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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Blake Smalley,

No. CV-12-02524-PHX-DGC
Plaintiff,

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v.

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ORDER

C. Contino, et al.,

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Defendants.

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Pursuant to the Court’s order of April 22, 2014 (Doc. 151), Defendant Maricopa

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County has submitted 20 sets of minutes from executive sessions of the Maricopa County

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Board of Supervisors for in camera review. The County is withholding these minutes,

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which are responsive to a list of search terms provided by Plaintiff, on the ground that

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they are protected by the attorney-client privilege. The Court has reviewed the minutes

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and concludes that they are protected by the attorney-client privilege.

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In the Ninth Circuit, the attorney-client privilege protects confidential disclosures

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made by a client to an attorney in order to obtain legal advice as well as an attorney’s

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advice in response to such disclosures. United States v. Ruehle, 583 F.3d 600, 607-08

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(9th Cir. 2009) (citing United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)).

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Courts look to an eight-part test to determine whether information is covered by the

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privilege: (1) Where legal advice of any kind is sought (2) from a professional legal

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adviser in his capacity as such, (3) the communications relating to that purpose, (4) made

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in confidence (5) by the client, (6) are at his instance permanently protected (7) from

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disclosure by himself or by the legal adviser, (8) unless the protection be waived. Ruehle,

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583 F.3d at 608 (citing In re Grand Jury Investigation, 974 F.2d 1068, 1071 n.2 (9th Cir.

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1992)).

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In each of the meetings for which minutes were reviewed, the Board receives

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updates and advice on pending litigation from either outside counsel, one or more

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attorneys from the Maricopa County Attorney’s Office, or a lawyer designated as

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“counsel to the Board.” The minutes constitute summaries of discussions between the

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Board and whichever attorney is presenting on a given case. Presentations by attorneys

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usually contain a summary of the facts or procedural posture of a specific case, the

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presenting attorney’s recommendations on how to proceed in the case, and questions

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from individual supervisors about the litigation.

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whether from the County Attorney’s office or an outside law firm, represents Maricopa

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County’s interest in the pending litigation. A.R.S. § 11-201(A) provides that only a

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county board of supervisors may exercise the powers of a county, including the ability to

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sue and be sued. As such, the Maricopa County Board of Supervisors has the power to

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direct the County’s course of action in pending litigation, and legal advice received by

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the Board on matters involving Maricopa County or its units is subject to the attorney-

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client privilege.

Each of the presenting attorneys,

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In the minutes reviewed, there are a few instances where individual supervisors

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make general comments not directed at the presenting attorney, either expressing the

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opinion of the supervisor or generally commenting on proposed actions under

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consideration by the Board. The Court concludes that these statements are privileged

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because they relate to the purpose of seeking legal advice. Additionally, there are

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portions of a few meetings where the Board discusses facilities management or real estate

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transactions and receives presentations from non-lawyer County employees.

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portions of the minutes are not privileged, but they also are not responsive to Plaintiff’s

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search terms.

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These

The Court concludes that the County has properly withheld the documents

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reviewed in camera under the attorney-client privilege. In light of this conclusion, the

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Court will not require the County to produce to Plaintiff the other documents contained in

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the County’s privilege log.

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The parties shall complete the depositions of the supervisors discussed at the

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hearing on April 22, 2014, by May 30, 2014. The parties shall file supplements to their

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motions for summary judgment, not to exceed seven pages, by June 6, 2014, after which

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the motions will be deemed submitted.

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Dated this 6th day of May, 2014.

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