Smalley v. Contino et al

Filing 154

ORDER re in camera review. Signed by Judge David G Campbell on 5/6/2014. (DGC, nvo)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Blake Smalley, No. CV-12-02524-PHX-DGC Plaintiff, 10 11 v. 12 ORDER C. Contino, et al., 13 Defendants. 14 15 Pursuant to the Court’s order of April 22, 2014 (Doc. 151), Defendant Maricopa 16 County has submitted 20 sets of minutes from executive sessions of the Maricopa County 17 Board of Supervisors for in camera review. The County is withholding these minutes, 18 which are responsive to a list of search terms provided by Plaintiff, on the ground that 19 they are protected by the attorney-client privilege. The Court has reviewed the minutes 20 and concludes that they are protected by the attorney-client privilege. 21 In the Ninth Circuit, the attorney-client privilege protects confidential disclosures 22 made by a client to an attorney in order to obtain legal advice as well as an attorney’s 23 advice in response to such disclosures. United States v. Ruehle, 583 F.3d 600, 607-08 24 (9th Cir. 2009) (citing United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)). 25 Courts look to an eight-part test to determine whether information is covered by the 26 privilege: (1) Where legal advice of any kind is sought (2) from a professional legal 27 adviser in his capacity as such, (3) the communications relating to that purpose, (4) made 28 in confidence (5) by the client, (6) are at his instance permanently protected (7) from 1 disclosure by himself or by the legal adviser, (8) unless the protection be waived. Ruehle, 2 583 F.3d at 608 (citing In re Grand Jury Investigation, 974 F.2d 1068, 1071 n.2 (9th Cir. 3 1992)). 4 In each of the meetings for which minutes were reviewed, the Board receives 5 updates and advice on pending litigation from either outside counsel, one or more 6 attorneys from the Maricopa County Attorney’s Office, or a lawyer designated as 7 “counsel to the Board.” The minutes constitute summaries of discussions between the 8 Board and whichever attorney is presenting on a given case. Presentations by attorneys 9 usually contain a summary of the facts or procedural posture of a specific case, the 10 presenting attorney’s recommendations on how to proceed in the case, and questions 11 from individual supervisors about the litigation. 12 whether from the County Attorney’s office or an outside law firm, represents Maricopa 13 County’s interest in the pending litigation. A.R.S. § 11-201(A) provides that only a 14 county board of supervisors may exercise the powers of a county, including the ability to 15 sue and be sued. As such, the Maricopa County Board of Supervisors has the power to 16 direct the County’s course of action in pending litigation, and legal advice received by 17 the Board on matters involving Maricopa County or its units is subject to the attorney- 18 client privilege. Each of the presenting attorneys, 19 In the minutes reviewed, there are a few instances where individual supervisors 20 make general comments not directed at the presenting attorney, either expressing the 21 opinion of the supervisor or generally commenting on proposed actions under 22 consideration by the Board. The Court concludes that these statements are privileged 23 because they relate to the purpose of seeking legal advice. Additionally, there are 24 portions of a few meetings where the Board discusses facilities management or real estate 25 transactions and receives presentations from non-lawyer County employees. 26 portions of the minutes are not privileged, but they also are not responsive to Plaintiff’s 27 search terms. 28 These The Court concludes that the County has properly withheld the documents -2- 1 reviewed in camera under the attorney-client privilege. In light of this conclusion, the 2 Court will not require the County to produce to Plaintiff the other documents contained in 3 the County’s privilege log. 4 The parties shall complete the depositions of the supervisors discussed at the 5 hearing on April 22, 2014, by May 30, 2014. The parties shall file supplements to their 6 motions for summary judgment, not to exceed seven pages, by June 6, 2014, after which 7 the motions will be deemed submitted. 8 Dated this 6th day of May, 2014. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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