UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VERONICA RAYNOR, Individually and as : the Personal Representative of the : Estate of Reuel Griffin, : : Plaintiff, : Civil Action No.: 14-0750 (RC) : v. : Re Document No.: 127 : DISTRICT OF COLUMBIA, et al., : : Defendants. :

MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR IN CAMERA REVIEW OF CERTAIN DOCUMENTS UNDER SEAL AND FOR AN ORDER THAT THE DOCUMENTS ARE NOT PRIVILEGED [127]

On April 29, 2014, Plaintiff Veronica Raynor filed this action against the District of

Columbia and several other defendants based on the death of Reuel Griffin at Saint Elizabeths

Hospital in 2012. See generally Compl., ECF No. 1. As part of the discovery in this case,

Plaintiff has sought communications of various officials at that hospital, the Department of

Mental Health, and the Department of Healthcare Finance. To date, the District has apparently

produced more than 250,000 pages of documents. Throughout this process, however, the

District has made extensive redactions to documents on the grounds that such information was

subject to attorney-client privilege, deliberative process privilege, or contained personally

identifiable information of patients.

On July 24, 2017, the District sent Plaintiff a claw-back letter, claiming that it had

inadvertently produced privileged information and demanded that Plaintiff return certain

documents. In total, the District is seeking to claw back approximately 200 documents. Plaintiffs, however, disputed the District’s right to claw those documents back. The parties

brought this issue to the Court’s attention and the Court directed the parties to meet, confer, and

attempt to resolve this matter on their own. Regrettably, the parties have been unable to resolve

the matter without judicial intervention and therefore they now request the Court to review the

documents and make a ruling. For the reasons stated below, the Court finds that the District has

conceded any argument on claims of deliberative process privilege and likely waived any

assertion of attorney-client privilege for the documents at issue for failing to act promptly.

A. Deliberative Process Privilege

One of the grounds that the District has claimed for withholding documents is the

deliberative process privilege. That privilege “protects communications that are part of the

decision-making process of a governmental agency.” United States v. Farley,

(7th Cir. 1993) (citing NLRB v. Sears, Roebuck & Co.,

, 150–52 (1975)).

Plaintiff argues, however, that the District cannot assert the deliberative process privilege in this

case because that process is at issue in this very litigation. See Pl.’s Mot. at 3 (citing In re

Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency,

(D.C. Cir. 1998) and Convertino v. U.S. Dep’t of Justice,

(D.D.C.

2009)). While this position certainly seems consistent with the law in this Circuit and is most

likely correct, the Court need not decide this issue because the District has failed to respond to

the argument in its opposition. It has therefore conceded the point. See Texas v. United States,

(D.C. Cir. 2015) (Local Rule 7(b) “is understood to mean that if a party

files an opposition to a motion and therein addresses only some of the movant’s arguments, the

court may treat the unaddressed arguments as conceded.” (internal citations and quotation marks

2 omitted)). Accordingly, Plaintiff need not return any information based on the assertion of the

deliberative process privilege.

B. Attorney-Client Privilege

The District also claims that it is entitled to the return of information based on an

assertion of the attorney-client privilege. The attorney-client privilege “shelters confidential

communications between an attorney and client, including their agents, made with a primary

purpose of seeking or providing legal advice.” United States ex rel. Barko v. Halliburton Co.,

(D.D.C. 2014). “Traditionally, the courts have concluded that the burden

falls to the claimant of the privilege . . . to present sufficient facts to establish the privilege.”

Amobi v. D.C. Dep’t of Corr.,

(D.D.C. 2009). Likewise, “[t]he D.C. Circuit’s

strict definition of privilege carries over to the waiver of privilege, placing the burden of

protecting privileged communications squarely on the proponent of the privilege.” Banneker

Ventures, LLC v. Graham,

(D.D.C. 2017); see also Amobi,

(“In this district, prior to the enactment of [Rule 502], ‘the proponent of the privilege . . .

[had] the burden of showing that it [had] not waived attorney-client privilege’” and “I see no

reason why Rule 502 can be interpreted to modify that rule and I will apply it.”); Educ.

Assistance Found. for the Descendants of Hungarian Immigrants in the Performing Arts, Inc. v.

United States,

(D.D.C. 2014) (“The party asserting the privilege, even if

disclosure of the communication was inadvertent, bears the burden of establishing each of these

three elements.” (citing Williams v. District of Columbia,

(D.D.C.

2011))). Accordingly, it is the District’s burden to show both that the information that it is

seeking returned is protected by the privilege and that it has not waived the privilege by

disclosing those documents to Plaintiff.

3 Although the Court is highly skeptical of the vast majority of the District’s privilege

claims, the Court need not address the issue at this juncture because, even assuming that the

information is privileged, the Court finds that District has by and large failed to show that the

privilege was not waived. First, while the District claims that Plaintiff should not be permitted to

argue waiver based on the June 2017 Protective Order, see Def.’s Opp’n at 14, ECF No. 14

(citing ECF No. 101), its argument does not carry water. The District points to language in the

Protective Order, stating that “[i]f a producing party inadvertently discloses documents or items

that are asserted to be privileged or otherwise immune from discover, the producing party shall

promptly advise the receiving party in writing and request that the item or information be

returned and any copies be destroyed.” Protective Order ¶ 3(c), ECF No 101. It states further

that “[n]o party to this action shall thereafter assert that such disclosure waived any privilege or

immunity.” Protective Order ¶ 3(c). The problem here is that the overwhelming majority of the

discovery in this matter was produced long before June 2017, when the Protective Order was

issued. The District does not explain why the provision of the Protective Order should apply to

information already produced and the language of the Order itself does not indicate any intent to

apply retroactively. Thus, the District has not shown why Plaintiff should be precluded from

arguing waiver in this instance. The Court, therefore, turns to that precise issue.

The issue of inadvertent waiver is governed by Rule 502(b) of the Federal Rules of

Evidence. That Rule states that “disclosure does not operate as a waiver in a federal or state

proceeding if (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took

reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to

rectify the error, including (if applicable) following Federal Rule of Civil Procedure

4 26(b)(5)(B).” Fed. R. Evid. 502(b). The Court is persuaded that the District has failed to satisfy

this standard.

Although the District claims that the production of privileged material in this matter was

inadvertent, that fact is far from clear. Indeed, it appears more likely that different reviewers

redacted multiple versions of the same document in different ways based on their different

understanding of the privilege’s application—not inadvertence due to matters slipping through

the cracks in a large production. Nevertheless, the Court will assume for purposes of this motion

that, in fact, the information was produced inadvertently.

Even if the District’s production of privileged information was inadvertent, it must still

prove that it took reasonable steps to prevent disclosure. See Williams v. District of Columbia,

(D.D.C. 2011) (“[T]he holder of the privilege bears the burden of

establishing that it ‘took reasonable steps to prevent disclosure’ in the first place.” (citing Fed. R.

Evid. 502(b)(2))). But the District makes no effort to provide any detail or in any way explain

the sorts of procedures or methodologies it followed in reviewing and producing documents. See

(“The general statement that a privilege review was performed, without any supporting

details, is completely uninformative.”); Amobi, 262 F.R.D. at 54–55 (“[D]efendants do not meet

the burden of proving that the privilege was not waived” when “there is no indication of what

specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts

were, all things considered, reasonable in the context of the demands made upon the defendants”

and “the court is left to speculate what precautions were taken by counsel to prevent this

disclosure.”). Rather, the District argues only summarily, and without record support, that the

small fraction of privileged documents inadvertently slipped through its process as part of large

productions on tight deadlines. These assertions come only in the form of unsworn statements

5 from counsel, and for whom it is unclear how much personal knowledge counsel may actually

have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this

Court have admonished the District on exactly this point. See Williams,

(holding that the District’s exclusive reliance on “the unsworn averments of its counsel, who is

almost certain to lack personal knowledge of the circumstances that surrounded the District’s

review and production” and failure to support arguments with declaration of those involved in

discovery was “both inexplicable and unacceptable and constitutes sufficient grounds to deny the

District’s motion outright”).

But more problematic is the District’s failure to demonstrate, as it must under Rule

502(b), that it promptly took reasonable steps to rectify the errors that it has identified. Although

“privilege is not waived by a mere disclosure to another party without an express intent to waive

such privilege, the party making the disclosure cannot sit idly and do nothing to prevent

inadvertent disclosures, nor can that party fail to take steps to rectify an inadvertent disclosure

once one has been discovered.” Absolute Activist Value Master Fund Ltd. v. Devine,

(M.D. Fla. 2017). According to Advisory Committee Notes for Rule

502(b), one of the factors courts should consider is the “time taken to rectify the error.” Fed. R.

Evid. 502 advisory committee’s note (2007).

The District contends, again in conclusory fashion, that it acted “promptly” when it “sent

Plaintiff a clawback letter to rectify the error.” Defs.’ Opp’n at 15. This assertion is belied by

the facts in this case. Many of the documents at issue were produced back in 2015. There is

good reason to believe that the District either knew or should have known about any errors in

those documents as the District itself referenced some of these documents in its early discovery

responses and Plaintiff later used them in its Motion to Compel. Yet the District remained silent

6 on the issue until July 24, 2017, when it issued its claw back letter. Although the District does

not specifically indicate when it learned of the errors in each of the documents, it is at least

reasonable under the facts of this case to expect the District to have both learned about the

production of privileged material and to have acted on that information within one year of

production. That is, the District can only reasonably argue that it has acted promptly in issuing

its claw back letter with respect to documents that were produced within one year of the letter.

Accordingly, the District has not been prompt with regard to any documents produced before

July 24, 2016 and has consequently waived any privilege it might have claimed in those

documents. Thus, Plaintiff need not return documents or information that was produced before

this date, nor must it return any later-produced copies of the same information. Because there

are so many different versions of the same communications spanning various Bates ranges, it is

possible that this finding alone may resolve the dispute for all documents at issue.

For the forgoing reasons, Plaintiff’s motion is GRANTED IN PART AND DENIED IN

PART. It is hereby:

ORDERED that the parties have thirty days from the date of this Memorandum Opinion

and Order to determine whether there remain any documents or information for which the Court

must still assess an assertion of attorney-client privilege. If so, the parties are ordered to (1)

identify those documents by Bates numbers, (2) provide the Court with privilege log entries

associated with those documents, and (3) the District must provide the Court with any

unredacted versions of “root” attorney-client communications upon which an assertion of

privilege is based.

SO ORDERED

Dated: February 12, 2018 RUDOLPH CONTRERAS United States District Judge

7