CARR et al v. FEDERAL BUREAU OF PRISONS (BOP) et al
ORDER ON MOTION TO COMPEL - For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Compel Production of Privilege Log Documents. [Dkt. 155 .] Specifically, the Court ORDERS the BOP to produce EMAIL0 0032796 and EMAIL00032836 on or before July 13, 2017. While Plaintiffs were largely unsuccessful on the instant Motion, the Court recognizes that a number of their challenges appeared stronger when the Motion was filed based upon the BOP's earlier privilege log. The Court therefore declines to award fees to either party under Federal Rule of Civil Procedure 37(a)(5)(C) ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Mark J. Dinsmore on 7/10/2017. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
FEDERAL BUREAU OF PRISONS (BOP),
ORDER ON MOTION TO COMPEL
This matter is before the Court on Plaintiffs’ Motion to Compel Production of Privilege
Log Documents. [Dkt. 155.] Plaintiffs seek assorted documents that the BOP has withheld as
protected by the attorney-client or work-product privileges. [See Dkt. 156-6.] In order to
evaluate Plaintiffs’ arguments and the BOP’s assertion of privilege, the Court directed the BOP
to submit the documents at issue for in camera review. [Dkt. 162.] Having reviewed the parties’
arguments [Dkt. 156; Dkt. 159; Dkt. 161], and having conduct a thorough review of the
submitted documents, the Court now GRANTS IN PART and DENIES IN PART Plaintiffs’
Motion [Dkt. 155].
This matter involves Plaintiffs’ allegations that the BOP has wrongfully denied Plaintiffs
halal meat in violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb1, and the Fifth Amendment Equal Protection Clause. A lengthy email outage and recovery
procedure at the BOP stalled discovery for over a year; subsequent efforts to produce documents
have likewise proven glacial. In part due to these problems, Plaintiffs complained that BOP
withheld documents subject to a deficient privilege log. As promised prior to the filing of the
instant Motion, the BOP produced yet another privilege log that largely remedies the deficiencies
in the earlier logs. But disputes over possible waiver and the applicability of privilege remain.
Specifically, Plaintiffs seek an order requiring Defendant to produce the unshaded entries on the
table at Docket 156-6. 1 The Court thus ordered the in camera production of the challenged
documents to assess the applicability of the claimed privileges.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 37(a)(3), a party may move the Court to
compel disclosure of documents if the party’s request for production comports with the scope of
discovery. Fed. R. Civ. P. 37(a)(3)(B)(iv). The scope of discovery under Federal Rule of Civil
Procedure 26(b)(1) is broad, only limited from the outset to “any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be
Here, the BOP is withholding the redacted documents on the basis of privilege.
Evidentiary privileges are narrowly construed because they permit the withholding of relevant
information. See, e.g., Mem’l Hosp. for McHenry Cty. v. Shadur, 664 F.2d 1058, 1061 (7th Cir.
1981). The party resisting discovery must establish its claim to privilege as to each withheld
document. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing
Graham v. Casey’s Gen. Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002)).
In their reply brief, Plaintiffs withdrew their challenges to Bates stamped entries EMAIL166279,
EMAIL166280, and EMAIL166282.
Plaintiffs lodge five arguments as to why the challenged entries on Defendant’s privilege
log should be produced, which the Court distills into two broad arguments. 2 First, Plaintiffs
argue that certain privilege log entries do not establish the asserted privilege. Second, Plaintiff
make a waiver argument that applies across the board: Plaintiffs argue that Defendant has
implicitly waived any claim to privilege as to all of the challenged documents by placing the
communications at issue in the litigation. The Court addresses each of these arguments in turn.
Plaintiffs first challenge the privilege designation of certain documents on one of three
grounds: an attorney was neither the sender nor recipient, the subject matter does not indicate
that the document was privileged, or the number or type of recipients on the email chain
demonstrates that the document was not privileged.
In response, the BOP argues that all of the challenged documents either convey legal
advice or provide information in response to attorney requests as part of the attorney’s efforts to
render advice. The BOP also tendered its revised privilege log in response, using the word
“legal” in more entries than in the version filed with Plaintiffs’ Motion.
The first three are arguments that the BOP failed to established the asserted privilege:
1. Documents for which no attorney is among the sender or recipients of the
communication, and the privilege is not implicated in any other manner
2. Documents for which an attorney is listed as a sender or recipient, or is otherwise
implicated, but the description provided in the privilege log does contain any
indication of privilege
3. Documents for which the number or type of recipients indicates that the
communications were not intended to be confidential, and thus, no privilege applies
[Dkt. 156-6 at 2.] The final two are waiver arguments:
4. Documents concerning the BOP’s efforts to locate an acceptable halal vendor for
which the BOP has waived any claim of privilege
5. Documents implicating the BOP’s claim that security concerns preclude its ability to
accommodate individualized dietary requests for which the BOP has waived any
claim of privilege
In reply, Plaintiffs stand by their objections, but argue that the BOP’s late privilege log
descriptions warrant little weight. Plaintiffs appear to concede that, “taking [most of] the BOP’s
new descriptions at face value,” the revised privilege log appears to reflect more properly
withheld documents than did the previous version. [Dkt. 161 at 3.] Plaintiffs continue to assert
waiver, addressed infra in Part III.B, as to these documents.
The BOP asserts attorney-client and work product privilege in withholding the
documents listed on its privilege log. The purpose of attorney-client privilege is to encourage
open and honest communication between clients and their attorneys. Upjohn Co. v. United
States, 449 U.S. 383, 388 (1981). The attorney-client privilege protects “communications made
in confidence by a client and client's employees to an attorney, acting as an attorney, for the
purpose of obtaining legal advice.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618
(7th Cir. 2010). A party asserting attorney-client privilege must establish that the withheld
communications were made “(1) in confidence; (2) in connection with the provision of legal
services; (3) to an attorney; and (4) in the context of an attorney-client relationship.” United
States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007). “[T]he privilege exists to
protect not only the giving of professional advice to those who can act on it but also the giving of
information to the lawyer to enable him to give sound and informed advice.” Upjohn Co., 449
U.S. at 390.
Work product privilege, meanwhile, is codified at Rule 26(b)(3) which protects
“documents and tangible things that are prepared in anticipation of litigation,” except in certain
circumstances not raised here. Fed. R. Civ. P. 26(b)(3)(A). This “independent . . . source of
protection” serves two purposes: “(1) to protect an attorney's thought processes and mental
impressions against disclosure; and (2) to limit the circumstances in which attorneys may
piggyback on the fact-finding investigation of their more diligent counterparts.” Sandra T.E.,
600 F.3d at 621-22 (citing Hickman v. Taylor, 329 U.S. 495 (1947)).
The Court, in reviewing Plaintiffs’ Motion, did not take the BOP’s privilege log
designations at face value but instead engaged in a careful, document-by-document review of the
documents to which Plaintiffs’ arguments apply. See United States v. White, 970 F.2d 328, 334
(7th Cir. 1992) (“[P]rivilege must be made and sustained on a document-by-document basis.”).
Except as specifically noted below, the Court concludes that the BOP has established its claims
to attorney-client and work product privilege.
First, the emails between non-attorneys all convey privileged legal advice from one BOP
employee to another. 3 Individuals in an organizational structure are permitted to “consult with
one another” about an attorney’s legal advice “so that all relevant information is known before
making a legal decision” without waiving the privilege. Roth v. Aon, 254 F.R.D. 538, 541 (N.D.
Ill. 2009). The emails between non-attorneys in this case meet this description.
EMAIL00167476, for example, is an email from a BOP employee forwarding an email chain
from an attorney providing and discussing legal advice to other BOP employees. The documents
between non-attorneys thus fall squarely within the BOP’s attorney-client privilege.
Second, the Court is not persuaded by Plaintiffs’ argument that BOP attorneys reviewing
administrative responses are acting in a “business” capacity instead of as attorneys. As a factual
In this area in particular Plaintiffs recognize that many of the descriptions in the new log implicate legal
advice whereas such was not necessarily the case in the old log filed with the Motion. [See Dkt. 161 at 3.]
Having specifically reviewed the privilege log entries that added an attorney or legal advice to the
description, the Court can confirm that this is the case.
All counsel are reminded that the more exacting level of diligence evinced by the new log is actually the
proper level of diligence that should have been applied in preparing the original log. Privilege protection
is not generally an area where a lot of “do overs” are allowed. However, the broad claw back provision
entered in this matter [Dkt. 63 at 2] may be applied to forgive the obvious deficiencies in the BOP’s
matter, the communications at issue involve attorneys reviewing inmate requests for religious
accommodations, seeking information from non-attorneys to inform their review, and rendering
advice as to whether possible responses comply with relevant law. For example,
EMAIL00016483 discusses the impact of ongoing litigation on the appropriateness of certain
accommodations. EMAIL00157135 provides a legal risk assessment regarding the same. These
are paradigmatic examples of communications covered by the attorney-client privilege. See
Rehling, 207 F.3d at 1019 (rejecting argument that attorney, who also made employment
decisions, was acting in business capacity where attorney “gave ranking members of the CPD
advice about Rehling’s placement and the City’s obligations under the ADA”).
Third, the withheld communications between BOP attorney Alma Oben and her so-called
“working group” all directly seek or provide legal advice. The deposition of Heidi Kugler to
which Plaintiffs selectively cite is not to the contrary. Plaintiffs cite to the following inquiry for
the proposition that “Ms. Kugler stated without equivocation that the group did not discuss legal
strategy” [Dkt. 156 at 9]:
Okay. Do you discuss – would you characterize all discussions at
these meetings [with Attorney Oben] as pertaining to legal strategy?
No, no, because the -- the content of it really is looking at how can
the Agency . . . we want to look at how we can accommodate inmates’ requests
and needs . . . .
So it would be the content of the meetings – of the minutes for the
meetings, it would be brainstorming about how to provide halal?
[Dkt. 156-7 at 6 (emphasis added).] First of all, Ms. Kugler only answered whether she would
characterize all discussions at the meetings as pertaining to legal strategy—not, as Plaintiffs
suggest, whether she would characterize any discussions as pertaining to such. Second,
Plaintiffs omit the next relevant question:
Okay. What is the role of Ms. Oben in this working group?
Ms. Oben has -- has been very helpful in -- in helping us further
understand and claim First Amendment religious rights for inmates, kind of
understand the context of that, as well as to remind us of the prongs of RFRA, the
Religious Restoration Act, and how we can best meet them as an agency.
[Dkt. 156-7 at 6-7.] Ms. Kugler’s testimony does not stand for the proposition for which
Plaintiffs’ cite it, nor does the testimony support Plaintiffs’ position that Attorney Oben was not
providing legal advice. Furthermore, Ms. Kugler’s perspective on what was said at meetings is
not dispositive of whether the documents from the working group are privileged. This Court’s
independent review, however, confirms that the withheld documents are entitled to attorneyclient protection and that the BOP properly and carefully redacted only privileged
Finally, the fact that certain documents may have been sent to many recipients has no
bearing on their privileged character. Most of the emails about which Plaintiffs appear to be
complaining were from attorneys seeking information from the various religious experts within
the BOP “to enable [the lawyer] to give sound and informed advice.” Upjohn Co., 449 U.S. at
390; see, e.g., EMAIL00023636; Sandra T.E., 600 F.3d at 620 (holding that privilege extends to
an attorney’s “factual investigation in connection with the provision of legal services”). Other
such emails are conveying legal advice to several of the many individuals involved in decision
making at the BOP. E.g., EMAIL00154475. The emails show that the recipients are the
“employees who will put into effect” the legal advice rendered. Upjohn, 449 U.S. at 392.
Emails in both categories—those seeking information and those providing legal advice—are
The BOP has failed, however, to establish the asserted privilege as to EMAIL00032796
and EMAIL00032836. This is because “the Court cannot assume that simply adding
an attorney to an email via CC creates an expectation that legal services will be rendered.”
Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-CV-00195-WTL, 2014 WL 2881551, at *5
(S.D. Ind. June 24, 2014). While Attorney Oben is “CC’ed” on these emails, neither the
documents themselves nor the privilege log provides a basis for the asserted privilege. An
attorney did not solicit the information in these emails and, while the emails may have sought
legal advice, they also clearly sought nonlegal advice from nonlawyers. At no point did
Attorney Oben actually respond to the inquiries with legal advice. Thus, the Court finds that
these emails are not privileged and must be produced.
Second, Plaintiffs seek to compel production of all challenged documents, arguing that
the BOP has placed privileged information “at issue” and thereby impliedly waived any claim to
privilege. Plaintiffs point out that RFRA requires the BOP is required to demonstrate that the
burden on Plaintiffs’ religion “is in furtherance of a compelling governmental interest and is
the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §
2000bb-1. Specifically, Plaintiffs maintain that, because the BOP has claimed that it cannot find
a viable halal vendor and that it has security concerns with specialized requests, the BOP is no
longer entitled to keep private any attorney-client communications on these issues.
In response, the BOP argues that it has not asserted an advice of counsel defense, nor has
it relied upon privileged communications to establish its defense. The BOP argues that Plaintiffs
are simply seeking to do away with the privilege in search of impeachment evidence, which is
not a proper basis for implicit waiver.
In reply, Plaintiffs argue that the privileged communications on security concerns and
efforts to find halal vendors are at the center of the BOP’s defense.
The burden for establishing waiver rests with the party challenging a valid assertion of
privilege. See Rehling, 207 F.3d at 1019. Plaintiffs cite to this Court’s order in Tecnomatic,
S.p.A. v. Remy, Inc. for the test that courts generally apply in assessing claims of implicit waiver:
“A party waives attorney-client privilege through implication when it ‘(1) affirmatively places
information at issue; (2) the information is relevant to the dispute; and (3) upholding privilege
would be unfair, since it would deny the other side vital information.’” No. 1:11-cv-00991-SEBMJD, 2014 WL 2510202, at *3 (S.D. Ind. June 3, 2014) (quoting FDIC v. Fid. & Deposit Co of
Md., 3:11–CV–19–RLY–WGH, 2013 WL 2421770 (S.D. Ind. June 3, 2013)). But Plaintiffs
omit the very next sentence from the Tecnomatic order, which articulates the critical threshold
limiting principle on implied waiver:
Generally, implied waiver occurs “only if a party uses privileged
communications to defend itself or attack its opponent.” Treat v. Tom Kelley
Buick Pontiac GMC, Inc., 1:08–CV–173, 2009 WL 1543651 (N.D. Ind. June 2,
2009) (citing Claffey v. River Oaks Hyundai, 486 F. Supp. 2d 776, 778 (N.D. Ill.
2007) (emphasis added)). Even where a client's state of mind may be relevant, a
client does not waive the attorney-client privilege by implication unless the client
relies “specifically on advice of counsel to support a claim or defense.” Harter v.
Univ. of Ind., 5 F. Supp. 2d 657, 664 (S.D. Ind. 1998). “[T]he possibility that
privileged communications could provide the opponent with relevant evidence
is not a sufficient basis for finding a waiver of the privilege.” Id. (emphasis
Id. (emphasis in original). Despite Plaintiffs’ argument to the contrary, the Court’s order in
Tecnomatic is consistent with the prevailing rule that a strong need for relevant, privileged
communications is a necessary but not sufficient condition of implied waiver. Implied waiver
also requires that a privileged relationship or communication be relied upon as part of a party’s
claim or defense.
As then-District Judge David Hamilton observed, “The better-reasoned cases hold . . .
that when a client files a lawsuit in which his or her state of mind (such as good faith or intent)
may be relevant, the client does not implicitly waive the attorney-client privilege as to all
relevant communications unless the client relies specifically on advice of counsel to support a
claim or defense.” Harter, 5 F. Supp. 2d at 664 (collecting cases). And the possibility that
privileged materials may provide impeachment evidence is insufficient to find waiver. Sandra
T.E., 600 F.3d at 623 (citing Hauger v. Chic., Rock Island & Pac. R.R. Co., 216 F.2d 501, 508
(7th Cir. 1954)).
Applying these principles to Plaintiffs’ Motion makes it clear that the BOP has not
implicitly waived its privilege by relying on an advice of counsel defense or using privileged
communications to make its defense while withholding them from disclosure. If Plaintiffs could
show that the BOP intended to rely upon privileged communications to show its work (as a
sword), then the BOP would not be permitted to withhold such privileged communications from
Plaintiffs (as a shield). But Plaintiffs make no showing that such is the case.
Undeterred, Plaintiffs’ offer the unsupported argument that a privilege waiver occurs in
every case where a party must “show its work.” [Dkt. 161 at 11.] Plaintiffs argue that the
privileged communications on meal accommodations “are the defense.” [Dkt. 161 at 11
(emphasis omitted).] This is plainly not the case. The BOP may support its defense, for
example, by detailing the submissions it has received from outside food vendors—which, as
discussed in an earlier Order [Dkt. 125], are the types of documents that are not protected from
discovery. In fact, the BOP will have to support its defense only with unprivileged information
unless it decides to rely upon attorney-client communications to demonstrate due diligence and
thereby waive its privilege.
Plaintiffs’ overbroad reading of the implied waiver doctrine is exemplified by their
position that “the BOP has directly placed the content of the relevant communications at issue.”
[Dkt. 156.] Plaintiffs are correct that the BOP’s privileged discussions with its attorneys are, in
all likelihood, relevant to its affirmative defense. But mere relevance is insufficient to find
waiver. Following Plaintiffs’ reasoning, the BOP should be allowed access to Plaintiffs’
communications with counsel regarding the sincerity of their firmly held beliefs. After all,
Plaintiffs bear the burden of demonstrating that they firmly hold their Islamic beliefs, and what
they have told their attorneys about those beliefs would be directly relevant to this issue. But
Plaintiffs may demonstrate that they sincerely hold their religious beliefs without relying upon
privileged communications, just as the BOP may demonstrate that it diligently pursued food
provider alternatives without relying upon privileged communications. Clearly, implied waiver
does not stretch nearly as far as Plaintiffs suggest; the privilege is not waived in every case
where a party’s sincerity--of effort to find a halal vendor or of religious belief--is at issue.
Despite their protestations to the contrary, Plaintiffs are asking the Court “to allow
discovery of attorney work product simply as impeachment evidence,” Sandra T.E., 600 F.3d at
622, so that they may use it to challenge the unprivileged evidence upon which the BOP relies.
Because the BOP’s privileged communications are not issue in this case, Plaintiffs have failed to
demonstrate that the BOP has waived its attorney-client and work product privilege.
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ Motion to Compel Production of Privilege Log Documents. [Dkt. 155.] Specifically,
the Court ORDERS the BOP to produce EMAIL00032796 and EMAIL00032836 on or before
July 13, 2017.
While Plaintiffs were largely unsuccessful on the instant Motion, the Court recognizes
that a number of their challenges appeared stronger when the Motion was filed based upon the
BOP’s earlier privilege log. The Court therefore declines to award fees to either party under
Federal Rule of Civil Procedure 37(a)(5)(C).
Dated: 10 JUL 2017
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?