OWENS-HART v. HOWARD UNIVERSITY et al

Filing 33

MEMORANDUM OPINION AND ORDER granting in part and denying in part 31 Plaintiff's Motion to Compel Responses to Deposition Questions. See attached Memorandum Opinion and Order for further details. Signed by Judge Amit P. Mehta on 02/04/2016. (lcapm1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Winifred Owens-Hart,
)
)
Plaintiff,
)
)
v.
)
)
Howard University,
)
)
Defendant.
)
_________________________________________ )

Civil No. 14-cv-00758 (APM)

MEMORANDUM OPINION AND ORDER
In this case, Plaintiff Winifred Owens-Hart asserts that her former employer, Defendant
Howard University, failed to accommodate her disability. Before the court is a discovery dispute
that arose during the deposition of Professor Reginald Pointer, an employee of Howard University.
Plaintiff’s counsel asked Professor Pointer a series of questions about his deposition preparation
that elicited objections and instructions not to answer from Howard University’s counsel based on
the assertion of the attorney-client privilege.1 The parties called the court during the deposition to
raise the dispute, and the court ordered them to file letter briefs addressing the applicability of the
attorney-client privilege to the testimony sought. Minute Order, Jan. 15, 2016. The parties filed
their letter briefs on January 27, 2016. See ECF Nos. 31, 32. Unfortunately, they do not address
the precise question before the court. That question is: To what extent does the attorney-client
privilege protect the communications that take place between an organization-defendant’s attorney
and its employee during the employee’s preparation for a deposition?

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The questions asked, and which drew objections, were: (1) “[W]hat [have you] done to prepare for your deposition
today?,” Pl.’s Ltr. Br., Ex. 1, Pointer Depo. Tr. 114:11-15, ECF No. 31-1; (2) “Have you been asked to [sign a
declaration]?”, id. at 117:7-12; (3) “Can you describe your conversations with Ms. Singleton?,” id. at 118:13-18.

The Supreme Court long ago in Upjohn Co. v. United States, 449 U.S. 383 (1981),
disavowed the notion that an organization’s attorney-client privilege protected only those
communications between the organization’s lawyers and members of its “control group,” i.e.,
those employees who are in a position to control or participate in a decision taken by the
organization based upon advice provided by the organization’s lawyers. Id. at 390. The Court
wrote: “The control group test . . . frustrates the very purpose of the privilege by discouraging the
communication of relevant information by employees of the client to attorneys seeking to render
legal advice to the client corporation.” Id. at 392. Plaintiff’s argument that the attorney-client
privilege does not apply to Howard University’s counsel’s communications with Professor Pointer
because “there is no evidence that Professor Pointer was part of the ‘control group’ or was in a
position to control corporate matters which require legal advice,” ECF No. 31 at 1, is thus utterly
perplexing. That argument embraces a test that the Supreme Court rejected over 35 years ago.
Howard University’s understanding of Upjohn is only slightly better. It argues that “[i]t
would undermine the purpose and intent of the attorney-client privilege to limit application to
employees who are considered management level employees . . . . As the Supreme Court
emphasized in Upjohn, the advice of counsel is more significant at the level of Professor Pointer
as well as other employees who are applying the practices and procedures that bind the corporate
body.” ECF No. 32 at 3. But Defendant’s argument misses the point of Upjohn. The dispositive
question under Upjohn is not the position of the employee or the employee’s responsibilities, but
rather “whether the purpose of the privilege is advanced or retarded by applying it to particular
communications” between the organization’s lawyer and its employee. Trustees of the Electrical
Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 7 (D.D.C.
2010). Here, the “particular communications” at issue are those between Howard’s counsel and

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Professor Pointer in connection with his deposition preparation, not communications concerning
the performance of his duties.
Courts in this jurisdiction have addressed whether such deposition-preparation
communications are shielded from discovery. Neither party, however, has cited these relevant
decisions. In Banks v. Senate Sergeant-at-Arms, 222 F.R.D. 1, 3 (D.D.C. 2004), the court observed
that, in light of Upjohn, “[a] corporation may claim an attorney-client privilege for confidential
communications made by its employees to corporate counsel in order to permit counsel to render
legal services or legal advice to the corporation.” Applying that principle to the deposition
preparation of an employee, the court concluded that:
[C]ounsel for the [corporation] may object to a question that would disclose a
communication made by the [corporation’s] employee that was intended by the
employee to be confidential and was uttered to permit counsel to render legal advice
or legal services to the [corporation]. Note that the privilege pertains only to what
the employee told the lawyer; what the lawyer told the employee is not protected
unless it necessarily discloses what the employee told the lawyer in confidence.
Id. at 4.2 In a subsequent decision in the same matter, the court referenced its earlier ruling and
held that: “[A]ny question in which plaintiff asks the employee what she told counsel during an
interview or a deposition preparation session seeks privileged information.” Banks v. Office of
Senate-at-Arms, 233 F.R.D. 1, 4-5 (D.D.C. 2005).
The court in Alexander v. FBI, 192 F.R.D. 32 (D.D.C. 2000), reached a similar conclusion.
Although that case did not involve, as here or in Upjohn, communications between an
organization’s lawyer and one of its employees, the case did concern whether the plaintiff could
discover “the information [the deponent] [had] discussed with her counsel in preparation for her

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The court also added: “Even if the attorney-client privilege is not available, the question may still be improper if the
answer would tend to disclose the lawyer’s intangible work product privilege as I have defined it, i.e., it would disclose
counsel’s mental impressions, conclusions, opinions or legal theories.” Banks v. Senate Sergeant-at-Arms, 222 F.R.D.
at 4.

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deposition.” Id. at 35. The court concluded that “plaintiffs are not entitled to such information, as
it would be ‘tantamount to revealing the substance of what was discussed with counsel’ in
furtherance of legal services.” Id. (quoting Alexander v. FBI, 186 F.R.D. 21, 47 (D.D.C. 1998)).
Applying the decisions in Banks and Alexander, the court concludes, as a general matter,
the attorney-client privilege shields from inquiry what Professor Pointer told Howard University’s
counsel during deposition preparation. At this juncture, however, the court cannot conclude any
more than that because the parties have presented only a limited record of questions and objections
for the court’s resolution. Cf. Banks, 233 F.R.D. at 5. As to the specific questions and objections
that are before the court, the court rules as follows:
Question

Ruling

“[W]hat [have you] done to prepare for your
deposition today?” Pointer Depo. Tr. 114:1115

Objection overruled in part and sustained in
part. The witness may answer the question to
the extent his answer does not reveal his
communications with Howard University’s
counsel.
Objection sustained. An answer to that
question would tend to reveal counsel’s legal
strategy as to the litigation and thus
implicates the attorney-work product
privilege. See fn. 2, supra.
Objection overruled in part and sustained in
part. The witness may answer the question to
the extent his answer does not reveal his
communications with Howard University’s
counsel.

“Have you been asked to [sign a
declaration]?” Pointer Depo. Tr. at 117:7

“Can you describe your conversations with
Ms. Singleton?” Pointer Depo. Tr. at
118:13-14.

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Accordingly, the court grants in part and denies in part Plaintiff’s Motion to Compel
Responses to Deposition Questions. ECF No. 31. If Plaintiff chooses to re-open Professor
Pointer’s deposition to explore issues relating to his deposition preparation, the court urges the
parties to review Upjohn, Banks, and Alexander, so as to minimize the likelihood of further
discovery disputes on this topic.

Dated: February 4, 2016

Amit P. Mehta
United States District Judge

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