MICHAEL S. ZUMMER v. JEFFREY S. SALLET, ET AL CIVIL ACTION NO. 17-7563 United States District Court, E.D. Louisiana Filed December 29, 2020 Counsel Daniel Centner, Peiffer, Wolf, Carr, Kane and Conway, New Orleans, LA, Robert B. McDuff, Pro Hac Vice, Robert McDuff, Attorney at Law, Jackson, MS, for Michael S. Zummer. Glenn Stewart Greene, U.S. Department of Justice- Torts Branch, Civil Division, Washington, DC, for Jeffery S. Sallet, Daniel Halphen Evans, Laura A. Bucheit, Brigette Class, Daniel Powers, Michelle Ann Jupina, David M. Hardy, Michael G. Seidel, Gregory A. Brower, Richard R. Brown, Valerie Parlave, Federal Bureau of Investigation, David W. Schlendorf, Jr., Stephen P. Rees, Gerald Roberts, Jr. Currault, Donna Phillips, United States Magistrate Judge ORDER AND REASONS *1 Before me is Plaintiff Michael S. Zummer's Second Motion to Compel the Federal Bureau of Investigation (“FBI”), and David M. Hardy, Valerie Parlave, Stephen P. Rees, and Gerald Roberts Jr. (collectively, the “Official Capacity Defendants”) to produce unredacted versions of 131 documents, previously produced in redacted form. ECF No. 108. Defendants timely filed an Opposition Memorandum. ECF No. 112. Plaintiff obtained leave and filed a Reply Memorandum. ECF No. 116. The parties' submissions relating to the pending Second Motion to Compel (ECF No. 108, 112, 116) are insufficient to enable the court to decide the important questions at issue. Accordingly, IT IS ORDERED that determination of the motion is hereby DEFERRED for the following reasons and pending completion of the additional submissions under the schedule ordered below. I. BACKGROUND This litigation arises from Plaintiff Michael Zummer's decision to send two letters to the Honorable Kurt Engelhardt, then a District Judge in the Eastern District of Louisiana, alleging impropriety and malfeasance by the Department of Justice (“DOJ”) in the prosecution of Harry Morel Jr. ECF No. 53, ¶¶ 25, 36, 41. Plaintiff possessed the information contained in the letters because he was the lead agent tasked with investigating Morel, as well as being generally aware of information in the DOJ due to his status as an agent of the FBI. Id. ¶ 21. After the FBI revoked Plaintiff's security clearance, suspended him without pay, and refused to allow him to publish his letters to the public, Plaintiff filed suit asserting two First Amendment claims seeking relief for (1) revocation of his security clearance in retaliation for sending the letter to Judge Engelhardt, and (2) the FBI's refusal to allow him to publish his full, unredacted letter to the public. See generally ECF Nos. 1, 53. The Honorable Carl J. Barbier granted Defendants' Motion to Dismiss in part, dismissing Plaintiff's claims regarding security clearance, but allowing the claim regarding publication of the letter to proceed against certain Official Capacity Defendants. See Sept. 5, 2019 Order, ECF No. 83; Oct. 18, 2019 Order, ECF No. 90. On June 26, 2020, Plaintiff filed a Motion to Compel, along with a supporting Memorandum and Reply Memorandum. ECF No. 94, 98. Defendants filed an Opposition. ECF No. 95. This Court granted the Motion to Compel on July 20, 2020, and ordered production of Administrative Record. ECF No. 99. Defendants produced the Administrative Record, but the production was completed after the deadline and included redactions based on the attorney-client privilege, work product doctrine, and/or deliberative process privilege. ECF No. 108-1, at 5. Plaintiff now seeks to compel Defendants to produce, in unredacted form, 131 documents, arguing that the privileges do not apply (ECF No. 108-1, at 7–16) and any privilege was waived by the delayed production and/or failure to provide a privilege log. Id. at 6–7. Alternatively, Plaintiff asks that Defendants be required to deliver the documents, in unredacted form, to the Court for in camera review to determine the validity of the claimed privilege. Id. at 1. Defendants have filed an Opposition Memorandum, arguing that their invocation of privilege is proper and that they sufficiently identified the claim of privilege and nature of the documents in a manner that enabled Plaintiff to assess the claim, in compliance with Fed. R. Civ. P. 26(b)(5). See ECF No. 112. In the event of any ambiguity, Defendants attach a detailed privilege log and accompanying Affidavit in support of their invocation of privilege. ECF No. 112, at 4–5; ECF No. 112-1. II. LAW AND ANALYSIS *2 Neither party argues, for the purposes of this motion, that the 131 documents at issue are not relevant nor does anyone argue that the production is not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). The only issue argued is whether the documents at issue are protected by the attorney-client privilege, work product doctrine and/or deliberative process privilege, and if so, whether the privilege was waived. See generally ECF Nos. 108, 112, 116. A. The Attorney-Client Privilege The attorney-client privilege is the oldest of the privileges for confidential communications.[1] The purpose of the attorney-client privilege is well-established: to encourage candid communications between client and counsel.[2] The applicability of the attorney-client privilege “is a question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents.”[3] Not all communications between a client and his or her attorney are protected by the attorney-client privilege.[4] While the attorney-client privilege extends to all situations in which counsel is sought on a legal matter, it protects “only those disclosures - necessary to obtain informed legal advice - which might not have been made absent the privilege.”[5] The attorney-client privilege therefore does not attach to every communication between a client and counsel, as the privilege “does not embrace everything that arises out of the existence of an attorney-client relationship.”[6] “What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.”[7] A party invoking the attorney-client privilege bears the burden of demonstrating its applicability and must show: “(1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.”[8] Thus, Defendants bear the burden of providing proof sufficient to substantiate their claim of privilege.[9] B. The Work Product Doctrine Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure of documents prepared in anticipation of litigation and provides: Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney ... or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. *3 Fed. R. Civ. P. 26(b)(3). Rule 26(b)(3) does not require that the document be prepared by the attorney, but rather, also protects from discovery documents prepared by a party or party's agent as long as they are prepared in anticipation of litigation.[10] The work product doctrine shields from discovery the materials prepared by or for an attorney in preparation for litigation.[11] It is not, however, “an umbrella that shades all materials prepared by a lawyer ....”[12] It focuses only on materials assembled and brought into being in anticipation of litigation.[13] Thus, the work product doctrine does not protect underlying facts relevant to litigation.[14] Also excluded from the work product doctrine are materials assembled in the ordinary course of business or pursuant to public requirements unrelated to litigation.[15] If the document would have been created regardless of whether the litigation was also expected to ensue, the document is deemed to be created in the ordinary course of business and not in anticipation of litigation.[16] The Fifth Circuit has described the standard for determining whether a document has been prepared in anticipation of litigation as follows: It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine. We conclude that litigation need not necessarily be imminent, as some courts have suggested, as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.[17] Thus, in making the fact-specific inquiry as to whether a particular document is work product, “courts consider the primary motivating purpose behind the creation of the document, more so than the timing of production of that document.”[18] *4 The court's determination of the primary motivation behind the creation of the document requires consideration of evidence, not mere argument, sufficient to establish that the principal factor motivating the creation of the document was anticipation of litigation or preparation for trial, as opposed to ordinary business practice. To carry its burden to establish work product protection, Defendants must substantiate all actual assertions about the claim. This is usually done through supporting affidavits from individuals with personal knowledge of the relevant facts, exhibits attached to the motion and briefs, discovery responses, pleadings and other undisputed facts.... To the extent that evidentiary support for the factual basis of the privilege claim is not forthcoming, the claim is little more than a bald, conclusory, or ipse dixit assertion. The court will deny such an assertion because it forecloses meaningful independent inquiry by the finder of facts (the judge) into the validity of the claim.... Although an attorney's word may be “taken on its face,” a privilege claim is not self-executing. It requires more proof than a conclusion by the party asserting the claim (or his attorney) that it is justified. PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 11:10 at 977–80 (Lawyers Coop. Publ'g 1993) (emphasis added). When the party resisting discovery carries its evidentiary burden of establishing work product protection from discovery, the burden then shifts back to the party seeking discovery to establish that the materials are nevertheless discoverable, for example, by proving waiver of work product protection, proving both substantial need for and undue hardship in obtaining materials protected by the work product doctrine, or otherwise.[19] C. The Deliberative Process Privilege The purpose of the deliberative process privilege is to enhance the quality of agency decisions by assuring individuals “who offer information and opinions to the Government that their communications will be kept in confidence.”[20] For the privilege to apply, a document must be both “predecisional” and “deliberative.”[21] A document is “predecisional” if it was generated before the adoption of an agency policy.[22] It is “deliberative” if “it reflects the give-and-take of the consultative process.”[23] In other words, the document must be such that public disclosure “would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.”[24] *5 The burden is on the agency to “establish[ ] what deliberative process is involved, and the role played by the documents in issue in the course of that process.”[25] Conclusory assertions that merely parrot the language of the exemption do not suffice.[26] Further, the deliberative process privilege is not an unqualified one. “When documents are protected by the deliberative process privilege, the party seeking such materials may still obtain them if ‘his need for accurate fact finding overrides the government's interest in nondisclosure.’ ”[27] D. Waiver A party withholding information by claiming privilege or work product “must (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5) (emphasis added). The use of the word “must” indicates that production of a privilege log, including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory. Indeed, the “privilege log's description of each document and its contents must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.”[28] The failure to timely object does not constitute automatic waiver. Rather, it is the “[c]ontinual failure to adhere to Rule 26's prescription [that] may result in waiver of the privilege where a court finds that the failure results from unjustified delay, inexcusable conduct, or bad faith.”[29] In assessing waiver, courts will typically examine the circumstances behind the failure to respond timely to determine whether it was inadvertent, defiant, or part of a larger calculated strategy of noncompliance, will consider subsequent actions by the party to ascertain whether it was acting in good faith, as opposed to acting in a disinterested, obstructionist or bad faith manner, and will take into account any resulting prejudice and the need to preserve the integrity of the rules.[30] For instance, when a case presents somewhat unusual circumstance or the discovery is facially objectionable and there is adequate time remaining before trial such that the requesting party would not face undue prejudice, objections are not deemed waived.[31] Thus, although untimely responses to interrogatories and requests for production may result in a finding of waiver,[32] courts may also consider lesser appropriate sanctions. *6 In this case, the Defendants did not merely make a blanket invocation of privilege over a category of documents without any specific identification. Rather, Defendants produced the documents, in a redacted form, including redaction codes in each redacted space indicating the basis for the redaction. Defendants have also supplemented that production with a separate privilege log. ECF No. 112-1, at 6-16. Defendants have not, however, explained the reason for their inability to produce all documents by this Court's deadline. E. Further Briefing and Evidence is Required Both sides have addressed the issues raised by this motion as if the issue could be decided in the abstract, principally on briefing and argument as a matter of law. Neither party has submitted evidence sufficient to carry their shifting burdens of proof. As discussed above, as the party resisting discovery, Defendants bear the burden to provide proof sufficient to substantiate those claims. After Defendants have borne their evidentiary burden, the burden shifts back to Plaintiff to establish that the materials are nevertheless discoverable. In assessing the assertion of privilege, each document must be assessed on a document-by-document basis to determine the propriety of the privilege application because a blanket assertion of privilege over categories of documents is improper.[33] And as to work product, the primary fact-finding that must be made based upon evidence by an affiant with personal knowledge is whether the principal factor motivating the creation of the documents was anticipation of litigation or preparation for trial, as opposed to ordinary business practice. Without explanatory testimony by affidavit, deposition or otherwise from the person or person who prepared the documents at issue, the court cannot resolve the question of the motivating purpose behind the creation of same. III. CONCLUSION Accordingly, for the foregoing reasons, IT IS ORDERED that Plaintiff's Second Motion to Compel (ECF No. 108) is DEFERRED; IT IS FURTHER ORDERED that Defendants deliver the 131 documents, in unredacted form with the redacted portions highlighted in yellow, to this Court for in camera review by January 13, 2021; IT IS FURTHER ORDERED that Defendants, as the parties resisting discovery by asserting attorney-client and deliberative process privileges and work product protections, must submit all evidence relating to its burden of proof and a supplemental opposition memorandum addressing the issues as to each document (or common grouping of documents), including its explanation for the failure to produce same by this Court's deadline, no later than January 13, 2021; IT IS FURTHER ORDERED that Plaintiff must submit rebuttal evidence, if any, and evidence necessary to sustain its Rule 26(b)(3)(A)(ii) burden, together with counsel's memorandum addressing any new legal arguments raised by Defendants in the Supplemental Memorandum, no later than January 20, 2021; IT IS FURTHER ORDERED that the Clerk note a new submission date for Plaintiff's motion of January 27, 2021. Thereafter, the matter will be taken under advisement. New Orleans, Louisiana, this 29th day of December, 2020. Footnotes [1] Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 720 (5th Cir. 1985). [2] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). [3] Hodges, 768 F.2d at 721. [4] United States v. Pipkins, 528 F.2d 559, 562–63 (5th Cir. 1976) (stating that the attorney-client privilege “is not a broad rule of law which interposes a blanket ban on the testimony of an attorney.”). [5] Fisher v. United States, 425 U.S. 391, 403 (1976). [6] Pipkins, 528 F.2d at 563. [7] United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982) (internal quotations omitted); see also Hodges, 768 F.2d at 720–21. [8] United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original). [9] United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002); In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001); Hodges, 768 F.2d at 721. [10] Naquin v. UNOCAL Corp., No. 01-3124, 2002 WL 1837838, at *7 (E.D. La. Aug. 12, 2002). [11] Hickman v. Taylor, 329 U.S. 495, 511–12 (1947); Blockbuster Entm't Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992). [12] El Paso, 682 F.2d at 542; see also Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 2000 WL 1145825 at *2 (E.D. La. Aug. 11, 2000). [13] Piatkowski, 2000 WL 1145825 at *2. [14] See generally Upjohn, 449 U.S. at 395-96. [15] Guzzino v. Felterman, 174 F.R.D. 59, 62 (W.D. La. 1997) (quoting El Paso, 682 F.3d at 542 (citing Fed. R. Civ. P. 26(b)(3) advisory committee's notes to 1966 amendment)); accord 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2024, at 503 (3d ed. 2010); see also Hill Tower, Inc. v. Dep't of Navy, 718 F. Supp. 562, 565 (N.D. Tex. 1988) (“The mere fact this report deals with facts, opinions, and recommendations that later may be the focus of litigation does not establish that there was the expectation of litigation when this document was drafted.”). [16] Global Oil Tools, Inc. v. Barnhill, No. 12–1507, 2013 WL 1344622, at *6 (E.D. La. April 3, 2013) (citing S. Scrap Mat'l Co. v. Fleming, No. 01–2554, 2003 WL 21474516, at *6 (E.D. La. June 18, 2003); Piatkowski, 2000 WL 1145825 at *1). [17] United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. Unit A Feb. 1981) (citations omitted); accord In re Kaiser Alum. & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (citing El Paso, 682 F.2d at 542). [18] Houston Cas. Co. v. Supreme Towing Co., No. 10-3367, 2012 WL 13055045, at *3 (E.D. La. Sept. 17, 2012). Mere proximity in time - while a factor to be considered - is not alone determinative. On one hand, the work product “privilege can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” Udoewa v. Plus4 Credit Union, 457 F. App'x 391, 393 (5th Cir. 2012) (quoting In re Kaiser, 214 F.3d at 593). On the other hand, “[t]he mere fact that a document is prepared when litigation is foreseeable does not mean the document was prepared in anticipation of litigation ....” Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., No. 93–3084, 1994 WL 58999, at *3 (6th Cir. Feb. 25, 1994) (citing Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)). Even “[e]stablishing that a document was prepared after litigation was commenced is insufficient to prove that the document was prepared in anticipation of litigation.... What is crucial is that ‘the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” Robinson v. Tex. Auto. Dealers Ass'n, 214 F.R.D. 432, 449 (E.D. Tex. 2003) (quoting In re Kaiser, 214 F.3d at 593), rev'd on other grounds, 2003 WL 21911333 (5th Cir. July 25, 2003); accord Global Oil Tools, 2013 WL 1344622 at *6; Guzzino, 174 F.R.D. at 62. [19] Fed. R. Civ. P. 26(b)(3); Hodges, 768 F.2d at 721; In re Int'l Sys. & Controls Corp. Secs. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982); In re Blessey Enters., Inc., Nos. 08-235-RET-DLD, 08-244-RET-DLD, 2009 WL 5915367 (M.D. La. Dec. 7, 2009), aff'd, 2010 WL 610669 (M.D. La. Feb. 19, 2010). [20] Shermco Indus., Inc. v. Sec'y of Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980). [21] Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (“[P]re-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made.”). [22] Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); see also Shermco, 613 F.2d at 1319 (finding pre-decisional communications that were not attached or incorporated into a final decision were immune from disclosure under FOIA). [23] Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal States, 617 F.2d at 866). [24] Dudman Commc'ns Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). [25] Coastal States, 617 F.2d at 868; see also In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001) (“A party asserting a privilege exemption from discovery bears the burden of demonstrating its applicability.”). [26] Senate of Puerto Rico ex rel. Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citing Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) (noting that the government must show “by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA”)). [27] Pennison v. United States, No: 16-3615, 2016 WL 5390394, at *4 (E.D. La. Sept. 27, 2016) (quoting Klein v. Jefferson Parish School Bd., No. 00–3401, 2003 WL 1873909, at *4 (E.D. La. Apr. 10, 2003)). [28] Equal Emp't Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (citing United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982); N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011) (“When a party relies on a privilege log to assert these privileges, the log must ‘as to each document ... set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’ ”) (quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993))). [29] Equal Emp't Opportunity Comm'n, 876 F.3d at 697 (citing United States v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003)). [30] RE/MAX Int'l, Inc. v. Trendsetter Realty, LLC, No. H–07–2426, 2008 WL 2036816, at *5 (S.D. Tex. May 9, 2008); see also Enron Corp. Savings Plan v. Hewitt Assocs., 258 F.R.D. 149, 157 (summarizing relevant factors as (1) length of the delay; (2) the reason for the delay; (3) whether there was any dilatory or bad faith action by the party that failed to raise the objection properly; (4) whether the party seeking discovery has been prejudiced by the failure; (5) whether the document production request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result on the defaulting party). [31] See Superior Diving Co. v. Watts, Nos. 05–197, 08–5095 2011 WL 1235195, at *2–3 (E.D. La. Mar. 30, 2011) (Wilkinson, J); see also Enron, 258 F.R.D. at 156–57 (“Acknowledging the harshness of a waiver sanction, courts have reserved the sanction for those cases where the offending party committed unjustified delay in responding to discovery. Minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances militate against finding waiver.”) (quoting Ritacca v. Abbott Labs., 203 F.R.D. 332, 335 (D.C. Ill. 2001)). [32] B&S Equip. Co. v. Truckla Servs., Inc., Civ. A. Nos. 09–3862, 10–0832, 10–1168, 10–4592, 2011 WL 2637289, at *5 (E.D. La. July 6, 2011) (Roby, J.) (acknowledging the Fifth Circuit's recognition that failure to timely respond to both Interrogatories and Requests for Productions constitutes a waiver of objections). [33] El Paso, 682 F.2d at 539, 541.