Marshall v. District of Columbia Water & Sewage Authority
Marshall v. District of Columbia Water & Sewage Authority
Opinion of the Court
MEMORANDUM OPINION
In my Memorandum Opinion of March 18, 2003, I ordered that the defendant produce for my in camera inspection all documents as to which it claimed either the attorney-client or work-product privileges. Marshall v. District of Columbia Water & Sewage Auth., 214 F.R.D. 23, 25 (D.D.C. 2003). Defendant has narrowed its privilege claims to certain documents that plaintiff had demanded by seeking all documents used in preparing the defendant’s answers to plaintiffs interrogatories. I have now reviewed the documents. I conclude that some of them qualify for protection under the attorney-client privilege and that the rest are work product, the disclosure of which would reveal counsel’s mental impressions, conclusions, or legal theories. FED.R.Civ.P. 26(b)(3). Hence, the documents are absolutely protected from disclosure.
The Attorney-Client Privilege
Two sets of the documents are notes made by counsel for defendant while interviewing persons employed by the District of Columbia Water and Sewer Authority in reference to this lawsuit. They are unquestionably protected by the attorney-client privilege. Upjohn Co. v. United States, 449 U.S. 383, 393-94, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
There are three other documents that seem to fall within the privilege because they represent communications from an employee of the ehent to the employer. However, it is unnecessary to ascertain whether the attorney-client privilege applies because the documents are absolutely protected from discovery by Federal Rule of Civil Procedure 26(b)(3).
The Work-Product Privilege
The first document is authored by a Labor Relations Specialist, Lee Clark. Via this document, Clark transmitted to counsel a certain list. The other two documents transmit files from employees to counsel for the corporation. They say nothing about the files being transmitted but are the kind of “post-it” notes that usually accompany documents to indicate the recipient and what is being transmitted. Having seen them, I am convinced that they were transmitted from their authors to counsel so that she could fulfill her responsibility of answering plaintiffs discovery.
Because the buck slips were thus prepared “for trial,” the question becomes whether their disclosure threatens to reveal counsel’s mental impressions, conclusions, or legal theories. Fed.R.Civ.P. 26(b)(3). If so, they are absolutely protected from disclosure by that rule. See Upjohn, 449 U.S. at 400, 101 S.Ct. 677. In my view, the “buck slips” allow one to learn what documents were sent to counsel, thereby revealing what documents counsel thought she needed to answer the interrogatories. That necessarily discloses her theory of how to answer them as surely as asking her what information she thought was important to collect to answer the interrogatories. Such insight obviously invades the mental process counsel used to perform a legal task, and thus I cannot permit disclosure.
There is one final document, a copy of the interrogatories on which counsel has written her thoughts as to legal theories, things to do, and possible defenses. This is work product in its purest form and, as I have just noted, Rule 26(b)(3) absolutely protects it from disclosure.
I therefore conclude that the documents withheld are privileged and need not be disclosed.
. Perhaps they take their name from the sign on President Truman’s desk: “The buck stops here.”
Reference
- Full Case Name
- Ronald MARSHALL v. DISTRICT OF COLUMBIA WATER & SEWAGE AUTHORITY
- Cited By
- 1 case
- Status
- Published