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Beliveau v. Naval Undersea Warfare Center , 1997-SDW-6 (ALJ May 31, 2000)
U.S. Department of Labor | Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-5330 | ![]() |
IN THE MATTER OF
JOHN J. BELIVEAU, JR.
Complainant
v.
NAVAL UNDERSEA WARFARE
CENTER
Respondent
PROTECTIVE ORDER
In its motion for reconsideration, respondent contends that the MIT case is inapplicable to its motion for a protective order. Instead, respondent cites In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied, 521 U.S. 1105 (1997), and In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), for the proposition that it did not waive its attorney-client privilege in turning over the document to the FBI because that privilege "does not apply to evidence relating to possible criminal conduct during the course of a grand jury or other criminal investigation." Respondent's Motion for Reconsideration at 6.
There are two problems with respondent's reliance on these decisions. First, neither case contains the sweeping holding stated by respondent. Rather, they are strictly limited to grand jury subpoenas. See Grand Jury Subpoena at 915; Lindsey at 1271. Accordingly, neither of these cases hold that Federal agencies cannot assert the attorney-client privilege in investigations by Federal regulatory or investigatory agencies. Respondent has not contended that the Anderson memorandum was turned over to the FBI pursuant to a grand jury subpoena. Therefore, that respondent turned over the Anderson memorandum to the FBI constituted a waiver of any applicable privileges.
Second, the attorney-client privilege does not apply to Anderson's memorandum in any event. The attorney-client privilege applies to communications made in confidence by the client to its attorney for the purpose of soliciting legal advice. See, e.g., MIT, supra, at 684. The privilege also applies to communications by the attorney to the client where the attorney's communications "show circumstantially the client's own communications." cCormick, Evidence at 182-83 (2d ed. 1972). In her memorandum, Anderson (one of respondent's attorneys in this case) is not repeating, directly or by implication, confidences told to her by NUWC personnel in seeking her legal advice. Rather, the memorandum is Anderson's candid status report to another Navy attorney concerning litigation between complainant and respondent, including not only this case but others as well. It is clearly not protected by the attorney-client privilege (although it would fall within the scope of the attorney work product privilege), and thus the holdings in Grand Jury Subpoena and Lindsey do not apply.2
Although I believe my ruling that any applicable privileges had been waived by release of the Anderson memorandum to the FBI is on solid footing, in order to prevent this issue from festering I will expand my ruling on Respondent's Motion for a Protective Order so that the issue of waiver by release of the memorandum to the FBI becomes only an alternative holding. I also hold that respondent's inadvertent disclosure of the Anderson memorandum to complainant in discovery waived any applicable privileges.
As I noted in the Order Denying Protective Order, privileged documents which are inadvertently disclosed to the adverse party during discovery may retain their privileged status depending on the facts surrounding the documents' disclosure. See, e.g., Texaco Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 883-84 (1st Cir. 1995); Transamerica Computer Co. v. International Business Machines Corp., 573 F.2d 646 (9th Cir. 1978) ("IBM"). In Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir. 1993), the court listed five factors to consider in determining whether the inadvertent disclosure of privileged documents should be held to be a waiver of the applicable privileges:
In IBM, the court looked to the number of documents produced, the difficulty in gathering the documents, the amount of time available to assemble the documents and then review them for privilege, and the reasonableness of the precautions taken to segregate privileged documents, in determining whether IBM had waived claims of privilege for those privileged documents which were inadvertently produced. Respondent comes up short regardless of which standard is applied.
Turning initially to Alldread, first, I find that respondent's procedures for identifying those documents it claims are privileged was seriously flawed. Virtually all of the reviewing of the documents was performed by paralegals, not attorneys, and these paralegals worked for a litigation support contractor and thus were likely to be unfamiliar with the case (see Respondent's Motion for a Protective Order at 2-3), guaranteeing that some documents would be misclassified. Further, for some unknown reason, when being entered into the computer database each document identified as privileged could only be coded under a single privilege even if more than one privilege was believed to be applicable. Due to this coding procedure, the Anderson memorandum was one of hundreds of documents coded as privileged on the basis of the deliberative process privilege only despite the fact that other privileges may also have applied. After reviewing only 17 of the hundreds of documents coded as privileged on the basis of the deliberative process privilege only, Navy counsel decided not to claim privilege for any of these documents. It is clear that respondent did not take adequate precautions against disclosing privileged documents.
Second, respondent did not act expeditiously in seeking to remedy its error. In fact, once respondent turned over its discovery responses on February 2, it appears that respondent did no further checking to determine whether it may have disclosed privileged documents. It was not until a hastily arranged conference call on April 14, precipitated by a reporter's disclosure to respondent the day before that he had a copy of the Anderson memorandum, that respondent sought to have the document returned due to its inadvertent disclosure to the complainant.
Third, although the number of documents respondent had to review in response to complainant's discovery was substantial respondent claims it had to review about 95,000 pages of documents and two computer hard drives complainant's discovery was served on October 5, 1999. On December 14, 1999 I issued an order compelling respondent to respond to this discovery, and respondent finally turned over the documents on February 2, 2000 (see Respondent's Motion for a Protective Order at 4), almost four months after the discovery was served. Therefore, respondent had an adequate amount of time to review the documents responsive to complainant's discovery and identify those which were privileged. That respondent elected to wait until an order compelling discovery was issued to start preparing its response to complainant's discovery is no one's fault but respondent's.
Fourth, the extent of the inadvertent disclosure of privileged documents is unclear. Although respondent alleged in its Motion for a Protective Order that the Anderson memorandum was the only privileged document inadvertently disclosed, complainant contended in response to that motion that over 1400 documents listed in the respondent's privilege log were
produced in response to his discovery. In its motion for reconsideration, respondent did not further address this issue. Based on respondent's description of the process it employed to review the documents and how the Anderson memorandum was inadvertently disclosed to complainant (see above), it is a virtual certainty that the Anderson memorandum was not the only privileged document inadvertently disclosed to complainant in response to his discovery.
Finally, it would be hard for respondent to claim that it is unfair to find that its disclosure of the Anderson memorandum constituted a waiver of any claims of privilege for that document. Respondent initially refused to respond to complainant's discovery, requiring me to issue an order compelling discovery. When respondent finally responded to complainant's discovery, its response was inadequate, resulting in an award of costs to the complainant. That the Anderson memorandum was disclosed resulted from respondent's taking inadequate precautions to identify and segregate allegedly privileged documents. There is nothing unfair under these circumstances in holding that respondent's inadvertent disclosure of the Anderson memorandum waived any claims of privilege for that document.
Respondent fares no better under the IBM rationale. In determining that IBM's inadvertent disclosure of about 1100 documents did not serve as a waiver of claims of privilege for those documents, the Ninth Circuit characterized the accelerated discovery schedule IBM had to comply with as "onerous," emphasizing the enormous number of documents (17 million pages) to be produced and then reviewed to determine privilege in only three months. IBM, supra, at 648. The court also noted that these documents had not been produced during any previous litigation and they were not grouped together so as to be readily accessible (id.). The court stated that, under this discovery schedule "it was statistically inevitable that, despite the extraordinary precautions taken by IBM, some privileged documents would escape detection by IBM reviewers." IBM, supra, at 652. Under these conditions, the court held it would be unfair to find that IBM waived its claim of privilege for these documents.
Responding to the discovery in this case in a manner providing sufficient time for respondent to identify and withhold from production all privileged documents did not require the "herculean effort" (IBM, supra, at 648) undertaken by IBM, which had less time to produce and review about 175 times as many documents scattered in over 40 different locations. Rather, all it would have taken was a reasonable effort to respond to the discovery. Instead, respondent dragged its feet and made no effort to respond until an order compelling discovery was issued, and even then its response was inadequate.
Under these conditions, I find that respondent was at fault in disclosing the document to the complainant. It created the situation requiring it to respond to complainant's discovery in haste, and took inadequate precautions to avoid disclosing privileged documents. Respondent has therefore waived any claims of privilege for the Anderson memorandum.
Respondent's motion to reconsider the Order Denying Protective Order is denied.
JEFFREY TURECK
Administrative Law Judges
1Since I found that respondent had waived any privileges by its prior release of this document, I did not address the question of whether the privileges had been waived by respondent's inadvertent disclosure of the document to complainant in response to complainant's discovery.
2In its motion for a protective order, respondent appeared to concede that the Anderson memorandum is privileged only as attorney work product despite being labeled as also falling under the attorney-client and deliberative process privileges. See pp. 2-3 of that motion.