds that Governor Martin has accurately portrayed them as not relevant to the instant document request. Similarly, the court finds that most of the other documents asserted not to be relevant are accurately so portrayed. There are, however, five documents which the court feels might be relevant; these are:

Appendix A, Page No. Document No.

- AG00560-592

- DG00395-396

- DG00397

- DG00554

- DG00555

The court will hold Governor Martin’s Motion to Quash in abeyance as to these five documents. If the Governor wishes to continue to claim that these documents are not relevant to the instant case, he should further supplement his Motion to Quash, in accordance with the directions infra, in Section 3. If not, he should comply with the subpoena duces tecum, and so inform the court, also in accordance with the directions in Section 3.

Accordingly, the court hereby GRANTS Governor Martin’s Motion to Quash as to all those documents classified only as “R” in Exhibit A, with the exception of those five listed above.

3. Attorney-Client Privilege

Governor Martin claims that 72 documents are protected from discovery for the sole (see fn. 4) reason that they are protected by the attorney-client privilege. “The attorney-client privilege as traditionally recognized at common law and as now incorporated in the Federal Rules of Evidence ⁵, controls in all federal judicial proceedings.” In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir.1984) (footnote shifted). The privilege has been defined as follows:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 513 (M.D.N.C.1986) (citing United States v. United Shoe Machinery Corp., 89 F.Supp. 357 (D.Mass.1950); Duplan Corp. v. Deer-ing Milliken, Inc., 397 F.Supp. 1146, 1160 (D.S.C.1974); and 4 Moore’s Federal Practice, § 20.-60[2]).

The purpose of the privilege, as recently described by the Supreme Court,

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. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.

Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981).

The privilege protects the substance of confidential communications from client to attorney, and renders the same immune from discovery. 8 Wigmore on Evidence § 2291 (McNaughton Rev.1961). Although the protection afforded to such communications promotes public interests, the privilege does impede investigation of the truth by preventing certain evidence from being discovered. Carolina Power & Light Co., 110 F.R.D. at 513 (citing NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir.1965)). Accordingly, courts must strictly construe this privilege. See, e.g., United States v. (Under Seal), 748 F.2d 871 (4th Cir.1984); In re Grand Jury Proceedings, 727 F.2d at 1356; United States v. Jones, 696 F.2d 1069 (4th Cir.1982). In addition, the burden of persuasion as to each of the elements of the privilege is upon the proponent. Carolina Power & Light Co., 110 F.R.D. at 513. As the court noted in United States v. (Under Seal), “in practical terms, this burden requires the proponent to explain, through ex parte submissions if necessary to maintain confidentiality, the significance or meaning of an otherwise cryptic document.” 748 F.2d at 876.

In the instant case, several principles which attend the privilege should be emphasized:

(1) In order for the privilege to apply, the attorney-client communication must be given incident to a request for, or the rendition of, legal advice. Carolina Power & Light Co., 110 F.R.D. at 514; Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146. If the communication essentially involves the giving of political advice, then it is not privileged. Cf. Carolina Power & Light Co., 110 F.R.D. at 517 (communications from counsel to corporate management concerning “lobbying” efforts by the corporation not covered by the attorney-client privilege).

(2) The privilege does not apply to legal advice which could not arguably reveal a client’s confidences. United States v. (Under Seal), 748 F.2d at 874. “The purpose of the privilege is to insure that the client may confide in his attorney to obtain legal advice. Unless the legal advice reveals what the client has said, no legitimate interest of the client is impaired by disclosing the advice.” SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed, 534 F.2d 1031 (2d Cir. 1976).

Most of the documents which Governor Martin claims are protected by the attorney-client privilege involve communications from attorney to client. These communications may, of course, fall within the privilege. Carolina Power & Light Co., 110 F.R.D. at 514. “However, such communications are protected by privilege only if they tend to reveal confidential client communications.” Id. (citations omitted). See also United States v. (Under Seal), 748 F.2d at 874 (“Because the privilege protects the substance of communications, it may also be extended to protect communications by the lawyer to his client ... if those communications reveal client communications.) (emphasis added).

Thus, memoranda or briefs prepared by counsel for his own use in prosecuting his client’s case which do not reveal information supplied in confidence by the client, Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), or memoranda which merely summarize the case law but contain no factual application to the client, Carolina Power & Light Co., 110 F.R.D. 511, are not privileged. (These items can, of course, be protected by the work product doctrine; see infra.)

(3) “[T]he privilege protects only confidential client communications; that is, communications not intended to be disclosed to third persons other than in the course of rendering legal services to the client or transmitting the communications by reasonably necessary means.” United States v. (Under Seal), 748 F.2d at 874 (emphasis added) (citation omitted).

The Fourth Circuit has addressed the difficult issue of how to determine when a client intends or assumes that his communication with his attorney will remain confidential. In United States v. (Under Seal), the court stated that:

Rather than look to the existence of the attorney-client relationship or to the existence or absence of a specific request for confidentiality, we must look to the services which the attorney has been employed to provide and determine if those services would reasonably be expected to entail the publication of the clients’ communications.

748 F.2d at 875 (emphasis added) (citations omitted). “[I]f a client communicates information to his attorney with the understanding that the information will be revealed to others, that information as well as ‘the details underlying the data which was to be published’ will not enjoy the privilege.” United States v. (Under Seal), 748 F.2d at 875 (quoting In re Grand Jury Proceedings, 727 F.2d at 1356). In a footnote following this quotation, the Fourth Circuit elaborated on what it meant by “the details underlying the data which was to be published”:

The details underlying the published data are the communications relating the data, the document, if any, to be published containing the data, all preliminary drafts of the document, and any attorney’s notes containing material necessary to the preparation of the document. Copies of other documents, the contents of which were necessary to the preparation of the published document, will also lose the privilege----

Id. at 875 n. 7 (emphasis added).

In re Grand Jury Proceedings is instructive in this regard. In that case, the Fourth Circuit “held that client communications to a lawyer relating to the preparation of a prospectus to be used in the enlistment of investors were not confidential even though the prospectus was never published because it ‘was to be published to others and was not intended to be kept in confidence.’ ” Id. at 875 (quoting In re Grand Jury Proceedings, 727 F.2d at 1358). The crux of this case was that “[t]he clients had decided to publish a prospectus before approaching their attorney —thus, the attorney had been employed to convey information to third parties rather than to provide legal advice for the clients’ own guidance.” Id.

In short, “when the attorney has been authorized to perform services that demonstrate the client’s intent to have his communications published ... the client lose[s] the right to assert the privilege as to the subject matter of those communications.” Id. at 875-76.

With these principles attendant to the attorney-client privilege in mind, the court finds that the Governor has met his burden to show that the privilege applies only as to the following document:

- AG00028

As to the remaining 71 documents for which attorney-client privilege is the only privilege asserted, the court perceives that many of the documents are not privileged because they involve attorney-client communications which: (a) occurred incident to a request for, or the rendition of, political, not legal, advice; and/or (b) do not arguably reveal Governor Martin’s confidential communications; and/or (c) could not reasonably have been expected to remain confidential.

For example, some of these documents are cover letters which do not include facts which could reveal confidential client communications. See Carolina Power & Light Co., 110 F.R.D. at 517. Many of the documents are drafts of letters and speeches, whose contents of necessity were intended to be disclosed to third parties. See id. (“Preliminary drafts of letters or documents which are to be published to third parties lack confidentiality.”) (citing United States v. (Under Seal), 748 F.2d 871, and Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. at 1168). Many more documents are memoranda prepared by counsel which do not reveal information supplied in confidence by the client, Hickman v. Taylor, 329 U.S. at 508, 67 S.Ct. at 392, or memoranda which merely summarize the case law but contain no factual application to the client, and thus could not be protected by the attorney-client privilege, Carolina Power & Light Co., 110 F.R.D. 511.

Governor Martin has requested that, “if the Court has any questions concerning the applicable privilege, the Court first raise the particular question with counsel for the Governor prior to ordering production.” Response Memorandum at 5. The court finds this request to be reasonable and, accordingly, will hold Governor Martin’s Motion to Quash in abeyance as to the aforementioned 71 documents, to allow the Governor to further supplement his Motion to Quash, in the following manner:

(1) The Clerk of Court will return all of the in camera documents, under seal, to Governor Martin at the time of service of this order.

(2) As to those documents for which Governor Martin wishes to continue to claim privilege, he should, within thirty (30) days of the date of this order, present the same, under seal, to the court for further in camera review, accompanied by a supplemental brief accompanied by. affidavits or other convincing evidence showing as to each document why the attorney-client privilege applies (in particular, why the court’s concerns expressed supra are inapplicable).

Said supplemental brief and accompanying evidence may be delivered to the court under seal should the Governor feel that this is necessary to protect the confidentiality of the documents for which attorney-client privilege is asserted.

(3) It may be that, upon thoughtful and careful review of the said 71 documents, counsel for Governor Martin will decide to waive privilege to many of the same.⁶

Accordingly, within thirty (30) days of the date of this order, Governor Martin shall comply with the subpoena duces te-cum as to all documents withheld from discovery on claims of attorney-client privilege as to which Governor Martin now wishes to waive privilege. Governor Martin shall submit an inventory of the same to the court within the same time period.

4. The Work Product Doctrine

There are 49 documents which Governor Martin claims are protected from discovery for the sole reason (see fn. 4) that they are protected by the work product doctrine. Developed in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and codified in Federal Rule of Civil Procedure 26(b)(3)⁷, the work product doctrine protects materials prepared by an attorney acting for his client in anticipation of litigation absent a showing of necessity or justification for disclosure by the party seeking the documents. See In re Grand Jury Subpoena, 599 F.2d 504, 512 (2d Cir. 1979).

In order to come within the qualified immunity from discovery created by Rule 26(b)(3), a three-pronged test must be satisfied. The material must be:

(1) “documents and tangible things”;

(2) “prepared in anticipation of litigation or for trial”;

(3) “by or for another party or by or for that other party’s representative.” Wright & Miller § 2024, at 196-97 (quoting Rule 26(b)(3)).

The work product doctrine is separate from, and broader than, the attorney-client privilege. Unlike the privilege, the doctrine is not designed to protect client confidences; rather, it seeks to shelter “the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975).

But, like the attorney-client privilege, the application of the work product doctrine can derogate from the search for the truth. Accordingly, it should also be narrowly construed. United States v. 22.80 Acres of Land, 107 F.R.D. 20 (N.D. Cal.1985). The party seeking to assert the doctrine as a bar to discovery has the burden of establishing that the doctrine is applicable by establishing as to each document all the elements that trigger the protection. Id.; Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397 (E.D.Va.1975). If the required showing is made to the satisfaction of the court, the burden then shifts to the party seeking discovery to show, as to each document, substantial need and undue hardship. Hodges, Grant & Kaufmann v. United States, 768 F.2d 719 (5th Cir.1985).

The above rules on the burden the party seeking production must meet, applies only to the intended discovery of “fact work product” (i.e. “those documents prepared by the attorney which do not contain the mental impressions, conclusions or opinions of the attorney,” In re Doe, 662 F.2d 1073, 1076 n. 2 (4th Cir. 1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982)), not “opinion work product” (i.e. “work product that contains those fruits of the attorney’s mental processes,” id.). Opinion work product is especially protected by Rule 26(b)(3), which provides that in ordering discovery of trial preparation materials when the required showing has been made, a court “shall” protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in question. Rule 26(b)(3), Fed.R.Civ.P.

The writing of an attorney is a “mental impression” of that attorney. Du-plan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146 (D.S.C.1974). An attorney’s legal “impressions” and “theories” include his tactics, strategy, opinions, and thoughts. Richards-Wilcox Mfg. Co. v. Young Spring & Wire Corp., 34 F.R.D. 212 (N.D.Ill.1964). Opinion work product doctrine material also includes materials reflecting an attorney’s legal strategy, intended lines of proof, and evaluation of the strengths and weaknesses of his case. Sporck v. Peil, 759 F.2d 312 (3d Cir.), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985).

To obtain disclosure of opinion work product, a far stronger showing of necessity and unavailability by other means must be applied than the “substantial need” and “without undue hardship” standard articulated in the first part of Rule 26(b)(3). In the Fourth Circuit, “opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” In re Doe, 662 F.2d at 1080 (citation omitted). See also Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir.1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975). Such an “extraordinary circumstance” was found to exist in In re Doe, where the court made a fraud exception available in order to pierce opinion work product where an attorney attempted to use the same to shield himself from criminal prosecutions arising from his actions in prior litigation. In the instant case, no such extraordinary circumstance is present.

Courts have held that, although opinion work product documents contain some minor factual content which could be physically severed from those documents, the court will not allow the same to be discovered if said factual content consists of selective facts permitting indirect inquiry into the attorney’s mental processes. See Williams v. United States Dept. of Justice, 556 F.Supp. 63 (D.D.C.1982).

The court notes that several documents for which work product protection is claimed were prepared for litigation other than this instant action (for the Martin v. Preston, Crawley v. Gudger, and Alexander v. Martin actions). The Fourth Circuit has held that such work product documents do not lose their protection in subsequent and unrelated litigation. Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir.1973). This is true even if the litigation for which they were prepared has been completed. Du-plan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730.

The court finds that Governor Martin has met his burden to show that work product protection applies to certain of the 49 documents for which it is the sole protection claimed. The court further finds that the NCABL has not meet its burden to overcome Governor Martin’s assertion of either fact or opinion work product protection as to these documents. The court will briefly identify the deficiencies it perceives in the documents for which Governor Martin does not appear to have met his burden.

Documents AG00414 (page 5), AG01368-1369 (page 13), and AG01370-1371 (page 13) are marked by an “?,” indicating, quite candidly, that the assertion that they are protected by the work product doctrine is only “based [o]n the limited information currently available.” After reviewing these three documents, the court perceives that Governor Martin’s showing of work product protection as to the same is based upon inadequate information.

Document AG01745-1753 (page 16) does not appear to have been prepared in anticipation of litigation. In this regard, the court notes that courts and commentators have formulated several tests for determining whether a document was prepared in anticipation of litigation or for trial, or was prepared in the ordinary course of business. See, e.g., Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Geo.L.J. 917 (1983) (and cases and articles cited therein). If the former is the case, the document is protected as work product, whereas if the latter is the case, the document is not so protected. See, e.g., Soeder v. General Dynamics Corp., 90 F.R.D. 253 (D.Nev.1980); Miles v. Bell Helicopter Co., 385 F.Supp. 1029 (N.D.Ga. 1974). The test most frequently enunciated is the test the court believes to be the correct one: “[I]n light of the nature of the document and the factual situation in the particular case, can the document be fairly said to have been prepared or obtained because of the prospect of litigation?” Wright & Miller § 2024, at 198 (footnote omitted); United States v. Gulf Oil Corp., 760 F.2d 292 (Temp.Emer.Ct.App.1985).

There are also certain documents which contain only compilations of facts, and are devoid of any legal analysis (and, apparently, any legal significance), and are thus unprotected by the work product doctrine: DG00156 (page 21), DG00383 (page 24), DG00398-415 inclusive (pages 25-26), and DG00598-599 (page 31).

Lastly, the court perceives that counsel can redact the margin notes and highlighting from documents AG00309-387 (page 4), AG00485-518 (page 5), AG01334-1336 (page 12), AG01346-1347 (page 12), AG01806 (page 17), DG00241-242 (page 22), DG00416 (page 27), and DG00447 (page 27), and produce the same for discovery.

The court hereby GRANTS Governor Martin’s Motion to Quash as to all those documents for which work product protection is the sole protection claimed, with the exceptions specifically noted supra. The court will hold the Motion to Quash in abeyance as to these aforementioned documents, to allow Governor Martin to further supplement his Motion to Quash, or to comply with the subpoena duces tecum as to those documents, and so inform the court, in accordance with the directions supra, in Section 3.

5. Documents which are Classified in Alternate Categories

The court rules as follows on these 23 documents:

Appendix A, Page No. Document No. Ruling Reason

AG00029-30 _ Inadequate showing

AG00101-104⁸ Protected WP

AG00104A Protected R

AG00105-107 Protected WP

AG00295-299 Protected WP

AG00301-302 Protected WP

AG00388-391 Protected WP

AG00393-399 Protected WP

AG00467-484 Protected WP

AG00960-979 Inadequate showing (redact)

AG00993-997 Inadequate showing (redact)

AG01020-1021 Protected ACP; WP

AG01615-1622 Protected R

AG01635 Inadequate showing

AG01690-1696 Inadequate showing • (redact)

DG00149-150 Protected WP

DG00393-394 Protected WP

DG00467-468 Protected WP

DG00482-489 Unprotected W; Public record

DG00555 Inadequate showing

DG00611-612 Inadequate showing (redact)

DG00614-617 Unprotected W; Public record

DG00632-646 Inadequate showing

The court GRANTS the Motion to Quash as those aforementioned documents listed as “protected.” As to those documents listed above for which an inadequate showing of privilege has been made, the court will hold the Motion to Quash in abeyance to allow Governor Martin to further supplement his Motion to Quash, or to waive any privilege for the documents so classified, as discussed supra, in Section 3. Governor Martin is ORDERED to comply with the subpoena duces tecum as to the “unprotected” aforementioned documents, within ten (10) days of the date of this order.

CONCLUSION

For the reasons expressed above, the court has hereby:

(1) DIRECTED the Clerk of Court to return all of the in camera documents, under seal, to Governor Martin at the time of service of this order;

(2) ORDERED Governor Martin to comply with the NCABL’s subpoena duces te-cum as to those documents found to be unprotected in Sections 1 and 4 of the instant order, within ten (10) days of the date of this order;

(3) GRANTED Governor Martin’s Motion to Quash to the limited extent set forth supra;

(4) HELD IN ABEYANCE Governor Martin’s Motion to Quash to the extent discussed supra, to allow him thirty (30) days from the date of this order within which to supplement said motion in the manner set forth in this order, should he choose to do so; and

(5) ORDERED the Governor, within thirty (30) days of the date of this order, to comply with the NCABL’s subpoena duces tecum as to all documents withheld from discovery on claims of privilege as to which Governor Martin now wishes to waive privilege, and to submit an inventory of the same to the court.

SO ORDERED.

EXHIBIT A

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“The Governor” or JGM—Governor James G. Martin

JRT—James R. Trotter (General Counsel)

SAW—Samuel A. Wilson (Legal Counsel)

JCH—John C. Hunter—(Legal Counsel)

Purrington—J. Ward Purrington—(Legislative Counsel)

“GOP Litigation”—Republican Party of North Carolina, et al. v. James G. Martin, Governor of North Carolina, et al. and North Carolina Association of Black Lawyers, 88-263-CIV-5-F

W—waiver of privilege

ACP—attorney client privilege

WP—work product

R—not relevant

NP—no privilege asserted

?—asserted privilege is based in the limited information currently available

BATES PRIVILEGE NUMBER DESCRIPTION

I. GENERAL COUNSEL’S FILES

A. GOVERNOR’S SPECIAL COMMITTEE ON JUDICIAL SELECTION

W AG00001-8 9-14-87 correspondence to JRT from Cam-pen with attached periodical article

ACP—legal memorandum AG00009-11 between JRT and the Governor 6-10-87 correspondence to Wells from the Governor with communication by JRT

WP—GOP Litigation AG00012-14 Handwritten notes prepared by JRT

W AG00015-27 Undated draft entitled “Judicial Selection—A Proposal” with attached chart

ACP—JRT notes re: com- AG00028 munications with the Governor Handwritten notes of JRT

WP; ACP(?) prepared by AG00029-30 JRT in anticipation/course of litigation; recollection is ultimately used in communication with the Governor 11-26-86 handwritten notes of JRT

W AG00031-33 Undated N.C. Bar Association Committee Roster for Administration of Justice Study with unknown source of handwritten notes

W AG00034-48 “Selecting Judges in the States: A Brief History and Analysis” published in volume 9 Northern Kentucky Law Review, pages 459-473

W AG00049 7-31 telephone message to JRT from Smith

PRIVILEGE BATES NUMBER DESCRIPTION

W AG00050-84 10-30-86 memorandum to Purrington, JRT, Hunter and Cobb from SAW re: Model Judicial Selection Provisions with attachments

w AG00085-91 7-29-86 correspondence to Browning from JRT with attachment, 7-29-86 correspondence to Coggins from JRT, 7-16-86 correspondence to Milliken from JRT, 7-2-86 correspondence to JRT from Milliken, 7-16-86 correspondence to Drennan from JRT, 7-3-86 correspondence to JRT from Drennan

ACP—privilege communication between in-house counsel AG00092-93 7-1-86 memorandum to JRT from SAW with attachment and attorney notes

ACP—legal communication between JRT and the Governor AG00094-99 7-7-86 transmittal memorandum from the Governor to JRT with attachments

W AG00100 7-8-86 correspondence to Beard from JRT

ACP; WP—JRT notes communicated to Governor; prepared by JRT in anticipation/course of litigation AG00101-104 Handwritten notes of JRT

R; ACP—JRT notes communicated to Governor; unrelated to instant litigation AG00104A Unrelated handwritten notes of JRT that happen to be written on back of other notes related to the litigation

ACP; WP—prepared by legal intern (law student) on Governor’s staff for JRT’s use in advising JGM; prepared in anticipation/course of litigation AG00105-107 6-10-86 handwritten note of legal intern to JRT with attached memorandum

W AG00108-112 Handwritten note from Branch to JRT with attachment

W AG00113-294 6-9-86 correspondence to Beard from Birkes with attachments

B. GOVERNOR—LITIGATION; REPUBLICAN PARTY V. MARTIN

R (trial strategy); WP— mental impressions, conclusions and legal theories of counsel prepared and obtained in anticipation/course of litigation AG00295-299 8-29-89 memorandum to Foster from JRT with attachments .

NP AG00300 8-22-89 correspondence to JRT from Hurley

R (trial strategy); WP(?)— appears to be mental impressions, conclusions and legal theories prepared or obtained in anticipation/course of litigation AG00301-302 Undated typed note of unknown source

WP AG00303-308 8- 28-89 typed notes by unknown source obtained in course of litigation with handwritten notes of JRT

WP AG00309-387 9- 21-88 transcript of preliminary injunction hearing with JRT’s handwritten notes

PRIVILEGE BATES NUMBER DESCRIPTION

R (trial strategy); WP— mental impressions, conclusions and legal theories of JR.T prepared in anticipation/course of litigation AG00388-391 Undated memorandum to Foster, Hunter and Hurley from JRT

ACP (Thornburg was representing the Governor at time of communication) AG00392 11-12-87 correspondence to the Governor from Thornburg

WP; ACP note—7/20/87 document obtained in course of litigation and reflects trial strategy AG00393-399 7-30-87 correspondence to Gray from JRT, undated memorandum to JRT from Hunter, 7-20-87 correspondence to JRT from Gray (2 copies)

Public record AG00400-413 10-5-88 Order entered in pending case

WP(?) at this time we are unable to identify origin of document but content appears to reflect mental impressions and theories of litigation AG00414 Document of unknown origin

Public record AG00415-416 Civil summons in pending case

Public record AG00417-466 11-4-87 copy of the complaint filed in Middle District of North Carolina, No. C-87-779-G

R (trial strategy); WP AG00467-484 Outline of proof of unknown source in GOP litigation with handwritten notes of JRT

WP AG00485-518 8-1-88 Plaintiffs’ Motion for Preliminary Injunction with attached Memorandum; highlighting of JRT

WP—legal research obtained by JRT and legal counsel staff in anticipation of litigation AG00519-559 Case law

R AG00560-592 8-28-89 published opinion in South Carolina Education Association v. Campbell

WP—obtained by JRT and legal counsel staff in anticipation/course of litigation AG00593-628 WESTLAW research with handwritten notes

W AG00629-738 Excerpts from Debates at the 1868 Convention re: Superior Court Judges

AG00739-776 Hunter’s “Racial Gerrymandering and the Voting Rights Act in North Carolina”, volume Law number 2

WP—legal research obtained AG00777-by JRT and legal counsel 916 staff in anticipation/course of litigation Case law

C. JUDGESHIP BILL (H.B. 589)

W AG00917-918 5-11-87 correspondence to Jordan from the Governor with 5-8-87 correspondence to the Governor from Jordan attached

W AG00919 5-8-87 correspondence to Jordan from the Governor

ACP—draft statement pre- AG00920-pared by JCH for the Gover- 926 nor 5-5-87 draft statement prepared by JCH for the Governor re: H.B. 589

PRIVILEGE BATES NUMBER DESCRIPTION

Public record AG00927-934 Undated final statement of the Governor re: H.B. 589

ACP—memorandum prepared by JCH for the Governor AG00935-937 Undated memorandum prepared by JCH for the Governor

Public record AG00938-956 4-13-87 House Bill 589

ACP—memorandum pre- AG00957-pared by JCH for the Gover- 959 nor Undated memorandum prepared by JCH for the Governor

WP; ACP—handwritten AG00960-notes and highlighting by 979 JRT; used to advise the Governor Undated Senate Bill 287 with handwritten notes of JRT

Public record AG00980-992 3-25-87 Senate Bill 214

ACP; WP—handwritten AG00993-notes by JRT with draft of 997 memorandum prepared by JCH Handwritten notes of JRT with draft memorandum re: H.B. 589 and S.B. 287

ACP—legal communication AG00998 between the Governor and JRT Memorandum to the Governor from JRT

D. LOOSE DOCUMENTS—NO FILE

ACP—^Thornburg was rep- AG00999-resenting the Governor in 1004 this litigation at time of the communication) legal communication between Thorn-burg and the Governor 11-12-87 correspondence to Thornburg from the Governor

Public record AG01005-1007 4-23-86 Remarks to North Carolina Courts Commission by Purrington

Public record AG01008-1012 2-7-86 Statement to the North Carolina Courts Commission on Behalf of the Governor

W AG01013 ACP—legal communication AG01014-between JRT and the Gover- 1017 nor Judicial Selection Study Commission Memorandum to the Governor from JRT with attachment

ACP—legal communication AG01018-between JRT and the Gover- 1019 nor 12-22-86 memorandum to the Governor from JRT

ACP; WP AG01020-1021 2 copies of 5/4/89 memorandum to the Governor from JRT, with handwritten notes of the Governor and Purrington

W AG01022-1027 Memorandum to the Governor from JRT with copies to Purrington, Kirk and Hays

ACP—reflects communica- AG01028 tion between the Governor and JRT Undated handwritten notes prepared by JCH and JRT

Public record AG01029- 2-21-89 Senate Bill 219 stamped 1049 “Adopted”

E. NEGOTIATIONS WITH ALLEN FOSTER, TOM ROSS AND CHARLIE WINBER-EY-

ACP—prepared by JRT to AG01050- Handwritten notes of JRT advise the Governor 1052

ACP—prepared by JRT to AG01053- Undated notes of JRT advise the Governor 1058

PRIVILEGE BATES NUMBER DESCRIPTION

Public record AG01059-1066 5-16-85 Senate Bill 676

Public record AG01067-1080 5-15-85 Senate Bill 677

W AG01081-1094 Undated draft bill of unknown source with highlighting of JRT

W AG01095-1108 Undated draft bill of unknown source with highlighting of JRT

F. MERIT SELECTION—LEGISLATION (S.B. 676 & 677)

W AG01109- 6-18-85 correspondence to Soles from Cobb 1124 with attachment; with handwriting and notes of JRT

Public record AG01125-1220 Report of the Courts Commission to the North Carolina General Assembly 1985

JUDICIAL SELECTION—Press Clippings

R AG01221 5-13-87 Asheville Citizen article

W AG01222 5-14-87 Winston-Salem Journal article, with highlighting of JRT

R AG01223 5-15-87 N & O article

W AG01224 5-15-87 Wilson Daily Times article

R AG01225 5-28-87 Washington Daily News article

W AG01226 5- 28-87 Wilson Daily Times article

R AG01227 6- 19-87 Charlotte Observer editorial

W AG01228 Winston-Salem Journal editorial

R AG01229 N & O editorial

W AG01230 6-28-87 Asheville Citizen editorial, with highlighting by JRT

W AG01231 Fayetteville Observer editorial

R AG01232 5-9-87 N & O articles

W AG01233 5-8-87 Wilson Daily Times editorial

R AG01234 5-9-87 Wilson Daily Times articles

W AG01235 5-7-87 Winston-Salem Journal editorial

R AG01236 Charlotte Observer article

W AG01237 2-19-87 Durham Morning Herald editorial; Fayetteville Observer editorial

R AG01238 2-19-87 “Committee Backs Sanford on Nicaragua”, N & 0 article

R AG01239 1- 22-87 Wilson Daily News articles

W AG01240 N & O editorial

W AG01241 2- 13-87 Winston-Salem Journal article

W AG01242 2-13-87 N & O article

W AG01243 1-21-87 N & O editorial

R AG01244 1-20-87 Asheville Citizen editorial

W AG01245 1-6-87 Winston-Salem Journal editorial

R AG01246 1-5-87 Asheville Citizen editorial

W AG01247 1-5-86 Fayetteville Observer editorial

R AG01248 1-6-87 N & O editorial

W AG01249 12-18-86 Salisbury Post editorial, with highlighting of JRT

AG01250 12-18-86 Salisbury Post editorial R

BATES PRIVILEGE NUMBER DESCRIPTION

W AG01251 12-14-86 Winston-Salem Journal editorial

W AG01252 12-14-86 Salisbury Post editorial

W AG01253 Charlotte Observer editorial

R AG01254 4-29-87 Daily Courier editorial

W AG01255 4-21-87 Charlotte Observer editorial

W AG01256 4-21-87 Charlotte Observer editorial

w AG01257 4-19-87 Winston-Salem Journal editorial

R AG01258 4-17-87 Watauga Democrat article

w AG01259 4-18-87 High Point Enterprise editorial

w AG01260 4-21-87 Winston-Salem Journal editorial

R AG01261 4-21-87 Wilson Daily Times editorial

w AG01262 4-16-87 Salisbury Times editorial

R AGO1263 4-20-87 N & 0 editorial

W AG01264 4-16-87 Fayetteville Observer editorial

R AG01265 4-16-87 Raleigh Times editorial

W AG01266 4-16-87 Greensboro News & Record editorial

R AG01267 4-16-87 Greensboro News & Record editorial

W AG01268 3-17-87 Winston-Salem Journal editorial

R AG01269 3-15-87 Salisbury Post editorial

■ W AG01270 3-10-87 Daily Courier editorial

R AG01271 3-11-87 Asheville Citizen editorial

W AG01272 2-23-87 Salisbury Post editorial

R AG01273 2-24-87 Greensboro News & Record editorial

W AG01274 2-16-87 Wilmington Morning Star editorial

R AG01275 2-23-87 Charlotte Observer editorial

W AG01276 2-18-87 High Point Enterprise editorial

R AG01277 2-19-87 Wilson Daily Times editorial

R AG01278 2-17-87 Washington Daily News editorial

W AG01279 2-18-87 Durham Morning Herald editorial

W AG01280 2-27-87 Wall Street Journal article

w AG01281 1-17-87 N & 0 article, with highlighting of JRT

R AG01282 12-6-86 Greensboro News & Record article, with highlighting of JRT

R AG01283 12-9-86 Wilson Daily Times article

R AG01284- 3 copies of 12-6-86 Greensboro News & 1286 Record article

W AG01287 12-4-86 Winston-Salem Journal editorial

R AG01288 12-3-86 Asheville Citizen editorial

W AG01289 12-3-86 Charlotte Observer article

R AG01290 12-3-86 Greensboro News & Record article

W AG01291 11-20-86 Washington Daily News editorial

R AG01292 11-20-86 Washington Post article

ÁCP—reflects advice of JRT to the Governor AG01293- Handwritten notes of JRT 1298

W AG01299- Copies of 11-19-86 Durham Morning Her-1301 aid editorial

PRIVILEGE BATES NUMBER DESCRIPTION

W AG01302- 12-2-86 correspondence to JRT from Don-1303 aldson with 12-4-86 correspondence to JRT from Parker attached

W AG01304- 12-16-86 telephone message to JRT from 1307 Head with 11-25-86 handwritten note of JRT and attachment

W AG1308- 1-13-87 correspondence to Vosburgh from 1313 Exum with attachments

w AG01314- 12-8-86 correspondence to Roule from 1319 Head with attachments

w AG01320 11-16-86 Winston-Salem Journal editorial

R AG01321 11-17-86 N & 0 editorial

w AG01322 11-16-86 N & 0 editorial

R AG01323 11-15-86 N & 0 article

W AG01324 Undated Charlotte Observer editorial

w AG01325 10-3-86 Wilmington Morning Star editorial

w AG01326 9-26-86 Daily Tar Heel editorial

w AG01327 9-29-86 N & 0 article

w AG01328 9-24-86 Greensboro News & Record editorial

R AG01329 9-11-86 Hertford article

w AG01330 9-23-86 Winston-Salem Journal editorial

R AG01331 9-23-86 N & 0 article

W AG01332 9-15-86 Greensboro News & Record editorial

W AG01333 4-23-86 Greensboro News & Record editorial

G. JUDICIAL SELECTION

WP JRT obtained in anticipation/course of litigation AG01334- Article obtained by JRT in anticipation of 1336 litigation, with handwritten comments of JRT

Public record AG01337- 2-13-87 Senate Bill 31 1338

W AG01339- 6-10-86 correspondence to JRT and SAW 1341 from Beard

W AG01342 September-October 1985, Bar Leader, article

W AG01343- March-April 1986, Bar Leader, article 1345

WP—obtained by JRT in anticipation/course of litigation AG01346- Article from Bamotes, with highlighting of 1347 JRT

W AG01348- 12-11-86 handwritten note to JRT from 1352 Browning with attachment; highlighting of JRT

W AG01353 12-9-86 correspondence to Beard from Wells

W AG01354- 2-27-87 correspondence to Bogle from 1356 Pugh with attachment

W AG01357- 12-17-86 memorandum to Merit Selection 1365 Committee from Purrington with attachment

BATES

PRIVILEGE NUMBER DESCRIPTION

ACP—prepared by JRT for JGM AG01366-1367 Undated memorandum of JRT

WP(?)—appears to be mental impressions, conclusions and legal theories prepared or obtained in anticipation/course of litigation AG01368-1369 notes of unknown Undated typewritten source at this time

WP(?)—appears to be mental impressions, conclusions and legal theories prepared or obtained in anticipation/course of litigation AG01370-1371 notes of unknown Undated typewritten source at this time

ACP—reflects JRT’s communication with the Governor AG01372 Notes of JRT

W AG01373-1376 2-15-85 correspondence to JRT from Hunter with attachment

w AG01377-1383 12-20-84 draft bill

w AG01384-1395 12-20-84 draft bill

w AG01396-1563 Undated handwritten memorandum to JRT from Scott with following attached:

[Attachments to AG01396-1563]

ACP—reflects communica- AG01397 tion with the Governor Handwritten notes of JRT

ACP—reflects communica- AG01398 tion with the Governor Handwritten notes of JRT

W AG01399 12-13-84 correspondence to Martin from Sanders

W AGO 1400 12-21-84 memorandum to Martin from Sanders

W AG01401 12-21-84 correspondence to Hunter from Sanders

W AG01402 12-13-84 correspondence to Martin from Sanders

W AG01403-1404 12-11-84 memorandum to Martin from Sanders with attachment

W AG01405-1411 Winter 1984, Popular Government, “The Separation of Powers in North Carolina—A 1984 Update”, Ann L. Sawyer

W AG01412-1414 1-9-85 correspondence to JRT from Hunter

W AG01415-1417 Undated “Administrative Procedure” with cover page for “A Summary of Legislation in the 1984 General Assembly of Interest to North Carolina Public Officials”

R AG01418-1435 10-20-83 Governor’s Administrative Rules Review Commission

R AG01436-1460 1982 “A Review of Legislation with Respect to the Preparation and Administration of the North Carolina State Budget”, John L. Sanders

PRIVILEGE BATES NUMBER DESCRIPTION

R AG01461-1507 6-27-84 House Bill 1784

R AG01508-1509 NCBA Administrative Law Committee Recommendation on House Bill 1784

W AG01510-1516 12-20-84 draft bill

W AG01517-1528 12-20-84 draft bill

w AG01529-1530 December 1984 typewritten notes of Dren-nan, I.O.G. with handwritten comments

w AG01531-1532 December 1984 typewritten notes of Dren-nan, I.O.G. with handwritten comments

w AG01533-1547 4-12-79 House Bill 1163

w AG01548-1555 4-12-79 House Bill 1164

R AG01556-1557 Undated, untitled typewritten notes (believed prepared by Jack Cozart, unrelated to this litigation)

w AG01558 12-14-84 correspondence to Hunter from Baker

w AG01559-1560 12-10-84 correspondence to Hunter from Wells

w AG01561-1563 11-23-84 correspondence to the Governor from Ayscue

[End of Attachments to AG01396-1563]

NP—document prepared by transition team member AG01564-1572 1- 4-85 Judicial Department transition report by Hunter

R AG01573-1610 2- 1-83 state personnel policy

W AG01611-1614 Undated copy of section entitled “The Judicial Branch” from North Carolina Manual pages 764-770 with handwritten comments

H. JUDICIAL SELECTION—S.B. 219

R; ACP—legal counsel’s AG01615-analysis of pending legisla- 1622 tion unrelated to the instant litigation 4-12-89 Senate Bill 857 with memorandum to JRT and Purrington from JCH with attachments

ACP—legal communication AG01623-between JRT and the Gover- 1634 nor 2-27-89 memorandum to the Governor from JRT with attachments

WP; ACP—notes reflect in-house communication between JRT and JCH AG01635 Handwritten notes by unknown source

ACP—prepared by JRT to AG01636-communicate advice to the 1637 Governor Handwritten notes of JRT

ACP—legal communication AG01638-between JRT and the Gover- 1641 nor Typewritten memorandum of JRT

PRIVILEGE BATES NUMBER DESCRIPTION

ACP—prepared by JRT for the Governor AG01642- Undated memorandum prepared by JRT re: 1651 S.B. 218, and proposed constitutional amendments with 2-21-89 substituted S.B. 218 attached

ACP—prepared by JRT for the Governor AG01652- Undated memorandum re: proposed S.B. 1681 219 with 2-21-89 substitute S.B. 219 attached

ACP—reflects Governor’s confidential communication to his attorneys AG01682- 4-10-89 memorandum; handwritten corn-1685 munication by the Governor to JRT and Purrington; handwriting and underlining by the Governor

ACP—reflects Governor’s confidential communication to his attorneys AG01686- 4-10-89 memorandum; handwritten corn-1689 munication by the Governor to JRT and Purrington; handwriting and underlining by the Governor

ACP; WP—handwritten notes of JRT used to advise JGM on pending litigation AG01690- 2-21-89 SPCS218-RM proposed substitute 1696 for S.B. 218 marked “superceded” with handwritten comments of JRT

W AG01697- Senate DRS4506-LB(1.11) filed 2-20-89 1723 marked “superceded”

W AG01724- 2-21-89 Proposed committee substitute 1744 PCS1616 for S.B. 219 marked “superceded”

WP—prepared or obtained by JRT in anticipation/course of litigation AG01745- 3-29-89 correspondence to JRT from Hunt-1753 er with attachments

Public record AG01754- 2-15-89 Report of the Judicial Selection 1804 Study Commission; Report to the Governor, Chief Justice, Attorney General and the 1989 General Assembly of North Carolina

W AG01805 Undated map of North Carolina showing Superior Court judicial districts as of January 1, 1989

I. LOOSE DOCUMENT—NO FILE

WP—obtained by JRT in an- AG01806 ticipation/course of litigation; notes reflect mental impressions November 1990 Asheville Citizen Times article, with notes of JRT

II. CHIEF OF STAFF’S FILES

W BG00001 2-9-89 memorandum to the Governor from Kirk

ACP—legal communication BG00002-3 between JRT and the Governor 12-7-88 memorandum to the Governor from JRT through Kirk

W BG00004-8 4-24-89 memorandum to the Governor from JRT

III. LEGISLATIVE COUNSEL’S FILES

W CG00001-18 11-4-86 handwritten memorandum to Legg from Fairchild with attachments

W CG00019-20 10-10-86 correspondence to Drennan from Helms

W CG00021-32 1979 documents detailing judicial selection in Arizona, California, New Hampshire, New Jersey, and Wyoming, with handwritten notes of unknown source

PRIVILEGE BATES NUMBER DESCRIPTION"

ACP—memorandum ' prepared by assistant attorney to Governor’s Legislative Counsel; used by Purrington to advise the Governor CG00033-44 5 copies 11-5-86 memorandum to Purring-ton from Legg (Legg was an assistant attorney to Legislative Counsel)

W CG00045-71 Undated tables and appendix

W CG00072-79 1979 untitled documents detailing judicial selection in North Carolina, Pennsylvania, Louisiana and Idaho

ACP CG00080-81 Undated preliminary draft document, culminating in legal memorandum of CG00033-44

IV. LEGAL COUNSEL’S FILES

A. FILE 9, GOVERNOR’S STATEMENT ON HOUSE BILL 589

W 4-13-87 House Bill 589 DG00001-19

WP—document obtained or prepared in course of Martin v. Preston, 325 NC 438 (1989), litigation (“Preston litigation”), with JCH’s handwritten comments 2-19-88 typewritten memorandum DG00020-27

WP—Preston Litigation 2-19-88 typewritten memorandum with handwritten comments of JCH DG00028-32

WP—Preston Litigation Undated draft of proposed stipulations with handwritten comments of JCH DG00033-36A

Public record 4-13-87 House Bill 589 DG00037-47

ACP—draft statement prepared by JCH for the Governor Undated draft prepared by JCH re: H.B. 589 DG00048-54

ACP—memorandum pre- DG00055-57 pared by JCH for the Governor Undated memorandum prepared by JCH re: H.B. 589

ACP—draft statement prepared by JCH for the Governor DG00058-67 Draft statement prepared by JCH for the Governor

ACP—draft document prepared by JCH for the Governor DG00068-78 Draft statement prepared by JCH for the Governor

ACP—draft statement prepared by JCH for the Governor DG00079-88 Draft statement prepared by JCH for the Governor

ACP—draft statement prepared by JCH for the Governor DG00089-99 Draft statement prepared by JCH for the Governor

ACP—draft statement prepared by JCH for the Governor DG00100-109 Draft statement prepared by JCH for the Governor

ACP—draft document prepared by JCH and JRT for the Governor DG00110-119 Draft statement prepared by JCH for the Governor, with handwritten comments of JRT

ACP—draft statement prepared by JCH for the Governor DG00120-128 Draft statement prepared by JCH for the Governor

ACP—draft statement pre- DG00129-pared by JCH for the Gover- 136 nor Draft statement prepared by JCH for the Governor

BATES PRIVILEGE NUMBER DESCRIPTION

B. SUPERIOR COURT ELECTIONS--2; FILE NO. 0792

NP—public record presented to Senate Committee on DG00137-143 Courts and Administration of Justice Undated Statement of the Governor re: H.B. 589, final draft

ACP—draft statement pre- DG00144-pared by JCH for the Gover- 148 nor with handwritten comments of the Governor Draft statement prepared by JCH for the Governor

ACP; WP—prepared by JRT DG00149-for use of the Governor pre- 150 pared in anticipation/course of Preston litigation Typewritten memorandum of JRT with his handwritten comments

WP—obtained by JCH in an- DG00151 ticipation/course of the Crawley v. Gudger litigation (“Gudger litigation”) Typewritten chart of JCH with his handwritten notes

WP—prepared by JCH in an- DG00152 ticipation/course of Gudger litigation, with handwritten comments of JCH Undated handwritten notes of JCH

WP—obtained by JCH in an- DG00153 ticipation/course of Gudger litigation, with handwritten comments of JCH Typewritten chart obtained by JCH with his handwritten notes

R DG00154 1-12 telephone message to unknown person from Page re: unrelated trial decision

WP—prepared by JCH in an- DG00155 ticipation/course of Gudger litigation Undated handwritten notes of JCH

WP—obtained by JCH in an- DG00156 ticipation/course of Gudger litigation, with handwritten comments of JCH Undated typewritten chart obtained by JCH

W DG00157-157A 9-28-87 correspondence to Freeman from Jones with attachment

WP—prepared by JCH in an- DG00158 ticipation/course of Gudger litigation Undated handwritten notes of JCH

ACP—prepared by JRT for DG00159-use of the Governor 160 Undated typewritten memorandum of JRT

WP—prepared by JRT in an- DG00161 ticipation/course of litigation 10-12-87 typewritten agenda of JRT

W DG00162-164 9- 18-87 correspondence to Brock from Wallace with attachments

WP—prepared in anticipa- DG00165 tion/course of litigation 10- 12-87 typewritten agenda of JRT with handwritten comments of JCH

WP—prepared by JCH in an- DG00166-ticipation/course of Gudger 167 litigation 2 copies of undated typewritten memorandum prepared by JCH

WP—prepared by JCH in an- DG00168 ticipation/course of litigation Undated typewritten memorandum prepared by JCH

WP—prepared by JCH in an- DG00169 ticipation/course of Gudger litigation Undated typewritten memorandum prepared by JCH

PRIVILEGE BATES NUMBER DESCRIPTION

WP—prepared by JCH in anticipation/course of Gudger litigation DG00170-171 Undated typewritten memorandum prepared by JCH (2 copies)

WP—prepared by JCH in anticipation/course of Gudger litigation DG00172 Undated handwritten notes of JCH

W D GOO 173-194 4-13-87 House Bill 589

w DG00195-205A 4-13-87 House Bill 589-

w DG00206-217 4-13-87 House Bill 589

w DG00218-227C 4-13-87 House Bill 589

w DG00228-239 4- 13-87 House Bill 589

w DG00240 5/28/87 handwritten notes of unknown source

WP—obtained by JRT in an- DG00241-ticipation/course of Preston 242 litigation 5- 22-89 N & 0 article with highlighting of JRT; written communication of JRT to SAW

WP—obtained by SAW in DG00243-anticipation/course of Pres- 244 ton litigation 5-22-87 correspondence to SAW from Bo-gle, with attachment

ACP—prepared by SAW and DG00245-JCH for JGM 248 Undated draft memorandum of SAW and JCH

ACP—notes of JCH and DG00249-SAW to prepare the Gover- 254 nor’s statement on H.B. 589 8-31-87 handwritten notes of JCH and SAW

W DG00255 5-8-87 “Electing Judges”, Wilson Daily Times

ACP—draft document pre- DG00256-pared by JCH for the Gover- 264 nor’s statement on H.B. 589 Undated draft statement prepared by JCH for the Governor re: H.B. 589

ACP—draft document pre- DG00265-pared by JCH and SAW for 275 the Governor Undated draft memorandum prepared by JCH with handwritten comments of SAW

Public record DG00276-284 Undated Statement of the Governor re: H.B. 589, marked final draft 5/4/87

ACP—draft statement pre- DG00285-pared by JCH for use by the 302 Governor 2 copies of undated draft statement prepared by JCH

ACP—draft documents pre- DG00303-pared by JCH and SAW for 312 the Governor Undated draft recommendation of the Governor re: H.B. 589 prepared by JCH with handwritten notes of SAW

ACP—draft statements pre- DG00313-pared by JCH and SAW for 321 the Governor Undated draft statement prepared by JCH for the Governor re: H.B. 589 with handwritten comments of SAW

ACP—draft statement pre- DG00322-pared by JCH and SAW for 329 the Governor Undated draft statement prepared by JCH for the Governor re: H.B. 589 with handwritten notes of SAW

ACP—draft prepared by DG00330-JCH and JRT for the Gover- 338 nor Undated draft statement prepared by JCH for the Governor re: H.B. 589 with handwritten notes of JRT

BATES PRIVILEGE NUMBER DESCRIPTION

ACP—draft documents pre- DG00339-pared by JCH and JRT for 349 the Governor Undated draft recommendation prepared by JCH for the Governor re: H.B. 589 with handwritten comments of JRT '

ACP—draft documents pre- DG00350-pared by JCH and SAW for 359 the Governor Undated draft recommendation prepared by JCH for the Governor re: H.B. 589 with handwritten comments of SAW

ACP—legal analysis by DG00360-SAW to Governor’s in-house 361 attorneys and Chief of Staff 5-20-87 handwritten notes of SAW to Pur-rington, Pugh, JRT and Kirk

ACP—highlighting by JCH DG00362-for use in advising the Gov- 372A ernor re: H.B. 589 4- 13-87 House Bill 589 with highlighting of JCH

W DG00373-374 5- 21-87 correspondence to Bogle from SAW, with 5-17-87 correspondence to SAW from Bogle attached

Public record DG00375-376 General Assembly of North Carolina, Session 1987, House Bill 1514, pages 103 and 104

ACP—notes reflecting com- DG00377-munication with in-house at- 382 torneys and Chief of Staff Undated handwritten notes of SAW re: H.B. 598

WP—obtained by JCH in an- DG00383 ticipation/course of Gudger litigation Chart obtained by JCH

ACP—draft-statement pre- DG00384-pared by JCH for JGM 392 Undated draft statement prepared by JCH for the Governor re: H.B. 589

R; WP—prepared/obtained DG00393-by JRT in anticipa- 394 tion/course of Gudger litigation 8-10-87 memorandum to Kirk, Hays and SAW from JRT, with undated chart prepared by JCH

R—confidential memoran- DG00395-dum reflecting SAW’s evalu- 396 ation of potential members of Parole Commission Memorandum re: Parole Commission with handwritten comments of SAW

R—confidential memoran- DG00397 dum reflecting SAW’s evaluation of potential members of Parole Commission Memorandum re: Parole Commission with handwritten comments of SAW

WP—factual research ob- DG00398-tained by JCH in anticipa- 399 tion/course of Gudger litigation Judicial information

WP—factual research ob- DG00400-tained by JCH in anticipa- 401 tion/course of Gudger litigation Judicial information

WP—factual research ob- DG00402-tained by JCH in anticipa- 403 tion/course of Gudger litigation Judicial information

WP—factual research ob- DG00404-tained by JCH in anticipa- 405 tion/course of Gudger litigation Judicial information

WP—factual research ob- DG00406-tained by JCH in anticipa- 407 tion/course of Gudger litigation Judicial information

PRIVILEGE BATES NUMBER DESCRIPTION

WP—factual research obtained by JCH in anticipation/course of Gudger litigation DG00408- Judicial information 409

WP—factual research obtained by JCH in antieipation/course of Gudger litigation DG00410- Judicial information 411

WP—factual research obtained by JCH in anticipation/course of Gudger litigation DG00412- Judicial information 413

WP—factual research obtained by JCH in anticipation/course of Gudger litigation DG00414- Judicial information 415

WP—factual research obtained by JCH in anticipation/course of Gudger litigation DG00416 8-17-98 press release with handwritten notes of JCH

W DG00417- Undated ratified bill of H.B. 589 431

WP—obtained by JCH in anticipation/course of Preston and Gudger litigations DG00432 Undated memorandum

WP—draft complaint prepared by counsel for co-plaintiffs DG00433- Undated draft complaint in Crawley v. 439 Gudger

WP—draft complaint prepared by counsel for co-plaintiffs DG00440- Undated draft complaint in Martin v. 446 Gudger

WP—obtained or prepared in anticipation/course of Gudger litigation DG00447 Chart of judges with handwritten comments of SAW

C. SUPERIOR COURT JUDICIAL ELECTION LAW REFORM; FILE # 0554

W DG00448- 7-16-86 correspondence to Jones from 450A Freeman with attachment

w DG00451- 7-16-86 correspondence to Jones from 452 Freeman

w DG00453- 7-14-86 correspondence to Jones from 454 Freeman re: Chapter 957 of the 1985 Session Laws

Public record DG00455- Undated ratified bill for S.B. 892 with rati-459 fied bill for S.B. 893 attached

W DG00460- 7-28-86 correspondence to Jones from 462 Freeman with ratified bill for S.B. 1305 attached

W DG00463- 4-22-86 draft bill with highlighting of un-466 known source

ACP; WP prepared by legal intern (law student) on Governor’s staff for JRT’s use in advising the Governor; prepared in anticipation/course of litigation DG00467- 6-10-86 memorandum to JRT from Martin 468

BATES NUMBER DESCRIPTION PRIVILEGE

ACP—in-house legal counsel communications used to advise the Governor DG00469-470 5-22-86 memorandum to Purrington from SAW

W DG00471-472 5- 27-86 memorandum to public officials

W DG00473-474 7-14-86 correspondence to Jones from Freeman

ACP—in-house legal counsel communications used to advise the Governor DG00475-477A 6- 25-86 memorandum to JRT from SAW

D. JUDICIAL ELECTION REFORM (SAM’S ARTICLE)

R DG00478 Undated handwritten note of SAW

W DG00479- 3-20-86 draft correspondence of SAW 481

W; public record DG00482- Undated typewritten note to unknown from 489 K. Rotterman with 6-21-86 address by the Governor to the General Session of the N.C. Bar Association

W DG00490- 4-15-86 correspondence to the Governor 502 from Vaughn with attachments

ACP—believed used by SAW in advising the Governor DG00503- Undated document believed prepared by 505 SAW re: merit selection of judges

Public record DG00506- 4-23-86 Remarks to North Carolina Courts 508 Commission by Purrington

W DG00509- 4-15-86 correspondence to the Governor 521 from Vaughn with attachments

ACP—legal communication between SAW and the Governor DG00522- 5-14-86 memorandum to the Governor 524 from SAW re: merit selection with attachments

W DG00525- 3 copies of 5-5-86 correspondence to the 527 Governor from Wells

ACP—legal communication between SAW and the Governor; attached draft of document by SAW for the Governor DG00528- 5-13-86 memorandum to the Governor 529 from SAW re: Haith v. Martin

ACP(?)—draft document prepared by SAW for the Governor’s review (unable to determine if executed or sent) DG00530 5-16-86 unsigned draft correspondence to Wells from the Governor prepared by SAW

ACP(?)—draft document prepared by SAW for the Governor’s review (unable to determine if executed or sent) DG00531 5-16-86 unsigned draft correspondence to Aycock from the Governor prepared by SAW

ACP—draft document prepared by SAW for the Governor’s review (unable to determine if executed or sent) DG00532 5-16-86 unsigned draft correspondence to Wells from the Governor prepared by SAW

ACP(?)—draft document prepared by SAW for the Governor’s review (unable to determine if executed or sent) DG00533 5-16-86 unsigned draft correspondence to Aycock from the Governor prepared by SAW

PRIVILEGE BATES NUMBER DESCRIPTION

W DG00534- 1-29-85 correspondence to Aycock from 537 Senator Ervin with attachments

W DG00538 5-5-86 correspondence to the Governor from Aycock

w DG00539- 1-23-85 unsigned correspondence to Sena-540 tor Ervin from Aycock unsigned

w DG00541 1-29-85 correspondence to Aycock from Senator Ervin

w DG00542 5-5-86 correspondence to the Governor from Aycock

w DG00543- 1-23-85 unsigned correspondence to Sena-544 tor Ervin from Aycock

w DG00545 1-29-85 correspondence to Aycock from Senator Ervin

ACP(?)—draft document prepared by SAW for the Governor’s review (unable to determine if executed or sent) DG00546- 5-14-86 unsigned draft correspondence to 547 Vaughn from the Governor prepared by SAW

Public record DG00548- 2 copies of 4-23-86 Remarks to North Car-553 olina Courts Commission by Purrington

R DG00554 5-12-86 memorandum to Purrington from Foster

R; W ACP(?)—draft document prepared by SAW for the Governor’s review (unable to determine if executed or sent) DG00555 5-14-86 memorandum to Flood from SAW DG00556 5-15-86 unsigned draft correspondence to Reynolds from the Governor prepared by SAW

ACP—legal memorandum prepared by SAW to the Governor DG00557- 5-14-86 memorandum to the Governor 559 from SAW with attachment

W DG00560- 4-15-86 correspondence to the Governor 572 from Vaughn with attachments

W DG00573- 3-19-86 correspondence to Bradshaw from 576 SAW with attachments

W DG00577- 1-17-86 memorandum of SAW 580

Public record DG00581- 2 copies of 2-7-86 statement to the North 590 Carolina Courts Commission on behalf of the Governor

ACP—legal communication between SAW and Governor DG00591- 5-14-86 memorandum to the Governor 596 from SAW with attachment

ACP(?)—draft document prepared by SAW for review by the Governor (unable to determine if executed or sent) DG00597 5-15-86 unsigned draft correspondence prepared by SAW for the Governor

E. JUDICIAL SELECTION IN NORTH CAROLINA

WP—obtained by JRT in anticipation/course of Preston and this litigation DG00598-599 12-88 report of Subcommittee

ACP—obtained by JRT to advise the Governor DG00600-602 Statutory legal research with handwritten comments and highlighting of JRT

W DG00603-605 Undated, “Judicial Selection in North Carolina”, The North Carolina State Bar Quarterly

PRIVILEGE BATES NUMBER DESCRIPTION

W DG00606- Undated memorandum re: judicial selection 610

ACP; WP—used by JRT to advise the Governor; obtained by JRT in anticipation/course of Preston litigation DG00611- 12-88 report of Subcommittee with hand-612 written comments of JRT

W DG00613 Document of unknown origin, re: North Carolina Judicial Standards Commission

W; Public record DG00614- Summer/1988 speech presented to the Judi-617 cial Selection Study Committee given by Exum published in The North Carolina State Bar Quarterly

W DG00618 Undated “Briefly” N & 0 article “Two Lawyers Warn Against Judicial Appointment”

WP—Document obtained/prepared by SAW and JRT in anticipation/course of Alexander v. Martin litigation DG00619- 5-21-87 memorandum to the Governor 621 from JRT with attachment prepared by SAW

W DG00622- Undated document titled “The Appoint-625 ment of Judges in New Jersey”

Public record DG00626 9-30-88 agenda for the Judicial Selection Study Commission

W—notes by JRT used to advise the Governor DG00627 Undated document obtained by JRT with his notes

W DG00628- 6-10-87 unsigned draft correspondence to 631 Wells from the Governor prepared by JRT with attachments

W; R—not relevant to instant request DG00632- 4 copies of 11-6-86 memorandum to the 646 Judicial Selection Committee from SAW

Public record DG00647- January 1988 Report of the Governor’s Ju-797 dicial Reform Commission for the State of Pennsylvania

1 . The court has found only two minor typographical errors with the "Bates” numbering of the documents. On page three of Appendix A, the first document should be numbered AG00101-104, not AG00104A; and on page 11, AG01293-1299 should read AG01293-129S. The court has corrected these errors on the copy of Appendix A attached to the instant order.

The court also notes that a handful of documents are duplicates because they are listed in more than one file. See, e.g., AG00105-107 and DG00467-468, and DG00594-595 and DG00506-508.

2 . The court recognizes that some courts have used the expedited approach of ruling on the discoverability of documents based only on a review of a resume of the contents of the documents, supplemented by “spot checks” of a few documents. See, e.g., In re Richardson-Merrell, Inc., 97 F.R.D. 481 (S.D.Ohio 1983).

The court wishes to emphasize that it has not based its rulings on the descriptions found in Appendix A, but instead has reviewed each document individually.

3 . The work product doctrine (or "rule”) is also sometimes referred to as the work product privilege. This terminology is not, technically speaking, correct, in that the defense of work product is not a privilege from discovery, but is only a qualified immunity from the same, as will be further discussed infra. See, e.g., International Tel. & Tel. Corp. v. United Tel. Co., 60 F.R.D. 177 (M.D.Fla.1973); Kirkland v. Morton Salt Co., 46 F.R.D. 28 (N.D.Ga.1968).

4 . Several documents are classified in alternate categories, e.g. "W;R” or WP;ACP.” The court will discuss this category of documents separately, infra.

5 . Rule 501, Fed.R.Evid., provides in part:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

6 . In this respect, the court wishes to reemphasize the admonition it made to counsel in its Order of November 7, 1990: "The court expects Governor Martin's assertion of privilege 'to be used in a limited, thoughtful and extremely discriminating manner.’" Order at 5-6 (quoting Spell v. McDaniel, 591 F.Supp. at 1121).

7 . This rule reads in pertinent part:

[A] party may obtain discovery of documents and. tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party’s attorney ...) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. ... (Emphasis added).

8 . See fn. 1.