Wanzer et al v. Plainville et al
Filing
110
ORDER. Plaintiff's 63 First MOTION to Compel Challenge to Privilege is GRANTED, in part. See attached Order for details. Signed by Judge Sarah A. L. Merriam on 3/30/2016. (Kaczmarek, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
DONALD WANZER, et al.
:
Civ. No. 3:15CV00016(AWT)
:
v.
:
:
TOWN OF PLAINVILLE, et al.
:
:
March 30, 2016
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ORDER ON MOTION TO COMPEL
Plaintiffs Donald Wanzer, Jennifer Wanzer and Robin
Mittasch, Trustee of The Companion Animal Trust for the Benefit
of Luca, Individually and Ex Rel “Luca,” a dog, and on behalf of
all others similarly situated, (hereinafter collectively
referred to as “plaintiffs”) commenced this putative class
action on January 6, 2015, seeking declaratory and injunctive
relief and damages arising under 42 U.S.C. §1983, alleging
violations of plaintiffs’ rights to due process and guarantee
against unreasonable search and seizure under the Fourth, Fifth,
Sixth, and Fourteenth Amendments of the United States
Constitution and the Connecticut State Constitution. [Doc. #36].
Plaintiffs filed a Second Amended Complaint on January 20, 2016,
adding claims challenging the constitutionality of the
Connecticut Administrative Procedures Act, Conn. Gen. Stat. §22358. [Doc. #90]. The Second Amended Complaint names as
additional defendants the State of Connecticut; the Connecticut
Department of Agriculture; Steven K. Reviczky, Commissioner of
1
the Connecticut Department of Agriculture, individually and in
his official capacity; and Doe Defendants one through ten
(hereinafter collectively referred to as the “State
defendants”). Id.
On June 17, 2015, plaintiffs issued two subpoenas to
Commissioner Reviczky, who at the time was not a party to this
action, seeking documents related to thirty-three statutory
administrative appeals and hearings of ‘disposal orders’ that
were subject to Conn. Gen. Stat. §22-358. On July 28, 2015,
after motion practice and the issuance of court orders, 1 the
Commissioner provided plaintiffs with approximately 9,131 pages
of responsive documents. [Doc. #53; #54 at 1-3]. The
Commissioner represented that there were no privileged documents
associated with the production responsive to Subpoena 1. [Doc.
#54 at 2].
In regards to Subpoena 2, the Commissioner contended that a
number of the records sought were privileged, and supplied a
privilege log. [Doc. #53]. Plaintiffs estimate that there are
1,328 pages of documents listed on the Commissioner’s privilege
log. [Doc. #54 at 6]. On August 10, 2015, this Court held a
status conference to address the remaining issues in dispute.
1
Following two motions to quash filed by the Commissioner, a
status conference was held on July 1, 2015, and oral argument
was held on July 7, 2015. [Doc. ##42, 49]. Additional orders
entered at the conclusion of oral argument. [Doc. #49].
2
[Doc. ##58, 59]. At the conclusion of the conference, the
undersigned requested briefing on the application of the
attorney-client privilege and the deliberative process
privilege. 2 [Doc. #55]. Plaintiffs challenge the assertions of
privilege, and seek an order compelling the State defendants to
either produce the documents at issue, or submit the records for
an in camera review. [Doc. #63, #70 at 10].
For the reasons set forth below, the Court GRANTS
plaintiffs’ motion, in part.
DISCUSSION
I.
Attorney-Client Privilege
The State defendants assert that many of the documents
sought by plaintiffs in response to Subpoena 2 are protected by
the attorney-client privilege. Specifically, they claim
privilege as to emails they contend are communications
concerning legal advice between a State attorney and a client
agency employee in connection with a disposal order appeal.
[Doc. #66 at 7]. They further argue that there is no legal
justification to pierce this privilege. [Doc. #66 at 4, 7].
Additionally, the State defendants maintain that the privilege
log for these records is in compliance with Rules 26 and
2
Plaintiffs filed a memorandum/motion to compel on August 24,
2015. [Doc. #63]. The State defendants filed a response on
September 8, 2015. [Doc. #66]. Plaintiffs filed a reply on
September 23, 2015. [Doc. 70].
3
45(e)(2) of the Federal Rules of Civil Procedure, and that it
contains sufficient information to assess the nature of each
document. Id. at 6. Plaintiffs argue that the communications
claimed to be privileged do not regard legal advice or strategy,
but rather “constitute the practice and procedure used by the
Department in carrying out their obligations under the law.”
[Doc. #63 at 3]. Further, plaintiffs contend that the privilege
log is deficient, in that it provides insufficient information
to evaluate whether the claimed privileges apply. [Doc. #63 at
3; Doc. #70 at 3].
“A party invoking the attorney-client privilege must show
(1) a communication between client and counsel that (2) was
intended to be and was in fact kept confidential, and (3) was
made for the purpose of obtaining or providing legal advice." In
re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007). While many
communications are privileged, the underlying facts of a
confidential communication are not. Id.; see also Upjohn Co. v.
U.S., 449 U.S. 383, 395 (1981); In re Six Grand Jury Witnesses,
979 F.2d. 939, 944 (1992); U.S. v. Cunningham, 672 F.2d 1064,
1073 (2d. Cir. 1982). In determining whether the privilege
applies, the Court must “consider whether the predominant
purpose of the communication is to render or solicit legal
advice.” In re County of Erie, 473 F.3d at 420.
4
“[T]he burden of establishing the existence of the
[attorney-client] relationship rests on the claimant of the
privilege against disclosure. That burden is not, of course,
discharged by mere conclusory or ipse dixit assertions, for any
such rule would foreclose meaningful inquiry into the existence
of the relationship, and any spurious claims could never be
exposed.” In re Bonanno, 344 F.2d 830, 833 (2d. Cir.
1965)(citation omitted, alterations added). Thus, “the proponent
of the privilege must establish not merely the privileged
relationship, but all essential elements of the privilege.”
Martin v. Valley Nat. Bank of Arizona, 140 F.R.D. 291, 302
(S.D.N.Y. 1991). However, once established, “[u]nlike the
deliberative privilege or the work-product rule, the attorneyclient privilege in its federally recognized form cannot be
overcome simply by a showing of need.” Id. at 306 (citing Upjohn
Co., 449 U.S. at 396).
Both Rule 26 of the Federal Rules of Civil Procedure and
Rule 26 of the District of Connecticut Local Rules of Civil
Procedure govern privilege log requirements. The federal rule
requires that the party claiming privilege 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
5
privileged or protected, will enable other parties to assess the
claim.” Fed. R. Civ. P. 26(b)(5).
Local Rule 26 states:
(e) Privilege Log. In accordance with Fed. R. Civ. P.
26(b), when a claim of privilege or work product
protection is asserted in response to a discovery
request
for
documents
or
electronically
stored
information, the party asserting the privilege or
protection shall provide the following information in
the form of a privilege log.
(1) The type of document or electronically stored
information;
(2) The general subject matter of the document or
electronically stored information;
(3) The date of the document or electronically stored
information;
(4) The author of the document or electronically
stored information; and
(5) Each recipient of the document or electronically
stored information.
This rule shall apply only to requests
documents or electronically stored information.
for
If the information called for by one or more of
the foregoing categories is itself privileged, it need
not be disclosed. However, the existence of the
document and any non-privileged information called for
by the other categories must be disclosed.
D. Conn. L. R. Civ. P. 26(e).
The party asserting the privilege must provide sufficient
detail in a privilege log to allow for a meaningful review of
the privilege asserted. Bolorin v. Borrino, 248 F.R.D. 93, 95
(D. Conn. 2008). A privilege log is “adequately detailed if, as
to each document, it sets forth specific facts that, if
credited, would suffice to establish each element of the
6
privilege or immunity.” Safeco Ins. Co. of Am. v. M.E.S., Inc.,
289 F.R.D. 41, 47 (E.D.N.Y. 2011)(quotation marks omitted).
Thus, logs are routinely found to be deficient when the details
provided do not allow for a purposeful review of the claimed
privilege. See, e.g., Bolorin 248 F.R.D. at 95 (“The privilege
log tells the court that the defendants communicated with
individuals ... regarding the case, but the court cannot
determine from the record before it whether these were
confidential communications between an attorney and client made
in confidence for the purpose of providing legal advice.”);
Favors v. Cuomo, 285 F.R.D. 187, 223-24 (E.D.N.Y.
2012)(requiring a privilege log to provide, among other things,
non-privileged subject lines, copyee(s), file names, and
attachment descriptions of emails); United States v. Constr.
Products Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996)
(finding a log deficient where it generally alleged attorneyclient communications without giving more information to support
the claim, such as a specific explanation of why the document is
privileged).
The State defendants’ privilege log does not provide
sufficient information for this Court to determine whether the
emails and attachments claimed to be protected under the
attorney-client privilege are indeed communications between
client and counsel, for the purpose of soliciting or rendering
7
legal advice, intended to be and in fact kept confidential.
While the log indicates when an author or recipient of an email
is an attorney, it does not relate the role or title of the
other individual(s) named, nor does it provide any information
regarding the contents of the email beyond the name of the
appeal that the email and its attachment reportedly relate to.
Without some indication that these documents contain legal
advice or requests therefor, and without documentation with
respect to the contents of the attachments, the Court cannot
review the assertion of privilege. Accordingly, on or before
April 20, 2016, the State defendants shall file a revised
privilege log with details sufficient to provide a meaningful
review of claimed attorney-client privilege.
II.
Deliberative Process Privilege
The State defendants also claim that a number of the
records sought by plaintiffs under Subpoena 2 are subject to the
deliberative process privilege. [Doc. #66 at 9]. The State
defendants argue that the documents at issue contain “predecisional adjudicatory-related information” connected to
administrative appeals and hearings, and therefore fall within
the deliberative process privilege. Id. at 11. Additionally, the
State defendants assert that a piercing of the privilege is not
warranted in this case. [Doc. #66 at 11-12, 16]. Plaintiffs
argue that the privilege does not apply, as the decision-making
8
process is itself at issue in this case. [Doc. #70 at 9].
Plaintiffs further contend that the privilege does not attach to
these records because policy is applied, not formed, in the
administrative hearings. [Doc. #63 at 10]. Plaintiffs maintain
that the privilege log is deficient in regards to the
deliberative process privilege, and that an in camera review of
the documents at issue should be granted. [Doc. #70 at 10].
The deliberative process privilege protects “advisory
opinions, recommendations and deliberations comprising part of a
process by which decisions and policies are formulated.”
N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132, 150
(1975)(quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,
40 F.R.D. 318, 324 (D.D.C. 1996), aff’d sub nom. V.E.B. Carl
Zeiss, Jena v. Clark, 384 F.2d 979 (D.C. Cir. 1967)).
To qualify for protection under the deliberative process
privilege, a document must be pre-decisional and deliberative.
Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 84 (2d
Cir. 1991). “[T]he pre-decisional privilege is limited and, for
example, would not include ‘purely factual material,’ even if
such material is contained in ‘deliberative memoranda.’” Mobil
Oil Corp. v. Dep't of Energy, 520 F. Supp. 414, 416 (N.D.N.Y.
1981)(quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87-88
(1973)). “[T]he privilege does not protect a document which is
merely peripheral to actual policy formation; the record must
9
bear on the formulation or exercise of policy-oriented
judgment.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d
Cir. 1999)(quotation marks omitted). Administrative predecisional notes, documents and communications may, in certain
circumstances, be protected under the deliberative process
privilege. Zinker v. Doty, 637 F. Supp. 138 (D. Conn. 1986).
A party asserting the deliberative process privilege must
indicate how the records withheld are privileged. Thus, as with
the attorney-client privilege, a log must contain sufficient
information to assess the privilege claimed.
[T]he
adequacy
of
a
privilege
log
—
whether
categorical or document-by-document — must be measured
with respect to the privilege asserted. As applied to
the deliberative process privilege, this requires that
the log contain sufficient information such that the
reviewing party can make an intelligent determination
as
to
whether
the
withheld
documents
are
‘predecisional’ and ‘deliberative.’ Thus, a log of
documents withheld on the basis of the deliberative
process privilege should provide various pieces of
information,
including,
but
not
limited
to,
a
description of the decision to which the documents
relate, the date of the decision, the subject-matter
of the documents in issue, the nature of the opinions
and analyses offered, the date that documents were
generated, the roles of the agency employees who
authored or received the withheld documents and the
number of employees among whom the documents were
circulated.
These
sort
of
details,
while
not
exhaustive, would provide the receiving party with
sufficient facts to assess whether the documents were
related
to
the
process
by
which
policies
are
formulated.
10
Auto. Club of New York, Inc. v. Port Auth. of New York & New
Jersey, 297 F.R.D. 55, 60 (S.D.N.Y. 2013) (citations and
quotation marks omitted).
As the deliberative process privilege is qualified, rather
than absolute, a court may still require disclosure of records
protected by the privilege. Mobil Oil Corp., 520 F. Supp. at
417. There are a number of factors that a court will evaluate in
weighing the competing interests for and against disclosure,
such as: “(i) the relevance of the evidence sought to be
protected; (ii) the availability of other evidence; (iii) the
seriousness of the litigation and the issues involved; (iv) the
role of the government in the litigation; and (v) the
possibility of future timidity by government employees who will
be forced to recognize that their secrets are violable.” In re
Franklin Nat’l. Bank Sec. Litig., 478 F. Supp. 577, 583
(E.D.N.Y. 1979)(citations and quotation marks omitted). “This
balancing process is generally conducted by the court following
an in camera inspection of the relevant documents.” Zinker, 637
F. Supp. at 141 (citing In re Franklin Nat’l. Bank Sec. Litig.,
478 F. Supp. at 582-83).
The Court finds that the State defendants’ privilege log is
deficient as it pertains to claims of deliberative process
privilege. While the log supplies the names of the author and
recipient(s) of each document, along with the ‘general subject,’
11
it does not provide facts sufficient to permit the reviewing
party to assess whether the document is indeed “related to the
process by which policies are formed.” Auto. Club of New York,
Inc., 297 F.R.D. at 60; see also Chevron Corp. v. Donzinger, No.
11CV0691(LAK)(JCF), 2013 WL 4045326, *3 (S.D.N.Y. Aug. 9, 2013).
Further, the privilege log fails to provide the title or
role of many of the authors or recipients of materials as to
which privilege is claimed. “An author or recipient’s role is
relevant because it is more likely that a relatively seniorlevel employee, as opposed to a more junior staffer, would be
offering opinions and analyses to assist the agency official
responsible for the formulation of significant public policy —
the very process that the privilege protects.” Auto. Club of New
York, Inc., 297 F.R.D. at 63 (collecting cases). Also of
consequence is the relationship between the authors and
recipients of each document, as “[t]he universe of employees
that were privy to the documents informs the evaluation of
whether these individuals are involved in ‘the process by which
policies are formulated.’” Id. (quoting Grand Cent. P’ship,
Inc., 166 F.3d at 482).
Accordingly, the State defendants shall supplement the
privilege log for the documents claimed to be protected under
the deliberative process privilege, on or before April 20, 2016.
The State defendants shall supply sufficient detail for each
12
entry to allow the reviewer to determine whether the records are
indeed protected by the deliberative process privilege. The
additional detail provided shall include, without limitation:
The roles and/or titles of the recipients and authors of each
document; the decision that each record relates to; and the
nature of the opinion or analyses offered. See Auto. Club of New
York, Inc., 297 F.R.D. at 60.
To further assist the Court in conducting a complete
review, on or before April 20, 2016, the State defendants shall
provide a sampling of the records claimed to be privileged in
the log for in camera review. Specifically, the Court requests
any and all records identified in Doc. #53 that relate to the
following six matters: Nino, Rosco, Miller, Speer, Wanzer, and
Avery. Said documents should be filed under seal, on the record,
and a hard copy shall also be provided to Chambers by mail or
hand delivery.
Finally, on or before April 20, 2016, plaintiffs and the
State defendants shall submit supplemental briefs solely to
address whether there are any substantive changes to their prior
arguments resulting from the addition of the State defendants as
parties to this lawsuit and from the newly added claims alleged
in the Second Amended Complaint. The briefs shall not exceed
five pages in length and shall not address any other matters.
13
This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the District Judge upon motion
timely made.
SO ORDERED at New Haven, Connecticut this 30th day of March
2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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